Editor’s Note.

This Chapter is former Chapter 150A, as rewritten by Session Laws 1985, c. 746, s. 1, effective January 1, 1986, and recodified. Where appropriate, the historical citations to the sections in the former Chapter have been added to the corresponding sections in the Chapter as rewritten and recodified.

In addition, Session Laws 1985, c. 746, s. 19, had provided that the act would expire January 1, 1992, and would not be effective on or after that date, but the expiration date was deleted by Session Laws 1991, c. 103, ss. 1 and 2 and Session Laws 1991, c. 689, s. 182.

Section 1 of Session Laws 1987, c. 827, provided: “ The General Statutes are amended by deleting the reference ‘150A’ and substituting the reference ‘150B’ each time it appears.”

Session Laws 1987, c. 536, s. 6 provided that a county ordinance that applies to the Camp Butner reservation on the effective date of the act (July 2, 1987) shall continue to apply until the Secretary of the Department of Human Resources withdraws his approval of the ordinance or the county amends or repeals the ordinance so that it no longer applies to the Camp Butner reservation.

Session Laws 1997-412, s. 14, provided that ss. 6, 7, 8, 10 and 11 of the act, which amended G.S. 143-341(3) , 143-135.3, 150B-1(f), 143-135.1, 133-1.1(d), and G.S. 116-31.11 , as enacted by s. 1 thereof, would expire on July 1, 2001. Subsequently, Session Laws 2001-496, s. 8(c), effective July 1, 2001, reenacted ss. 5, 7, 8 and 10 of Session Laws 1997-412. Session Laws 2001-496, s. 14(a) provided that ss. 8(a) to 8(e) of that act would expire December 31, 2006. Subsequently, Session Laws 2005-300, s. 1, amended Session Laws 2001-496, s. 14(a), by deleting the expiration clause.

Session Laws 1999-294, s. 13 provides that the Codifier of Rules may amend the text of the administrative rules in Title 11 of the North Carolina Administrative Code to reflect the recodification of Chapter 58 of the General Statutes. An amendment pursuant to this section is exempt from Chapter 150B of the General Statutes and review by the Rules Review Commission to the extent that it does not change the substance of the rule.

Session Laws 2001-395, s. 6(c), would have added subdivision (d)(9) effective August 29, 2001. Session Laws 2001-424, s. 6.20(b), effective July 1, 2001, repealed Session Laws 2001-395, s. 6, so that the provisions of 2001-395 never went into effect.

Session Laws 2001-424, s. 21.10, provides: “The Codifier of Rules may continue the process of reorganizing Titles 10 and 15A of the North Carolina Administrative Code to reflect the recent reorganization of the Department of Health and Human Services and the Department of Environment and Natural Resources. The reorganization of the Code may include replacing Title 10 with a new Title 10A if desirable for clarity. The Codifier of Rules may make changes in the text of the affected rules to reflect changes in organizational structure of the Department of Health and Human Services and the Department of Environment and Natural Resources. So long as the changes in text do not change the substance of the rules, the reorganization by the Codifier is exempt from the requirements of Chapter 150B of the General Statutes and does not require the review or approval of the Rules Review Commission.”

Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Acts of 2001’ .”

Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”

Session Laws 2001-424, s. 36.5, is a severability clause.

Session Laws 2002-190, s. 17, as amended by Session Laws 2002-159, s. 31.5, provides: “The Governor shall resolve any dispute between the Department of Transportation and the Department of Crime Control and Public Safety concerning the implementation of this act [Session Laws 2002-190].”

Session Laws 2003-226, s. 1, provides: “The purpose of this act is to ensure that the State of North Carolina has a system for all North Carolina elections that complies with the requirements for federal elections set forth in the federal Help America Vote Act of 2002, Public Law 107-252, 116 Stat. 1666 (2002), codified at 42 U.S.C. §§ 15481- 15485.

“The General Assembly finds that the education and training of election officials as required by G.S. 163-82.34 has met and continues to meet the mandate for the education and training of precinct officials and other election officials in section 254(a)(3) of the Help America Vote Act of 2002. The General Assembly further finds that the establishment, development, and continued operation of the statewide list maintenance program for voter registration set forth in G.S. 163-82.14 has met and continues to meet the mandates of section 303(a)(2) of the Help America Vote Act of 2002.

“In certain other areas of the election statutes and other laws, the General Assembly finds that the statutes must be amended to comply with the Help America Vote Act.”

Session Laws 2003-416, s. 2, provides that S.L. 2002-172 is reenacted.

Subdivision (c)(6), added by Session Laws 2003-226, s. 17(b), effective January 1, 2004, is applicable with respect to primaries and elections held on or after that date.

Session Laws 2005-133, s. 1, effective June 29, 2005, as amended by Session Laws 2006-226, s. 30, provides: “Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term ‘Commission’ for the term ‘Board’ wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words ‘North Carolina Occupational’ in front of the phrase ‘Safety and Health Review Commission’ wherever that phrase appears in the General Statutes in relation to the Act.”

Subdivision (d)(15) was enacted as subdivision (d)(14) by Session Laws 2006-66, s. 12.8(c). Subdivision (d)(16) was enacted as subdivision (d)(14) by Session Laws 2006-201, s. 2(a). They have been redesignated as subdivisions (d)(15) and (d)(16), respectively, at the direction of the Revisor of Statutes.

Session Laws 2006-66, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2006.’ ”

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2009-475, s. 15, provides: “The General Assembly finds that it is in the public interest of the State of North Carolina to ensure expeditious awards of ARRA [America Recovery and Reinvestment Act of 2009] funds to maximize the economic recovery impact of the ARRA. It is the policy of the State to provide fair regulation, oversight, and transparency for the use of ARRA funds and to quickly and efficiently complete the awards of grants and contracts under the ARRA. It is also the policy of this State that, due to the historic level of federal and State oversight of ARRA grant and contract awards, restraint should be exercised in the granting of legal and injunctive relief that might forestall awards to programs and contractors.”

Session Laws 2009-475, s. 4, effective February 17, 2009, which added subdivision (c)(8), provided for a June 30, 2012 expiration.

Session Laws 2011-272, s. 5, Session Laws 2011-287, s. 21(b) and Session Laws 2011-401, s. 1.10(b) each added a subdivision designated (e)(18). At the direction of the Revisor of Statutes, the subdivision (e)(18) added by Session Laws 2011-287, s. 21(b) has been redesignated subdivision (e)(19), and the subdivision (e)(18) added by Session Laws 2011-401, s. 1.10(b) has been redesignated subdivision (e)(20).

Session Laws 2014-100, s. 15.14B(c), as amended by Session Laws 2017-212, s. 4.3, provides: “This section becomes effective January 1, 2015. The Secretary shall not award a grant for any qualifying expenses for which a taxpayer receives a tax credit under G.S. 105-130.47 or G.S. 105-151.29 .”

Session Laws 2014-100, s. 13.2(a) and 2014-103, s. 17 both added subdivision (d)(26) with identical provisions.

Session Laws 2014-100, s. 15.14B(b), and Session Laws 2014-100, s. 15.13(b), each added subdivisions designated as (d)(18a). At the direction of the Revisor of Statutes, the subdivision enacted by Session Laws 2014-100, s. 15.14B(b), has been redesignated as subdivision (d)(18b).

Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”

Session Laws 2014-100, s. 38.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year.”

Session Laws 2014-100, s. 38.7, is a severability clause.

Session Laws 2015-198, s. 7, is a severability clause.

Session Laws 2015-198, s. 4 and Session Laws 2015-241, s. 14.6(g) both enacted a subdivision (e)(22). Subdivision (e)(22), as enacted by Session Laws 2015-241, s. 14.6(g) has been redesignated as subdivision (e)(23) at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 14.11(b), provides: “The Department of Environment and Natural Resources [Department of Natural and Cultural Resources], or any other department given responsibilities for the North Carolina Zoological Park, State parks, and the North Carolina Aquariums, may establish admission fees and related activity fees for those sites and facilities. In setting these fees, the Department of Environment and Natural Resources [Department of Natural and Cultural Resources] shall use a dynamic pricing strategy as defined in subsection (e) of this section. Any rule currently in the Administrative Code related to fees covered by subsection (a) of this section is ineffective and repealed upon the effective date of new admission fees and related activity fees adopted by the Department under the authority set out in that subsection. Notice of the initial adoption of new admission fees and related activity fees under subsection (a) of this section shall be given by the Department to the Codifier of Rules, who, upon receipt of notice of the initial adoption of new admission fees and related activity fees by the Department, shall note the repeal of these rules in the Administrative Code. Nothing in this subsection is intended to authorize the Department or any other department to charge new parking fees at the North Carolina Zoological Park, State parks, or the North Carolina Aquariums or to charge an admission fee at any other site or facility that does not currently charge an admission fee.”

Session Laws 2015-241, s. 14.11(e), provides: “For purposes of this section, ‘dynamic pricing’ is the adjustment of fees for admission and related activities from time to time to reflect market forces, including seasonal variations and special event interests, with the intent and effect to maximize revenues from use of these State resources to the extent practicable to offset appropriations from the General Assembly.”

Session Laws 2015-241, s. 14.11(i), provides: “This section applies to admission fees or related activity fees charged on or after the effective date [July 1, 2015] of this act.”

Session Laws 2015-241, s. 14.30(c), provides authority to construe references to the “Department of Environment and Natural Resources” taking effect on or after July 1, 2015, to be construed as the “Department of Natural and Cultural Resources” where appropriate, and to construe duties or requirements of the Department of Environment and Natural Resources to be the duties or requirements of the Department of Natural and Cultural Resources where appropriate. In addition, Session Laws 2015-241, s. 14.30(w) provides in part: “In any other instances in the General Statutes in which there is a reference to the Department of Environment and Natural Resources or a derivative thereof, the Revisor of Statutes may replace that reference with a reference to the Department of Natural and Cultural Resources or a derivative thereof, when necessary to harmonize the statutes with the transfers set forth in subsections (a) and (b) of this section.” Pursuant to this authority, “Department of Natural and Cultural Resources” has been substituted for “Department of Environment and Natural Resources” in subdivision (d)(27) at the direction of the Revisor of Statutes.

Also at the direction of the Revisor of Statutes, the references in subdivision (d)(27) to G.S. 143B-335, 113-35, and 143B-289.44 have been changed to G.S. 143B-135.205, 143B-135.16, and 143B-135.188, respectively, to conform to the recodification of those sections by Session Laws 2015-241, s. 14.30(c), (g), (i).

Session Laws 2015-241, s. 14.11(a) and Session Laws 2015-241, s. 29.30(t), both enacted a subdivision (d)(27). Subdivision (d)(27), as enacted by Session Laws 2015-241, s. 29.30(t) has been redesignated as subdivision (d)(28) at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”

Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2016-113, s. 19(a), is a severability clause.

This section was amended by Session Laws 2017-186, s. 2(ddddddddd), in the coded bill drafting format provided by G.S. 120-20.1 . The act failed to account for the amendment to subdivision (d)(6) by Session Laws 2015-198, s. 3, which substituted “Department of Public Safety” for “Division of Adult Correction of the Department of Public Safety” and inserted “matters relating to executions under Article 19 of Chapter 15 of the General Statutes and.” Session Laws 2017-186, s. 2(ddddddddd), would have inserted “and Juvenile Justice” following “Correction” in subdivision (d)(6). Subdivision (d)(6) has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2018-5, s. 11E.1(d), made subdivision (d)(29) of this section, as added by Session Laws 2018-5, s. 11E.1(b), effective July 1, 2018, and the fee authorized by G.S. 130A-125(c) applies to laboratory tests performed by the North Carolina State Laboratory of Public Health as part of the Newborn Screening Program on or after that date.

Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”

Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year.”

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2020-48, s. 4.1(d), made G.S. 150B-1(d)(30), as added by Session Laws 2020-48, s. 4.1(c), effective June 26, 2020, and applicable to actuarial tables, assumptions, and contribution-based benefit cap factors adopted or changed on or after that date.

Session Laws 2020-48, s. 6.1, is a severability clause.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 1997-412, s. 8, effective January 1, 1998, and effective until July 1, 2001, substituted “for The University of North Carolina” for “from All But Judicial Review”, and inserted “Except as provided in G.S. 143-135.3 .” Session Laws 1997-412, s. 14, provided that this amendment would expire July 1, 2001. Subsequently, Session Laws 2001-496, s. 8(c), effective July 1, 2001, and expiring December 31, 2006, reenacted Session Laws 1997-412, s. 8. Subsequently, Session Laws 2005-300, s. 1, amended Session Laws 2001-496, s. 14(a), by deleting the expiration clause.

Session Laws 2004-88, s. 1(e), effective June 30, 2004, added subdivision (d)(13).

Session Laws 2005-133, s. 10, effective June 29, 2005, rewrote subdivision (e)(9) by substituting “The North Carolina Occupational Safety and Health Review Commission” for “The Occupational Safety and Health Review Board.”

Session Laws 2005-344, s. 11.1, as added by Session Laws 2005-276, s. 31.1(ff), effective August 31, 2005, added subdivision (c)(7).

Session Laws 2005-455, s. 3.3, effective January 1, 2006, and applicable to determinations made on or after that date, added subdivision (e)(15).

Session Laws 2006-66, ss. 8.10(d) and 12.8(c), effective July 1, 2006, added subdivisions (d)(14) and (d)(15), respectively.

Session Laws 2006-201, s. 2(a), effective October 1, 2006, and applicable to covered persons and legislative employees on or after January 1, 2007, to gifts received on or after January 1, 2007, to acts and conflicts of interest that arise on or after January 1, 2007, and to offenses committed on or after January 1, 2007, added subdivision (d)(16).

Session Laws 2007-323, s. 13.2(c), effective July 1, 2007, added subdivision (d)(17).

Session Laws 2007-323, s. 28.22A(o), as amended by Session Laws 2007-345, s. 12, effective July 1, 2008, substituted “State Health Plan for Teachers and State Employees” for “North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan” in subdivisions (d)(7) and (e)(12), and substituted “State Health Plan for Teachers and State Employees” for “Teachers’ and State Employees’ Comprehensive Major Medical Plan” in subdivision (e)(13).

Session Laws 2007-491, s. 2, effective January 1, 2008, deleted former subdivision (e)(6), which read: “Department of Revenue.”

Session Laws 2007-552, 1st Ex. Sess., s. 3, effective July 1, 2007, added subdivision (d)(18).

Session Laws 2008-107, s. 10.15A(f), effective July 1, 2008, inserted “agencies” in the introductory paragraph of subsection (e); added subdivision (e)(16).

Session Laws 2008-168, s. 5(a), effective July 1, 2008, substituted “Article 3A of” for “Parts 2, 3, 4, and 5 of Article 3” in subdivision (d)(7).

