§ 143‑215.3. General powers of Commission and Department; auxiliary powers.
(a) Additional Powers. In addition to the specific powersprescribed elsewhere in this Article, and for the purpose of carrying out itsduties, the Commission shall have the power:
(1) To make rules implementing Articles 21, 21A, 21B, or 38 ofthis Chapter.
(1a) To adopt fee schedules and collect fees for the following:
a. Processing of applications for permits or registrationsissued under Article 21, other than Parts 1 and 1A, Articles 21A, 21B, and 38of this Chapter;
b. Administering permits or registrations issued under Article21, other than Parts 1 and 1A, Articles 21A, 21B, and 38 of this Chapterincluding monitoring compliance with the terms of those permits; and
c. Reviewing, processing, and publicizing applications forconstruction grant awards under the Federal Water Pollution Control Act.
No fee may be charged under this provision, however, to afarmer who submits an application that pertains to his farming operations.
(1b) The fee to be charged pursuant to G.S. 143‑215.3(a)(1a)for processing an application for a permit under G.S. 143‑215.108 andG.S. 143‑215.109 of Article 21B of this Chapter may not exceed fivehundred dollars ($500.00). The fee to be charged pursuant to G.S. 143‑215.3(a)(1a)for processing a registration under Part 2A of this Article or Article 38 ofthis Chapter may not exceed fifty dollars ($50.00) for any single registration.An additional fee of twenty percent (20%) of the registration processing feemay be assessed for a late registration under Article 38 of this Chapter. Thefee for administering and compliance monitoring under Article 21, other thanParts 1 and 1A, and G.S. 143‑215.108 and G.S. 143‑215.109 ofArticle 21B shall be charged on an annual basis for each year of the permitterm and may not exceed one thousand five hundred dollars ($1,500) per year.Fees for processing all permits under Article 21A and all other sections ofArticle 21B shall not exceed one hundred dollars ($100.00) for any singlepermit. The total payment for fees that are set by the Commission under thissubsection for all permits for any single facility shall not exceed seventhousand five hundred dollars ($7,500) per year, which amount shall include allapplication fees and fees for administration and compliance monitoring. Asingle facility is defined to be any contiguous area under one ownership and inwhich permitted activities occur. For all permits issued under these Articleswhere a fee schedule is not specified in the statutes, the Commission, or othercommission specified by statute shall adopt a fee schedule in a rule followingthe procedures established by the Administrative Procedure Act. Fee schedulesshall be established to reflect the size of the emission or discharge, thepotential impact on the environment, the staff costs involved, relative costsof the issuance of new permits and the reissuance of existing permits, andshall include adequate safeguards to prevent unusual fee assessments whichwould result in serious economic burden on an individual applicant. A systemshall be considered to allow consolidated annual payments for persons withmultiple permits. In its rulemaking to establish fee schedules, the Commissionis also directed to consider a method of rewarding facilities which achievefull compliance with administrative and self‑monitoring reportingrequirements, and to consider, in those cases where the cost of renewal oramendment of a permit is less than for the original permit, a lower fee for therenewal or amendment.
(1c) Moneys collected pursuant to G.S. 143‑215.3(a)(1a)shall be used to:
a. Eliminate, insofar as possible, backlogs of permitapplications awaiting agency action;
b. Improve the quality of permits issued;
c. Improve the rate of compliance of permitted activities withenvironmental standards; and
d. Decrease the length of the processing period for permitapplications.
(1d) The Commission may adopt and implement a graduated feeschedule sufficient to cover all direct and indirect costs required for theState to develop and administer a permit program which meets the requirementsof Title V. The provisions of subdivision (1b) of this subsection do not applyto the adoption of a fee schedule under this subdivision. In adopting andimplementing a fee schedule, the Commission shall require that the owner oroperator of all air contaminant sources subject to the requirement to obtain apermit under Title V to pay an annual fee, or the equivalent over some otherperiod, sufficient to cover costs as provided in section 502(b)(3)(A) of TitleV. The fee schedule shall be adopted according to the procedures set out inChapter 150B of the General Statutes.
a. The total amount of fees collected under the fee scheduleadopted pursuant to this subdivision shall conform to the requirements ofsection 502(b)(3)(B) of Title V. No fee shall be collected for more than 4,000tons per year of any individual regulated pollutant, as defined in section502(b)(3)(B)(ii) of Title V, emitted by any source. Fees collected pursuant tothis subdivision shall be credited to the Title V Account.
b. The Commission may reduce any permit fee required under thissection to take into account the financial resources of small businessstationary sources as defined under Title V and regulations promulgated by theUnited States Environmental Protection Agency.
c. When funds in the Title V Account exceed the total amountnecessary to cover the cost of the Title V program for the next fiscal year,the Secretary shall reduce the amount billed for the next fiscal year so thatthe excess funds are used to supplement the cost of administering the Title Vpermit program in that fiscal year.
(1e) The Commission shall collect the application, annual, andproject fees for processing and administering permits, certificates of coverageunder general permits, and certifications issued under Parts 1 and 1A of thisArticle and for compliance monitoring under Parts 1 and 1A of this Article asprovided in G.S. 143‑215.3D and G.S. 143‑215.10G.
(2) To direct that such investigation be conducted as it mayreasonably deem necessary to carry out its duties as prescribed by this Articleor Article 21A or Article 21B of this Chapter, and for this purpose to enter atreasonable times upon any property, public or private, for the purpose ofinvestigating the condition of any waters and the discharge therein of anysewage, industrial waste, or other waste or for the purpose of investigatingthe condition of the air, air pollution, air contaminant sources, emissions, orthe installation and operation of any air‑cleaning devices, and torequire written statements or the filing of reports under oath, with respect topertinent questions relating to the operation of any air‑cleaning device,sewer system, disposal system, or treatment works. In the case of effluent oremission data, any records, reports, or information obtained under this Articleor Article 21A or Article 21B of this Chapter shall be related to anyapplicable effluent or emission limitations or toxic, pretreatment, or newsource performance standards. No person shall refuse entry or access to anyauthorized representative of the Commission or Department who requests entryfor purposes of inspection, and who presents appropriate credentials, nor shallany person obstruct, hamper or interfere with any such representative while inthe process of carrying out his official duties.
(3) To conduct public hearings and to delegate the power toconduct public hearings in accordance with the procedures prescribed by thisArticle or by Article 21B of this Chapter.
(4) To delegate such of the powers of the Commission as theCommission deems necessary to one or more of its members, to the Secretary orany other qualified employee of the Department. The Commission shall notdelegate to persons other than its own members and the designated employees ofthe Department the power to conduct hearings with respect to the classificationof waters, the assignment of classifications, air quality standards, aircontaminant source classifications, emission control standards, or the issuanceof any special order except in the case of an emergency under subdivision (12)of this subsection for the abatement of existing water or air pollution. Anyemployee of the Department to whom a delegation of power is made to conduct ahearing shall report the hearing with its evidence and record to theCommission.
(5) To institute such actions in the superior court of anycounty in which a violation of this Article, Article 21B of this Chapter, orthe rules of the Commission has occurred, or, in the discretion of theCommission, in the superior court of the county in which any defendant resides,or has his or its principal place of business, as the Commission may deemnecessary for the enforcement of any of the provisions of this Article, Article21B of this Chapter, or of any official action of the Commission, includingproceedings to enforce subpoenas or for the punishment of contempt of theCommission.
(6) To agree upon or enter into any settlements or compromisesof any actions and to prosecute any appeals or other proceedings.
