GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
H 4
HOUSE BILL 374
Committee Substitute Favorable 4/5/17
Senate Commerce and Insurance Committee Substitute Adopted 6/15/17
Fourth Edition Engrossed 6/28/17
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Short Title: Business Freedom Act. |
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Sponsors: |
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Referred to: |
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March 16, 2017
A BILL TO BE ENTITLED
AN ACT making technical, conforming, and other changes to the Labor LAws of North Carolina; CODIFYING THE CAROLINA STAR PROGRAM IN THE DEPARTMENT OF LABOR; and making various changes to the laws governing businesses.
The General Assembly of North Carolina enacts:
PART I. DEPARTMENT OF LABOR TECHNICAL CHANGES
SECTION 1.(a) G.S. 95‑25.5(a) reads as rewritten:
"(a) No youth under 18
years of age shall be employed by any employer in any occupation without a
youth employment certificate unless specifically exempted. The Commissioner of
Labor shall prescribe regulations for youths and employers concerning the
issuance, maintenance and revocation of certificates. Certificates will be issued,
subject to review by the Department of Labor, by county directors of social
services and such of their designees as are approved by the Commissioner;
provided, the Commissioner may also issue certificates, issued by the
Commissioner, both directly and electronically."
SECTION 1.(b) G.S. 95‑117 reads as rewritten:
"§ 95‑117. Definitions.
Each word or term defined in this Article has the meaning indicated in this section, unless a different meaning is plainly required by the context.
(1) Annual gross volume. The gross receipts a person or passenger tramway receives from all types of sales made and business done during a 12‑month period.
(1)(2) "Commissioner"
means the Commisioner. The Commissioner of Labor of the State of
North Carolina.
(2)(3) "Industry"
means activities Industry. Activities of all those persons in the
State who own, manage, or direct the operation of passenger tramways.
(3)(4) "Operator"
means any Operator. Any person, firm, corporation, or organization
which owns, manages, or directs the operation of a passenger tramway. "Operator"
may apply to the State or any political subdivision or instrumentality thereof.
(5) Owner. Any person or authorized agent of such person who owns a passenger tramway or in the event the passenger tramway is leased, the lessee. The term owner shall also include the State of North Carolina or any political subdivision thereof or any unit of local government.
(4)(6) "Passenger
tramway" means a Passenger tramway. A device used to
transport passengers uphill on skis, or in cars on tracks, or suspended in the
air by the use of steel cables, chains or belts, or by ropes, and usually
supported by trestles or towers with one or more spans. "Passenger
tramway" shall include The term includes any of the following
devices:
a. "Chairlift,"
a Chairlift. A type of transportation on which passengers are
carried on chairs suspended in the air and attached to a moving cable, chain or
link belt supported by trestles or towers with one or more spans, or similar devices;devices.
a1. "Conveyor," a
Conveyor. A type of transportation on which passengers are
transported uphill on a flexible moving element (conveyor belt) that travels
uphill on one path and generally returns underneath the uphill portion.
a2. Funicular. A system in which passengers are transported in or on carriers that are supported and guided by a level or inclined guideway and propelled by means of a haul rope or other flexible element that is driven by a power unit remaining essentially at a single location.
a3. Gondola. An enclosed cabin attached to a cable that mechanically transports people or cargo.
b. "J bar, T bar or
platter pull, so‑called and similar types of devices or means of
transportation J bar, T bar, or platter pull. Devices which pull
skiers riding on skis by means of an attachment to a main overhead cable
supported by trestles or towers with one or more spans;spans.
c. "Multicar aerial
passenger tramway," a Multicar aerial passenger tramway. A device
used to transport passengers in several open or in closed cars attached to, and
suspended from, a moving wire rope or attached to a moving wire rope and
supported on a standing wire rope, or similar device;device.
d. "Rope tow,"
a Rope tow. A type of transportation which pulls the skiers,
riding on skis as the skier grasps the rope manually, or similar devices;device.
e. "Skimobile,"
a Skimobile. A device in which a passenger car running on steel or
wooden tracks is attached to and pulled by a steel cable, or similar device;device.
f. "Two‑car
aerial passenger tramway," a Two‑car aerial passenger
tramway. A device used to transport passengers in two open or enclosed
cars attached to, and suspended from, a moving wire rope or attached to a moving
wire rope and supported on a standing wire rope or similar device.
(7) Person. Any individual, association, partnership, firm, corporation, private organization, or the State of North Carolina or any political subdivision thereof or any unit of local government."
SECTION 1.(c) Article 15 of Chapter 95 of the General Statutes is amended by adding the following new sections to read:
"§ 95‑125.1. Operation of unsafe device.
No person shall operate, permit to be operated, or use any device subject to the provisions of this Article if the person knows or reasonably should know that the operation or use of the device will expose the public to an unsafe condition which is likely to result in personal injury or property damage.
"§ 95‑125.2. Reports required.
(a) The owner of any device regulated under the provisions of this Article, or the owner's authorized agent, shall, within 24 hours, notify the Commissioner of each and every occurrence involving the device when either of the following occurs:
(1) Death or injury requiring medical treatment, other than first aid, by a physician. For the purposes of this section, "first aid" means (i) the one‑time treatment or observation of scratches, cuts not requiring stitches, burns, splinters, or contusions or (ii) performing a diagnostic procedure, including examination and X rays, which does not ordinarily require medical treatment even though provided by a physician or other licensed personnel.
(2) Damage to the device indicating a substantial defect in design, mechanics, structure, or equipment that affects the future safe operation of the device. No reporting is required in the case of normal wear and tear.
(b) The Commissioner, without delay, after notification and determination that an occurrence involving injury or damage as specified in subsection (a) of this section has occurred, shall make a complete and thorough investigation of the occurrence. The report of the investigation shall be placed on file in the office of the division and shall give in detail all facts and information available. The owner may submit for inclusion in the file results of investigations independent of the department's investigation.