Session Laws 2008-187, s. 26(b), effective August 7, 2008, substituted “G.S. 143B-437.012” for “G.S. 143B-437.11” in subdivision (d)(18).

Session Laws 2009-445, s. 41(b), effective August 7, 2009, deleted subdivision (d)(15), which read: “The Department of Commerce in developing guidelines for the North Carolina Economic Development Reserve.”

Session Laws 2009-475, s. 4, effective February 17, 2009, and expiring June 30, 2012, added subdivision (c)(8).

Session Laws 2009-523, s. 2(a), effective August 26, 2009, added subdivision (d)(19).

Session Laws 2010-70, s. 2, effective July 1, 2010, and applicable to reviews of Health Choice Program enrollment, eligibility, or health services decisions requested by Health Choice Program applicants or recipients on or after that date, added subdivision (e)(17).

Session Laws 2011-145, s. 8.18(a) and (b), as amended by Session Laws 2011-391, s. 19, effective June 15, 2011, deleted subdivisions (d)(14) and (d)(19); and added subsection (g).

Session Laws 2011-145, s. 14.6(j), effective July 1, 2011, substituted “G.S. 136-262(a)(11)” for “G.S. 143B-454(a)(11)” in subsection (d)(11).

Session Laws 2011-264, s. 4, effective June 23, 2011, added subdivision (d)(20).

Session Laws 2011-272, s. 5, effective October 1, 2011, added subdivision (e)(18).

Session Laws 2011-287, s. 21(a) and (b), deleted subdivision (c)(4), which read: “The Industrial Commission”; and added subdivision (e)(19). For effective date and applicability, see editor’s note.

Session Laws 2011-399, ss. 2 and 3, effective July 25, 2011, added “pursuant to G.S. 108A-54.2 ” at the end of subdivision (d)(9); and deleted subdivision (e)(16).

Session Laws 2011-401, s. 1.10, effective November 1, 2011, deleted subdivision (c)(5), which read: “The Employment Security Commission”; and added subdivision (e)(20).

Session Laws 2014-100, s. 13.2(a), effective July 1, 2014, added subdivision (d)(26). See Editor’s note.

Session Laws 2014-100, s. 15.13(b), effective July 1, 2014, added subdivision (d)(18a).

Session Laws 2014-100, s. 15.14B(b), effective January 1, 2015, added subdivision (d)(18a). See Editor’s notes for applicability and redesignation.

Session Laws 2014-103, s. 17, effective August 6, 2014, added subdivision (d)(26).

Session Laws 2015-198, ss. 3, 4, effective August 5, 2015, in subdivision (d)(6), substituted “Department of Public Safety” for “Division of Adult Correction of the Department of Public Safety” and inserted “matters relating to executions under Article 19 of Chapter 15 of the General Statutes and”; and added subdivision (e)(22).

Session Laws 2015-198, s. 3, effective August 5, 2015, rewrote subdivision (d)(6).

Session Laws 2015-198, s. 4, effective August 5, 2015, added subdivision (e)(22).

Session Laws 2015-241, ss. 14.6(g), 14.30(s), (u), effective July 1, 2015, substituted “Department of Natural and Cultural Resources” for “Department of Cultural Resources” in subdivision (d)(23); substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subdivision (e)(1); and added subdivision (e)(22) (now (e)(23)).

Session Laws 2015-241, s. 14.11(a), effective July 1, 2015, and applicable to admission fees or related activity fees charged on or after July 1, 2015, in subdivision (d)(26), inserted the a. designation, inserted b., and inserted “and operating hours” in the last sentence; added subdivision (d)(27); and made minor stylistic changes.

Session Laws 2015-241, s. 14.30(v), effective July 1, 2015, substituted “Secretary of Environmental Quality” for “Secretary of Environment and Natural Resources” in subdivision (e)(23).

Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted “Department of Natural and Cultural Resources” for “Department of Cultural Resources” in subdivision (d)(23).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subdivisions (d)(27) and (e)(1).

Session Laws 2015-241, s. 14.30(v), effective July 1, 2015, substituted “Secretary of Environmental Quality” for “Secretary of Environment and Natural Resources” in subsection (a).

Session Laws 2015-241, s. 29.30(t), effective July 1, 2020, added subdivision (d)(28). See editor’s note for redesignation of subdivision.

Session Laws 2016-113, s. 7(a), effective July 26, 2016, added sub-subdivision (d)(26)c.

Session Laws 2017-186, s. 2(ddddddddd), effective December 1, 2017, inserted “and Juvenile Justice” in subdivision (e)(7).

Session Laws 2018-5, s. 11E.1(b), added subdivision (d)(29). For effective date and applicability, see editor’s note.

Session Laws 2018-5, s. 37.1(h), effective June 12, 2018, added subdivision (e)(24).

Session Laws 2018-142, s. 21, effective December 15, 2018, in subdivision (d)(6), deleted “and Juvenile Justice” preceding “The Department of.”

Session Laws 2019-81, s. 10, effective October 1, 2019, added “commenced under G.S. 108A-70.29 b” in subdivision (e)(17); and added subdivision (e)(25).

Session Laws 2019-165, s. 7, effective July 26, 2019, added subdivision (e)(26).

Session Laws 2019-177, s. 8.2, effective July 26, 2019, repealed subdivision (e)(11) pertaining to hearings on eligibility of assaultive or violent children.

Session Laws 2020-48, s. 4.1(c), added subdivision (d)(30). For effective date and applicability, see editor’s note.

Session Laws 2021-125, s. 3(c), effective August 30, 2021, rewrote subdivision (e)(13).

Session Laws 2021-138, s. 12(a), effective September 2, 2021, added subdivisions (d)(6a) and (d)(6b).

Session Laws 2021-178, s. 3(b), effective November 10, 2021, added subdivision (d)(31).

Session Laws 2021-180, ss. 10.2(b), 14.2(b), effective July 1, 2021, in subsection (d), added subdivision (d)(26)d, and, in subdivisions (d)(23), (d)(24), and (d)(25), inserted “operating hours,” and made a minor punctuation change.

Legal Periodicals.

For comment on former Chapter 150, see 31 N.C.L. Rev. 378 (1953).

For note as to constitutionality of statutes licensing occupations, see 35 N.C.L. Rev. 473 (1957).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For interpretative analysis of former Chapter 150A, see 53 N.C.L. Rev. 833 (1975).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1026 (1981).

For survey of 1982 law on administrative law, see 61 N.C.L. Rev. 961 (1983).

For article, “The New Administrative Procedures Act: A Practical Guide to Understanding and Using It,” see 9 Campbell L. Rev. 293 (1987).

For note, “The Forty-Two Hundred Dollar Question: ‘May State Agencies Have Discretion in Setting Civil Penalties Under the North Carolina Constitution?’, ” see 68 N.C.L. Rev. 1035 (1990).

For survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

For article, “Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment,” see 79 N.C.L. Rev. 1571 (2001).

For article, “What Were We Thinking?: Legislative Intent and the 2000 Amendments to the North Carolina APA,” see 79 N.C.L. Rev. 1657 (2001).

For article, “Wind Over North Carolina Waters: The State’s Preparedness to Address Offshore and Coastal Water-Based Wind Energy Projects,” see 87 N.C.L. Rev. 1819 (2009).

For article, “Plenary Power in the Modern Administrative State,” see 96 N.C.L. Rev. 77 (2017).

For article, “The Re-‘Tooling‘ of Federal ALJs: Lucia v. SEC and Executive Order 13,843,” see 97 N.C. L. Rev. Addendum 21 (2019).

For article, “Reckoning with Adjudication’s Exceptionalism Norm,” see 69 Duke L.J. 1749 (2020).

For article, “An Article III Renaissance in Administrative Law: A Return to the Judicial Past?,” see 12 Elon L. Rev. 385 (2020).

CASE NOTES

Editor’s Note. —

Most of the cases below were decided under corresponding provisions of former Chapter 150A, or prior to the 1991 amendments to this Chapter.

History of Chapter. —

The original Administrative Procedure Act (APA), codified as Chapter 150A, was effective until Dec. 31, 1985; the APA was rewritten in 1985 and recodified as Chapter 150B, with the new version becoming effective Jan. 1, 1986. Vass v. Board of Trustees, 108 N.C. App. 251, 423 S.E.2d 796, 1992 N.C. App. LEXIS 885 (1992).

The 1991 Amendment to this section merely confirms that when a person is aggrieved by agency action, the Administrative Procedure Act only “describes the procedures” for Office of Administrative Hearings review in the event the North Carolina General Assembly vests a party with the right to administrative review, such as a contested case hearing. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 112 N.C. App. 566, 436 S.E.2d 594, 1993 N.C. App. LEXIS 1198 (1993), rev'd, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

The 2003 version of G.S. 150B-34(c), which excluded the Certificate of Need Act, G.S. 131E-175 et seq., from the requirements of G.S. 150B-36(b), (b1), (b2), (b3), and (d) and G.S. 150B-51 , left the scope and standard of review applied under the 1999 version of G.S. 150B-51 undisturbed. Mooresville Hosp. Mgmt. Assocs. v. N.C. HHS, Div. of Facility Servs., 169 N.C. App. 641, 611 S.E.2d 431, 2005 N.C. App. LEXIS 796 , vacated, 360 N.C. 156 , 622 S.E.2d 621, 2005 N.C. LEXIS 1311 (2005).

The primary purpose of this Act is to confer procedural rights, including the right to an administrative hearing, upon any person aggrieved by an agency decision, and statutes should be liberally construed together to preserve and effectuate that right. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

The administrative hearing provisions of this act apply to all agencies and all proceedings except those expressly exempted, and it expressly named the particular agencies exempted therefrom, specifying the extent of each such exemption. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

Under G.S. 90-270.15(a), the North Carolina Psychology Board is responsible for overseeing licensed psychologists practicing in the state, and it may discipline licensees who violate ethical or professional standards; under G.S. 90-270.15(e), disciplinary actions by the Board are governed by the Administrative Procedure Act, § 150B-1 et seq. Farber v. N.C. Psychology Bd., 153 N.C. App. 1, 569 S.E.2d 287, 2002 N.C. App. LEXIS 1085 , cert. denied, 356 N.C. 612 , 574 S.E.2d 679, 2002 N.C. LEXIS 1375 (2002).

Contested case hearing provisions of the North Carolina Administrative Procedure Act apply to all agencies and all proceedings except those expressly exempted therefrom, and G.S. 150B-1(e) specifies the extent of each such exemption. N.C. Forestry Ass'n v. N.C. Dep't of Env't & Natural Res., 154 N.C. App. 18, 571 S.E.2d 602, 2002 N.C. App. LEXIS 1411 (2002), rev'd, 357 N.C. 640 , 588 S.E.2d 880, 2003 N.C. LEXIS 1413 (2003).

Although corporations were not required to be represented by attorneys in hearings before the Office of Administrative Hearings (OAH), pursuant to G.S. 150B-23 (referring to “attorney or representative” of a party), the DMV was exempted from the provisions of the Administrative Procedure Act authorizing contested cases to be brought in the OAH, G.S. 150B-1(e)(8), and therefore, in a hearing before the DMV, a corporation was required to be represented by an attorney. In re Twin County Motorsports, Inc., 230 N.C. App. 259, 749 S.E.2d 474, 2013 N.C. App. LEXIS 1135 (2013), rev'd, 367 N.C. 613 , 766 S.E.2d 832, 2014 N.C. LEXIS 959 (2014).

Strict Separation of Agency Functions Not Required. —

Neither the Administrative Procedure Act, G.S. 150B-1 et seq., nor due process, requires a strict separation between agency functions. Farber v. N.C. Psychology Bd., 153 N.C. App. 1, 569 S.E.2d 287, 2002 N.C. App. LEXIS 1085 , cert. denied, 356 N.C. 612 , 574 S.E.2d 679, 2002 N.C. LEXIS 1375 (2002).

The University of North Carolina at Chapel Hill is expressly exempted from the administrative hearings provisions of the Administrative Procedure Act. Beauchesne v. University of N.C, 125 N.C. App. 457, 481 S.E.2d 685, 1997 N.C. App. LEXIS 112 (1997).

Application of Chapter. —

Where the complaints and notices of hearing were filed prior to Jan. 1, 1986, the action was commenced prior to Jan. 1, 1986, and Chapter 150B had no application; thus, G.S. 150A-45 (rewritten and recodified as G.S. 150B-45 ), requiring a person seeking review to file a petition in the Superior Court of Wake County, and not G.S. 150B-45 , permitting such filing in either Wake County or the county where the person resides, governed. Pinewood Manor Mobile Homes, Inc. v. North Carolina Manufactured Hous. Bd., 84 N.C. App. 564, 353 S.E.2d 231, 1987 N.C. App. LEXIS 2532 , writ denied, 319 N.C. 674 , 356 S.E.2d 780, 1987 N.C. LEXIS 2096 (1987).

North Carolina Administrative Procedure Act, G.S. 150B-1 et seq., applied, pursuant to G.S. 150B-1 (e), to a county employee’s declaratory judgment action for a ruling that the county’s personnel regulations were not substantially equivalent to the standards established by the North Carolina State Personnel Act [now the North Carolina Human Resources Act], G.S. 126-1 et seq., where the employee’s employment with the county was terminated. Steward v. Green, 189 N.C. App. 131, 657 S.E.2d 719, 2008 N.C. App. LEXIS 423 (2008).

General Assembly did not impliedly exempt the Board of Trustees from the necessity of compliance with APA’s rulemaking provisions in adopting a cap factor where G.S. 135-5(a3) and G.S. 135-6 ( l ) could be harmonized, the adoption of a cap factor was not a ministerial act in which the Board did nothing more than ratify the actuary’s recommendation, case law did not support such an implied exemption, and the public interests supported the Board of Education’s contention that the cap factor should be established by using the APA’s rulemaking provisions to ensure the opportunity for adequate public input before a decision became final. This case was decided prior to the enactment of G.S. 150B-1(d)(30) by Session Laws 2020-48, s. 4.1(c). Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

Individuals aggrieved pursuant to the Rehabilitation Act are not required to seek administrative review in a contested case hearing before the Office of Administrative Hearings via the contested case hearing provisions of this act; rather, they are entitled to a hearing governed by procedures established by the Rehabilitation Act of 1973, P.L.102-569, 42 U.S.C. § 701, et seq. as amended. Hedgepeth v. North Carolina Div. of Servs. for the Blind, 142 N.C. App. 338, 543 S.E.2d 169, 2001 N.C. App. LEXIS 94 (2001).

