VOLUME 31 ISSUE 23 Pages 2261 2437

NORTH CAROLINA

VOLUME 31 ● ISSUE 23 ● Pages 2261 – 2437

June 1, 2017

I. IN ADDITION

Environmental Management Commission – Public Notice...... 2261

Health and Human Services, Department of – Notice of Application to

Modify Existing Innovative Approval of a Wastewater System for On-Site

Subsurface Use...... 2262-2265

II. PROPOSED RULES

Agriculture and Consumer Services, Department of

Agriculture, Board of...... 2266 – 2268

Soil and Water Conservation Commission...... 2268 – 2275

Commerce, Department of

Banks, Office ofthe Commissioner of...... 2275– 2311

Elections, Board of

Elections, Board of...... 2311 – 2325

Health and Human Services, Department of

Public Health, Commission for...... 2325 – 2334

Insurance, Department of

Code Officials Qualification Board...... 2334 – 2335

Public Safety, Department of

Private Protective Services Board...... 2335 – 2341

Environmental Quality, Department of

Public Health, Commission for...... 2341 – 2351

Occupational Licensing Boards and Commissions

Architecture, Board of...... 2351 – 2358

Veterinary Medical Board...... 2358 – 2360

III. APPROVED RULES...... 2361 - 2426

Agriculture and Consumer Services, Department of

Agriculture, Board of

Health and Human Services, Department of

Public Health, Commission for

Insurance, Department of

Department

Environmental Quality, Department of

Environmental Management Commission

Marine Fisheries Commission

Occupational Licensing Boards and Commissions

Certified Public Accountant Examiners, Board of

Pharmacy, Board of

Podiatry Examiners, Board of

IV. RULES REVIEW COMMISSION...... 2427 - 2432

V. CONTESTED CASE DECISIONS

Index to ALJ Decisions...... 2433 - 2437

Contact List for Rulemaking Questions or Concerns

For questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive.

Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc.