(c) No person, after an occurrence specified in subsection (a) of this section, shall do either of the following:
(1) Operate, attempt to operate, use, or move or attempt to move such device or part thereof without the approval of the Commissioner, unless so as to prevent injury to any person or persons.
(2) Remove or attempt to remove from the premises any damaged or undamaged part of such device or repair or attempt to repair any damaged part necessary to a complete and thorough investigation. The Department must initiate its investigation within 24 hours of being notified.
"§ 95‑125.3. Violations; civil penalties; appeal; criminal penalties.
(a) Any person who violates G.S. 95‑118 (Registration required; application procedures) is subject to a civil penalty not to exceed one thousand two hundred fifty dollars ($1,250) for each day each device is so operated or used.
(b) Any person who violates G.S. 95‑120.1 (Liability insurance) or G.S. 95‑125.2 (Reports required) is subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each day each device is so operated and used.
(c) Any person who violates G.S. 95‑125.1 (Operation of unsafe device) is subject to a civil penalty not to exceed five thousand dollars ($5,000) for each day each device is so operated and used.
(d) In determining the amount of any penalty ordered under authority of this section, the Commissioner shall give due consideration to the appropriateness of the penalty with respect to the annual gross volume of the person being charged, the gravity of the violation, the good faith of the person, and the record of previous violations.
(e) The Commissioner's determination of the amount of the penalty is final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes exception to the determination, in which event final determination of the penalty shall be made in an administrative proceeding pursuant to Chapter 150B of the General Statutes, the Administrative Procedures Act.
(f) The Commissioner may file in the office of the clerk of the superior court of the county wherein the person, against whom a civil penalty has been ordered, resides or, if a corporation is involved, in the county wherein the violation occurred, a certified copy of a final order of the Commissioner unappealed form, or of a final order of the Commissioner affirmed upon appeal. Upon such filing, the clerk of said court shall enter judgment in accordance with the final order and notify the parties. The judgment shall have the same effect, and all proceedings in relation to the judgment shall thereafter be the same, as though the judgment had been rendered in a suit duly heard and determined by the superior court of the General Court of Justice.
(g) Any person who willfully violates any provision of this Article and that violation causes the serious injury or death of any person, then the person is guilty of a Class E felony, which shall include a fine.
(h) Nothing in this section prevents any prosecuting officer of the State of North Carolina from proceeding against a person who violates this Article on a prosecution charging any degree of willful or culpable homicide."
SECTION 1.(d) G.S. 95‑174 reads as rewritten:
(a) "Chemical
manufacturer" shall mean means a manufacturing facility
classified in Standard Industrial Classification (SIC) Codes 20 through 39 North
American Industry Classification System (NAICS) Codes 31 through 33 where
chemicals are produced for use or distribution in North Carolina.
(b) "Chemical
name" shall mean means the scientific designation of a
chemical in accordance with the nomenclature system developed by the
International Union of Pure and Applied Chemistry (IUPAC), or the Chemical
Abstracts Service (CAS) rules of nomenclature or a name which will clearly
identify the chemical for the purpose of conducting a hazard evaluation.
(c) "Common name" shall
mean means any designation or identification such as a code name,
code number, trade name, brand name or generic name used to identify a chemical
other than by its chemical name.
(d) "Distributor" shall
mean means any business, other than a chemical manufacturer or
importer, which supplies hazardous chemicals to other distributors or to
purchasers.
(e) "Employee" shall
mean means any person who is employed by an employer under normal
operating conditions.
(f) "Employer" means a person engaged in business who has employees, including the State and its political subdivisions but excluding an individual whose only employees are domestic workers or casual laborers who are hired to work at the individual's residence.
(g) "Facility" shall
mean means one or more establishments, factories, or buildings
located at one contiguous site in North Carolina.
(h) "Fire Chief" shall
mean means Fire Chief or Fire Marshall, or Emergency Response
Coordinator in the absence of a Fire Chief or Fire Marshall for the appropriate
local fire department.
(i) Repealed by Session Laws 1987, c. 489, s. 1.
(j) "Fire
Department" shall mean means the fire department having
jurisdiction over the facility.
(k) "Hazardous
chemical" shall mean means any element, chemical compound or
mixture of elements and/or compounds which is a physical hazard or health
hazard as defined in subsection (c) of the OSHNC Standard or a hazardous
substance as defined in standards adopted by the Occupational Safety and Health
Division of the North Carolina Department of Labor in Title 13, Chapter 7 of
the North Carolina Administrative Code (13 NCAC 7).
(l) "Hazardous
Substance List" shall mean means the list required by
G.S. 95‑191.
(m) "Hazardous substance trade secret" means any formula, plan, pattern, device, process, production information, or compilation of information, which is not patented, which is known only to the employer, the employer's licensees, the employer's employees, and certain other individuals, and which is used or developed for use in the employer's business, and which gives the employer possessing it the opportunity to obtain a competitive advantage over businesses who do not possess it, or the secrecy of which is certified by an appropriate official of the federal government as necessary for national defense purposes. The chemical name and Chemical Abstracts Service number of a substance shall be considered a trade secret only if the employer can establish that the identity or composition of the substance cannot be readily ascertained without undue expense by analytical techniques, laboratory procedures, or other lawful means available to a competitor.
(n) "Label" shall
mean means any written, printed, or graphic material displayed on or
affixed to containers of hazardous chemicals.
(o) "Manufacturing
facility" shall mean means a facility classified in SIC
Codes 20 through 39 NAICS Code 31 through 33 which manufactures or
uses a hazardous chemical or chemicals in North Carolina.
(p) "Material Safety
"Safety Data Sheets" or "MSDS" shall mean "SDS"
means chemical information sheets adopted by the Occupational Safety and
Health Division of the North Carolina Department of Labor in Title 13, Chapter
7 of the North Carolina Administrative Code (13 NCAC 7).