Direct Challenge to Constitutionality of North Carolina Supreme Court Order. —

A direct challenge of the constitutionality of an order of the North Carolina Supreme Court cannot be adjudicated under this Chapter. The issue must be litigated as an original action in the General Court of Justice. Beard v. North Carolina State Bar, 320 N.C. 126 , 357 S.E.2d 694, 1987 N.C. LEXIS 2157 (1987).

Judicial Notice of Regulations. —

Where promulgating agency is not subject to the North Carolina Administrative Procedure Act, the court is only required to take judicial notice of its regulations if they are submitted in accordance with certain procedures designed to insure their accuracy. Southern Ry. v. O'Boyle Tank Lines, 70 N.C. App. 1, 318 S.E.2d 872, 1984 N.C. App. LEXIS 3623 (1984).

Irreconcilable Dispute. —

When a dispute between a state agency and another person arise and cannot be settled informally, the procedures for resolving the dispute are governed by this act. North Buncombe Ass'n of Concerned Citizens v. Rhodes, 100 N.C. App. 24, 394 S.E.2d 462, 1990 N.C. App. LEXIS 813 , writ denied, 327 N.C. 484 , 397 S.E.2d 215, 1990 N.C. LEXIS 868 (1990), writ denied, 327 N.C. 484 (1990).

North Carolina Human Resources Commission. —

As to the applicability of former Chapter 150A to the State Personnel Commission [now the North Carolina Human Resources Commission], see Stevenson v. North Carolina Dep't of Ins., 31 N.C. App. 299, 229 S.E.2d 209, 1976 N.C. App. LEXIS 1971 , cert. denied, 291 N.C. 450 , 230 S.E.2d 767, 1976 N.C. LEXIS 1016 (1976).

Department of Insurance. —

Insurance Commissioner’s promulgation of 11 N.C.A.C. 12.0319, prohibiting subrogation provisions in life or accident and health insurance contracts, supported by G.S. 58-2-40 (right to limit practices injurious to the public) and 58-50-15(a) (prohibiting provisions less favorable to the insured), did not exceed his statutory authority, even though it may change state substantive law, and did not amount to an unconstitutional delegation of legislative powers, because statutory provisions ( G.S. 58-2-40 , 58-51-15, and 58-50-15) and judicial review (available under this chapter) offer adequate procedural safeguards and support the delegation of power to the Commissioner. In re A Declaratory Ruling by the N.C. Comm'r of Ins. Regarding 11 N.C.A.C. 12.0319, 134 N.C. App. 22, 517 S.E.2d 134, 1999 N.C. App. LEXIS 665 (1999).

Department of Transportation. —

Language which provides that Articles 2 and 3 of former Chapter 150A shall not apply to the Department of Transportation in rule-making or administrative hearings only applies to actions taken by the department pursuant to Chapter 20, which refers to regulation of motor vehicles. In contrast, Chapters 136 and 143B provide the Department of Transportation and the Board of Transportation with powers and duties to engage in the planning and construction of the state highway system, and had the General Assembly wanted to exclude actions of the Department and Board of Transportation under Chapter 136 from the requirements of Articles 2 and 3 of former Chapter 150A, it would have done so with the same specificity that it used in excluding actions taken pursuant to Chapter 20. Orange County Sensible Hwys. & Protected Env'ts, Inc. v. North Carolina Dep't of Transp., 46 N.C. App. 350, 265 S.E.2d 890, 1980 N.C. App. LEXIS 2836 (1980).

University of North Carolina’s State Residency Committee (SRC) is exempt from this Chapter; therefore, although provisions in the act requiring judicial review of final administrative review were applicable, the SRC was not governed by G.S. 150B-36 , which requires agencies to state reasons for their decisions. Wilson v. State Residence Comm., 92 N.C. App. 355, 374 S.E.2d 415, 1988 N.C. App. LEXIS 1045 (1988).

Board of Trustees. —

Language in G.S. 135-39.7 [now G.S. 135-44.7] that board of trustees “may make a binding decision” concerning a dispute between an aggrieved individual and a claims administrator of a medical plan is not an express and unequivocal exemption of the board from the requirements of this Chapter; instead, the use of the term “binding” in the statute was intended to mean only that the board’s decision would be binding upon the parties absent further review according to law. Vass v. Board of Trustees, 324 N.C. 402 , 379 S.E.2d 26, 1989 N.C. LEXIS 247 (1989).

Retirement Systems Division of the Department of State Treasurer (Division) erred in invoicing a school employee or school board for contributions to the employee’s retirement fund pursuant to a statutory cap factor because (1) the factor was a rule not properly adopted pursuant to the Administrative Procedure Act, and (2) the Division was a state agency not exempt from rule making requirements. Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 261 N.C. App. 325, 821 S.E.2d 196, 2018 N.C. App. LEXIS 948 (2018), aff'd, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

The Department of Environment, Health, and Natural Resources (now the Department of Environment and Natural Resources), is not among those agencies which the Administrative Procedures Act specifically exempts from its provisions. North Buncombe Ass'n of Concerned Citizens v. Rhodes, 100 N.C. App. 24, 394 S.E.2d 462, 1990 N.C. App. LEXIS 813 , writ denied, 327 N.C. 484 , 397 S.E.2d 215, 1990 N.C. LEXIS 868 (1990), writ denied, 327 N.C. 484 (1990).

Entitlement to Administrative Hearing on Mining Permit. —

Petitioners were entitled to a contested case hearing by the Office of Administrative Hearings on their claim that mining permit should not have been issued. North Buncombe Ass'n of Concerned Citizens, Inc. v. North Carolina Dep't of Env't, Health, & Natural Resources, 338 N.C. 302 , 449 S.E.2d 451, 1994 N.C. LEXIS 654 (1994).

The Social Services Commission was not excluded from coverage under subsection (d). Whittington v. North Carolina Dep't of Human Resources, 100 N.C. App. 603, 398 S.E.2d 40, 1990 N.C. App. LEXIS 1125 (1990).

Board of Dental Examiners. —

The Board of Dental Examiners is an agency governed by the provisions of the North Carolina Administrative Procedure Act and is not exempt from the contested case provisions of the Act. Homoly v. North Carolina State Bd. of Dental Examrs., 121 N.C. App. 695, 468 S.E.2d 481, 1996 N.C. App. LEXIS 138 (1996).

Where taxpayer only argued in his brief that decision by board was unsupported by substantial evidence in view of the “whole record” test, the Court of Appeals would decline to review the board’s decision under the other standards of this section. Walls & Marshall Fuel Co. v. North Carolina Dep't of Revenue, 95 N.C. App. 151, 381 S.E.2d 815, 1989 N.C. App. LEXIS 676 (1989).

For discussion of respective powers and duties of Commissioner of Insurance and his designated hearing officer in the review of filed rates and entry of a final agency decision in a contested insurance rate case, see State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 506, 300 S.E.2d 845, 1983 N.C. App. LEXIS 2728 (1983).

Appeal Allowed. —

Third party was entitled under this Act and the Air Pollution Control Act, G.S. 143-215.105 et seq., to appeal to the Office of Administrative Hearings from the decision of the Department of Environmental Management, to grant an air pollution control permit to Duke Power Company. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

Challenges to Constitutionality of Regulation or Statute. —

Under North Carolina law, plaintiffs may be able to bypass administrative review and seek direct relief from the court. For example, when an aggrieved party challenges the constitutionality of a regulation or statute, administrative remedies are deemed to be inadequate and exhaustion thereof is not required. Prentiss v. Allstate Ins. Co., 87 F. Supp. 2d 514, 1999 U.S. Dist. LEXIS 21397 (W.D.N.C. 1999).

Department of Health and Human Services, Division of Medical Assistance. —

Pursuant to G.S. 150B-1(c) , the North Carolina Department of Health and Human Services, Division of Medical Assistance, is an Article 3 agency and thereby subject to the mandates of G.S. 150B-44 . Albemarle Mental Health Ctr. v. N.C. Dep't of HHS, 159 N.C. App. 66, 582 S.E.2d 651, 2003 N.C. App. LEXIS 1422 (2003), aff'd, 358 N.C. 134 , 591 S.E.2d 519, 2004 N.C. LEXIS 21 (2004).

Dialysis firm challenging the refusal of the N.C. Department of Health and Human Services (DHHS), Division of Facility Services [now the Division of Health Service Regulation], Medical Facilities Planning Section, to amend a Semiannual Dialysis Report (SDR) did not have a remedy under the North Carolina Administrative Procedures Act or the North Carolina Declaratory Judgment Act since, inter alia: the enabling statute suggested that the North Carolina State Medical Facilities Plan (SMFP), which contained the SDR, was a snapshot in time intended to enable the DHHS to develop policy, criteria, and standards for health service facilities planning; and it was the role of the DHHS and the N.C. State Health Coordinating Council to develop the SMFP. Bio-Medical Applications of N.C. Inc. v. N.C. HHS, 179 N.C. App. 483, 634 S.E.2d 572, 2006 N.C. App. LEXIS 1979 (2006).

Disciplinary Hearing Commission. —

The contention that an attorney who is accused of misconduct should be entitled to a hearing before an administrative law judge under the North Carolina Administrative Procedure Act, is rejected. N.C. State Bar v. Rogers, 164 N.C. App. 648, 596 S.E.2d 337, 2004 N.C. App. LEXIS 965 (2004).

State Board of Education. —

By the 1942 amendment to the North Carolina Constitution, the framers and voters consolidated in the State Board of Education all administrative authority governing a statewide public school system, limited the Board’s authority to making rules and regulations subject to laws enacted by the General Assembly, eliminated the Board’s authority to legislate, and thereby restored to the General Assembly all legislative authority regarding public education. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518, 2017 N.C. App. LEXIS 757 (2017), aff'd, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Process of Approval Or Disapproval Of Execution Protocol Not Subject To the Administrative Procedure Act. —

Superior court did not err in dismissing inmates’ request for judicial review of the final decision of respondent North Carolina Council of State, which approved the lethal injection protocol the Department of Correction (DOC) submitted, because the process by which the Council approved or disapproved the DOC’s lethal injection protocol was not subject to the APA, and the inmates could not challenge it by going through the Office of Administrative Hearings through the APA; instead, any issue the inmates had with the protocol rested with the General Court of Justice or the federal courts. Conner v. N.C. Council of State, 365 N.C. 242 , 716 S.E.2d 836, 2011 N.C. LEXIS 820 (2011).

General Assembly intended that the Department of Correction (DOC) have primary responsibility for the lethal injection process because G.S. 15-188 does not give the North Carolina Council of State authority beyond merely approving or disapproving the submitted protocol; the General Assembly did not intend to negate the express exemption that it provided to the DOC in the North Carolina Administrative Procedure Act (APA) by including a requirement that the Council approve the lethal injection protocol, and thus, the process by which the Council approves or disapproves the DOC’s lethal injection protocol is not subject to the APA. Conner v. N.C. Council of State, 365 N.C. 242 , 716 S.E.2d 836, 2011 N.C. LEXIS 820 (2011).

Failure to Exhaust Administrative Remedies. —

Trial court properly dismissed a former police officer’s negligence action against a drug testing laboratory for lack of subject matter jurisdiction because the officer failed to exhaust all administrative remedies under the North Carolina Administrative Procedures Act, G.S. 150B et seq., by not requesting an administrative hearing, pursuant to G.S. 17C-11(b), to contest the decision by the North Carolina Criminal Justice Education and Training Standards Commission to suspend the officer’s law enforcement certification upon the officer’s positive drug test. Vanwijk v. Prof'l Nursing Servs., 213 N.C. App. 407, 713 S.E.2d 766, 2011 N.C. App. LEXIS 1490 (2011).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— Some of the opinions below were issued prior to the 1991 amendments to this Chapter.

Editor’s Note.

This Chapter is former Chapter 150A, as rewritten by Session Laws 1985, c. 746, s. 1, effective January 1, 1986, and recodified. Where appropriate, the historical citations to the sections in the former Chapter have been added to the corresponding sections in the Chapter as rewritten and recodified.

In addition, Session Laws 1985, c. 746, s. 19, had provided that the act would expire January 1, 1992, and would not be effective on or after that date, but the expiration date was deleted by Session Laws 1991, c. 103, ss. 1 and 2 and Session Laws 1991, c. 689, s. 182.

Section 1 of Session Laws 1987, c. 827, provided: “ The General Statutes are amended by deleting the reference ‘150A’ and substituting the reference ‘150B’ each time it appears.”

Session Laws 1987, c. 536, s. 6 provided that a county ordinance that applies to the Camp Butner reservation on the effective date of the act (July 2, 1987) shall continue to apply until the Secretary of the Department of Human Resources withdraws his approval of the ordinance or the county amends or repeals the ordinance so that it no longer applies to the Camp Butner reservation.

Session Laws 1997-412, s. 14, provided that ss. 6, 7, 8, 10 and 11 of the act, which amended G.S. 143-341(3) , 143-135.3, 150B-1(f), 143-135.1, 133-1.1(d), and G.S. 116-31.11 , as enacted by s. 1 thereof, would expire on July 1, 2001. Subsequently, Session Laws 2001-496, s. 8(c), effective July 1, 2001, reenacted ss. 5, 7, 8 and 10 of Session Laws 1997-412. Session Laws 2001-496, s. 14(a) provided that ss. 8(a) to 8(e) of that act would expire December 31, 2006. Subsequently, Session Laws 2005-300, s. 1, amended Session Laws 2001-496, s. 14(a), by deleting the expiration clause.

Session Laws 1999-294, s. 13 provides that the Codifier of Rules may amend the text of the administrative rules in Title 11 of the North Carolina Administrative Code to reflect the recodification of Chapter 58 of the General Statutes. An amendment pursuant to this section is exempt from Chapter 150B of the General Statutes and review by the Rules Review Commission to the extent that it does not change the substance of the rule.

Session Laws 2001-395, s. 6(c), would have added subdivision (d)(9) effective August 29, 2001. Session Laws 2001-424, s. 6.20(b), effective July 1, 2001, repealed Session Laws 2001-395, s. 6, so that the provisions of 2001-395 never went into effect.

Session Laws 2001-424, s. 21.10, provides: “The Codifier of Rules may continue the process of reorganizing Titles 10 and 15A of the North Carolina Administrative Code to reflect the recent reorganization of the Department of Health and Human Services and the Department of Environment and Natural Resources. The reorganization of the Code may include replacing Title 10 with a new Title 10A if desirable for clarity. The Codifier of Rules may make changes in the text of the affected rules to reflect changes in organizational structure of the Department of Health and Human Services and the Department of Environment and Natural Resources. So long as the changes in text do not change the substance of the rules, the reorganization by the Codifier is exempt from the requirements of Chapter 150B of the General Statutes and does not require the review or approval of the Rules Review Commission.”