Office of Administrative Hearings

Rules Division

1711 New Hope Church Road(919) 431-3000

Raleigh, North Carolina27609(919) 431-3104 FAX

contact: Molly Masich, Codifier of (919) 431-3071

Dana Vojtko, Publications Coordinator (919) 431-3075

Lindsay Woy, Editorial (919) 431-3078

Rule Review and Legal Issues

Rules Review Commission

1711 New Hope Church Road(919) 431-3000

Raleigh, North Carolina27609(919) 431-3104 FAX

contact:Abigail Hammond, Commission (919) 431-3076

Amber Cronk May, Commission (919) 431-3074

Amanda Reeder, Commission (919) 431-3079

Jason Thomas, Commission (919) 431-3081

Alexander Burgos, (919) 431-3080

Julie Brincefield, Administrative Assistant (919) 431-3073

Fiscal Notes & Economic Analysis and Governor's Review

Office of State Budget and Management

116 West Jones Street(919) 807-4700

Raleigh, North Carolina27603-8005(919) 733-0640 FAX

Contact: Anca Grozav, Economic (919) 807-4740

Carrie Hollis, Economic (919) 807-4757

NC Association of CountyCommissioners

215 North Dawson Street(919) 715-2893

Raleigh, North Carolina27603

contact: Amy

NC League of Municipalities(919) 715-4000

215 North Dawson Street

Raleigh, North Carolina27603

contact: Sarah

Legislative Process Concerning Rule-making

545 Legislative Office Building

300 North Salisbury Street(919) 733-2578

Raleigh, North Carolina27611(919) 715-5460 FAX

Karen Cochrane-Brown, Director/Legislative Analysis

Jeff Hudson, Staff

NORTH CAROLINA REGISTER

Publication Schedule for January 2017 – December 2017

FILING DEADLINES / NOTICE OF TEXT / PERMANENT RULE / TEMPORARY RULES
Volume & issue number / Issue date / Last day for filing / Earliest date for public hearing / End of required comment
Period / Deadline to submit to RRC
for review at
next meeting / Earliest Eff.
Date of
Permanent Rule / Delayed Eff. Date of
Permanent Rule
31st legislative day of the session beginning: / 270th day from publication in the Register
31:13 / 01/03/17 / 12/07/16 / 01/18/17 / 03/06/17 / 03/20/17 / 05/01/17 / 05/2018 / 09/30/17
31:14 / 01/17/17 / 12/20/16 / 02/01/17 / 03/20/17 / 04/20/17 / 06/01/17 / 05/2018 / 10/14/17
31:15 / 02/01/17 / 01/10/17 / 02/16/17 / 04/03/17 / 04/20/17 / 06/01/17 / 05/2018 / 10/29/17
31:16 / 02/15/17 / 01/25/17 / 03/02/17 / 04/17/17 / 04/20/17 / 06/01/17 / 05/2018 / 11/12/17
31:17 / 03/01/17 / 02/08/17 / 03/16/17 / 05/01/17 / 05/22/17 / 07/01/17 / 05/2018 / 11/26/17
31:18 / 03/15/17 / 02/22/17 / 03/30/17 / 05/15/17 / 05/22/17 / 07/01/17 / 05/2018 / 12/10/17
31:19 / 04/03/17 / 03/13/17 / 04/18/17 / 06/02/17 / 06/20/17 / 08/01/17 / 05/2018 / 12/29/17
31:20 / 04/17/17 / 03/24/17 / 05/02/17 / 06/16/17 / 06/20/17 / 08/01/17 / 05/2018 / 01/12/18
31:21 / 05/01/17 / 04/07/17 / 05/16/17 / 06/30/17 / 07/20/17 / 09/01/17 / 05/2018 / 01/26/18
31:22 / 05/15/17 / 04/24/17 / 05/30/17 / 07/14/17 / 07/20/17 / 09/01/17 / 05/2018 / 02/09/18
31:23 / 06/01/17 / 05/10/17 / 06/16/17 / 07/31/17 / 08/21/17 / 10/01/17 / 05/2018 / 02/26/18
31:24 / 06/15/17 / 05/24/17 / 06/30/17 / 08/14/17 / 08/21/17 / 10/01/17 / 05/2018 / 03/12/18
32:01 / 07/03/17 / 06/12/17 / 07/18/17 / 09/01/17 / 09/20/17 / 11/01/17 / 05/2018 / 03/30/18
32:02 / 07/17/17 / 06/23/17 / 08/01/17 / 09/15/17 / 09/20/17 / 11/01/17 / 05/2018 / 04/13/18
32:03 / 08/01/17 / 07/11/17 / 08/16/17 / 10/02/17 / 10/20/17 / 12/01/17 / 05/2018 / 04/28/18
32:04 / 08/15/17 / 07/25/17 / 08/30/17 / 10/16/17 / 10/20/17 / 12/01/17 / 05/2018 / 05/12/18
32:05 / 09/01/17 / 08/11/17 / 09/16/17 / 10/31/17 / 11/20/17 / 01/01/18 / 05/2018 / 05/29/18
32:06 / 09/15/17 / 08/24/17 / 09/30/17 / 11/14/17 / 11/20/17 / 01/01/18 / 05/2018 / 06/12/18
32:07 / 10/02/17 / 09/11/17 / 10/17/17 / 12/01/17 / 12/20/17 / 02/01/18 / 05/2018 / 06/29/18
32:08 / 10/16/17 / 09/25/17 / 10/31/17 / 12/15/17 / 12/20/17 / 02/01/18 / 05/2018 / 07/13/18
32:09 / 11/01/17 / 10/11/17 / 11/16/17 / 01/02/18 / 01/22/18 / 03/01/18 / 05/2018 / 07/29/18
32:10 / 11/15/17 / 10/24/17 / 11/30/17 / 01/16/18 / 01/22/18 / 03/01/18 / 05/2018 / 08/12/18
32:11 / 12/01/17 / 11/07/17 / 12/16/17 / 01/30/18 / 02/20/18 / 04/01/18 / 05/2018 / 08/28/18
32:12 / 12/15/17 / 11/22/17 / 12/30/17 / 02/13/18 / 02/20/18 / 04/01/18 / 05/2018 / 09/11/18

This document is prepared by the Office of Administrative Hearings as a public service and is not to be deemed binding or controlling.

EXPLANATION OF THE PUBLICATION SCHEDULE

This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6.