(7) To direct the investigation of any killing of fish andwildlife which, in the opinion of the Commission, is of sufficient magnitude tojustify investigation and is known or believed to have resulted from thepollution of the waters or air as defined in this Article, and whenever anyperson, whether or not he shall have been issued a certificate of approval,permit or other document of approval authorized by this or any other State law,has negligently, or carelessly or unlawfully, or willfully and unlawfully,caused pollution of the waters or air as defined in this Article, in suchquantity, concentration or manner that fish or wildlife are killed as theresult thereof, the Commission, may recover, in the name of the State, damagesfrom such person. The measure of damages shall be the amount determined by theDepartment and the North Carolina Wildlife Resources Commission, whichever hasjurisdiction over the fish and wildlife destroyed to be the replacement costthereof plus the cost of all reasonable and necessary investigations made orcaused to be made by the State in connection therewith. Upon receipt of theestimate of damages caused, the Department shall notify the persons responsiblefor the destruction of the fish or wildlife in question and may effect suchsettlement as the Commission may deem proper and reasonable, and if nosettlement is reached within a reasonable time, the Commission shall bring acivil action to recover such damages in the superior court in the county inwhich the discharge took place. Upon such action being brought the superiorcourt shall have jurisdiction to hear and determine all issues or questions oflaw or fact, arising on the pleadings, including issues of liability and theamount of damages. On such hearing, the estimate of the replacement costs ofthe fish or wildlife destroyed shall be prima facie evidence of the actualreplacement costs of such fish or wildlife. In arriving at such estimate, anyreasonably accurate method may be used and it shall not be necessary for anyagent of the Wildlife Resources Commission or the Department to collect, handleor weigh numerous specimens of dead fish or wildlife.
The State of North Carolina shall bedeemed the owner of the fish or wildlife killed and all actions for recoveryshall be brought by the Commission on behalf of the State as the owner of thefish or wildlife. The fact that the person or persons alleged to be responsiblefor the pollution which killed the fish or wildlife holds or has held acertificate of approval, permit or other document of approval authorized bythis Article or any other law of the State shall not bar any such action. Theproceeds of any recovery, less the cost of investigation, shall be used toreplace, insofar as and as promptly as possible, the fish and wildlife killed,or in cases where replacement is not practicable, the proceeds shall be used inwhatever manner the responsible agency deems proper for improving the fish andwildlife habitat in question. Any such funds received are hereby appropriatedfor these designated purposes. Nothing in this paragraph shall be construed inany way to limit or prevent any other action which is now authorized by this Article.
(8) After issuance of an appropriate order, to withhold thegranting of any permit or permits pursuant to G.S. 143‑215.1 or G.S. 143‑215.108for the construction or operation of any new or additional disposal system orsystems or air‑cleaning device or devices in any area of the State. Suchorder may be issued only upon determination by the Commission, after publichearing, that the permitting of any new or additional source or sources ofwater or air pollution will result in a generalized condition of water or airpollution within the area contrary to the public interest, detrimental to thepublic health, safety, and welfare, and contrary to the policy and intentdeclared in this Article or Article 21B of this Chapter. The Commission maymake reasonable distinctions among the various sources of water and airpollution and may direct that its order shall apply only to those sources whichit determines will result in a generalized condition of water or air pollution.
The determination of the Commission shallbe supported by detailed findings of fact and conclusions set forth in theorder and based upon competent evidence of record. The order shall describe thegeographical area of the State affected thereby with particularity and shallprohibit the issuance of permits pending a determination by the Commission thatthe generalized condition of water or air pollution has ceased.
Notice of hearing shall be given inaccordance with the provisions of G.S. 150B‑21.2.
A person aggrieved by an order of theCommission under this subdivision may seek judicial review of the order underArticle 4 of Chapter 150B of the General Statutes without first commencing acontested case. An order may not be stayed while it is being reviewed.
(9) If an investigation conducted pursuant to this Article orArticle 21B of this Chapter reveals a violation of any rules, standards, orlimitations adopted by the Commission pursuant to this Article or Article 21Bof this Chapter, or a violation of any terms or conditions of any permit issuedpursuant to G.S. 143‑215.1 or 143‑215.108, or special order orother document issued pursuant to G.S. 143‑215.2 or G.S. 143‑215.110,the Commission may assess the reasonable costs of any investigation, inspectionor monitoring survey which revealed the violation against the personresponsible therefor. If the violation resulted in an unauthorized discharge tothe waters or atmosphere of the State, the Commission may also assess theperson responsible for the violation for any actual and necessary costsincurred by the State in removing, correcting or abating any adverse effectsupon the water or air resulting from the unauthorized discharge. If the personresponsible for the violation refuses or fails within a reasonable time to payany sums assessed, the Commission may institute a civil action in the superiorcourt of the county in which the violation occurred or, in the Commission'sdiscretion, in the superior court of the county in which such person resides orhas his or its principal place of business, to recover such sums.
(10) To require a laboratory facility that performs any tests,analyses, measurements, or monitoring required under this Article or Article21B of this Chapter to be certified annually by the Department, to establish standardsthat a laboratory facility and its employees must meet and maintain in orderfor the laboratory facility to be certified, and to charge a laboratoryfacility a fee for certification. Fees collected under this subdivision shallbe credited to the Water and Air Account and used to administer thissubdivision. These fees shall be applied to the cost of certifying commercial,industrial, and municipal laboratory facilities.
(11) Repealed by Session Laws 1983, c. 296, s. 6.
(12) To declare an emergency when it finds that a generalizedcondition of water or air pollution which is causing imminent danger to thehealth or safety of the public. Regardless of any other provisions of law, ifthe Department finds that such a condition of water or air pollution exists andthat it creates an emergency requiring immediate action to protect the publichealth and safety or to protect fish and wildlife, the Secretary of theDepartment with the concurrence of the Governor, shall order persons causing orcontributing to the water or air pollution in question to reduce or discontinueimmediately the emission of air contaminants or the discharge of wastes.Immediately after the issuance of such order, the chairman of the Commissionshall fix a place and time for a hearing before the Commission to be heldwithin 24 hours after issuance of such order, and within 24 hours after thecommencement of such hearing, and without adjournment thereof, the Commissionshall either affirm, modify or set aside the order.
In the absence of a generalized conditionof air or water pollution of the type referred to above, if the Secretary findsthat the emissions from one or more air contaminant sources or the discharge ofwastes from one or more sources of water pollution is causing imminent dangerto human health and safety or to fish and wildlife, he may with the concurrenceof the Governor order the person or persons responsible for the operation oroperations in question to immediately reduce or discontinue the emissions ofair contaminants or the discharge of wastes or to take such other measures asare, in his judgment, necessary, without regard to any other provisions of thisArticle or Article 21B of this Chapter. In such event, the requirements forhearing and affirmance, modification or setting aside of such orders set forthin the preceding paragraph of this subdivision shall apply.
(13) Repealed by Session Laws 1983, c. 296, s. 6.
(14) To certify and approve, by appropriate delegations andconditions in permits required by G.S. 143‑215.1, requests by publiclyowned treatment works to implement, administer and enforce a pretreatmentprogram for the control of pollutants which pass through or interfere withtreatment processes in such treatment works; and to require such programs to bedeveloped where necessary to comply with the Federal Water Pollution ControlAct and the Resource Conservation and Recovery Act, including the addition ofconditions and compliance schedules in permits required by G.S. 143‑215.1.Pretreatment programs submitted by publicly owned treatment works shallinclude, at a minimum, the adoption of pretreatment standards, a permit orequally effective system for the control of pollutants contributed to thetreatment works, and the ability to effectively enforce compliance with theprogram.
(15) To adopt rules for the prevention of pollution fromunderground tanks containing petroleum, petroleum products, or hazardoussubstances. Rules adopted under this section may incorporate standards andrestrictions which exceed and are more comprehensive than comparable federalregulations.
(16) To adopt rules limiting the manufacture, storage, sale,distribution or use of cleaning agents containing phosphorus pursuant to G.S.143‑214.4(e), and to adopt rules limiting the manufacture, storage, sale,distribution or use of cleaning agents containing nitrilotriacetic acid.