Session Laws 2001-424, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Acts of 2001’ .”

Session Laws 2001-424, s. 36.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium.”

Session Laws 2001-424, s. 36.5, is a severability clause.

Session Laws 2002-190, s. 17, as amended by Session Laws 2002-159, s. 31.5, provides: “The Governor shall resolve any dispute between the Department of Transportation and the Department of Crime Control and Public Safety concerning the implementation of this act [Session Laws 2002-190].”

Session Laws 2003-226, s. 1, provides: “The purpose of this act is to ensure that the State of North Carolina has a system for all North Carolina elections that complies with the requirements for federal elections set forth in the federal Help America Vote Act of 2002, Public Law 107-252, 116 Stat. 1666 (2002), codified at 42 U.S.C. §§ 15481- 15485.

“The General Assembly finds that the education and training of election officials as required by G.S. 163-82.34 has met and continues to meet the mandate for the education and training of precinct officials and other election officials in section 254(a)(3) of the Help America Vote Act of 2002. The General Assembly further finds that the establishment, development, and continued operation of the statewide list maintenance program for voter registration set forth in G.S. 163-82.14 has met and continues to meet the mandates of section 303(a)(2) of the Help America Vote Act of 2002.

“In certain other areas of the election statutes and other laws, the General Assembly finds that the statutes must be amended to comply with the Help America Vote Act.”

Session Laws 2003-416, s. 2, provides that S.L. 2002-172 is reenacted.

Subdivision (c)(6), added by Session Laws 2003-226, s. 17(b), effective January 1, 2004, is applicable with respect to primaries and elections held on or after that date.

Session Laws 2005-133, s. 1, effective June 29, 2005, as amended by Session Laws 2006-226, s. 30, provides: “Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term ‘Commission’ for the term ‘Board’ wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words ‘North Carolina Occupational’ in front of the phrase ‘Safety and Health Review Commission’ wherever that phrase appears in the General Statutes in relation to the Act.”

Subdivision (d)(15) was enacted as subdivision (d)(14) by Session Laws 2006-66, s. 12.8(c). Subdivision (d)(16) was enacted as subdivision (d)(14) by Session Laws 2006-201, s. 2(a). They have been redesignated as subdivisions (d)(15) and (d)(16), respectively, at the direction of the Revisor of Statutes.

Session Laws 2006-66, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2006.’ ”

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2009-475, s. 15, provides: “The General Assembly finds that it is in the public interest of the State of North Carolina to ensure expeditious awards of ARRA [America Recovery and Reinvestment Act of 2009] funds to maximize the economic recovery impact of the ARRA. It is the policy of the State to provide fair regulation, oversight, and transparency for the use of ARRA funds and to quickly and efficiently complete the awards of grants and contracts under the ARRA. It is also the policy of this State that, due to the historic level of federal and State oversight of ARRA grant and contract awards, restraint should be exercised in the granting of legal and injunctive relief that might forestall awards to programs and contractors.”

Session Laws 2009-475, s. 4, effective February 17, 2009, which added subdivision (c)(8), provided for a June 30, 2012 expiration.

Session Laws 2011-272, s. 5, Session Laws 2011-287, s. 21(b) and Session Laws 2011-401, s. 1.10(b) each added a subdivision designated (e)(18). At the direction of the Revisor of Statutes, the subdivision (e)(18) added by Session Laws 2011-287, s. 21(b) has been redesignated subdivision (e)(19), and the subdivision (e)(18) added by Session Laws 2011-401, s. 1.10(b) has been redesignated subdivision (e)(20).

Session Laws 2014-100, s. 15.14B(c), as amended by Session Laws 2017-212, s. 4.3, provides: “This section becomes effective January 1, 2015. The Secretary shall not award a grant for any qualifying expenses for which a taxpayer receives a tax credit under G.S. 105-130.47 or G.S. 105-151.29 .”

Session Laws 2014-100, s. 13.2(a) and 2014-103, s. 17 both added subdivision (d)(26) with identical provisions.

Session Laws 2014-100, s. 15.14B(b), and Session Laws 2014-100, s. 15.13(b), each added subdivisions designated as (d)(18a). At the direction of the Revisor of Statutes, the subdivision enacted by Session Laws 2014-100, s. 15.14B(b), has been redesignated as subdivision (d)(18b).

Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”

Session Laws 2014-100, s. 38.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year.”

Session Laws 2014-100, s. 38.7, is a severability clause.

Session Laws 2015-198, s. 7, is a severability clause.

Session Laws 2015-198, s. 4 and Session Laws 2015-241, s. 14.6(g) both enacted a subdivision (e)(22). Subdivision (e)(22), as enacted by Session Laws 2015-241, s. 14.6(g) has been redesignated as subdivision (e)(23) at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 14.11(b), provides: “The Department of Environment and Natural Resources [Department of Natural and Cultural Resources], or any other department given responsibilities for the North Carolina Zoological Park, State parks, and the North Carolina Aquariums, may establish admission fees and related activity fees for those sites and facilities. In setting these fees, the Department of Environment and Natural Resources [Department of Natural and Cultural Resources] shall use a dynamic pricing strategy as defined in subsection (e) of this section. Any rule currently in the Administrative Code related to fees covered by subsection (a) of this section is ineffective and repealed upon the effective date of new admission fees and related activity fees adopted by the Department under the authority set out in that subsection. Notice of the initial adoption of new admission fees and related activity fees under subsection (a) of this section shall be given by the Department to the Codifier of Rules, who, upon receipt of notice of the initial adoption of new admission fees and related activity fees by the Department, shall note the repeal of these rules in the Administrative Code. Nothing in this subsection is intended to authorize the Department or any other department to charge new parking fees at the North Carolina Zoological Park, State parks, or the North Carolina Aquariums or to charge an admission fee at any other site or facility that does not currently charge an admission fee.”

Session Laws 2015-241, s. 14.11(e), provides: “For purposes of this section, ‘dynamic pricing’ is the adjustment of fees for admission and related activities from time to time to reflect market forces, including seasonal variations and special event interests, with the intent and effect to maximize revenues from use of these State resources to the extent practicable to offset appropriations from the General Assembly.”

Session Laws 2015-241, s. 14.11(i), provides: “This section applies to admission fees or related activity fees charged on or after the effective date [July 1, 2015] of this act.”

Session Laws 2015-241, s. 14.30(c), provides authority to construe references to the “Department of Environment and Natural Resources” taking effect on or after July 1, 2015, to be construed as the “Department of Natural and Cultural Resources” where appropriate, and to construe duties or requirements of the Department of Environment and Natural Resources to be the duties or requirements of the Department of Natural and Cultural Resources where appropriate. In addition, Session Laws 2015-241, s. 14.30(w) provides in part: “In any other instances in the General Statutes in which there is a reference to the Department of Environment and Natural Resources or a derivative thereof, the Revisor of Statutes may replace that reference with a reference to the Department of Natural and Cultural Resources or a derivative thereof, when necessary to harmonize the statutes with the transfers set forth in subsections (a) and (b) of this section.” Pursuant to this authority, “Department of Natural and Cultural Resources” has been substituted for “Department of Environment and Natural Resources” in subdivision (d)(27) at the direction of the Revisor of Statutes.

Also at the direction of the Revisor of Statutes, the references in subdivision (d)(27) to G.S. 143B-335, 113-35, and 143B-289.44 have been changed to G.S. 143B-135.205, 143B-135.16, and 143B-135.188, respectively, to conform to the recodification of those sections by Session Laws 2015-241, s. 14.30(c), (g), (i).

Session Laws 2015-241, s. 14.11(a) and Session Laws 2015-241, s. 29.30(t), both enacted a subdivision (d)(27). Subdivision (d)(27), as enacted by Session Laws 2015-241, s. 29.30(t) has been redesignated as subdivision (d)(28) at the direction of the Revisor of Statutes.

Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”

Session Laws 2015-241, s. 33.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium.”

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2016-113, s. 19(a), is a severability clause.

This section was amended by Session Laws 2017-186, s. 2(ddddddddd), in the coded bill drafting format provided by G.S. 120-20.1 . The act failed to account for the amendment to subdivision (d)(6) by Session Laws 2015-198, s. 3, which substituted “Department of Public Safety” for “Division of Adult Correction of the Department of Public Safety” and inserted “matters relating to executions under Article 19 of Chapter 15 of the General Statutes and.” Session Laws 2017-186, s. 2(ddddddddd), would have inserted “and Juvenile Justice” following “Correction” in subdivision (d)(6). Subdivision (d)(6) has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2018-5, s. 11E.1(d), made subdivision (d)(29) of this section, as added by Session Laws 2018-5, s. 11E.1(b), effective July 1, 2018, and the fee authorized by G.S. 130A-125(c) applies to laboratory tests performed by the North Carolina State Laboratory of Public Health as part of the Newborn Screening Program on or after that date.

Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”

Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year.”

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2020-48, s. 4.1(d), made G.S. 150B-1(d)(30), as added by Session Laws 2020-48, s. 4.1(c), effective June 26, 2020, and applicable to actuarial tables, assumptions, and contribution-based benefit cap factors adopted or changed on or after that date.

Session Laws 2020-48, s. 6.1, is a severability clause.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to subdivision (e)(7) of this section by Session Laws 2021-180, s. 19C.9(oooo), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 1997-412, s. 8, effective January 1, 1998, and effective until July 1, 2001, substituted “for The University of North Carolina” for “from All But Judicial Review”, and inserted “Except as provided in G.S. 143-135.3 .” Session Laws 1997-412, s. 14, provided that this amendment would expire July 1, 2001. Subsequently, Session Laws 2001-496, s. 8(c), effective July 1, 2001, and expiring December 31, 2006, reenacted Session Laws 1997-412, s. 8. Subsequently, Session Laws 2005-300, s. 1, amended Session Laws 2001-496, s. 14(a), by deleting the expiration clause.

Session Laws 2004-88, s. 1(e), effective June 30, 2004, added subdivision (d)(13).

Session Laws 2005-133, s. 10, effective June 29, 2005, rewrote subdivision (e)(9) by substituting “The North Carolina Occupational Safety and Health Review Commission” for “The Occupational Safety and Health Review Board.”

Session Laws 2005-344, s. 11.1, as added by Session Laws 2005-276, s. 31.1(ff), effective August 31, 2005, added subdivision (c)(7).

Session Laws 2005-455, s. 3.3, effective January 1, 2006, and applicable to determinations made on or after that date, added subdivision (e)(15).

Session Laws 2006-66, ss. 8.10(d) and 12.8(c), effective July 1, 2006, added subdivisions (d)(14) and (d)(15), respectively.

Session Laws 2006-201, s. 2(a), effective October 1, 2006, and applicable to covered persons and legislative employees on or after January 1, 2007, to gifts received on or after January 1, 2007, to acts and conflicts of interest that arise on or after January 1, 2007, and to offenses committed on or after January 1, 2007, added subdivision (d)(16).

Session Laws 2007-323, s. 13.2(c), effective July 1, 2007, added subdivision (d)(17).

Session Laws 2007-323, s. 28.22A(o), as amended by Session Laws 2007-345, s. 12, effective July 1, 2008, substituted “State Health Plan for Teachers and State Employees” for “North Carolina Teachers’ and State Employees’ Comprehensive Major Medical Plan” in subdivisions (d)(7) and (e)(12), and substituted “State Health Plan for Teachers and State Employees” for “Teachers’ and State Employees’ Comprehensive Major Medical Plan” in subdivision (e)(13).

Session Laws 2007-491, s. 2, effective January 1, 2008, deleted former subdivision (e)(6), which read: “Department of Revenue.”

Session Laws 2007-552, 1st Ex. Sess., s. 3, effective July 1, 2007, added subdivision (d)(18).

Session Laws 2008-107, s. 10.15A(f), effective July 1, 2008, inserted “agencies” in the introductory paragraph of subsection (e); added subdivision (e)(16).

Session Laws 2008-168, s. 5(a), effective July 1, 2008, substituted “Article 3A of” for “Parts 2, 3, 4, and 5 of Article 3” in subdivision (d)(7).

Session Laws 2008-187, s. 26(b), effective August 7, 2008, substituted “G.S. 143B-437.012” for “G.S. 143B-437.11” in subdivision (d)(18).

Session Laws 2009-445, s. 41(b), effective August 7, 2009, deleted subdivision (d)(15), which read: “The Department of Commerce in developing guidelines for the North Carolina Economic Development Reserve.”

Session Laws 2009-475, s. 4, effective February 17, 2009, and expiring June 30, 2012, added subdivision (c)(8).

Session Laws 2009-523, s. 2(a), effective August 26, 2009, added subdivision (d)(19).

Session Laws 2010-70, s. 2, effective July 1, 2010, and applicable to reviews of Health Choice Program enrollment, eligibility, or health services decisions requested by Health Choice Program applicants or recipients on or after that date, added subdivision (e)(17).

Session Laws 2011-145, s. 8.18(a) and (b), as amended by Session Laws 2011-391, s. 19, effective June 15, 2011, deleted subdivisions (d)(14) and (d)(19); and added subsection (g).

Session Laws 2011-145, s. 14.6(j), effective July 1, 2011, substituted “G.S. 136-262(a)(11)” for “G.S. 143B-454(a)(11)” in subsection (d)(11).

Session Laws 2011-264, s. 4, effective June 23, 2011, added subdivision (d)(20).

Session Laws 2011-272, s. 5, effective October 1, 2011, added subdivision (e)(18).

Session Laws 2011-287, s. 21(a) and (b), deleted subdivision (c)(4), which read: “The Industrial Commission”; and added subdivision (e)(19). For effective date and applicability, see editor’s note.

Session Laws 2011-399, ss. 2 and 3, effective July 25, 2011, added “pursuant to G.S. 108A-54.2 ” at the end of subdivision (d)(9); and deleted subdivision (e)(16).

Session Laws 2011-401, s. 1.10, effective November 1, 2011, deleted subdivision (c)(5), which read: “The Employment Security Commission”; and added subdivision (e)(20).

Session Laws 2014-100, s. 13.2(a), effective July 1, 2014, added subdivision (d)(26). See Editor’s note.

Session Laws 2014-100, s. 15.13(b), effective July 1, 2014, added subdivision (d)(18a).

Session Laws 2014-100, s. 15.14B(b), effective January 1, 2015, added subdivision (d)(18a). See Editor’s notes for applicability and redesignation.

Session Laws 2014-103, s. 17, effective August 6, 2014, added subdivision (d)(26).

Session Laws 2015-198, ss. 3, 4, effective August 5, 2015, in subdivision (d)(6), substituted “Department of Public Safety” for “Division of Adult Correction of the Department of Public Safety” and inserted “matters relating to executions under Article 19 of Chapter 15 of the General Statutes and”; and added subdivision (e)(22).