(q) "Nonmanufacturing
facility" shall mean means any facility in North Carolina
other than a facility in SIC Code 20 through 39, NAICS Code 31
through 33, the State of North Carolina (and its political subdivisions)
and volunteer emergency service organizations whose members may be exposed to
chemical hazards during emergency situations.
(r) "OSHNC
Standard" shall mean means the current Hazard Communication
Standard adopted by the Occupational Safety and Health Division of North
Carolina Department of Labor in Title 13, Chapter 7 of the North Carolina
Administrative Code (13 NCAC 7).
(s) "Storage and
Container" shall have has the ordinary meaning however it
does not include pipes used in the transfer of substances or the fuel tanks of self
propelled self‑propelled internal combustion vehicles."
SECTION 1.(e) G.S. 95‑191(a) reads as rewritten:
"(a) All employers who manufacture, process, use, store, or produce hazardous chemicals, shall compile and maintain a Hazardous Substance List which shall contain all of the following information for each hazardous chemical stored in the facility in quantities of 55 gallons or 500 pounds, whichever is greater:
(1) The chemical name or the
common name used on the MSDS SDS or container label;label.
(2) The maximum amount of the chemical stored at the facility at any time during a year, using the following ranges:
Class A,
which shall include includes quantities of less than 55 gallons
or 500 pounds;pounds.
Class B,
which shall include includes quantities of between 55 gallons to
550 gallons, and quantities of between 500 pounds and 5,000 pounds; andpounds.
Class C,
which shall include includes quantities of between 550 gallons
and 5500 gallons, and quantities between 5,000 pounds and 50,000 pounds; andpounds.
Class D,
which shall include includes quantities of greater than 5500
gallons or 50,000 pounds; andpounds.
(3) The area in the facility in which the hazardous chemical is normally stored and to what extent the chemical may be stored at altered temperature or pressure."
SECTION 1.(f) G.S. 95‑192 reads as rewritten:
"§ 95‑192. Material safety Safety data
sheets.
(a) Chemical manufacturers
and distributors shall provide material safety data sheets (MSDS's)(SDSs)
to manufacturing and nonmanufacturing purchasers of hazardous chemicals in
North Carolina for each hazardous chemical purchased.
(b) Employers shall maintain
the most current MSDS SDS received from manufacturers or
distributors for each hazardous chemical purchased. If an MSDS SDS has
not been provided by the manufacturer or distributor for chemicals on the
Hazardous Substance List at the time the chemicals are received at the
facility, the employer shall request one in writing from the manufacturer or
distributor within 30 days after receipt of the chemical. If the employer does
not receive an MSDS SDS within 30 days after his written request,
he shall notify the Commissioner of Labor of the failure by manufacturer or
distributor to provide the MSDS.SDS."
SECTION 1.(g) G.S. 95‑194 reads as rewritten:
"§ 95‑194. Emergency information.
(d) Employers shall provide
to the Fire Chief, upon written request of the Fire Chief, a copy of the MSDS
SDS for any chemical on the Hazardous Substance List.
(f) The Fire Chief shall
make information from the Hazardous Substance List, the emergency response
plan, and MSDS's SDSs available to members of the Fire Department
having jurisdiction over the facility and to personnel responsible for
preplanning emergency response, police, medical or fire activities, but shall
not otherwise distribute or disclose (or allow the disclosure of) information
not available to the public under G.S. 95‑208. Such persons
receiving such information shall not disclose the information received and
shall use such information only for the purpose of preplanning emergency
response, police, medical or fire activities.
."
SECTION 1.(h) G.S. 95‑208 reads as rewritten:
"§ 95‑208. Community information on hazardous chemicals.
(a) Any person in North
Carolina may request in writing from the employer a list of chemicals used or
stored at the facility. The request shall include the name and address of the
person making the request and a statement of the purpose for the request. If
the person is requesting the list on behalf of or for the use of an
organization, partnership, or corporation, he shall also disclose the name and
business address of such organization, partnership, or corporation. The request
may include, at the option of the employer, a statement to the effect that the
information will be used only for the purpose stated. The employer shall
furnish to the person making the request a list containing, at a minimum, all
chemicals included on the Hazardous Substance List, the class of each chemical
as defined in G.S. 95‑191(a)(2), and an MSDS SDS for
each chemical for which an MSDS SDS is available and is
requested. Whenever an employer has withheld a chemical under the provisions of
G.S. 95‑197 from the information provided under G.S. 95‑208,
the employer must state that the information is being withheld and, upon
request, must provide the MSDS SDS for the chemical. Additional
information may be furnished to the person making the request at the option of
the employer. The employer shall provide, at a fee not to exceed the cost of
reproducing the materials, the materials requested within 10 working days of
the date the employer receives the written request for information.
(b) If the employer fails or
refuses to provide the information required under subsection (a) of this section,
the person requesting the information may request in writing that the
Commissioner of Labor review the request. The Commissioner of Labor may conduct
an investigation in the same manner as provided in G.S. 95‑195(b).
Following the investigation, the Commissioner shall make appropriate findings.
Either the employer or the person making the initial request may request an
administrative hearing pursuant to Chapter 150B of the General Statutes. This
request for an administrative hearing shall be submitted to the Commissioner of
Labor within 30 days following the Commissioner making his findings. The
Commissioner of Labor shall within 30 days of receiving the request hold an
administrative hearing to consider the request for information under subsection
(a) of this section. This hearing shall be held as provided for in
G.S. Chapter 150B, Article 3. If the Commissioner of Labor finds that the
request complies with the requirements of subsection (a) of this section, the
Commissioner of Labor shall direct that the employer provide to the person
making the request a list containing, at a minimum, all chemicals used or
stored at the facility included on the Hazardous Substance List, the class of
each chemical as defined in G.S. 95‑191(a)(2), and an MSDS SDS
for each chemical for which an MSDS SDS is available and is
requested and may in his discretion assess civil penalties as provided in
G.S. 95‑195(c); provided that it shall be a defense to such
disclosure if the employer proves that the information has been requested
directly or indirectly by, or in behalf of, a competitor of the employer, or
that such information is a Hazardous Substance Trade Secret, or that the
request did not comply with the requirements of subsection (a) of this section.