(17) To adopt rules to implement Part 2A of Article 21A of Chapter143.
(b) Research Functions. The Department shall have the power toconduct scientific experiments, research, and investigations to discovereconomical and practical corrective methods for air pollution and wastedisposal problems. To this end, the Department may cooperate with any public orprivate agency or agencies in the conduct of such experiments, research, andinvestigations, and may, when funds permit, establish research studies in anyNorth Carolina educational institution, with the consent of such institution.In addition, the Department shall have the power to cooperate and enter into contractswith technical divisions of State agencies, institutions and withmunicipalities, industries, and other persons in the execution of such surveys,studies, and research as it may deem necessary in fulfilling its functionsunder this Article or Article 21B of this Chapter. All State departments shalladvise with and cooperate with the Department on matters of mutual interest.
(c) Relation with the Federal Government. The Commission asofficial water and air pollution control agency for the State is delegated toact in local administration of all matters covered by any existing federalstatutes and future legislation by Congress relating to water and air qualitycontrol. In order for the State of North Carolina to effectively participate inprograms administered by federal agencies for the regulation and abatement ofwater and air pollution, the Department is authorized to accept and administerfunds provided by federal agencies for water and air pollution programs and toenter into contracts with federal agencies regarding the use of such funds.
(d) Relations with Other States. The Commission or theDepartment may, with the approval of the Governor, consult with qualifiedrepresentatives of adjoining states relative to the establishment of regulationsfor the protection of waters and air of mutual interest, but the approval ofthe General Assembly shall be required to make any regulations binding.
(e) Variances. Any person subject to the provisions of G.S.143‑215.1 or 143‑215.108 may apply to the Commission for a variancefrom rules, standards, or limitations established pursuant to G.S. 143‑214.1,143‑215, or 143‑215.107. The Commission may grant such variance,for fixed or indefinite periods after public hearing on due notice, or where itis found that circumstances so require, for a period not to exceed 90 dayswithout prior hearing and notice. Prior to granting a variance hereunder, theCommission shall find that:
(1) The discharge of waste or the emission of air contaminantsoccurring or proposed to occur do not endanger human health or safety; and
(2) Compliance with the rules, standards, or limitations fromwhich variance is sought cannot be achieved by application of best availabletechnology found to be economically reasonable at the time of application forsuch variances, and would produce serious hardship without equal or greaterbenefits to the public, provided that such variances shall be consistent withthe provisions of the Federal Water Pollution Control Act as amended or theClean Air Act as amended; and provided further, that any person who wouldotherwise be entitled to a variance or modification under the Federal WaterPollution Control Act as amended or the Clean Air Act as amended shall also beentitled to the same variance from or modification in rules, standards, orlimitations established pursuant to G.S. 143‑214.1, 143‑215, and143‑215.107, respectively.
(f) Notification of Completed Remedial Action. Thedefinitions set out in G.S. 130A‑310.31(b) apply to this subsection. Anyperson may submit a written request to the Department for a determination thatgroundwater has been remediated to meet the standards and classificationsestablished under this Part. A request for a determination that groundwater hasbeen remediated to meet the standards and classifications established underthis Part shall be accompanied by the fee required by G.S. 130A‑310.39(a)(2).If the Department determines that groundwater has been remediated toestablished standards and classifications, the Department shall issue a writtennotification that no further remediation of the groundwater will be required.The notification shall state that no further remediation of the groundwaterwill be required unless the Department later determines, based on new informationor information not previously provided to the Department, that the groundwaterhas not been remediated to established standards and classifications or thatthe Department was provided with false or incomplete information. Under any ofthose circumstances, the Department may withdraw the notification and requireresponsible parties to remediate the groundwater to established standards andclassifications. (1951, c. 606;1957, c. 1267, s. 3; 1959, c. 779, s. 8; 1963, c. 1086; 1967, c. 892, s. 1;1969, c. 538; 1971, c. 1167, ss. 7, 8; 1973, c. 698, ss. 1‑7, 9, 17; c.712, s. 1; c. 1262, ss. 23, 86; c. 1331, s. 3; 1975, c. 583, ss. 5, 6; c. 655,s. 3; 1977, c. 771, s. 4; 1979, c. 633, ss. 6‑8; 1979, 2nd Sess., c.1158, ss. 1, 3, 4; 1983, c. 296, ss. 5‑8; 1985, c. 551, s. 2; 1987, c.111, s. 2; c. 767, s. 1; c. 827, ss. 1, 154, 161, 266; 1987 (Reg. Sess., 1988),c. 1035, s. 2; 1989, c. 500, s. 122; c. 652, s. 1; 1991, c. 552, ss. 2, 11; c.712, s. 2; 1991 (Reg. Sess., 1992), c. 890, s. 16; c. 1039, ss. 14, 20.1; 1993,c. 344, s. 2; c. 400, ss. 1(c), 2, 3, 15; c. 496, s. 4; 1993 (Reg. Sess.,1994), c. 694, s. 1; 1995, c. 484, s. 5; 1997‑357, s. 6; 1997‑496,s. 4; 1998‑212, s. 29A.11(b).)
§ 143‑215.3. General powers of Commission and Department; auxiliary powers.
(a) Additional Powers. In addition to the specific powersprescribed elsewhere in this Article, and for the purpose of carrying out itsduties, the Commission shall have the power:
(1) To make rules implementing Articles 21, 21A, 21B, or 38 ofthis Chapter.
(1a) To adopt fee schedules and collect fees for the following:
a. Processing of applications for permits or registrationsissued under Article 21, other than Parts 1 and 1A, Articles 21A, 21B, and 38of this Chapter;
b. Administering permits or registrations issued under Article21, other than Parts 1 and 1A, Articles 21A, 21B, and 38 of this Chapterincluding monitoring compliance with the terms of those permits; and
c. Reviewing, processing, and publicizing applications forconstruction grant awards under the Federal Water Pollution Control Act.
No fee may be charged under this provision, however, to afarmer who submits an application that pertains to his farming operations.
(1b) The fee to be charged pursuant to G.S. 143‑215.3(a)(1a)for processing an application for a permit under G.S. 143‑215.108 andG.S. 143‑215.109 of Article 21B of this Chapter may not exceed fivehundred dollars ($500.00). The fee to be charged pursuant to G.S. 143‑215.3(a)(1a)for processing a registration under Part 2A of this Article or Article 38 ofthis Chapter may not exceed fifty dollars ($50.00) for any single registration.An additional fee of twenty percent (20%) of the registration processing feemay be assessed for a late registration under Article 38 of this Chapter. Thefee for administering and compliance monitoring under Article 21, other thanParts 1 and 1A, and G.S. 143‑215.108 and G.S. 143‑215.109 ofArticle 21B shall be charged on an annual basis for each year of the permitterm and may not exceed one thousand five hundred dollars ($1,500) per year.Fees for processing all permits under Article 21A and all other sections ofArticle 21B shall not exceed one hundred dollars ($100.00) for any singlepermit. The total payment for fees that are set by the Commission under thissubsection for all permits for any single facility shall not exceed seventhousand five hundred dollars ($7,500) per year, which amount shall include allapplication fees and fees for administration and compliance monitoring. Asingle facility is defined to be any contiguous area under one ownership and inwhich permitted activities occur. For all permits issued under these Articleswhere a fee schedule is not specified in the statutes, the Commission, or othercommission specified by statute shall adopt a fee schedule in a rule followingthe procedures established by the Administrative Procedure Act. Fee schedulesshall be established to reflect the size of the emission or discharge, thepotential impact on the environment, the staff costs involved, relative costsof the issuance of new permits and the reissuance of existing permits, andshall include adequate safeguards to prevent unusual fee assessments whichwould result in serious economic burden on an individual applicant. A systemshall be considered to allow consolidated annual payments for persons withmultiple permits. In its rulemaking to establish fee schedules, the Commissionis also directed to consider a method of rewarding facilities which achievefull compliance with administrative and self‑monitoring reportingrequirements, and to consider, in those cases where the cost of renewal oramendment of a permit is less than for the original permit, a lower fee for therenewal or amendment.