GENERAL

The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency:

(1)temporary rules;

(2)text of proposed rules;

(3)text of permanent rules approved by the Rules Review Commission;

(4)emergency rules

(5)Executive Orders of the Governor;

(6)final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H; and

(7)other information the Codifier of Rules determines to be helpful to the public.

COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday.

FILING DEADLINES

ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees.

LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees.

NOTICE OF TEXT

EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published.

END OF REQUIRED COMMENT PERIOD
An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer.

DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month.

FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B-21.3, Effective date.

IN ADDITION

31:23NORTH CAROLINA REGISTERJune 1, 2017

IN ADDITION

PUBLIC NOTICE

STATE OFNORTH CAROLINA

ENVIRONMENTALMANAGEMENTCOMMISSION

TheDivision ofEnergy,Mineral,andLand Resources(DEMLR)invitespubliccomment on,orobjectionsto, thepermittingactionslistedbelow.Personswishingtocommentorobjectmaysubmit writtencomments to the address below bythedue datesindicated. Allcomments receivedpriortothe dateswillbe consideredin thefinaldeterminations regardingpermit issuance. Public commentsmay result inchanges to theproposedpermitting actions.Allcommentsshould referencethe specific permitting actionslisted below andthepermitnumber.DEMLR intendstore-issuethe followingNPDESindustrialGeneral

Permits.Pleasenotethatforsomepermitsbelow multipleactionsare proposed forthesame permit overtwo separatecommentperiods.

NCG140000forReady-mixconcretePlants:tobe revisedandre-issuedwithproposed re-issuancedate –

06/30/2017; public comment periodends6/15/2017.

The GeneralPermitsandFactSheetsmaybe viewed 45daysin advanceofthescheduledre-issuance datesnotedabove at:

Pleasedirect commentsorobjectionsto: StormwaterPermittingProgram

NC Divisionof Energy,Mineral,andLandResources

1612MailServiceCenter

Raleigh, NC27699-1612

Telephone Number:(919)807-6376

31:23NORTH CAROLINA REGISTERJune 1, 2017

IN ADDITION

NoticeofApplicationtomodifyexistingInnovativeApprovalofa WastewaterSystemforOn-siteSubsurfaceUse

PursuanttoNCGS130A-343(g),theNorthCarolinaDepartmentofHealthandHumanServices(DHHS)shallpublisha NoticeintheNCRegisterthat amanufacturerhassubmitteda requestforapprovalofawastewatersystem,component,or deviceforon-sitesubsurfaceuse.The followingapplicationshavebeensubmittedtoDHHS:

Applicationby:StephenSedgwick

AquaPoint.3,LLC

39TarklinPlace

NewBedford,MA02745

For:ModificationofInnovativeApprovalforAquaPoint.3,LLCexistingInnovativeApprovalIWWS-2002-1-R1

DHHSContact:NancyDeal

1-919-707-5875

Fax:919-845-3973

TheseapplicationsmaybereviewedbycontactingtheapplicantorNancyDeal,BranchHead at5605SixForksRd.,Raleigh, NC,On-SiteWaterProtectionBranch,EnvironmentalHealthSection,DivisionofPublicHealth.Draftproposedinnovative approvalsandproposedfinalactionontheapplicationbyDHHScanbe viewedontheOn-SiteWaterProtectionBranchweb

site:

Writtenpubliccommentsmaybe submittedtoDHHS within30daysofthedateoftheNoticepublicationintheNorth CarolinaRegister.Allwrittencommentsshouldbe submittedtoMs.NancyDeal,BranchHead,On-siteWaterProtection Branch,1642MailServiceCenter,Raleigh,NC27699-1642,,orfax919-845-3973.Written commentsreceivedbyDHHSinaccordancewiththisNotice willbetakenintoconsiderationbeforea finalagencydecision ismadeontheinnovativesubsurfacewastewatersystemapplication.