(c) Any order by the Commissioner of Labor under subsection (b) of this section shall be subject to judicial review as provided under G.S. Chapter 150B, Article 4."
SECTION 1.(i) G.S. 95‑216 reads as rewritten:
"§ 95‑216. Exemptions.
Notwithstanding any language to the contrary, the provisions of this Article shall not apply to chemicals in or on any of the following:
(1) Hazardous substances
while being transported in interstate commerce into or through this State;State.
(2) Products intended for
personal consumption by employees in the facilities;facilities.
(3) Retail food sale
establishments and all other retail trade establishments in Standard
Industrial Classification Codes 53 through 59, North American Industry
Classification System Codes 44 through 45, exclusive of processing and
repair areas, except that the employer must comply with the provisions of G.S. 95‑194(a)(i);G.S. 95‑194(a)(i).
(4) Any food, food additive,
color additive, drug or cosmetic as such terms are defined in the Federal Food,
Drug and Cosmetic Act (21 U.S.C. 301 et seq.);(21 U.S.C. § 301 et
seq.).
(5) A laboratory under the direct supervision or guidance of a technically qualified individual provided that:
a. Labels on containers of incoming chemicals shall not be removed or defaced;
b. MSDS's SDSs received
by the laboratory shall be maintained and made accessible to employees and
students;
c. The laboratory is not used primarily to produce hazardous chemicals in bulk for commercial purposes; and
d. The laboratory operator
complies with the provisions of G.S. 95‑194(a)(i);G.S. 95‑194(a)(i).
(6) Any farming operation
which employs 10 or fewer full‑time employees, except that if any
hazardous chemical in an amount in excess of 55 gallons or 500 pounds, whichever
is greater, is normally stored at the farming operation, the employer must
comply with the provisions of G.S. 95‑194(a)(i); andG.S. 95‑194(a)(i).
(7) Any distilled spirits,
tobacco, and untreated wood products; andproducts.
(8) Medicines used directly in patient care in health care facilities and health care facility laboratories."
SECTION 1.(j) Section 1(c) of this part becomes effective October 1, 2017, and applies to violations occurring and offenses committed on or after that date. The remainder of this part becomes effective July 1, 2017.
PART II. DEPARTMENT OF LABOR/CAROLINA STAR PROGRAM
SECTION 2.(a) G.S. 95‑127 is amended by adding a new subdivision to read:
"(2a) Carolina Star Program. A voluntary program designed to recognize work sites that implement effective safety and health management systems and that meet standards adopted by the Commissioner pursuant to G.S. 95‑157. The Carolina Star Program is inclusive of four distinct programs, which includes the following: Carolina Star, Rising Star, Building Star, and Public Sector Star."
SECTION 2.(b) Article 16 of Chapter 95 of the General Statutes is amended by adding a new section to read:
"§ 95‑157. Carolina Star Program.
(a) The Commissioner may adopt rules for the operation of the Carolina Star Program in a manner that will promote safe and healthy workplaces throughout the State. The rules for the Carolina Star Program adopted by the Commissioner shall pertain to the following matters:
(1) Upper management leadership and active and meaningful employee involvement.
(2) Systematic assessment of occupational hazards.
(3) Comprehensive hazard prevention, control, and mitigation programs.
(4) Employee safety and health training.
(5) Annual safety and health program evaluation.
(6) Star Annual Report.
(7) Attendance and active participation on Carolina Star Safety Conference Regional Teams and conference related activities.
(b) Applications for participation in the Carolina Star Program shall be submitted by the workplace's management. Applications shall include documentation establishing to the satisfaction of the Commissioner that the employer meets all standards for Carolina Star Program participation.
(c) The Department shall provide for on‑site evaluations, as resources allow, by Carolina Star Program evaluation teams of each workplace that has applied to participate in the Carolina Star Program to determine if the applicant's workplace complies with the standards for Carolina Star Program participation.
(d) A workplace's continued participation in the Carolina Star Program shall be conditioned on meeting the requirements and expectations established by the Carolina Star Program Policies and Procedures Manual, Star Annual Report, and successful completion of periodic on‑site evaluations conducted by the Carolina Star Program evaluation team.
(e) During periods in which a workplace is a participant in the Carolina Star Program, the workplace shall be exempt from inspections under G.S. 95‑136; however, this exception shall not apply to inspections or investigations of the workplace arising from complaints, referrals, fatalities, catastrophes, nonfatal accidents, or significant toxic chemical releases."
SECTION 2.(c) A workplace that was a participant in the uncodified Carolina Star Program prior to July 1, 2017, may continue as a participant in the Carolina Star Program established pursuant to G.S. 95‑157, as enacted by this act. On and after July 1, 2017, the continued participation by that workplace in the Carolina Star Program shall be conditioned upon the workplace's ability to meet the requirements and expectations established by all guidelines for participation in the Carolina Star Program adopted by the Commissioner under G.S. 95‑157.
SECTION 2.(d) This part becomes effective July 1, 2017.
PART III. OTHER CHANGES RELATED TO LAWS GOVERNING BUSINESSES
LANDFILL/LIFE OF SITE
SECTION 3.(a) Section 3.2(a) of S.L. 2017‑10 is repealed.
SECTION 3.(b) Section 3.2(e) of S.L. 2017‑10, reads as rewritten:
"SECTION 3.2.(e)
Subsection (a) of this section applies to franchise agreements (i) executed
on or after October 1, 2015, and (ii) executed on or before October 1, 2015,
only if all parties to a valid and operative agreement consent to modify the
agreement for the purpose of extending the agreement's duration of the life‑of‑site
of the landfill for which the agreement was executed, and public notice and
hearing is provided for such modification in compliance with the requirements
of G.S. 130A‑294(b1)(3).2015."