(1c) Moneys collected pursuant to G.S. 143‑215.3(a)(1a)shall be used to:
a. Eliminate, insofar as possible, backlogs of permitapplications awaiting agency action;
b. Improve the quality of permits issued;
c. Improve the rate of compliance of permitted activities withenvironmental standards; and
d. Decrease the length of the processing period for permitapplications.
(1d) The Commission may adopt and implement a graduated feeschedule sufficient to cover all direct and indirect costs required for theState to develop and administer a permit program which meets the requirementsof Title V. The provisions of subdivision (1b) of this subsection do not applyto the adoption of a fee schedule under this subdivision. In adopting andimplementing a fee schedule, the Commission shall require that the owner oroperator of all air contaminant sources subject to the requirement to obtain apermit under Title V to pay an annual fee, or the equivalent over some otherperiod, sufficient to cover costs as provided in section 502(b)(3)(A) of TitleV. The fee schedule shall be adopted according to the procedures set out inChapter 150B of the General Statutes.
a. The total amount of fees collected under the fee scheduleadopted pursuant to this subdivision shall conform to the requirements ofsection 502(b)(3)(B) of Title V. No fee shall be collected for more than 4,000tons per year of any individual regulated pollutant, as defined in section502(b)(3)(B)(ii) of Title V, emitted by any source. Fees collected pursuant tothis subdivision shall be credited to the Title V Account.
b. The Commission may reduce any permit fee required under thissection to take into account the financial resources of small businessstationary sources as defined under Title V and regulations promulgated by theUnited States Environmental Protection Agency.
c. When funds in the Title V Account exceed the total amountnecessary to cover the cost of the Title V program for the next fiscal year,the Secretary shall reduce the amount billed for the next fiscal year so thatthe excess funds are used to supplement the cost of administering the Title Vpermit program in that fiscal year.
(1e) The Commission shall collect the application, annual, andproject fees for processing and administering permits, certificates of coverageunder general permits, and certifications issued under Parts 1 and 1A of thisArticle and for compliance monitoring under Parts 1 and 1A of this Article asprovided in G.S. 143‑215.3D and G.S. 143‑215.10G.
(2) To direct that such investigation be conducted as it mayreasonably deem necessary to carry out its duties as prescribed by this Articleor Article 21A or Article 21B of this Chapter, and for this purpose to enter atreasonable times upon any property, public or private, for the purpose ofinvestigating the condition of any waters and the discharge therein of anysewage, industrial waste, or other waste or for the purpose of investigatingthe condition of the air, air pollution, air contaminant sources, emissions, orthe installation and operation of any air‑cleaning devices, and torequire written statements or the filing of reports under oath, with respect topertinent questions relating to the operation of any air‑cleaning device,sewer system, disposal system, or treatment works. In the case of effluent oremission data, any records, reports, or information obtained under this Articleor Article 21A or Article 21B of this Chapter shall be related to anyapplicable effluent or emission limitations or toxic, pretreatment, or newsource performance standards. No person shall refuse entry or access to anyauthorized representative of the Commission or Department who requests entryfor purposes of inspection, and who presents appropriate credentials, nor shallany person obstruct, hamper or interfere with any such representative while inthe process of carrying out his official duties.
(3) To conduct public hearings and to delegate the power toconduct public hearings in accordance with the procedures prescribed by thisArticle or by Article 21B of this Chapter.
(4) To delegate such of the powers of the Commission as theCommission deems necessary to one or more of its members, to the Secretary orany other qualified employee of the Department. The Commission shall notdelegate to persons other than its own members and the designated employees ofthe Department the power to conduct hearings with respect to the classificationof waters, the assignment of classifications, air quality standards, aircontaminant source classifications, emission control standards, or the issuanceof any special order except in the case of an emergency under subdivision (12)of this subsection for the abatement of existing water or air pollution. Anyemployee of the Department to whom a delegation of power is made to conduct ahearing shall report the hearing with its evidence and record to theCommission.
(5) To institute such actions in the superior court of anycounty in which a violation of this Article, Article 21B of this Chapter, orthe rules of the Commission has occurred, or, in the discretion of theCommission, in the superior court of the county in which any defendant resides,or has his or its principal place of business, as the Commission may deemnecessary for the enforcement of any of the provisions of this Article, Article21B of this Chapter, or of any official action of the Commission, includingproceedings to enforce subpoenas or for the punishment of contempt of theCommission.
(6) To agree upon or enter into any settlements or compromisesof any actions and to prosecute any appeals or other proceedings.
(7) To direct the investigation of any killing of fish andwildlife which, in the opinion of the Commission, is of sufficient magnitude tojustify investigation and is known or believed to have resulted from thepollution of the waters or air as defined in this Article, and whenever anyperson, whether or not he shall have been issued a certificate of approval,permit or other document of approval authorized by this or any other State law,has negligently, or carelessly or unlawfully, or willfully and unlawfully,caused pollution of the waters or air as defined in this Article, in suchquantity, concentration or manner that fish or wildlife are killed as theresult thereof, the Commission, may recover, in the name of the State, damagesfrom such person. The measure of damages shall be the amount determined by theDepartment and the North Carolina Wildlife Resources Commission, whichever hasjurisdiction over the fish and wildlife destroyed to be the replacement costthereof plus the cost of all reasonable and necessary investigations made orcaused to be made by the State in connection therewith. Upon receipt of theestimate of damages caused, the Department shall notify the persons responsiblefor the destruction of the fish or wildlife in question and may effect suchsettlement as the Commission may deem proper and reasonable, and if nosettlement is reached within a reasonable time, the Commission shall bring acivil action to recover such damages in the superior court in the county inwhich the discharge took place. Upon such action being brought the superiorcourt shall have jurisdiction to hear and determine all issues or questions oflaw or fact, arising on the pleadings, including issues of liability and theamount of damages. On such hearing, the estimate of the replacement costs ofthe fish or wildlife destroyed shall be prima facie evidence of the actualreplacement costs of such fish or wildlife. In arriving at such estimate, anyreasonably accurate method may be used and it shall not be necessary for anyagent of the Wildlife Resources Commission or the Department to collect, handleor weigh numerous specimens of dead fish or wildlife.
The State of North Carolina shall bedeemed the owner of the fish or wildlife killed and all actions for recoveryshall be brought by the Commission on behalf of the State as the owner of thefish or wildlife. The fact that the person or persons alleged to be responsiblefor the pollution which killed the fish or wildlife holds or has held acertificate of approval, permit or other document of approval authorized bythis Article or any other law of the State shall not bar any such action. Theproceeds of any recovery, less the cost of investigation, shall be used toreplace, insofar as and as promptly as possible, the fish and wildlife killed,or in cases where replacement is not practicable, the proceeds shall be used inwhatever manner the responsible agency deems proper for improving the fish andwildlife habitat in question. Any such funds received are hereby appropriatedfor these designated purposes. Nothing in this paragraph shall be construed inany way to limit or prevent any other action which is now authorized by this Article.