Session Laws 2015-198, s. 3, effective August 5, 2015, rewrote subdivision (d)(6).

Session Laws 2015-198, s. 4, effective August 5, 2015, added subdivision (e)(22).

Session Laws 2015-241, ss. 14.6(g), 14.30(s), (u), effective July 1, 2015, substituted “Department of Natural and Cultural Resources” for “Department of Cultural Resources” in subdivision (d)(23); substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subdivision (e)(1); and added subdivision (e)(22) (now (e)(23)).

Session Laws 2015-241, s. 14.11(a), effective July 1, 2015, and applicable to admission fees or related activity fees charged on or after July 1, 2015, in subdivision (d)(26), inserted the a. designation, inserted b., and inserted “and operating hours” in the last sentence; added subdivision (d)(27); and made minor stylistic changes.

Session Laws 2015-241, s. 14.30(v), effective July 1, 2015, substituted “Secretary of Environmental Quality” for “Secretary of Environment and Natural Resources” in subdivision (e)(23).

Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted “Department of Natural and Cultural Resources” for “Department of Cultural Resources” in subdivision (d)(23).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subdivisions (d)(27) and (e)(1).

Session Laws 2015-241, s. 14.30(v), effective July 1, 2015, substituted “Secretary of Environmental Quality” for “Secretary of Environment and Natural Resources” in subsection (a).

Session Laws 2015-241, s. 29.30(t), effective July 1, 2020, added subdivision (d)(28). See editor’s note for redesignation of subdivision.

Session Laws 2016-113, s. 7(a), effective July 26, 2016, added sub-subdivision (d)(26)c.

Session Laws 2017-186, s. 2(ddddddddd), effective December 1, 2017, inserted “and Juvenile Justice” in subdivision (e)(7).

Session Laws 2018-5, s. 11E.1(b), added subdivision (d)(29). For effective date and applicability, see editor’s note.

Session Laws 2018-5, s. 37.1(h), effective June 12, 2018, added subdivision (e)(24).

Session Laws 2018-142, s. 21, effective December 15, 2018, in subdivision (d)(6), deleted “and Juvenile Justice” preceding “The Department of.”

Session Laws 2019-81, s. 10, effective October 1, 2019, added “commenced under G.S. 108A-70.29 b” in subdivision (e)(17); and added subdivision (e)(25).

Session Laws 2019-165, s. 7, effective July 26, 2019, added subdivision (e)(26).

Session Laws 2019-177, s. 8.2, effective July 26, 2019, repealed subdivision (e)(11) pertaining to hearings on eligibility of assaultive or violent children.

Session Laws 2020-48, s. 4.1(c), added subdivision (d)(30). For effective date and applicability, see editor’s note.

Session Laws 2021-125, s. 3(c), effective August 30, 2021, rewrote subdivision (e)(13).

Session Laws 2021-138, s. 12(a), effective September 2, 2021, added subdivisions (d)(6a) and (d)(6b).

Session Laws 2021-178, s. 3(b), effective November 10, 2021, added subdivision (d)(31).

Session Laws 2021-180, ss. 10.2(b), 14.2(b), effective July 1, 2021, in subsection (d), added subdivision (d)(26)d, and, in subdivisions (d)(23), (d)(24), and (d)(25), inserted “operating hours,” and made a minor punctuation change.

Session Laws 2021-180, s. 19C.9(oooo), rewrote subdivision (e)(7), which read: “The Division of Adult Correction and Juvenile Justice of the Department of Public Safety.” For effective date and applicability, see editor's note.

Legal Periodicals.

For comment on former Chapter 150, see 31 N.C.L. Rev. 378 (1953).

For note as to constitutionality of statutes licensing occupations, see 35 N.C.L. Rev. 473 (1957).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For interpretative analysis of former Chapter 150A, see 53 N.C.L. Rev. 833 (1975).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1026 (1981).

For survey of 1982 law on administrative law, see 61 N.C.L. Rev. 961 (1983).

For article, “The New Administrative Procedures Act: A Practical Guide to Understanding and Using It,” see 9 Campbell L. Rev. 293 (1987).

For note, “The Forty-Two Hundred Dollar Question: ‘May State Agencies Have Discretion in Setting Civil Penalties Under the North Carolina Constitution?’, ” see 68 N.C.L. Rev. 1035 (1990).

For survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

For article, “Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment,” see 79 N.C.L. Rev. 1571 (2001).

For article, “What Were We Thinking?: Legislative Intent and the 2000 Amendments to the North Carolina APA,” see 79 N.C.L. Rev. 1657 (2001).

For article, “Wind Over North Carolina Waters: The State’s Preparedness to Address Offshore and Coastal Water-Based Wind Energy Projects,” see 87 N.C.L. Rev. 1819 (2009).

For article, “Plenary Power in the Modern Administrative State,” see 96 N.C.L. Rev. 77 (2017).

For article, “The Re-‘Tooling‘ of Federal ALJs: Lucia v. SEC and Executive Order 13,843,” see 97 N.C. L. Rev. Addendum 21 (2019).

For article, “Reckoning with Adjudication’s Exceptionalism Norm,” see 69 Duke L.J. 1749 (2020).

For article, “An Article III Renaissance in Administrative Law: A Return to the Judicial Past?,” see 12 Elon L. Rev. 385 (2020).

CASE NOTES

Editor’s Note. —

Most of the cases below were decided under corresponding provisions of former Chapter 150A, or prior to the 1991 amendments to this Chapter.

History of Chapter. —

The original Administrative Procedure Act (APA), codified as Chapter 150A, was effective until Dec. 31, 1985; the APA was rewritten in 1985 and recodified as Chapter 150B, with the new version becoming effective Jan. 1, 1986. Vass v. Board of Trustees, 108 N.C. App. 251, 423 S.E.2d 796, 1992 N.C. App. LEXIS 885 (1992).

The 1991 Amendment to this section merely confirms that when a person is aggrieved by agency action, the Administrative Procedure Act only “describes the procedures” for Office of Administrative Hearings review in the event the North Carolina General Assembly vests a party with the right to administrative review, such as a contested case hearing. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 112 N.C. App. 566, 436 S.E.2d 594, 1993 N.C. App. LEXIS 1198 (1993), rev'd, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

The 2003 version of G.S. 150B-34(c), which excluded the Certificate of Need Act, G.S. 131E-175 et seq., from the requirements of G.S. 150B-36(b), (b1), (b2), (b3), and (d) and G.S. 150B-51 , left the scope and standard of review applied under the 1999 version of G.S. 150B-51 undisturbed. Mooresville Hosp. Mgmt. Assocs. v. N.C. HHS, Div. of Facility Servs., 169 N.C. App. 641, 611 S.E.2d 431, 2005 N.C. App. LEXIS 796 , vacated, 360 N.C. 156 , 622 S.E.2d 621, 2005 N.C. LEXIS 1311 (2005).

The primary purpose of this Act is to confer procedural rights, including the right to an administrative hearing, upon any person aggrieved by an agency decision, and statutes should be liberally construed together to preserve and effectuate that right. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

The administrative hearing provisions of this act apply to all agencies and all proceedings except those expressly exempted, and it expressly named the particular agencies exempted therefrom, specifying the extent of each such exemption. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

Under G.S. 90-270.15(a), the North Carolina Psychology Board is responsible for overseeing licensed psychologists practicing in the state, and it may discipline licensees who violate ethical or professional standards; under G.S. 90-270.15(e), disciplinary actions by the Board are governed by the Administrative Procedure Act, § 150B-1 et seq. Farber v. N.C. Psychology Bd., 153 N.C. App. 1, 569 S.E.2d 287, 2002 N.C. App. LEXIS 1085 , cert. denied, 356 N.C. 612 , 574 S.E.2d 679, 2002 N.C. LEXIS 1375 (2002).

Contested case hearing provisions of the North Carolina Administrative Procedure Act apply to all agencies and all proceedings except those expressly exempted therefrom, and G.S. 150B-1(e) specifies the extent of each such exemption. N.C. Forestry Ass'n v. N.C. Dep't of Env't & Natural Res., 154 N.C. App. 18, 571 S.E.2d 602, 2002 N.C. App. LEXIS 1411 (2002), rev'd, 357 N.C. 640 , 588 S.E.2d 880, 2003 N.C. LEXIS 1413 (2003).

Although corporations were not required to be represented by attorneys in hearings before the Office of Administrative Hearings (OAH), pursuant to G.S. 150B-23 (referring to “attorney or representative” of a party), the DMV was exempted from the provisions of the Administrative Procedure Act authorizing contested cases to be brought in the OAH, G.S. 150B-1(e)(8), and therefore, in a hearing before the DMV, a corporation was required to be represented by an attorney. In re Twin County Motorsports, Inc., 230 N.C. App. 259, 749 S.E.2d 474, 2013 N.C. App. LEXIS 1135 (2013), rev'd, 367 N.C. 613 , 766 S.E.2d 832, 2014 N.C. LEXIS 959 (2014).

Strict Separation of Agency Functions Not Required. —

Neither the Administrative Procedure Act, G.S. 150B-1 et seq., nor due process, requires a strict separation between agency functions. Farber v. N.C. Psychology Bd., 153 N.C. App. 1, 569 S.E.2d 287, 2002 N.C. App. LEXIS 1085 , cert. denied, 356 N.C. 612 , 574 S.E.2d 679, 2002 N.C. LEXIS 1375 (2002).

The University of North Carolina at Chapel Hill is expressly exempted from the administrative hearings provisions of the Administrative Procedure Act. Beauchesne v. University of N.C, 125 N.C. App. 457, 481 S.E.2d 685, 1997 N.C. App. LEXIS 112 (1997).

Application of Chapter. —

Where the complaints and notices of hearing were filed prior to Jan. 1, 1986, the action was commenced prior to Jan. 1, 1986, and Chapter 150B had no application; thus, G.S. 150A-45 (rewritten and recodified as G.S. 150B-45 ), requiring a person seeking review to file a petition in the Superior Court of Wake County, and not G.S. 150B-45 , permitting such filing in either Wake County or the county where the person resides, governed. Pinewood Manor Mobile Homes, Inc. v. North Carolina Manufactured Hous. Bd., 84 N.C. App. 564, 353 S.E.2d 231, 1987 N.C. App. LEXIS 2532 , writ denied, 319 N.C. 674 , 356 S.E.2d 780, 1987 N.C. LEXIS 2096 (1987).

North Carolina Administrative Procedure Act, G.S. 150B-1 et seq., applied, pursuant to G.S. 150B-1 (e), to a county employee’s declaratory judgment action for a ruling that the county’s personnel regulations were not substantially equivalent to the standards established by the North Carolina State Personnel Act [now the North Carolina Human Resources Act], G.S. 126-1 et seq., where the employee’s employment with the county was terminated. Steward v. Green, 189 N.C. App. 131, 657 S.E.2d 719, 2008 N.C. App. LEXIS 423 (2008).

General Assembly did not impliedly exempt the Board of Trustees from the necessity of compliance with APA’s rulemaking provisions in adopting a cap factor where G.S. 135-5(a3) and G.S. 135-6 ( l ) could be harmonized, the adoption of a cap factor was not a ministerial act in which the Board did nothing more than ratify the actuary’s recommendation, case law did not support such an implied exemption, and the public interests supported the Board of Education’s contention that the cap factor should be established by using the APA’s rulemaking provisions to ensure the opportunity for adequate public input before a decision became final. This case was decided prior to the enactment of G.S. 150B-1(d)(30) by Session Laws 2020-48, s. 4.1(c). Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

Individuals aggrieved pursuant to the Rehabilitation Act are not required to seek administrative review in a contested case hearing before the Office of Administrative Hearings via the contested case hearing provisions of this act; rather, they are entitled to a hearing governed by procedures established by the Rehabilitation Act of 1973, P.L.102-569, 42 U.S.C. § 701, et seq. as amended. Hedgepeth v. North Carolina Div. of Servs. for the Blind, 142 N.C. App. 338, 543 S.E.2d 169, 2001 N.C. App. LEXIS 94 (2001).

Direct Challenge to Constitutionality of North Carolina Supreme Court Order. —

A direct challenge of the constitutionality of an order of the North Carolina Supreme Court cannot be adjudicated under this Chapter. The issue must be litigated as an original action in the General Court of Justice. Beard v. North Carolina State Bar, 320 N.C. 126 , 357 S.E.2d 694, 1987 N.C. LEXIS 2157 (1987).

Judicial Notice of Regulations. —

Where promulgating agency is not subject to the North Carolina Administrative Procedure Act, the court is only required to take judicial notice of its regulations if they are submitted in accordance with certain procedures designed to insure their accuracy. Southern Ry. v. O'Boyle Tank Lines, 70 N.C. App. 1, 318 S.E.2d 872, 1984 N.C. App. LEXIS 3623 (1984).

Irreconcilable Dispute. —

When a dispute between a state agency and another person arise and cannot be settled informally, the procedures for resolving the dispute are governed by this act. North Buncombe Ass'n of Concerned Citizens v. Rhodes, 100 N.C. App. 24, 394 S.E.2d 462, 1990 N.C. App. LEXIS 813 , writ denied, 327 N.C. 484 , 397 S.E.2d 215, 1990 N.C. LEXIS 868 (1990), writ denied, 327 N.C. 484 (1990).

North Carolina Human Resources Commission. —

As to the applicability of former Chapter 150A to the State Personnel Commission [now the North Carolina Human Resources Commission], see Stevenson v. North Carolina Dep't of Ins., 31 N.C. App. 299, 229 S.E.2d 209, 1976 N.C. App. LEXIS 1971 , cert. denied, 291 N.C. 450 , 230 S.E.2d 767, 1976 N.C. LEXIS 1016 (1976).

Department of Insurance. —

Insurance Commissioner’s promulgation of 11 N.C.A.C. 12.0319, prohibiting subrogation provisions in life or accident and health insurance contracts, supported by G.S. 58-2-40 (right to limit practices injurious to the public) and 58-50-15(a) (prohibiting provisions less favorable to the insured), did not exceed his statutory authority, even though it may change state substantive law, and did not amount to an unconstitutional delegation of legislative powers, because statutory provisions ( G.S. 58-2-40 , 58-51-15, and 58-50-15) and judicial review (available under this chapter) offer adequate procedural safeguards and support the delegation of power to the Commissioner. In re A Declaratory Ruling by the N.C. Comm'r of Ins. Regarding 11 N.C.A.C. 12.0319, 134 N.C. App. 22, 517 S.E.2d 134, 1999 N.C. App. LEXIS 665 (1999).