31:23NORTH CAROLINA REGISTERJune 1, 2017

IN ADDITION

NoticeofApplicationtomodifyexistingInnovativeApprovalofa WastewaterSystemforOn-siteSubsurfaceUse

Applicationby:DaveLentz,PE

InfiltratorWaterTechnologies

POBox768

OldSaybrook,CT 06475

For:ModificationofInnovativeApprovalforInfiltrator WaterTechnologiesexistingInnovativeApprovalIWWS-1993-02- R16

DHHSContact:NancyDeal

1-919-707-5875

Fax:919-845-3973

site:

31:23NORTH CAROLINA REGISTERJune 1, 2017

IN ADDITION

Notice of Application to modify existing Innovative Approval of a Wastewater System for On-site Subsurface Use

Pursuant to NCGS 130A-343(g), the North Carolina Department of Health and Human Services (DHHS) shall publish a Notice in the NC Register that a manufacturer has submitted a request for approval of a wastewater system, component, or device for on-site subsurface use. The following applications have been submitted to DHHS:

Application by: Dave Lentz, PE

Infiltrator Water Technologies

PO Box 768

Old Saybrook, CT 06475

For: Modification of Innovative Approval for Infiltrator Water Technologies existing Innovative Approval IWWS-1995-03R7

DHHS Contact: Nancy Deal

1-919-707-5875

Fax: 919-845-3973

These applications may be reviewed by contacting the applicant or Nancy Deal, Branch Head at 5605 Six Forks Rd., Raleigh, NC, On-Site Water Protection Branch, Environmental Health Section, Division of Public Health. Draft proposed innovative approvals and proposed final action on the application by DHHS can be viewed on the On-Site Water Protection Branch web site:

Written public comments may be submitted to DHHS within 30 days of the date of the Notice publication in the North

Carolina Register. All written comments should be submitted to Ms. Nancy Deal, Branch Head, On-site Water Protection Branch, 1642 Mail Service Center, Raleigh, NC 27699-1642, or , or fax 919-845-3973. Written comments received by DHHS in accordance with this Notice will be taken into consideration before a final agency decision is made on the innovative subsurface wastewater system application.

31:23NORTH CAROLINA REGISTERJune 1, 2017

IN ADDITION

Notice of Application to modify existing Innovative Approval of a Wastewater System for On-site Subsurface Use

Pursuant to NCGS 130A-343(g), the North Carolina Department of Health and Human Services (DHHS) shall publish a Notice in the NC Register that a manufacturer has submitted a request for approval of a wastewater system, component, or device for on-site subsurface use. The following applications have been submitted to DHHS:

Application by: Dave Lentz, PE

Infiltrator Water Technologies

PO Box 768

Old Saybrook, CT 06475

For: Modification of Innovative Approval for Infiltrator Water Technologies existing Innovative Approval IWWS-2010-01R4

DHHS Contact: Nancy Deal

1-919-707-5875

Fax: 919-845-3973

These applications may be reviewed by contacting the applicant or Nancy Deal, Branch Head at 5605 Six Forks Rd., Raleigh, NC, On-Site Water Protection Branch, Environmental Health Section, Division of Public Health. Draft proposed innovative approvals and proposed final action on the application by DHHS can be viewed on the On-Site Water Protection Branch web site:

Written public comments may be submitted to DHHS within 30 days of the date of the Notice publication in the North

31:23NORTH CAROLINA REGISTERJune 1, 2017

PROPOSED RULES

Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days.
Statutory reference: G.S. 150B-21.2.

31:23NORTH CAROLINA REGISTERJune 1, 2017

PROPOSED RULES

TITLE 02 – department of agriculture and consumer services

Notice is hereby given in accordance with G.S. 150B-21.3A(c)(2)g. and G.S. 150B-21.2(g) that the Board of Agriculture intends to readopt without substantive changes the rule cited as 02 NCAC 09G .2010 with changes from the proposed text noticed in the Register, Volume 31, Issue 05, pages 355.

Link to agency website pursuant to G.S. 150B-19.1(c):

Proposed Effective Date: October 1, 2017

Reason for Proposed Action: This rule was originally published to be repealed through the readoption process on September 1, 2017. After careful review of the rule and federal standards, and in the interest of public health and food safety, this rule is being republished as a readoption without substantive changes. The rule deals with restrictions on dispensing raw milk.

Comments may be submitted to: Tina Hlabse, 1001 Mail Service Center, Raleigh, NC 27699-1001; email

Comment period ends: July 31, 2017

Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-431-3000.

Fiscal impact (check all that apply).