(8) After issuance of an appropriate order, to withhold thegranting of any permit or permits pursuant to G.S. 143‑215.1 or G.S. 143‑215.108for the construction or operation of any new or additional disposal system orsystems or air‑cleaning device or devices in any area of the State. Suchorder may be issued only upon determination by the Commission, after publichearing, that the permitting of any new or additional source or sources ofwater or air pollution will result in a generalized condition of water or airpollution within the area contrary to the public interest, detrimental to thepublic health, safety, and welfare, and contrary to the policy and intentdeclared in this Article or Article 21B of this Chapter. The Commission maymake reasonable distinctions among the various sources of water and airpollution and may direct that its order shall apply only to those sources whichit determines will result in a generalized condition of water or air pollution.
The determination of the Commission shallbe supported by detailed findings of fact and conclusions set forth in theorder and based upon competent evidence of record. The order shall describe thegeographical area of the State affected thereby with particularity and shallprohibit the issuance of permits pending a determination by the Commission thatthe generalized condition of water or air pollution has ceased.
Notice of hearing shall be given inaccordance with the provisions of G.S. 150B‑21.2.
A person aggrieved by an order of theCommission under this subdivision may seek judicial review of the order underArticle 4 of Chapter 150B of the General Statutes without first commencing acontested case. An order may not be stayed while it is being reviewed.
(9) If an investigation conducted pursuant to this Article orArticle 21B of this Chapter reveals a violation of any rules, standards, orlimitations adopted by the Commission pursuant to this Article or Article 21Bof this Chapter, or a violation of any terms or conditions of any permit issuedpursuant to G.S. 143‑215.1 or 143‑215.108, or special order orother document issued pursuant to G.S. 143‑215.2 or G.S. 143‑215.110,the Commission may assess the reasonable costs of any investigation, inspectionor monitoring survey which revealed the violation against the personresponsible therefor. If the violation resulted in an unauthorized discharge tothe waters or atmosphere of the State, the Commission may also assess theperson responsible for the violation for any actual and necessary costsincurred by the State in removing, correcting or abating any adverse effectsupon the water or air resulting from the unauthorized discharge. If the personresponsible for the violation refuses or fails within a reasonable time to payany sums assessed, the Commission may institute a civil action in the superiorcourt of the county in which the violation occurred or, in the Commission'sdiscretion, in the superior court of the county in which such person resides orhas his or its principal place of business, to recover such sums.
(10) To require a laboratory facility that performs any tests,analyses, measurements, or monitoring required under this Article or Article21B of this Chapter to be certified annually by the Department, to establish standardsthat a laboratory facility and its employees must meet and maintain in orderfor the laboratory facility to be certified, and to charge a laboratoryfacility a fee for certification. Fees collected under this subdivision shallbe credited to the Water and Air Account and used to administer thissubdivision. These fees shall be applied to the cost of certifying commercial,industrial, and municipal laboratory facilities.
(11) Repealed by Session Laws 1983, c. 296, s. 6.
(12) To declare an emergency when it finds that a generalizedcondition of water or air pollution which is causing imminent danger to thehealth or safety of the public. Regardless of any other provisions of law, ifthe Department finds that such a condition of water or air pollution exists andthat it creates an emergency requiring immediate action to protect the publichealth and safety or to protect fish and wildlife, the Secretary of theDepartment with the concurrence of the Governor, shall order persons causing orcontributing to the water or air pollution in question to reduce or discontinueimmediately the emission of air contaminants or the discharge of wastes.Immediately after the issuance of such order, the chairman of the Commissionshall fix a place and time for a hearing before the Commission to be heldwithin 24 hours after issuance of such order, and within 24 hours after thecommencement of such hearing, and without adjournment thereof, the Commissionshall either affirm, modify or set aside the order.
In the absence of a generalized conditionof air or water pollution of the type referred to above, if the Secretary findsthat the emissions from one or more air contaminant sources or the discharge ofwastes from one or more sources of water pollution is causing imminent dangerto human health and safety or to fish and wildlife, he may with the concurrenceof the Governor order the person or persons responsible for the operation oroperations in question to immediately reduce or discontinue the emissions ofair contaminants or the discharge of wastes or to take such other measures asare, in his judgment, necessary, without regard to any other provisions of thisArticle or Article 21B of this Chapter. In such event, the requirements forhearing and affirmance, modification or setting aside of such orders set forthin the preceding paragraph of this subdivision shall apply.
(13) Repealed by Session Laws 1983, c. 296, s. 6.
(14) To certify and approve, by appropriate delegations andconditions in permits required by G.S. 143‑215.1, requests by publiclyowned treatment works to implement, administer and enforce a pretreatmentprogram for the control of pollutants which pass through or interfere withtreatment processes in such treatment works; and to require such programs to bedeveloped where necessary to comply with the Federal Water Pollution ControlAct and the Resource Conservation and Recovery Act, including the addition ofconditions and compliance schedules in permits required by G.S. 143‑215.1.Pretreatment programs submitted by publicly owned treatment works shallinclude, at a minimum, the adoption of pretreatment standards, a permit orequally effective system for the control of pollutants contributed to thetreatment works, and the ability to effectively enforce compliance with theprogram.
(15) To adopt rules for the prevention of pollution fromunderground tanks containing petroleum, petroleum products, or hazardoussubstances. Rules adopted under this section may incorporate standards andrestrictions which exceed and are more comprehensive than comparable federalregulations.
(16) To adopt rules limiting the manufacture, storage, sale,distribution or use of cleaning agents containing phosphorus pursuant to G.S.143‑214.4(e), and to adopt rules limiting the manufacture, storage, sale,distribution or use of cleaning agents containing nitrilotriacetic acid.
(17) To adopt rules to implement Part 2A of Article 21A of Chapter143.
(b) Research Functions. The Department shall have the power toconduct scientific experiments, research, and investigations to discovereconomical and practical corrective methods for air pollution and wastedisposal problems. To this end, the Department may cooperate with any public orprivate agency or agencies in the conduct of such experiments, research, andinvestigations, and may, when funds permit, establish research studies in anyNorth Carolina educational institution, with the consent of such institution.In addition, the Department shall have the power to cooperate and enter into contractswith technical divisions of State agencies, institutions and withmunicipalities, industries, and other persons in the execution of such surveys,studies, and research as it may deem necessary in fulfilling its functionsunder this Article or Article 21B of this Chapter. All State departments shalladvise with and cooperate with the Department on matters of mutual interest.
(c) Relation with the Federal Government. The Commission asofficial water and air pollution control agency for the State is delegated toact in local administration of all matters covered by any existing federalstatutes and future legislation by Congress relating to water and air qualitycontrol. In order for the State of North Carolina to effectively participate inprograms administered by federal agencies for the regulation and abatement ofwater and air pollution, the Department is authorized to accept and administerfunds provided by federal agencies for water and air pollution programs and toenter into contracts with federal agencies regarding the use of such funds.
(d) Relations with Other States. The Commission or theDepartment may, with the approval of the Governor, consult with qualifiedrepresentatives of adjoining states relative to the establishment of regulationsfor the protection of waters and air of mutual interest, but the approval ofthe General Assembly shall be required to make any regulations binding.
(e) Variances. Any person subject to the provisions of G.S.143‑215.1 or 143‑215.108 may apply to the Commission for a variancefrom rules, standards, or limitations established pursuant to G.S. 143‑214.1,143‑215, or 143‑215.107. The Commission may grant such variance,for fixed or indefinite periods after public hearing on due notice, or where itis found that circumstances so require, for a period not to exceed 90 dayswithout prior hearing and notice. Prior to granting a variance hereunder, theCommission shall find that:
(1) The discharge of waste or the emission of air contaminantsoccurring or proposed to occur do not endanger human health or safety; and
(2) Compliance with the rules, standards, or limitations fromwhich variance is sought cannot be achieved by application of best availabletechnology found to be economically reasonable at the time of application forsuch variances, and would produce serious hardship without equal or greaterbenefits to the public, provided that such variances shall be consistent withthe provisions of the Federal Water Pollution Control Act as amended or theClean Air Act as amended; and provided further, that any person who wouldotherwise be entitled to a variance or modification under the Federal WaterPollution Control Act as amended or the Clean Air Act as amended shall also beentitled to the same variance from or modification in rules, standards, orlimitations established pursuant to G.S. 143‑214.1, 143‑215, and143‑215.107, respectively.