Department of Transportation. —

Language which provides that Articles 2 and 3 of former Chapter 150A shall not apply to the Department of Transportation in rule-making or administrative hearings only applies to actions taken by the department pursuant to Chapter 20, which refers to regulation of motor vehicles. In contrast, Chapters 136 and 143B provide the Department of Transportation and the Board of Transportation with powers and duties to engage in the planning and construction of the state highway system, and had the General Assembly wanted to exclude actions of the Department and Board of Transportation under Chapter 136 from the requirements of Articles 2 and 3 of former Chapter 150A, it would have done so with the same specificity that it used in excluding actions taken pursuant to Chapter 20. Orange County Sensible Hwys. & Protected Env'ts, Inc. v. North Carolina Dep't of Transp., 46 N.C. App. 350, 265 S.E.2d 890, 1980 N.C. App. LEXIS 2836 (1980).

University of North Carolina’s State Residency Committee (SRC) is exempt from this Chapter; therefore, although provisions in the act requiring judicial review of final administrative review were applicable, the SRC was not governed by G.S. 150B-36 , which requires agencies to state reasons for their decisions. Wilson v. State Residence Comm., 92 N.C. App. 355, 374 S.E.2d 415, 1988 N.C. App. LEXIS 1045 (1988).

Board of Trustees. —

Language in G.S. 135-39.7 [now G.S. 135-44.7] that board of trustees “may make a binding decision” concerning a dispute between an aggrieved individual and a claims administrator of a medical plan is not an express and unequivocal exemption of the board from the requirements of this Chapter; instead, the use of the term “binding” in the statute was intended to mean only that the board’s decision would be binding upon the parties absent further review according to law. Vass v. Board of Trustees, 324 N.C. 402 , 379 S.E.2d 26, 1989 N.C. LEXIS 247 (1989).

Retirement Systems Division of the Department of State Treasurer (Division) erred in invoicing a school employee or school board for contributions to the employee’s retirement fund pursuant to a statutory cap factor because (1) the factor was a rule not properly adopted pursuant to the Administrative Procedure Act, and (2) the Division was a state agency not exempt from rule making requirements. Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 261 N.C. App. 325, 821 S.E.2d 196, 2018 N.C. App. LEXIS 948 (2018), aff'd, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

The Department of Environment, Health, and Natural Resources (now the Department of Environment and Natural Resources), is not among those agencies which the Administrative Procedures Act specifically exempts from its provisions. North Buncombe Ass'n of Concerned Citizens v. Rhodes, 100 N.C. App. 24, 394 S.E.2d 462, 1990 N.C. App. LEXIS 813 , writ denied, 327 N.C. 484 , 397 S.E.2d 215, 1990 N.C. LEXIS 868 (1990), writ denied, 327 N.C. 484 (1990).

Entitlement to Administrative Hearing on Mining Permit. —

Petitioners were entitled to a contested case hearing by the Office of Administrative Hearings on their claim that mining permit should not have been issued. North Buncombe Ass'n of Concerned Citizens, Inc. v. North Carolina Dep't of Env't, Health, & Natural Resources, 338 N.C. 302 , 449 S.E.2d 451, 1994 N.C. LEXIS 654 (1994).

The Social Services Commission was not excluded from coverage under subsection (d). Whittington v. North Carolina Dep't of Human Resources, 100 N.C. App. 603, 398 S.E.2d 40, 1990 N.C. App. LEXIS 1125 (1990).

Board of Dental Examiners. —

The Board of Dental Examiners is an agency governed by the provisions of the North Carolina Administrative Procedure Act and is not exempt from the contested case provisions of the Act. Homoly v. North Carolina State Bd. of Dental Examrs., 121 N.C. App. 695, 468 S.E.2d 481, 1996 N.C. App. LEXIS 138 (1996).

Where taxpayer only argued in his brief that decision by board was unsupported by substantial evidence in view of the “whole record” test, the Court of Appeals would decline to review the board’s decision under the other standards of this section. Walls & Marshall Fuel Co. v. North Carolina Dep't of Revenue, 95 N.C. App. 151, 381 S.E.2d 815, 1989 N.C. App. LEXIS 676 (1989).

For discussion of respective powers and duties of Commissioner of Insurance and his designated hearing officer in the review of filed rates and entry of a final agency decision in a contested insurance rate case, see State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 506, 300 S.E.2d 845, 1983 N.C. App. LEXIS 2728 (1983).

Appeal Allowed. —

Third party was entitled under this Act and the Air Pollution Control Act, G.S. 143-215.105 et seq., to appeal to the Office of Administrative Hearings from the decision of the Department of Environmental Management, to grant an air pollution control permit to Duke Power Company. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

Challenges to Constitutionality of Regulation or Statute. —

Under North Carolina law, plaintiffs may be able to bypass administrative review and seek direct relief from the court. For example, when an aggrieved party challenges the constitutionality of a regulation or statute, administrative remedies are deemed to be inadequate and exhaustion thereof is not required. Prentiss v. Allstate Ins. Co., 87 F. Supp. 2d 514, 1999 U.S. Dist. LEXIS 21397 (W.D.N.C. 1999).

Department of Health and Human Services, Division of Medical Assistance. —

Pursuant to G.S. 150B-1(c) , the North Carolina Department of Health and Human Services, Division of Medical Assistance, is an Article 3 agency and thereby subject to the mandates of G.S. 150B-44 . Albemarle Mental Health Ctr. v. N.C. Dep't of HHS, 159 N.C. App. 66, 582 S.E.2d 651, 2003 N.C. App. LEXIS 1422 (2003), aff'd, 358 N.C. 134 , 591 S.E.2d 519, 2004 N.C. LEXIS 21 (2004).

Dialysis firm challenging the refusal of the N.C. Department of Health and Human Services (DHHS), Division of Facility Services [now the Division of Health Service Regulation], Medical Facilities Planning Section, to amend a Semiannual Dialysis Report (SDR) did not have a remedy under the North Carolina Administrative Procedures Act or the North Carolina Declaratory Judgment Act since, inter alia: the enabling statute suggested that the North Carolina State Medical Facilities Plan (SMFP), which contained the SDR, was a snapshot in time intended to enable the DHHS to develop policy, criteria, and standards for health service facilities planning; and it was the role of the DHHS and the N.C. State Health Coordinating Council to develop the SMFP. Bio-Medical Applications of N.C. Inc. v. N.C. HHS, 179 N.C. App. 483, 634 S.E.2d 572, 2006 N.C. App. LEXIS 1979 (2006).

Disciplinary Hearing Commission. —

The contention that an attorney who is accused of misconduct should be entitled to a hearing before an administrative law judge under the North Carolina Administrative Procedure Act, is rejected. N.C. State Bar v. Rogers, 164 N.C. App. 648, 596 S.E.2d 337, 2004 N.C. App. LEXIS 965 (2004).

State Board of Education. —

By the 1942 amendment to the North Carolina Constitution, the framers and voters consolidated in the State Board of Education all administrative authority governing a statewide public school system, limited the Board’s authority to making rules and regulations subject to laws enacted by the General Assembly, eliminated the Board’s authority to legislate, and thereby restored to the General Assembly all legislative authority regarding public education. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518, 2017 N.C. App. LEXIS 757 (2017), aff'd, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Process of Approval Or Disapproval Of Execution Protocol Not Subject To the Administrative Procedure Act. —

Superior court did not err in dismissing inmates’ request for judicial review of the final decision of respondent North Carolina Council of State, which approved the lethal injection protocol the Department of Correction (DOC) submitted, because the process by which the Council approved or disapproved the DOC’s lethal injection protocol was not subject to the APA, and the inmates could not challenge it by going through the Office of Administrative Hearings through the APA; instead, any issue the inmates had with the protocol rested with the General Court of Justice or the federal courts. Conner v. N.C. Council of State, 365 N.C. 242 , 716 S.E.2d 836, 2011 N.C. LEXIS 820 (2011).

General Assembly intended that the Department of Correction (DOC) have primary responsibility for the lethal injection process because G.S. 15-188 does not give the North Carolina Council of State authority beyond merely approving or disapproving the submitted protocol; the General Assembly did not intend to negate the express exemption that it provided to the DOC in the North Carolina Administrative Procedure Act (APA) by including a requirement that the Council approve the lethal injection protocol, and thus, the process by which the Council approves or disapproves the DOC’s lethal injection protocol is not subject to the APA. Conner v. N.C. Council of State, 365 N.C. 242 , 716 S.E.2d 836, 2011 N.C. LEXIS 820 (2011).

Failure to Exhaust Administrative Remedies. —

Trial court properly dismissed a former police officer’s negligence action against a drug testing laboratory for lack of subject matter jurisdiction because the officer failed to exhaust all administrative remedies under the North Carolina Administrative Procedures Act, G.S. 150B et seq., by not requesting an administrative hearing, pursuant to G.S. 17C-11(b), to contest the decision by the North Carolina Criminal Justice Education and Training Standards Commission to suspend the officer’s law enforcement certification upon the officer’s positive drug test. Vanwijk v. Prof'l Nursing Servs., 213 N.C. App. 407, 713 S.E.2d 766, 2011 N.C. App. LEXIS 1490 (2011).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— Some of the opinions below were issued prior to the 1991 amendments to this Chapter.

Editor’s Note.

Subdivisions (01), (1), (1a), (1b), and (1c) of this section were renumbered as subdivisions (1), (1a), (1b), (1c) and (1d), respectively, pursuant to S.L. 1997-456, s. 27 which authorized the Revisor of Statutes to renumber or reletter sections and parts of sections having a number or letter designation that is incompatible with the General Assembly’s computer database.

Subdivision (8b) was enacted as subdivision (8c) by Session Laws 2011-13, s. 2. It was renumbered as subdivision (8b) and former subdivision (8b) was renumbered as subdivision (8c) to maintain alphabetical order at the direction of the Revisor of Statutes.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2013-382, s. 9.1(b), provides: “The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

“(1) The State Personnel Commission is renamed the ‘North Carolina Human Resources Commission.’

“(2) The Office of State Personnel is renamed the ‘North Carolina Office of State Human Resources.’

“(3) The State Personnel Director is renamed the ‘Director of the North Carolina Office of State Human Resources.’ ”

Session Laws 2013-382, s. 9.1(c), provides: “Modification of References. — The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary.”

Session Laws 2013-413, s. 61(b), provides: “Except as otherwise provided, this act is effective when it becomes law [August 23, 2013].” Session Laws 2013-413, s. 60(c), had provided that: “This act becomes effective July 1, 2015.” Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to “This act” with the words “This Part.”

Session Laws 2013-413, s. 61(a), is a severability clause.

Session Laws 2015-241, s. 7A.3, provides in part: “The Revisor of Statutes may conform names and titles changed by this section and may correct statutory references as required by this section throughout the General Statutes. In making the changes authorized by this section, the Revisor may also adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority, the Revisor of Statutes substituted “Department of Information Technology” for “Office of Information Technology Services” in sub-subdivision (8a) l .

Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”

Session Laws 2015-241, s. 33.6, is a severability clause.

Session Laws 2018-13, s. 6, is a severability clause.

Session Laws 2018-13, s. 7, made the amendment of subdivision (3) of this section by Session Laws 2018-13, s. 3.8(b), effective June 20, 2018, and applicable to elections held on or after that date.

Effect of Amendments.

Session Laws 2007-491, s. 44(1)b, effective January 1, 2008, substituted “G.S. 105-241.21” for “G.S. 105-241.1” in subdivision (8a)j.

Session Laws 2011-13, s. 2, effective March 25, 2011, and applicable to rules published in the North Carolina Register by an agency on or after that date, added subdivision (8b), defining “Substantial estimated additional costs.”

Session Laws 2011-398, s. 61.2, effective July 25, 2011, repealed subdivision (8b), as added by Session Laws 2011-13, s. 2.

Session Laws 2015-2, s. 2.2(c), effective January 1, 2016, deleted “and the variable component of the excise tax on motor fuel under G.S. 105-449.80 ” at the end of subdivision (8a)j.

Session Laws 2015-241, s. 30.16(a), effective July 1, 2015, rewrote subsection (1c), which formerly read: “ ‘Codifier of Rules’ means the Chief Administrative Law Judge of the Office of Administrative Hearings or a designated representative of the Chief Administrative Law Judge.”

Session Laws 2018-13, s. 3.8(b), substituted “Statutes, occupational licenses, and certifications of electronic poll books, ballot duplication systems, or voting systems under G.S. 163A-1115” for “Statutes and occupational licenses” in subdivision (3). For effective date and applicability, see editor’s note.

Session Laws 2018-146, s. 4.5(b), effective December 27, 2018, substituted “G.S. 93B-1” for “G.S. 93B-1, or by the Bipartisan State Board of Elections and Ethics Enforcement” in subdivision (8a)b.

Session Laws 2021-88, s. 16(a), (b), effective July 22, 2021, recodified subdivisions (1b), and (7) as subdivisions (1a), and (5a); added “the following definitions apply” in the introductory language; inserted “or” in subdivision (8a)b.; in subdivision (8a) l. , substituted “State Chief Information Officer” for “Department of Information Technology” and “in G.S. 143B-1320” for “by G.S. 147-33.81”; and made technical corrections throughout the section.

Legal Periodicals.

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1980 property law, see 59 N.C.L. Rev. 1209 (1981).

For note, “Contested Case Hearings Under the North Carolina Administrative Procedure Act: 1985 Rewrite Contains Dual System of Administrative Adjudication,” see 64 N.C.L. Rev. 852 (1986).

For survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

For article, “Outlawed and Exiled: Zero Tolerance and Second Generation Race Discrimination in Public Schools,” see 29 N.C. Cent. L. J. 147 (2007).

For article, “Wind Over North Carolina Waters: The State’s Preparedness to Address Offshore and Coastal Water-Based Wind Energy Projects,” see 87 N.C.L. Rev. 1819 (2009).

CASE NOTES

Editor’s Note. —

Many of the cases below were decided under corresponding provisions of former Chapter 150A or prior to the 1991 amendments to this Chapter.

“Agency”. —

The Department of Insurance is an “agency” subject to the provisions of subdivision (1) of this section. North Carolina Reinsurance Facility v. Long, 98 N.C. App. 41, 390 S.E.2d 176, 1990 N.C. App. LEXIS 303 (1990).

The Department of Revenue is an administrative agency of the State. Bailey v. State, 330 N.C. 227 , 412 S.E.2d 295, 1991 N.C. LEXIS 805 (1991), cert. denied, 504 U.S. 911, 112 S. Ct. 1942, 118 L. Ed. 2d 547, 1992 U.S. LEXIS 2737 (1992), overruled in part, 348 N.C. 130 , 500 S.E.2d 54, 1998 N.C. LEXIS 214 (1998).