SECTION 3.(c) G.S. 130A‑294 reads as rewritten:
"
(a2) Permits for sanitary
landfills and transfer stations shall be issued for the life‑of‑site
of the facility unless revoked as otherwise provided under this Article or
upon the expiration of any local government franchise required for the facility
pursuant to subsection (b1) of this section. revoked. For purposes
of this section, "life‑of‑site" means the period from the
initial receipt of solid waste at the facility until the Department approves
final closure of the facility. the facility reaches its final permitted
elevations, which period shall not exceed 60 years. Permits issued pursuant
to this subsection shall take into account the duration of any permits
previously issued for the facility and the remaining capacity at the facility.
(a3) In order to preserve long‑term disposal capacity, a life‑of‑site permit issued for a sanitary landfill shall survive the expiration of a local government approval or franchise. In order to preserve any economic benefits included in the franchise, the County may extend the franchise under the same terms and conditions for the term of the life‑of‑site permit. The extension of the franchise hereby shall not trigger the requirements for a new permit, a major permit modification, or a substantial amendment to the permit.
(b1) (1) For purposes of this subsection and subdivision (4) of subsection (a) of this section, a "substantial amendment" means either:
(2) A person who intends to apply for a new permit for a sanitary landfill shall obtain, prior to applying for a permit, a franchise for the operation of the sanitary landfill from each local government having jurisdiction over any part of the land on which the sanitary landfill and its appurtenances are located or to be located. A local government may adopt a franchise ordinance under G.S. 153A‑136 or G.S. 160A‑319. A franchise granted for a sanitary landfill shall (i) be granted for the life‑of‑site of the landfill, but for a period not to exceed 60 years, and (ii) include all of the following:
a. A statement of the population to be served, including a description of the geographic area.
b. A description of the volume and characteristics of the waste stream.
c. A projection of the useful life of the sanitary landfill.
d. Repealed by Session Laws 2013‑409, s. 8, effective August 23, 2013.
e. The procedures to be followed for governmental oversight and regulation of the fees and rates to be charged by facilities subject to the franchise for waste generated in the jurisdiction of the franchising entity.
f. A facility plan for the sanitary landfill that shall include the boundaries of the proposed facility, proposed development of the facility site, the boundaries of all waste disposal units, final elevations and capacity of all waste disposal units, the amount of waste to be received per day in tons, the total waste disposal capacity of the sanitary landfill in tons, a description of environmental controls, and a description of any other waste management activities to be conducted at the facility. In addition, the facility plan shall show the proposed location of soil borrow areas, leachate facilities, and all other facilities and infrastructure, including ingress and egress to the facility.
(3) Prior to the award of a franchise for the construction or operation of a sanitary landfill, the board of commissioners of the county or counties in which the sanitary landfill is proposed to be located or is located or, if the sanitary landfill is proposed to be located or is located in a city, the governing board of the city shall conduct a public hearing. The board of commissioners of the county or counties in which the sanitary landfill is proposed to be located or is located or, if the sanitary landfill is proposed to be located or is located in a city, the governing board of the city shall provide at least 30 days' notice to the public of the public hearing. The notice shall include a summary of all the information required to be included in the franchise, and shall specify the procedure to be followed at the public hearing. The applicant for the franchise shall provide a copy of the application for the franchise that includes all of the information required to be included in the franchise, to the public library closest to the proposed sanitary landfill site to be made available for inspection and copying by the public. The requirements of this subdivision shall not apply to franchises extended pursuant to subsection (a3) of this section.
."
PROTECT NC UTILITY RATEPAYERS
SECTION 4.(a) G.S. 130A‑309.216 reads as rewritten:
"§ 130A‑309.216. Ash beneficiation projects.
(a) On or before January 1, 2017, an impoundment owner shall (i) identify, at a minimum, impoundments at two sites located within the State with ash stored in the impoundments on that date that is suitable for processing for cementitious purposes and (ii) enter into a binding agreement for the installation and operation of an ash beneficiation project at each site capable of annually processing 300,000 tons of ash to specifications appropriate for cementitious products, with all ash processed to be removed from the impoundment(s) located at the sites. As soon as legally practicable thereafter, the impoundment owner shall apply for all permits necessary for the ash beneficiation projects from the Department. The Department shall expedite any State permits and approvals required for such projects. No later than 24 months after issuance of all necessary permits, operation of both ash beneficiation projects shall be commenced. An impoundment owner shall use commercially reasonable efforts to produce 300,000 tons of ash to specifications appropriate for cementitious products from each project.
(b) On or before July 1, 2017, an impoundment owner
shall (i) identify an impoundment at an additional site located within the
State with ash stored in the impoundment on that date that is suitable for
processing for cementitious purposes and (ii) enter into a binding agreement
for the installation and operation of an ash beneficiation project capable of
annually processing 300,000 tons of ash to specifications appropriate for
cementitious products, with all ash processed to be removed from the
impoundment(s) located at the site. As soon as legally practicable thereafter,
the impoundment owner shall apply for all permits necessary for the ash
beneficiation project from the Department. The Department shall expedite any
State permits and approvals required for such projects. No later than 24 months
after issuance of all necessary permits, operation of the ash beneficiation
project shall be commenced. An impoundment owner shall use commercially
reasonable efforts to produce 300,000 tons of ash to specifications appropriate
for cementitious products from the project.
(c) Notwithstanding any deadline for closure provided by G.S. 130A‑309.214, any impoundment classified as intermediate‑ or low‑risk that is located at a site at which an ash beneficiation project is installed, operating, and processing at least 300,000 tons of ash annually from the impoundment, shall be closed no later than December 31, 2029."
SECTION 4.(b) The Environmental Management Commission shall conduct a study to determine if (i) there is a projected unmet annual demand in North Carolina and contiguous states of at least 300,000 tons of additional ash beneficiated to specifications appropriate for cementitious products over that to be supplied by the ash beneficiation projects required pursuant to G.S. 130A‑309.216 and (ii) if such demand is projected to exist, whether the installation and operation of an additional ash beneficiation project is commercially viable to meet such demand in that the costs associated with the project are less than any revenues derived from the sale of processed ash. In conducting this study, the Environmental Management Commission shall consider both of the following:
(1) The impact of the two ash beneficiation projects required pursuant to G.S. 130A‑309.216.