(f) Notification of Completed Remedial Action. Thedefinitions set out in G.S. 130A‑310.31(b) apply to this subsection. Anyperson may submit a written request to the Department for a determination thatgroundwater has been remediated to meet the standards and classificationsestablished under this Part. A request for a determination that groundwater hasbeen remediated to meet the standards and classifications established underthis Part shall be accompanied by the fee required by G.S. 130A‑310.39(a)(2).If the Department determines that groundwater has been remediated toestablished standards and classifications, the Department shall issue a writtennotification that no further remediation of the groundwater will be required.The notification shall state that no further remediation of the groundwaterwill be required unless the Department later determines, based on new informationor information not previously provided to the Department, that the groundwaterhas not been remediated to established standards and classifications or thatthe Department was provided with false or incomplete information. Under any ofthose circumstances, the Department may withdraw the notification and requireresponsible parties to remediate the groundwater to established standards andclassifications. (1951, c. 606;1957, c. 1267, s. 3; 1959, c. 779, s. 8; 1963, c. 1086; 1967, c. 892, s. 1;1969, c. 538; 1971, c. 1167, ss. 7, 8; 1973, c. 698, ss. 1‑7, 9, 17; c.712, s. 1; c. 1262, ss. 23, 86; c. 1331, s. 3; 1975, c. 583, ss. 5, 6; c. 655,s. 3; 1977, c. 771, s. 4; 1979, c. 633, ss. 6‑8; 1979, 2nd Sess., c.1158, ss. 1, 3, 4; 1983, c. 296, ss. 5‑8; 1985, c. 551, s. 2; 1987, c.111, s. 2; c. 767, s. 1; c. 827, ss. 1, 154, 161, 266; 1987 (Reg. Sess., 1988),c. 1035, s. 2; 1989, c. 500, s. 122; c. 652, s. 1; 1991, c. 552, ss. 2, 11; c.712, s. 2; 1991 (Reg. Sess., 1992), c. 890, s. 16; c. 1039, ss. 14, 20.1; 1993,c. 344, s. 2; c. 400, ss. 1(c), 2, 3, 15; c. 496, s. 4; 1993 (Reg. Sess.,1994), c. 694, s. 1; 1995, c. 484, s. 5; 1997‑357, s. 6; 1997‑496,s. 4; 1998‑212, s. 29A.11(b).)
§ 143‑215.3. General powers of Commission and Department; auxiliary powers.
(a) Additional Powers. In addition to the specific powersprescribed elsewhere in this Article, and for the purpose of carrying out itsduties, the Commission shall have the power:
(1) To make rules implementing Articles 21, 21A, 21B, or 38 ofthis Chapter.
(1a) To adopt fee schedules and collect fees for the following:
a. Processing of applications for permits or registrationsissued under Article 21, other than Parts 1 and 1A, Articles 21A, 21B, and 38of this Chapter;
b. Administering permits or registrations issued under Article21, other than Parts 1 and 1A, Articles 21A, 21B, and 38 of this Chapterincluding monitoring compliance with the terms of those permits; and
c. Reviewing, processing, and publicizing applications forconstruction grant awards under the Federal Water Pollution Control Act.
No fee may be charged under this provision, however, to afarmer who submits an application that pertains to his farming operations.
(1b) The fee to be charged pursuant to G.S. 143‑215.3(a)(1a)for processing an application for a permit under G.S. 143‑215.108 andG.S. 143‑215.109 of Article 21B of this Chapter may not exceed fivehundred dollars ($500.00). The fee to be charged pursuant to G.S. 143‑215.3(a)(1a)for processing a registration under Part 2A of this Article or Article 38 ofthis Chapter may not exceed fifty dollars ($50.00) for any single registration.An additional fee of twenty percent (20%) of the registration processing feemay be assessed for a late registration under Article 38 of this Chapter. Thefee for administering and compliance monitoring under Article 21, other thanParts 1 and 1A, and G.S. 143‑215.108 and G.S. 143‑215.109 ofArticle 21B shall be charged on an annual basis for each year of the permitterm and may not exceed one thousand five hundred dollars ($1,500) per year.Fees for processing all permits under Article 21A and all other sections ofArticle 21B shall not exceed one hundred dollars ($100.00) for any singlepermit. The total payment for fees that are set by the Commission under thissubsection for all permits for any single facility shall not exceed seventhousand five hundred dollars ($7,500) per year, which amount shall include allapplication fees and fees for administration and compliance monitoring. Asingle facility is defined to be any contiguous area under one ownership and inwhich permitted activities occur. For all permits issued under these Articleswhere a fee schedule is not specified in the statutes, the Commission, or othercommission specified by statute shall adopt a fee schedule in a rule followingthe procedures established by the Administrative Procedure Act. Fee schedulesshall be established to reflect the size of the emission or discharge, thepotential impact on the environment, the staff costs involved, relative costsof the issuance of new permits and the reissuance of existing permits, andshall include adequate safeguards to prevent unusual fee assessments whichwould result in serious economic burden on an individual applicant. A systemshall be considered to allow consolidated annual payments for persons withmultiple permits. In its rulemaking to establish fee schedules, the Commissionis also directed to consider a method of rewarding facilities which achievefull compliance with administrative and self‑monitoring reportingrequirements, and to consider, in those cases where the cost of renewal oramendment of a permit is less than for the original permit, a lower fee for therenewal or amendment.
(1c) Moneys collected pursuant to G.S. 143‑215.3(a)(1a)shall be used to:
a. Eliminate, insofar as possible, backlogs of permitapplications awaiting agency action;
b. Improve the quality of permits issued;
c. Improve the rate of compliance of permitted activities withenvironmental standards; and
d. Decrease the length of the processing period for permitapplications.
(1d) The Commission may adopt and implement a graduated feeschedule sufficient to cover all direct and indirect costs required for theState to develop and administer a permit program which meets the requirementsof Title V. The provisions of subdivision (1b) of this subsection do not applyto the adoption of a fee schedule under this subdivision. In adopting andimplementing a fee schedule, the Commission shall require that the owner oroperator of all air contaminant sources subject to the requirement to obtain apermit under Title V to pay an annual fee, or the equivalent over some otherperiod, sufficient to cover costs as provided in section 502(b)(3)(A) of TitleV. The fee schedule shall be adopted according to the procedures set out inChapter 150B of the General Statutes.
a. The total amount of fees collected under the fee scheduleadopted pursuant to this subdivision shall conform to the requirements ofsection 502(b)(3)(B) of Title V. No fee shall be collected for more than 4,000tons per year of any individual regulated pollutant, as defined in section502(b)(3)(B)(ii) of Title V, emitted by any source. Fees collected pursuant tothis subdivision shall be credited to the Title V Account.
b. The Commission may reduce any permit fee required under thissection to take into account the financial resources of small businessstationary sources as defined under Title V and regulations promulgated by theUnited States Environmental Protection Agency.
c. When funds in the Title V Account exceed the total amountnecessary to cover the cost of the Title V program for the next fiscal year,the Secretary shall reduce the amount billed for the next fiscal year so thatthe excess funds are used to supplement the cost of administering the Title Vpermit program in that fiscal year.
(1e) The Commission shall collect the application, annual, andproject fees for processing and administering permits, certificates of coverageunder general permits, and certifications issued under Parts 1 and 1A of thisArticle and for compliance monitoring under Parts 1 and 1A of this Article asprovided in G.S. 143‑215.3D and G.S. 143‑215.10G.