Although the North Carolina Administrative Procedure Act (the Act) provides review only for agency decisions, G.S. 150B-50 (1991), and local units of government are not within the definition of agencies in subdivision (1), the principles embodied in the Act “are highly pertinent” to appellate review of local government actions. Vulcan Materials Co. v. Guilford County Bd. of County Comm'rs, 115 N.C. App. 319, 444 S.E.2d 639, 1994 N.C. App. LEXIS 598 (1994).

Where an agency is not a unit of state government, but rather a local one, it does not fall under the definition of “agency” within the confines of the The Administrative Procedure Act, specifically, G.S. 150B-2(1a). Lee Ray Bergman Real Estate Rentals v. N.C. Fair Hous. Ctr., 153 N.C. App. 176, 568 S.E.2d 883, 2002 N.C. App. LEXIS 1089 (2002).

Local school boards are not state agencies for purposes of the North Carolina Administrative Procedures Act and the statute relating to awards of attorneys’ fees for parties prevailing against a state agency simply because they may be considered agents of the State in certain circumstances. Therefore, charter schools should not have been awarded attorneys’ fees in a fund dispute with a local school board. Thomas Jefferson Classical Acad. Charter Sch. v. Cleveland County Bd. of Educ., 236 N.C. App. 207, 763 S.E.2d 288, 2014 N.C. App. LEXIS 961 (2014).

In a dispute over funding for charter schools, attorneys’ fees should not have been awarded under G.S. 150B-2 because a local school board was not a state agency. Local school boards were not state agencies for purposes of the Administrative Procedures Act simply because the local boards could have been considered agents for the State under certain circumstances. Thomas Jefferson Classical Acad. Charter Sch. v. Cleveland County Bd. of Educ., 236 N.C. App. 207, 763 S.E.2d 288, 2014 N.C. App. LEXIS 961 (2014).

“Contested Case”. —

Case challenging a consent special order entered into by Environmental Management Commission and a corporation, which order was alleged to intrude upon the National Pollutant Discharge Elimination System (NPDES) permit process (which process requires a hearing), was “contested” for the purposes of former G.S. 150A-43. State ex rel. Tenn. Dep't of Health & Env't v. Environmental Mgt. Comm'n, 78 N.C. App. 763, 338 S.E.2d 781, 1986 N.C. App. LEXIS 2012 (1986).

Where the rights of the petitioner were determined by an in-person interview and by an investigation conducted by a hearing officer of the North Carolina DMV, a state agency, they constituted “an agency proceeding.” Therefore, the case was “contested” for purposes of G.S. 150B-43 . Charlotte Truck Driver Training School, Inc. v. North Carolina DMV, 95 N.C. App. 209, 381 S.E.2d 861, 1989 N.C. App. LEXIS 660 (1989).

Petitioner’s allegation that he had been “demoted in rank without sufficient cause” stated grounds for his department’s action to be deemed “disciplinary” within the meaning and intent of G.S. 126-35 and for his case to be considered “contested” within the meaning and intent of G.S. 126-37(a) (now repealed). Because he had properly pursued all informal procedures mandated by the State Personnel Act [now the North Carolina Human Resources Act] and by the North Carolina Administrative Code for the resolution of his grievance, petitioner’s appeal also fit the procedural profile of a “contested case” for purposes of its review by the Office of Administrative Hearings under this Chapter. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Wildlife Resources Commission’s rejection of sewer district’s study and of its request for lower streamflow requirements constituted agency action giving rise to a dispute which ultimately became a “contested case” over which the Office of Administrative Hearings has jurisdiction. Metropolitan Sewerage Dist. v. North Carolina Wildlife Resources Comm'n, 100 N.C. App. 171, 394 S.E.2d 668, 1990 N.C. App. LEXIS 891 (1990).

A contested case hearing is distinguishable from a contested case. The phrase “contested case” extends beyond an adjudicatory hearing to include any agency proceeding, by whatever name called, wherein the legal rights, duties and privileges of a party are required by law to be determined by an agency after an opportunity for an adjudicatory hearing. Community Psychiatric Ctrs. v. North Carolina Dep't of Human Resources, 103 N.C. App. 514, 405 S.E.2d 769, 1991 N.C. App. LEXIS 799 (1991).

Elements of “Contested Case”. —

There are two elements of a “contested case”: (1) An agency proceeding; (2) that determined the rights of a party or parties. Lloyd v. Babb, 296 N.C. 416 , 251 S.E.2d 843, 1979 N.C. LEXIS 1184 (1979).

Clear and Convincing Evidentiary Rule Invalid. —

An administrative rule requiring that clear and convincing evidence be presented to show that a transfer of assets was made exclusively for a purpose other than to establish Medicaid eligibility was invalid. Dillingham v. North Carolina Dep't of Human Resources, 132 N.C. App. 704, 513 S.E.2d 823, 1999 N.C. App. LEXIS 263 (1999).

Error of Law. —

The reviewing court may substitute its judgment for that of the Review Board if the Board’s decision was affected by an error of law. Associated Mechanical Contractors v. Payne, 342 N.C. 825 , 467 S.E.2d 398, 1996 N.C. LEXIS 140 (1996).

The result of a petitioner’s ineffective attempts to file a petition for a contested case hearing was only a contested case. Community Psychiatric Ctrs. v. North Carolina Dep't of Human Resources, 103 N.C. App. 514, 405 S.E.2d 769, 1991 N.C. App. LEXIS 799 (1991).

Without the jurisdictional prerequisite of a contested case hearing, a petitioner cannot utilize G.S. 131E-188(b) to appeal to the Court of Appeals. Community Psychiatric Ctrs. v. North Carolina Dep't of Human Resources, 103 N.C. App. 514, 405 S.E.2d 769, 1991 N.C. App. LEXIS 799 (1991).

“Person Aggrieved”. —

“Procedural injury,” whereby petitioner State of Tennessee’s right to be heard on certain aspects of a National Pollutant Discharge Elimination System (NPDES) permit was substantially impaired, was sufficient under former G.S. 150A-43 to qualify petitioner as an “aggrieved person” for purposes of appeal of issuance of Environmental Management Commission’s consent special order with corporation. In addition, where the consent special order contained provisions substantially identical to provisions which petitioner opposed in the proposed NPDES permit, which affected the property rights of the petitioner in the Pigeon River, these allegations also established petitioner’s “aggrieved person” status. State ex rel. Tenn. Dep't of Health & Env't v. Environmental Mgt. Comm'n, 78 N.C. App. 763, 338 S.E.2d 781, 1986 N.C. App. LEXIS 2012 (1986).

Where none of petitioner’s personal rights or interests, nor any rights or interests properly attributable to him in a cognizable representative capacity, were either directly or indirectly at issue in requested rule making proceeding, he was not substantially affected by Department of Human Resources’ denial of his petition for rule making. Therefore, he was not a “person aggrieved” as a result of the agency decision and had no standing to seek judicial review thereof. In re Wheeler, 85 N.C. App. 150, 354 S.E.2d 374, 1987 N.C. App. LEXIS 2572 (1987).

“Person aggrieved” means one who is adversely affected in respect to legal rights, or who is suffering from an infringement or denial of legal rights. In re Wheeler, 85 N.C. App. 150, 354 S.E.2d 374, 1987 N.C. App. LEXIS 2572 (1987).

A power company satisfied the definition of a “person aggrieved” because its interest in having the Department of Environment, Health and Natural Resources (now the Department of Environment and Natural Resources) prepare an Environmental Impact Statement before issuing a permit and its interest in the air resources of the State were adversely affected by DEHNR’s granting of a permit issued to another power company to construct and operate combustion turbine electric generating units. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 112 N.C. App. 566, 436 S.E.2d 594, 1993 N.C. App. LEXIS 1198 (1993), rev'd, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

A landowner qualified as a “person aggrieved” as he owned and lived on property adjacent to the proposed site. Empire Power Co. v. North Carolina Dep't of Env't, Health & Natural Resources, 112 N.C. App. 566, 436 S.E.2d 594, 1993 N.C. App. LEXIS 1198 (1993), rev'd, 337 N.C. 569 , 447 S.E.2d 768, 1994 N.C. LEXIS 492 (1994).

A pet owner was not a “person aggrieved” under G.S. 150B-2(6) as to the decision of the North Carolina Veterinary Medical Board disciplining a veterinarian against whom she filed a complaint, and therefore the pet owner was not entitled to an administrative hearing on the issue and had no standing to seek judicial review. In re Denial of Request for Full Admin. Hearing, 146 N.C. App. 258, 552 S.E.2d 230, 2001 N.C. App. LEXIS 855 (2001).

Neighboring property owners to a proposed landfill site for which an application for a facility permit was pending would suffer interference with the use and enjoyment of and diminution in the value of their property if the permit were granted; thus, they were persons aggrieved under the statute who had standing to challenge a superior court’s judgment on review of an administrative agency decision. Furthermore, a neighboring town was also a person aggrieved because its tax base and planning jurisdiction would be affected by the proposed landfill. County of Wake v. N.C. Dep't of Env't, 155 N.C. App. 225, 573 S.E.2d 572, 2002 N.C. App. LEXIS 1632 (2002).

Where the former caretaker sought a declaratory judgment pursuant to G.S. 150B-4 in the caretaker’s action alleging that the caretaker could be harmed in the future by the department of health and human services’ calculation of debt owed to the State for benefits taken under a certain program, the caretaker was not entitled to a declaratory judgment, because the caretaker was not aggrieved under G.S. 150B-2(6); the caretaker could be aggrieved in the future if certain events were to occur, but nothing in the record indicated that these events were certain to come to pass, imminently threatened, or likely to occur. Diggs v. N.C. HHS, 157 N.C. App. 344, 578 S.E.2d 666, 2003 N.C. App. LEXIS 540 (2003).

Where the former caretaker argued that the former caretaker became aggrieved pursuant to G.S. 150B-2 when the department of health and human services issued a declaratory ruling pursuant to G.S. 150B-4 , thereby entitling the former caretaker to a declaratory ruling pursuant to G.S. 150B-4 , the argument failed, as the former caretaker was not a person aggrieved at the time the former caretaker requested a declaratory ruling, the declaratory ruling had no effect. Diggs v. N.C. HHS, 157 N.C. App. 344, 578 S.E.2d 666, 2003 N.C. App. LEXIS 540 (2003).

Where a trade association, adversely affected by certain licensing procedures, was a “person aggrieved” under G.S. 150B-2(6), and where licensing issues were deemed to be “contested cases” under G.S. 150B-2(2), (3) and G.S. 150B-22 , the association had standing to bring a contested case challenging the state agencies’ general permitting procedures for wood chip mills. N.C. Forestry Ass'n v. N.C. Dep't of Env't & Natural Res., 357 N.C. 640 , 588 S.E.2d 880, 2003 N.C. LEXIS 1413 (2003).

County employee was a person aggrieved by the North Carolina Office of State Personnel’s [now the North Carolina Office of State Human Resources’] determination that a county’s personnel regulations were substantially equivalent to the North Carolina State Personnel Act, G.S. 126-1 et seq. Steward v. Green, 189 N.C. App. 131, 657 S.E.2d 719, 2008 N.C. App. LEXIS 423 (2008).

Practitioner was not an “aggrieved party” under G.S. 150B-2(6) and lacked standing to appeal under G.S. 150B-43 because the practitioner’s interest in her person, property, or employment were not affected substantially by any administrative action of the North Carolina Respiratory Care Board, which had reversed its decision requiring her to pay monetary penalties. Thompson v. N.C. Respiratory Care Bd., 202 N.C. App. 340, 688 S.E.2d 516, 2010 N.C. App. LEXIS 179 (2010).

Standing Is Question of Subject Matter Jurisdiction. —

Whether one has standing to obtain judicial review of an administrative decision is a question of subject matter jurisdiction. Carter v. North Carolina State Bd. of Registration, 86 N.C. App. 308, 357 S.E.2d 705, 1987 N.C. App. LEXIS 2710 (1987).

County had standing to challenge establishment of toxic waste site within its borders because of the effect on its tax base and planning jurisdiction, because of the final agency determination upon issuance of an environmental impact statement, and because the Environmental Policy Act (Art. 1 of Chap. 113A) includes the right to judicial review of an issue which involves a contested case. Warren County v. North Carolina, 528 F. Supp. 276, 1981 U.S. Dist. LEXIS 18098 (E.D.N.C. 1981).

The intervention statute is permissive only. In re Brunswick County, 81 N.C. App. 391, 344 S.E.2d 584, 1986 N.C. App. LEXIS 2329 (1986).

Decisions of North Carolina Council of State. —

Superior court did not err in dismissing inmates’ request for judicial review of the final decision of respondent North Carolina Council of State, which approved the lethal injection protocol the Department of Correction (DOC) submitted, because the process by which the Council approved or disapproved the DOC’s lethal injection protocol was not subject to the APA, and the inmates could not challenge it by going through the Office of Administrative Hearings through the APA; instead, any issue the inmates had with the protocol rested with the General Court of Justice or the federal courts. Conner v. N.C. Council of State, 365 N.C. 242 , 716 S.E.2d 836, 2011 N.C. LEXIS 820 (2011).

General Assembly intended that the Department of Correction (DOC) have primary responsibility for the lethal injection process because G.S. 15-188 does not give the North Carolina Council of State authority beyond merely approving or disapproving the submitted protocol; the General Assembly did not intend to negate the express exemption that it provided to the DOC in the North Carolina Administrative Procedure Act (APA) by including a requirement that the Council approve the lethal injection protocol, and thus, the process by which the Council approves or disapproves the DOC’s lethal injection protocol is not subject to the APA. Conner v. N.C. Council of State, 365 N.C. 242 , 716 S.E.2d 836, 2011 N.C. LEXIS 820 (2011).

Decisions of Municipalities Exempt from Chapter. —

The North Carolina Administrative Procedure Act provides judicial review only for agency decisions, from which the decisions of local municipalities are expressly exempt. Coastal Ready-Mix Concrete Co. v. Board of Comm'rs, 299 N.C. 620 , 265 S.E.2d 379, 1980 N.C. LEXIS 995 (1980).

Standard on Review of City’s Special Zoning Request Decisions. —

Although the North Carolina Administrative Procedure Act provides judicial review only for agency decisions and exempts cities and other local municipalities, a similar standard of review is appropriate to review city council special zoning request decisions. Jennewein v. City Council, 62 N.C. App. 89, 302 S.E.2d 7, 1983 N.C. App. LEXIS 2812 (1983).

The Department of Insurance is an “agency” subject to the provisions of the North Carolina Administrative Procedure Act. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381 , 269 S.E.2d 547, 1980 N.C. LEXIS 1125 (1980).