(2) The availability of ash appropriate for cementitious products from other suppliers, including beneficiation projects in other states.
For purposes of the study, (i) the Commission shall assume a twenty percent (20%) cement replacement rate for beneficiated fly ash in order to determine the projected unmet annual demand for ash in North Carolina and contiguous states and (ii) "costs associated with the project" includes costs for acquiring and improving land for the project, costs of equipment for the project, costs of construction and installation, costs of operation of the project, and the costs of transportation of raw materials or finished goods to or from sellers or purchasers when those costs are borne by the impoundment owner.
The Environmental Management Commission shall report its findings and recommendations, including any legislative proposals, to the Environmental Review Commission no later than July 1, 2018."
BUILDING CODE EXEMPTION
SECTION 5.(a) Notwithstanding any provision of the North Carolina State Building Code to the contrary, if a lot line or public way exists between a single city‑owned lot and a single privately owned lot, a parking garage that extends across the lot line or public way between the two lots may be constructed as if the city‑owned lot has been combined with the privately owned lot such that there is no lot line or public way between them.
SECTION 5.(b) This section shall apply only to municipalities with a population of more than 250,000.
SECTION 5.(c) This section expires June 30, 2020.
CLARIFY DEFINITION OF COMMERCIAL REAL ESTATE/BROKER LIEN
SECTION 6. G.S. 44A‑24.2(3) reads as rewritten:
"(3) Commercial real estate. Any real property or interest therein, whether freehold or nonfreehold, which at the time the property or interest is made the subject of an agreement for broker services:
a. Is lawfully used primarily for sales, office, research, institutional, agricultural, forestry, warehouse, manufacturing, industrial, or mining purposes or for multifamily residential purposes involving five or more dwelling units;
b. May lawfully be used for any of the purposes listed in sub‑subdivision (3)a. of this section by a zoning ordinance adopted pursuant to the provisions of Article 18 of Chapter 153A or Article 19 of Chapter 160A of the General Statutes or which is the subject of an official application or petition to amend the applicable zoning ordinance to permit any of the uses listed in sub‑subdivision (3)a. of this section which is under consideration by the government agency with authority to approve the amendment; or
c. Is in good faith intended to be immediately used for any of the purposes listed in sub‑subdivision (3)a. of this section by the parties to any contract, lease, option, or offer to make any contract, lease, or option."
PRESSURE VESSEL EXCLUSION
SECTION 7. G.S. 95‑69.10(b)(8) reads as rewritten:
"(8) Any of the following pressure vessels that do not exceed the listed limitations if the vessel is not equipped with a quick actuating closure:
a. Five cubic feet in volume and 250 psig.
b. Three cubic feet in volume and 350 psig.
c. One and one‑half cubic feet in volume and 600 psig.
d. An inside diameter of six inches with no limitation on pressure.
e. Five cubic feet in volume when the pressure vessel is constructed and operated on the same real property zoned industrial and where its operation is undertaken using commercially acceptable safety precautions for the application."
WASTEWATER SYSTEM PERMIT EXTENSION
SECTION 8. G.S. 130A‑336 is amended by adding a new subsection to read:
"(b1) An improvement permit or authorization for wastewater system construction issued by a local health department from January 1, 2000, to January 1, 2015, which has not been acted on and would have otherwise expired, shall remain valid until January 1, 2020, without penalty, unless there are changes in the hydraulic flows or wastewater characteristics from the original local health department evaluation. Permits are transferrable with ownership of the property. Permits shall retain the site, soil evaluations, and construction conditions of the original permit."
modify scrap tire tax
SECTION 9.(a) G.S. 105‑187.15 reads as rewritten:
"§ 105‑187.15. Definitions.
The definitions in G.S. 105‑164.3 apply to this Article, except that the term "sale" does not include lease or rental, and the following definitions apply to this Article:
(1) Scrap tire. A tire that is no longer suitable for its original, intended purpose because of wear, damage, or defect.
(2) Tire. A continuous solid or pneumatic rubber covering encircling a wheel.
(3) Used tire. A tire other than a new tire and includes retreaded or recapped tires."
SECTION 9.(b) G.S. 105‑187.16 reads as rewritten:
"§ 105‑187.16. Tax imposed.
(a) Levy. A
privilege tax is imposed on a tire retailer at a percentage rate of the
sales price of for each new and used tire sold at retail by
the retailer. A privilege tax is imposed on a tire retailer and on a tire
wholesale merchant at a percentage rate of the sales price of for each
new or used tire sold by the retailer or wholesale merchant to a
wholesale merchant or retailer for placement on a vehicle offered for sale,
lease, or rental by the retailer or wholesale merchant. An excise tax is
imposed on a new or used tire purchased for storage, use, or consumption
in this State or for placement in this State on a vehicle offered for sale,
lease, or rental. This excise tax is a percentage rate of the purchase price
of the tire. These taxes are in addition to all other taxes.
(b) Rate. Tax. The
percentage rate of the taxes tax imposed by subsection (a) of
this section is a flat dollar amount as set by the following table;
the rate table and is based on the bead diameter of the new or
used tire sold or purchased:
Bead
Diameter of Tire Percentage
RateTax
Less
than 20 inches 2%$1.00
At
least 20 inches 1%.$2.00"
SECTION 9.(c) G.S. 105‑187.17 reads as rewritten:
"§ 105‑187.17. Administration.
The privilege tax this Article
imposes on a tire retailer who sells new or used tires at retail is an
additional State sales tax tax, and the excise tax this Article
imposes on the storage, use, or consumption of a new or used tire in
this State is an additional State use tax. Except as otherwise provided in this
Article, these taxes shall be collected and administered in the same manner as
the State sales and use taxes imposed by Article 5 of this Chapter. As under
Article 5 of this Chapter, the additional State sales tax paid when a new or
used tire is sold is a credit against the additional State use tax imposed
on the storage, use, or consumption of the same tire.