(2) To direct that such investigation be conducted as it mayreasonably deem necessary to carry out its duties as prescribed by this Articleor Article 21A or Article 21B of this Chapter, and for this purpose to enter atreasonable times upon any property, public or private, for the purpose ofinvestigating the condition of any waters and the discharge therein of anysewage, industrial waste, or other waste or for the purpose of investigatingthe condition of the air, air pollution, air contaminant sources, emissions, orthe installation and operation of any air‑cleaning devices, and torequire written statements or the filing of reports under oath, with respect topertinent questions relating to the operation of any air‑cleaning device,sewer system, disposal system, or treatment works. In the case of effluent oremission data, any records, reports, or information obtained under this Articleor Article 21A or Article 21B of this Chapter shall be related to anyapplicable effluent or emission limitations or toxic, pretreatment, or newsource performance standards. No person shall refuse entry or access to anyauthorized representative of the Commission or Department who requests entryfor purposes of inspection, and who presents appropriate credentials, nor shallany person obstruct, hamper or interfere with any such representative while inthe process of carrying out his official duties.
(3) To conduct public hearings and to delegate the power toconduct public hearings in accordance with the procedures prescribed by thisArticle or by Article 21B of this Chapter.
(4) To delegate such of the powers of the Commission as theCommission deems necessary to one or more of its members, to the Secretary orany other qualified employee of the Department. The Commission shall notdelegate to persons other than its own members and the designated employees ofthe Department the power to conduct hearings with respect to the classificationof waters, the assignment of classifications, air quality standards, aircontaminant source classifications, emission control standards, or the issuanceof any special order except in the case of an emergency under subdivision (12)of this subsection for the abatement of existing water or air pollution. Anyemployee of the Department to whom a delegation of power is made to conduct ahearing shall report the hearing with its evidence and record to theCommission.
(5) To institute such actions in the superior court of anycounty in which a violation of this Article, Article 21B of this Chapter, orthe rules of the Commission has occurred, or, in the discretion of theCommission, in the superior court of the county in which any defendant resides,or has his or its principal place of business, as the Commission may deemnecessary for the enforcement of any of the provisions of this Article, Article21B of this Chapter, or of any official action of the Commission, includingproceedings to enforce subpoenas or for the punishment of contempt of theCommission.
(6) To agree upon or enter into any settlements or compromisesof any actions and to prosecute any appeals or other proceedings.
(7) To direct the investigation of any killing of fish andwildlife which, in the opinion of the Commission, is of sufficient magnitude tojustify investigation and is known or believed to have resulted from thepollution of the waters or air as defined in this Article, and whenever anyperson, whether or not he shall have been issued a certificate of approval,permit or other document of approval authorized by this or any other State law,has negligently, or carelessly or unlawfully, or willfully and unlawfully,caused pollution of the waters or air as defined in this Article, in suchquantity, concentration or manner that fish or wildlife are killed as theresult thereof, the Commission, may recover, in the name of the State, damagesfrom such person. The measure of damages shall be the amount determined by theDepartment and the North Carolina Wildlife Resources Commission, whichever hasjurisdiction over the fish and wildlife destroyed to be the replacement costthereof plus the cost of all reasonable and necessary investigations made orcaused to be made by the State in connection therewith. Upon receipt of theestimate of damages caused, the Department shall notify the persons responsiblefor the destruction of the fish or wildlife in question and may effect suchsettlement as the Commission may deem proper and reasonable, and if nosettlement is reached within a reasonable time, the Commission shall bring acivil action to recover such damages in the superior court in the county inwhich the discharge took place. Upon such action being brought the superiorcourt shall have jurisdiction to hear and determine all issues or questions oflaw or fact, arising on the pleadings, including issues of liability and theamount of damages. On such hearing, the estimate of the replacement costs ofthe fish or wildlife destroyed shall be prima facie evidence of the actualreplacement costs of such fish or wildlife. In arriving at such estimate, anyreasonably accurate method may be used and it shall not be necessary for anyagent of the Wildlife Resources Commission or the Department to collect, handleor weigh numerous specimens of dead fish or wildlife.
The State of North Carolina shall bedeemed the owner of the fish or wildlife killed and all actions for recoveryshall be brought by the Commission on behalf of the State as the owner of thefish or wildlife. The fact that the person or persons alleged to be responsiblefor the pollution which killed the fish or wildlife holds or has held acertificate of approval, permit or other document of approval authorized bythis Article or any other law of the State shall not bar any such action. Theproceeds of any recovery, less the cost of investigation, shall be used toreplace, insofar as and as promptly as possible, the fish and wildlife killed,or in cases where replacement is not practicable, the proceeds shall be used inwhatever manner the responsible agency deems proper for improving the fish andwildlife habitat in question. Any such funds received are hereby appropriatedfor these designated purposes. Nothing in this paragraph shall be construed inany way to limit or prevent any other action which is now authorized by this Article.
(8) After issuance of an appropriate order, to withhold thegranting of any permit or permits pursuant to G.S. 143‑215.1 or G.S. 143‑215.108for the construction or operation of any new or additional disposal system orsystems or air‑cleaning device or devices in any area of the State. Suchorder may be issued only upon determination by the Commission, after publichearing, that the permitting of any new or additional source or sources ofwater or air pollution will result in a generalized condition of water or airpollution within the area contrary to the public interest, detrimental to thepublic health, safety, and welfare, and contrary to the policy and intentdeclared in this Article or Article 21B of this Chapter. The Commission maymake reasonable distinctions among the various sources of water and airpollution and may direct that its order shall apply only to those sources whichit determines will result in a generalized condition of water or air pollution.
The determination of the Commission shallbe supported by detailed findings of fact and conclusions set forth in theorder and based upon competent evidence of record. The order shall describe thegeographical area of the State affected thereby with particularity and shallprohibit the issuance of permits pending a determination by the Commission thatthe generalized condition of water or air pollution has ceased.
Notice of hearing shall be given inaccordance with the provisions of G.S. 150B‑21.2.
A person aggrieved by an order of theCommission under this subdivision may seek judicial review of the order underArticle 4 of Chapter 150B of the General Statutes without first commencing acontested case. An order may not be stayed while it is being reviewed.
(9) If an investigation conducted pursuant to this Article orArticle 21B of this Chapter reveals a violation of any rules, standards, orlimitations adopted by the Commission pursuant to this Article or Article 21Bof this Chapter, or a violation of any terms or conditions of any permit issuedpursuant to G.S. 143‑215.1 or 143‑215.108, or special order orother document issued pursuant to G.S. 143‑215.2 or G.S. 143‑215.110,the Commission may assess the reasonable costs of any investigation, inspectionor monitoring survey which revealed the violation against the personresponsible therefor. If the violation resulted in an unauthorized discharge tothe waters or atmosphere of the State, the Commission may also assess theperson responsible for the violation for any actual and necessary costsincurred by the State in removing, correcting or abating any adverse effectsupon the water or air resulting from the unauthorized discharge. If the personresponsible for the violation refuses or fails within a reasonable time to payany sums assessed, the Commission may institute a civil action in the superiorcourt of the county in which the violation occurred or, in the Commission'sdiscretion, in the superior court of the county in which such person resides orhas his or its principal place of business, to recover such sums.
(10) To require a laboratory facility that performs any tests,analyses, measurements, or monitoring required under this Article or Article21B of this Chapter to be certified annually by the Department, to establish standardsthat a laboratory facility and its employees must meet and maintain in orderfor the laboratory facility to be certified, and to charge a laboratoryfacility a fee for certification. Fees collected under this subdivision shallbe credited to the Water and Air Account and used to administer thissubdivision. These fees shall be applied to the cost of certifying commercial,industrial, and municipal laboratory facilities.
(11) Repealed by Session Laws 1983, c. 296, s. 6.