State funds affected

Environmental permitting of DOT affected

Analysis submitted to Board of Transportation

Local funds affected

Substantial economic impact (≥$1,000,000)

Approved by OSBM

No fiscal note required by G.S. 150B-21.4

No fiscal note required by G.S. 150B-21.3A(d)(2)

Chapter 09 - Food and Drug Protection

SUBCHAPTER 09G MILK AND MILK PRODUCTS

SECTION .2000 GRADE A MILK SANITATION

02 NCAC 09g .2010RESTRICTIONS ON DISPENSING RAW MILK

(a) Dairy farms shall dispense raw milk or raw milk products only to a permitted milk hauler or to a processing facility for which the processing of milk is permitted, graded or regulated by a state or federal agency.

(b) The farmer or the owner of the raw milk or raw milk products may, nevertheless, destroy the milk or dispense it for animal feed in accordance with any applicable state and federal regulations.

Authority G.S. 106-266.31.

* * * * * * * * * * * * * * * * * * * *

Notice is hereby given in accordance with G.S. 150B-21.3A(c)(2)g. and G.S. 150B-21.2(g) that the Board of Agriculture intends to readopt with substantive changes the rule cited as 02 NCAC 37 .0203 with changes from the proposed text noticed in the Register, Volume 31, Issue 15, pages 1534-1535.

Link to agency website pursuant to G.S. 150B-19.1(c):

Proposed Effective Date: October 1, 2017

Reason for Proposed Action: This rule is being republished as readoption with substantive changes to accurately reflect the fee for routine nematode assay service at $3.00, and $10:00 for nematode research and nematode non-resident samples that is currently in statute. There is also the inclusion of recently added services: pinewood nematode assay and molecular diagnosis.

Comments may be submitted to: Tina Hlabse, 1001 Mail Service Center, Raleigh, NC 27699-1001; email

Comment period ends: July 31, 2017

Fiscal impact (check all that apply).

State funds affected

Environmental permitting of DOT affected

Analysis submitted to Board of Transportation

Local funds affected

Substantial economic impact (≥$1,000,000)

Approved by OSBM

No fiscal note required by G.S. 150B-21.4

No fiscal note required by G.S. 150B-21.3A(d)(2)

Chapter 37 - Agronomic Services

SECTION .0200 PROGRAMS

02 NCAC 37 .0203NEMATODE ADVISORY SERVICE

(a) Individuals desiring nematode analysis may obtain sample containers and instructions from the Agronomic Services Division, county extension office, farm supply dealers, Agronomic Division Regional Agronomists, or other local agricultural advisors.If plantdestructive nematodes are found in the soil, the best method of control will be recommended.A fee of two dollars ($2.00) will be charged for each sample analyzed.

(b) Fees for those services, to be paid at the time of submission, are as follows:

(1)Routine nematode assay - $3.00.

(2)Nonresident nematode assay - $10.00.

(3)Research nematode assay - $10.00.

(4)Pinewood nematode assay - $10.00.

(5)Rapid nematode identification (molecular diagnosis) - $10.00.

Authority G.S. 10622(17).

* * * * * * * * * * * * * * * * * * * *

Notice is hereby given in accordance with G.S. 150B-21.2 that the Board of Agriculture intends to adopt the rules cited as 02 NCAC 52J .0901 and .0902.

Link to agency website pursuant to G.S. 150B-19.1(c):

Proposed Effective Date: October 1, 2017

Instructions on How to Demand a Public Hearing: (must be requested in writing within 15 days of notice): Any person may request a public hearing on the proposed rules by submitting a request in writing no later than June 16, 2017 to Tina Hlabse, Secretary, NC Board of Agriculture, 1001 Mail Service Center, Raleigh, NC 27699-1001

Reason for Proposed Action: The Animal Shelter Support Fund was created by the General Assembly to reimburse local governments for expenses related to their operation of a registered animal shelter due to the denial, suspension, or revocation of the shelter's registration, or an unforeseen catastrophic disaster at an animal shelter. These rules spell out the eligibility requirements and application process. These rules are going through the permanent rulemaking process after becoming a temporary adoption on November 29, 2016.

Comments may be submitted to: Tina Hlabse, 1001 Mail Service Center, Raleigh, NC 27699-1001; email

Comment period ends: July 31, 2017

Fiscal impact (check all that apply).

State funds affected