The privilege tax this Article imposes on a tire retailer and on a tire wholesale merchant who sell new or used tires for placement in this State on a vehicle offered for sale, lease, or rental is a tax on the wholesale sale of the tires. This tax and the excise tax this Article imposes on a new or used tire purchased for placement in this State on a vehicle offered for sale, lease, or rental shall, to the extent practical, be collected and administered as if they were additional State sales and use taxes. The privilege tax paid when a new or used tire is sold for placement on a vehicle offered for sale, lease, or rental is a credit against the use tax imposed on the purchase of the same tire for placement in this State on a vehicle offered for sale, lease, or rental."
SECTION 9.(d) G.S. 105‑187.18(a) reads as rewritten:
"(a) The taxes imposed by this Article do not apply to:
(1) Bicycle tires and other tires for vehicles propelled by human power.
(2) Recapped tires.
(3) Tires sold for placement on newly manufactured vehicles."
SECTION 9.(e) G.S. 130A‑309.54 reads as rewritten:
"§ 130A‑309.54. Use of scrap tire tax proceeds.
Article 5B of Chapter 105 imposes a tax on new and used tires to provide funds for the disposal of scrap tires, for the cleanup of inactive hazardous waste sites under Part 3 of this Article, and for all the purposes for which the Bernard Allen Memorial Emergency Drinking Water Fund may be used under G.S. 87‑98. A county may use proceeds of the tax distributed to it under that Article only for the disposal of scrap tires pursuant to the provisions of this Part or for the abatement of a nuisance pursuant to G.S. 130A‑309.60."
SECTION 9.(f) This section becomes effective October 1, 2017, and applies to sales or purchases of new or used tires on or after that date.
REDUCE COST AND REGULATORY BURDEN/HOSPITAL CONSTRUCTION
SECTION 10.(a) Definitions. For purposes of this section and its implementation:
(1) Commission or Medical Care Commission. The Medical Care Commission created by Part 10 of Article 3 of Chapter 143B of the General Statutes.
(2) Hospital Facilities Rules. Means all of the following:
a. 10A NCAC 13B .6001 Physical Plant: Location.
b. 10A NCAC 13B .6002 Physical Plant: Roads and Parking.
c. 10A NCAC 13B .6104 General Requirements: Access and Safety.
d. 10A NCAC 13B .6201 Construction Requirements: Medical, Surgical, and Post‑Partum Care Unit.
e. 10A NCAC 13B .6202 Construction Requirements: Special Care Unit.
f. 10A NCAC 13B .6203 Construction Requirements: Neonatal Level I and Level II Nursery Unit.
g. 10A NCAC 13B .6204 Construction Requirements: Neonatal Level III and Level IV Nursery.
h. 10A NCAC 13B .6205 Construction Requirements: Psychiatric Unit.
i. 10A NCAC 13B .6206 Construction Requirements: Surgical Department Requirements.
j. 10A NCAC 13B .6207 Construction Requirements: Obstetrical Department Requirements.
k. 10A NCAC 13B .6209 Construction Requirements: Emergency Services.
l. 10A NCAC 13B .6210 Construction Requirements: Imaging Services.
m. 10A NCAC 13B .6211 Construction Requirements: Laboratory Services.
n. 10A NCAC 13B .6212 Construction Requirements: Morgue.
o. 10A NCAC 13B .6213 Construction Requirements: Pharmacy Services.
p. 10A NCAC 13B .6214 Construction Requirements: Dietary Services.
q. 10A NCAC 13B .6215 Construction Requirements: Administration.
r. 10A NCAC 13B .6216 Construction Requirements: Medical Records Services.
s. 10A NCAC 13B .6217 Construction Requirements: Central Medical and Surgical Supply Services.
t. 10A NCAC 13B .6218 Construction Requirements: General Storage.
u. 10A NCAC 13B .6219 Construction Requirements: Laundry Services.
v. 10A NCAC 13B .6220 Construction Requirements: Physical Rehabilitation Services.
w. 10A NCAC 13B .6221 Construction Requirements: Engineering Services.
x. 10A NCAC 13B .6222 Construction Requirements: Waste Processing.
y. 10A NCAC 13B .6223 Construction Requirements: Details and Finishes.
z. 10A NCAC 13B .6224 Construction Requirements: Elevator Requirements.
aa. 10A NCAC 13B .6225 Construction Requirements: Mechanical Requirements.
bb. 10A NCAC 13B .6226 Construction Requirements: Plumbing and Other Piping Systems Requirements.
cc. 10A NCAC 13B .6227 Construction Requirements: Electrical Requirements.
(3) Guidelines. The American Society for Healthcare Engineering's Facility Guidelines Institute "Guidelines for Design and Construction of Hospitals and Outpatient Facilities."
SECTION 10.(b) Repeal Hospital Facilities Rules. The Secretary of Health and Human Services and the Medical Care Commission shall repeal the Hospital Facilities Rules within 120 days after this act becomes law.
SECTION 10.(c) Implementation and Rule‑Making Authority. Before the effective date of the repeal of the Hospital Facilities Rules required pursuant to subsection (b) of this section, the Medical Care Commission shall adopt temporary rules to replace the Hospital Facilities Rules and incorporate by reference all applicable rules, standards, and requirements of the most current edition of the Guidelines. If temporary rules are not adopted before the repeal of the Hospital Facilities Rules required pursuant to subsection (b) of this section, the Commission shall utilize the 2014 Edition of the Guidelines until such time as temporary rules are adopted. Furthermore, the Commission shall adopt permanent rules pursuant to this section.