(12) To declare an emergency when it finds that a generalizedcondition of water or air pollution which is causing imminent danger to thehealth or safety of the public. Regardless of any other provisions of law, ifthe Department finds that such a condition of water or air pollution exists andthat it creates an emergency requiring immediate action to protect the publichealth and safety or to protect fish and wildlife, the Secretary of theDepartment with the concurrence of the Governor, shall order persons causing orcontributing to the water or air pollution in question to reduce or discontinueimmediately the emission of air contaminants or the discharge of wastes.Immediately after the issuance of such order, the chairman of the Commissionshall fix a place and time for a hearing before the Commission to be heldwithin 24 hours after issuance of such order, and within 24 hours after thecommencement of such hearing, and without adjournment thereof, the Commissionshall either affirm, modify or set aside the order.
In the absence of a generalized conditionof air or water pollution of the type referred to above, if the Secretary findsthat the emissions from one or more air contaminant sources or the discharge ofwastes from one or more sources of water pollution is causing imminent dangerto human health and safety or to fish and wildlife, he may with the concurrenceof the Governor order the person or persons responsible for the operation oroperations in question to immediately reduce or discontinue the emissions ofair contaminants or the discharge of wastes or to take such other measures asare, in his judgment, necessary, without regard to any other provisions of thisArticle or Article 21B of this Chapter. In such event, the requirements forhearing and affirmance, modification or setting aside of such orders set forthin the preceding paragraph of this subdivision shall apply.
(13) Repealed by Session Laws 1983, c. 296, s. 6.
(14) To certify and approve, by appropriate delegations andconditions in permits required by G.S. 143‑215.1, requests by publiclyowned treatment works to implement, administer and enforce a pretreatmentprogram for the control of pollutants which pass through or interfere withtreatment processes in such treatment works; and to require such programs to bedeveloped where necessary to comply with the Federal Water Pollution ControlAct and the Resource Conservation and Recovery Act, including the addition ofconditions and compliance schedules in permits required by G.S. 143‑215.1.Pretreatment programs submitted by publicly owned treatment works shallinclude, at a minimum, the adoption of pretreatment standards, a permit orequally effective system for the control of pollutants contributed to thetreatment works, and the ability to effectively enforce compliance with theprogram.
(15) To adopt rules for the prevention of pollution fromunderground tanks containing petroleum, petroleum products, or hazardoussubstances. Rules adopted under this section may incorporate standards andrestrictions which exceed and are more comprehensive than comparable federalregulations.
(16) To adopt rules limiting the manufacture, storage, sale,distribution or use of cleaning agents containing phosphorus pursuant to G.S.143‑214.4(e), and to adopt rules limiting the manufacture, storage, sale,distribution or use of cleaning agents containing nitrilotriacetic acid.
(17) To adopt rules to implement Part 2A of Article 21A of Chapter143.
(b) Research Functions. The Department shall have the power toconduct scientific experiments, research, and investigations to discovereconomical and practical corrective methods for air pollution and wastedisposal problems. To this end, the Department may cooperate with any public orprivate agency or agencies in the conduct of such experiments, research, andinvestigations, and may, when funds permit, establish research studies in anyNorth Carolina educational institution, with the consent of such institution.In addition, the Department shall have the power to cooperate and enter into contractswith technical divisions of State agencies, institutions and withmunicipalities, industries, and other persons in the execution of such surveys,studies, and research as it may deem necessary in fulfilling its functionsunder this Article or Article 21B of this Chapter. All State departments shalladvise with and cooperate with the Department on matters of mutual interest.
(c) Relation with the Federal Government. The Commission asofficial water and air pollution control agency for the State is delegated toact in local administration of all matters covered by any existing federalstatutes and future legislation by Congress relating to water and air qualitycontrol. In order for the State of North Carolina to effectively participate inprograms administered by federal agencies for the regulation and abatement ofwater and air pollution, the Department is authorized to accept and administerfunds provided by federal agencies for water and air pollution programs and toenter into contracts with federal agencies regarding the use of such funds.
(d) Relations with Other States. The Commission or theDepartment may, with the approval of the Governor, consult with qualifiedrepresentatives of adjoining states relative to the establishment of regulationsfor the protection of waters and air of mutual interest, but the approval ofthe General Assembly shall be required to make any regulations binding.
(e) Variances. Any person subject to the provisions of G.S.143‑215.1 or 143‑215.108 may apply to the Commission for a variancefrom rules, standards, or limitations established pursuant to G.S. 143‑214.1,143‑215, or 143‑215.107. The Commission may grant such variance,for fixed or indefinite periods after public hearing on due notice, or where itis found that circumstances so require, for a period not to exceed 90 dayswithout prior hearing and notice. Prior to granting a variance hereunder, theCommission shall find that:
(1) The discharge of waste or the emission of air contaminantsoccurring or proposed to occur do not endanger human health or safety; and
(2) Compliance with the rules, standards, or limitations fromwhich variance is sought cannot be achieved by application of best availabletechnology found to be economically reasonable at the time of application forsuch variances, and would produce serious hardship without equal or greaterbenefits to the public, provided that such variances shall be consistent withthe provisions of the Federal Water Pollution Control Act as amended or theClean Air Act as amended; and provided further, that any person who wouldotherwise be entitled to a variance or modification under the Federal WaterPollution Control Act as amended or the Clean Air Act as amended shall also beentitled to the same variance from or modification in rules, standards, orlimitations established pursuant to G.S. 143‑214.1, 143‑215, and143‑215.107, respectively.
(f) Notification of Completed Remedial Action. Thedefinitions set out in G.S. 130A‑310.31(b) apply to this subsection. Anyperson may submit a written request to the Department for a determination thatgroundwater has been remediated to meet the standards and classificationsestablished under this Part. A request for a determination that groundwater hasbeen remediated to meet the standards and classifications established underthis Part shall be accompanied by the fee required by G.S. 130A‑310.39(a)(2).If the Department determines that groundwater has been remediated toestablished standards and classifications, the Department shall issue a writtennotification that no further remediation of the groundwater will be required.The notification shall state that no further remediation of the groundwaterwill be required unless the Department later determines, based on new informationor information not previously provided to the Department, that the groundwaterhas not been remediated to established standards and classifications or thatthe Department was provided with false or incomplete information. Under any ofthose circumstances, the Department may withdraw the notification and requireresponsible parties to remediate the groundwater to established standards andclassifications. (1951, c. 606;1957, c. 1267, s. 3; 1959, c. 779, s. 8; 1963, c. 1086; 1967, c. 892, s. 1;1969, c. 538; 1971, c. 1167, ss. 7, 8; 1973, c. 698, ss. 1‑7, 9, 17; c.712, s. 1; c. 1262, ss. 23, 86; c. 1331, s. 3; 1975, c. 583, ss. 5, 6; c. 655,s. 3; 1977, c. 771, s. 4; 1979, c. 633, ss. 6‑8; 1979, 2nd Sess., c.1158, ss. 1, 3, 4; 1983, c. 296, ss. 5‑8; 1985, c. 551, s. 2; 1987, c.111, s. 2; c. 767, s. 1; c. 827, ss. 1, 154, 161, 266; 1987 (Reg. Sess., 1988),c. 1035, s. 2; 1989, c. 500, s. 122; c. 652, s. 1; 1991, c. 552, ss. 2, 11; c.712, s. 2; 1991 (Reg. Sess., 1992), c. 890, s. 16; c. 1039, ss. 14, 20.1; 1993,c. 344, s. 2; c. 400, ss. 1(c), 2, 3, 15; c. 496, s. 4; 1993 (Reg. Sess.,1994), c. 694, s. 1; 1995, c. 484, s. 5; 1997‑357, s. 6; 1997‑496,s. 4; 1998‑212, s. 29A.11(b).)