SECTION 10.(d) Additional Rule‑Making Authority. The Medical Care Commission shall adopt rules to replace the Hospital Facilities Rules. Notwithstanding G.S. 150B‑19(4), the rules adopted by the Commission pursuant to this section shall conform to the provisions of subsection (c) of this section. 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 subsection (b1) of G.S. 150B‑21.3 as though 10 or more written objections had been received as provided by subsection (b2) of G.S. 150B‑21.3. Furthermore, rules adopted pursuant to this section shall be exempt from the provisions of Chapter 150B of the General Statutes that require the preparation of fiscal notes for any rule proposed to incorporate the Guidelines by reference.
SECTION 10.(e) Exemption From Periodic Review. Until such time as the Hospital Facilities Rules are repealed pursuant to subsection (b) of this section, the Hospital Facilities Rules shall be exempt from the periodic review process required pursuant to G.S. 150B‑21.3A.
SECTION 10.(f) This section is effective when it becomes law and applies to any licensee or prospective applicant who seeks to make specified types of alterations or additions to its hospital facilities or to construct new hospital facilities and who submits plans and specifications to the Department of Health and Human Services pursuant to Article 5 of Chapter 131E of the General Statutes on or after January 1, 2016.
STORMWATER RUNOFF/AIRPORTS
SECTION 11. G.S. 143‑214.7 reads as rewritten:
"§ 143‑214.7. Stormwater runoff rules and programs.
(c3) In accordance with the
Federal Aviation Administration August 28, 2007, Advisory Circular No. 150/5200‑33B
(Hazardous Wildlife Attractants on or Near Airports), neither the
Department shall not nor any local government shall require the
use of stormwater retention ponds, stormwater detention ponds, or any other
stormwater control measure that promotes standing water in order to comply with
this section section, or in order to comply with any local ordinance
adopted under G.S. 143‑214.5, at public airports that support
commercial air carriers or general aviation services. Development projects
located within five statute miles from the farthest edge of an airport air
operations area, as that term is defined in 14 C.F.R. § 153.3 (July 2011
Edition), shall not be required to use stormwater retention ponds, stormwater
detention ponds, or any other stormwater control measure that promotes standing
water in order to comply with this section.section or with any local
ordinance. Existing stormwater retention ponds, stormwater detention ponds,
or any other stormwater control measure that promotes standing water in order
to comply with this section section, or with any local ordinance, and
that is located at a public airports airport or that are
is within five statute miles from the farthest edge of an airport
operations area may be replaced with alternative measures included in the
Division of Water Resources' Best Management Practice Manual chapter on
airports. In order to be approved by the Department, alternative measures or
management designs that are not expressly included in the Division of Water
Resources' Best Management Practice Manual shall provide for equal or better
stormwater control based on the pre‑ and post‑development hydrograph.
Any replacement of existing stormwater retention ponds, stormwater detention
ponds, or any other stormwater control measure that promotes standing water
shall be considered a minor modification to the State general stormwater permit.permit,
and a variance to allow any replacement shall be considered a minor variance
under any local government ordinance adopted under G.S. 143‑214.5.
(c4) The Department and
local governments shall deem runways, taxiways, and any other areas that
provide for overland stormwater flow that promote infiltration and treatment of
stormwater into grassed buffers, shoulders, and grass swales permitted pursuant
to the State post‑construction stormwater requirements.requirements
and to be in compliance with any local government water supply watershed
management protection ordinance adopted under G.S. 143‑214.5."
DEQ AND EMC CONTESTED CASES
SECTION 12.(a) Article 3 of Chapter 150B of the General Statutes is amended by adding a new section to read:
"§ 150B‑31.2. Contested cases for certain decisions of the Department of Environmental Quality and the Environmental Management Commission.
(a) Application. This section establishes additional requirements for contested cases filed at the Office of Administrative Hearings that involve the issuance, denial, or modification of a permit, certificate for interbasin transfer, or certification pursuant to section 401 of the Clean Water Act, by the Department of Environmental Quality or the Environmental Management Commission, where the Department or Commission accepts public comment through a procedure set out by statute or rule.
(b) Filing. If a party timely files a petition for a contested case challenging a decision by the Department or Commission pursuant to G.S. 150B‑23, the party shall simultaneously serve a copy of the petition on the Department or Commission that made the decision, and the Department or Commission shall transmit to the Office of Administrative Hearings a complete copy of the administrative record created in support of the decision, which shall include all of the following:
(1) Any application materials and all related or supporting materials submitted by the applicant in support of the application at any time prior to the challenged decision.
(2) All memoranda, electronic messages, meeting notes, and other public record documents created or received by the Department or Commission pertaining to the application and the final decision.
(3) All written comments submitted by any person regarding the application, including any supporting materials provided therewith.
(c) Contested Issues. No party may bring a contested case or seek judicial review regarding a decision governed by this section unless one of the following applies:
(1) The party is the applicant for the permit, certificate for interbasin transfer, or certification pursuant to section 401 of the Clean Water Act, by the Department or Commission.
(2) The party submitted comments to the Department or Commission during the comment period and raises an issue that either (i) was raised with the Department or Commission prior to the decision and with sufficient particularity for the Department or Commission to evaluate the merit of the basis or (ii) could not have been raised as a particular basis prior to the decision."
SECTION 12.(b) The Department of Environmental Quality shall convene a series of meetings with relevant stakeholders, including, but not limited to, the Office of Administrative Hearings, to review federal and other state models that utilize an administrative record review and develop procedures implementing, or propose modifications to, this section. The Department shall report those procedures or proposed modifications to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the Joint Legislative Oversight Committee on Justice and Public Safety, and the Joint Legislative Administrative Procedure Oversight Committee no later than March 31, 2018.
SECTION 12.(c) Subsection (a) of this section becomes effective January 1, 2019, and applies to any contested case that involves issuance, denial, or modification of a permit, certificate for interbasin transfer, or certification pursuant to section 401 of the Clean Water Act, by the Department or Commission for which the application was received by the Department or Commission on or after that date. The remainder of this section is effective when it becomes law.
PART IV. EFFECTIVE DATE
SECTION 13. Except as otherwise provided, this act is effective when it becomes law.