Tax Review Board was an “administrative agency” under former statute. In re Halifax Paper Co., 259 N.C. 589 , 131 S.E.2d 441, 1963 N.C. LEXIS 620 (1963).

North Carolina State Commission of Indian Affairs. —

Tribe’s petition for a contested case hearing alleging the North Carolina State Commission of Indian Affairs improperly declined to decide who, between members of competing factions of the tribe, represented the tribe on the Commission had to be dismissed because G.S. 143B-405 and G.S. 143B-406 did not indicate that the general assembly intended for the Commission to function as an administrative or judicial body with substantial decision-making power to resolve intra-tribal disputes, so the Commission did not have the authority to decide this issue. Meherrin Tribe of N.C. v. N.C. State Comm'n of Indian Affairs, 219 N.C. App. 558, 724 S.E.2d 644, 2012 N.C. App. LEXIS 440 (2012).

“Rule”. —

Specific findings by the State Banking Commission were not rules as defined under subsection (8a); thus, the Commission did not apply unpromulgated rules in denying application to sell non-credit disability insurance. Beneficial N.C. Inc. v. State ex rel. N.C. State Banking Comm'n, 126 N.C. App. 117, 484 S.E.2d 808, 1997 N.C. App. LEXIS 331 (1997).

The North Carolina Family and Children’s Medicaid Manual was not a “rule” within the definition of G.S. 150B-2(8a), because it contained nonbinding interpretations of relevant state and federal law, and violations of its provisions were of no effect; thus, it did not have to be adopted pursuant to the requirements of the North Carolina Administrative Procedure Act for the adoption of rules. Okale v. N.C. HHS, 153 N.C. App. 475, 570 S.E.2d 741, 2002 N.C. App. LEXIS 1171 (2002).

Multi-employer policy, an interpretive statement established in the North Carolina Operations Manual for occupational safety and health regulations, falls within the exception created by G.S. 150B-2(8a)(c) and does not have to be promulgated as an agency rule. Comm'r of Labor v. Weekley Homes, L.P., 169 N.C. App. 17, 609 S.E.2d 407, 2005 N.C. App. LEXIS 521 (2005).

There is statutory authority under G.S. 95-126(b)(2)(m) granted to the North Carolina Department of Labor to protect the health and safety of all employees in North Carolina; the operations manual is a non-binding interpretive statement, not a rule requiring formal rule-making procedures — accordingly, the exception that requires rule-making if the rights and duties of the employer are affected does not apply; thus, the operations manual merely established guidelines that directed Occupational Safety and Health Act inspectors as to what parties could be cited for violation of a rule and thus did not require formal rule-making. Comm'r of Labor v. Weekley Homes, L.P., 169 N.C. App. 17, 609 S.E.2d 407, 2005 N.C. App. LEXIS 521 (2005).

Trial court’s findings that the N.C. State Medical Facilities Plan was specifically excluded from the definition of a rule under G.S. 150B-2(8a)(k), that a Semiannual Dialysis Report was part of the SMFP, and that the SDR was not a rule were supported by sufficient evidence. Bio-Medical Applications of N.C. Inc. v. N.C. HHS, 179 N.C. App. 483, 634 S.E.2d 572, 2006 N.C. App. LEXIS 1979 (2006).

Provision in 2005 waiver was neither state nor federal law, and the state’s erred in relying on the waiver to deny services to a Medicaid recipient as, although the provision interpreted Medicaid eligibility and was a rule under the North Carolina Administrative Procedures Act (APA), G.S. 150B-2(8a), it was not promulgated in accordance with either the APA or the federal Administrative Procedures Act as required by G.S. 150B-18 , and the circumstances presented did not fit within the Arrowood v. North Carolina Dep’t Health & Human Servs., 543 S.E.2d 481 (2001), rev’g per curiam for reasons stated in the dissenting opinion, 535 S.E.2d 585 (2000), exception. McCrann v. N.C. HHS, 209 N.C. App. 241, 704 S.E.2d 899, 2011 N.C. App. LEXIS 81 (2011).

It was error to conclude a dentist violated the North Carolina State Board of Dental Examiners’ Record Content Rule (Rule) by not recording reasons for prescribing medication because: (1) the Rule’s plain language had no such requirement, and (2) such a requirement would constitute a “rule” under G.S. 150B-2(8a) that had not been adopted pursuant to G.S. 150B-18 et seq. Walker v. N.C. State Bd. of Dental Exam'rs, 245 N.C. App. 559, 782 S.E.2d 518, 2016 N.C. App. LEXIS 187 (2016), aff'd, 369 N.C. 517 , 796 S.E.2d 784, 2017 N.C. LEXIS 131 (2017).

Retirement Systems Division of the Department of State Treasurer erred in invoicing a school employee or school board for contributions to the employee’s retirement fund pursuant to a statutory cap factor because the factor was a rule not properly adopted pursuant to the Administrative Procedure Act. Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 261 N.C. App. 325, 821 S.E.2d 196, 2018 N.C. App. LEXIS 948 (2018), aff'd, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

General Assembly did not impliedly exempt the Board of Trustees from the necessity of compliance with APA’s rulemaking provisions in adopting a cap factor where G.S. 135-5(a3) and G.S. 135-6 ( l ) could be harmonized, the adoption of a cap factor was not a ministerial act in which the Board did nothing more than ratify the actuary’s recommendation, case law did not support such an implied exemption, and the public interests supported the Board of Education’s contention that the cap factor should be established by using the APA’s rulemaking provisions to ensure the opportunity for adequate public input before a decision became final. This case was decided prior to the enactment of G.S. 150B-1(d)(30) by Session Laws 2020-48, s. 4.1(c). Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

Memorandum Was Not a “Rule” Under Subdivision (8a). —

Where a memorandum constituted guidelines to be followed when investigating and prosecuting violations of state law and a statement that possession or operation of certain video machines on ABC-licensed premises transgressed that law, the memorandum fell squarely within the meaning of subdivisions (8a)(c) and (8a)(g), and therefore did not constitute a “rule.” Ford v. State, Dep't of Crime Control & Pub. Safety, 115 N.C. App. 556, 445 S.E.2d 425, 1994 N.C. App. LEXIS 712 (1994).

Interpretation of Medicaid Law as Rule. —

A provision of an agency manual requiring written evidence that a transfer of assets was made exclusively for a purpose other than to establish Medicaid eligibility was an administrative rule under this section, where the requirement created a binding standard interpreting eligibility provisions of Medicaid law. Dillingham v. North Carolina Dep't of Human Resources, 132 N.C. App. 704, 513 S.E.2d 823, 1999 N.C. App. LEXIS 263 (1999).

Rehabilitation Act. —

The Superior Court had jurisdiction over a petition for review of denial of services under the Rehabilitation Act of 1973, P.L. 102-569, 42 U.S.C. § 701, et seq. as amended, where, although the petitioner’s claims were not heard by an Administrative Law Judge, they were heard by an agency hearing officer, at a proceeding in which petitioner and respondent were allowed to submit and cross-examine evidence and where respondent’s director reviewed and affirmed the hearing officer’s decision, in accordance with its own regulations. Hedgepeth v. North Carolina Div. of Servs. for the Blind, 142 N.C. App. 338, 543 S.E.2d 169, 2001 N.C. App. LEXIS 94 (2001).

While subdivision (1) expressly excepts local boards of education from the coverage of the Administrative Procedure Act, nonetheless the standards for judicial review set forth in G.S. 150B-51 apply to appeals from school boards. Evers v. Pender County Bd. of Educ., 104 N.C. App. 1, 407 S.E.2d 879, 1991 N.C. App. LEXIS 974 (1991), aff'd, 331 N.C. 380 , 416 S.E.2d 3, 1992 N.C. LEXIS 274 (1992).

Board of trustees of medical plan was an “agency” of the executive branch of State government under this section. Vass v. Board of Trustees, 324 N.C. 402 , 379 S.E.2d 26, 1989 N.C. LEXIS 247 (1989).

Trustees of university were not an agency governed by the former statute. In re Carter, 262 N.C. 360 , 137 S.E.2d 150, 1964 N.C. LEXIS 650 (1964).

State Employee’s Attempt to Recover for Surgery Costs. —

State employee’s dispute with the Board of Trustees of the Teachers’ and State Employees’ Comprehensive Major Medical Plan (now State Health Plan for Teachers and State Employees), an administrative agency, seeking to recover costs of surgery should have been brought under this Chapter. Vass v. Board of Trustees, 89 N.C. App. 333, 366 S.E.2d 1, 1988 N.C. App. LEXIS 280 (1988), aff'd, 324 N.C. 402 , 379 S.E.2d 26, 1989 N.C. LEXIS 247 (1989).

Petitioner whose driving privilege was mandatorily suspended under G.S. 20-17(2) and G.S. 20-19(e) did not have the right to appeal under G.S. 20-25 or under this Chapter. However, the superior court could review the actions of the Commissioner by issuing a writ of certiorari. Davis v. Hiatt, 326 N.C. 462 , 390 S.E.2d 338, 1990 N.C. LEXIS 167 (1990).

Intervenor Not Approved. —

For purposes of meeting appeal requirements of G.S. 131E-188(b), appellant, proposed intervenor below, was not and could not be a party to contested hearing at issue below until its motion to intervene was approved. Since this motion was not approved, appellant was not a party to contested case, and therefore, did not meet jurisdictional requirements of G.S. 131E-188(b). HCA Crossroads Residential Centers, Inc. v. North Carolina Dep't of Human Resources, 99 N.C. App. 193, 392 S.E.2d 398 (1990).

“Substantial Evidence”. —

Administrative law judge and trial court did not err in finding contradictions in the testimony of a supervisor and an employee whom the supervisor promoted; based on the inconsistencies in testimony by the supervisor and the employee, relevant evidence existed that a reasonable mind might accept as adequate to support the conclusion that their versions were contradictory. Gordon v. N.C. Dep't of Corr., 173 N.C. App. 22, 618 S.E.2d 280, 2005 N.C. App. LEXIS 1918 (2005).

Substantial evidence supported the State Bureau of Investigation’s (SBI’s) decision that just cause justified terminating a special agent where the ALJ weighed the conflicting testimony, concluded that she had consumed alcohol and lied about it, considered character testimony, and sufficiently addressed the just cause factors. Brewington v. N.C. Dep't of Pub. Safety, 254 N.C. App. 1, 802 S.E.2d 115, 2017 N.C. App. LEXIS 461 (2017).

Substantial Evidence to Support Licensing Suspension. —

Substantial evidence under G.S. 150B-2(8b) (now G.S. 150B-2(8c)) supported the Board of Dental Examiner’s findings that (1) an orthodontist’s treatment of a patient was untimely and that such untimeliness was a breach of the requisite standard of care for dentists under G.S. 90-41; and (2) the orthodontist’s treatment of another patient was likewise negligent because the Board could reasonably have concluded that the standard of care required the use of photographs as a means to track the progress of orthodontic case. Watkins v. N.C. State Bd. of Dental Exam'rs, 358 N.C. 190 , 593 S.E.2d 764, 2004 N.C. LEXIS 207 (2004).

Substantial Evidence Supported Awarding Certificate of Need. —

The findings by the North Carolina Department of Health and Human Services in awarding a certificate of need to an applicant, under the whole record test, were supported by substantial evidence, that is, relevant evidence that a reasonable mind might have accepted as adequate to support a conclusion, pursuant to G.S. 150B-2(8b) (now G.S. 150B-2(8c)). Total Renal Care of N.C. LLC v. N.C. HHS, 171 N.C. App. 734, 615 S.E.2d 81, 2005 N.C. App. LEXIS 1354 (2005).

As to applicability of former statute, see In re North Carolina Auto. Rate Admin. Office, 278 N.C. 302 , 180 S.E.2d 155, 1971 N.C. LEXIS 981 (1971); Carter v. Town of Chapel Hill, 14 N.C. App. 93, 187 S.E.2d 588, 1972 N.C. App. LEXIS 2044 , cert. denied, 281 N.C. 314 , 188 S.E.2d 897, 1972 N.C. LEXIS 1061 (1972).

Scope of Appellate Review. —

In an action arising from allegations of age discrimination, while the superior court properly applied both a de novo review and the whole-record test to the respective issues on appeal under G.S. 150B-51(b) when it reviewed the final decision of the State Personnel Commission (SPC) [now the North Carolina Human Resources Commission], it erred when it improperly substituted its judgment for that of the SPC under the whole-record test. Thus, remand was ordered for the superior court to affirm the SPC’s final agency decision. Trotter v. N.C. HHS, 189 N.C. App. 655, 659 S.E.2d 749, 2008 N.C. App. LEXIS 712 (2008).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— Many of the opinions below were issued prior to the 1991 amendments to this Chapter.

CASE NOTES

Extension of Permit’s Expiration Date. —

Licensee’s permit to operate underground storage tanks was not extended by virtue of G.S. 150B-3(a) , extending a permit’s expiration date until a final decision was made on whether an application for a new permit would be accepted, because he did not make a “timely and sufficient application for issuance or renewal” of his permit, so G.S. 150B-3(a) did not prevent the licensee from being fined for a lack of permits. Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 635 S.E.2d 442, 2006 N.C. App. LEXIS 2168 (2006).

OPINIONS OF ATTORNEY GENERAL

The requirements in subsection (c) of this section that an agency make a finding that the “public health, safety, or welfare requires emergency action” prior to a summary suspension of a license or an occupational license, and that the agency incorporate such finding in its order of suspension, are not in any way in conflict with the findings required to be made by the securities administrator by G.S. 78A-39(a) prior to denying, suspending, or revoking the registration of a securities dealer or salesman and by G.S. 78A-29(a) prior to denying, suspending, or revoking the effectiveness of a securities registration statement. See opinion of the Attorney General to Mr. Stephen M. Wallis, Deputy Securities Administrator (acting), 58 N.C. Op. Att'y Gen. 76 (1988).

CASE NOTES

Extension of Permit’s Expiration Date. —

Licensee’s permit to operate underground storage tanks was not extended by virtue of G.S. 150B-3(a) , extending a permit’s expiration date until a final decision was made on whether an application for a new permit would be accepted, because he did not make a “timely and sufficient application for issuance or renewal” of his permit, so G.S. 150B-3(a) did not prevent the licensee from being fined for a lack of permits. Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 635 S.E.2d 442, 2006 N.C. App. LEXIS 2168 (2006).

Editor’s Note.

This section is former G.S. 150B-17 , as recodified by Session Laws 1991, c. 418, s. 4.

Effect of Amendments.

Session Laws 2011-398, s. 56, effective July 25, 2011, in subsection (a), deleted “except when the agency for good cause finds issuance of a ruling undesirable” from the end of the first sentence, added the present second sentence, inserted “procedure for requesting a declaratory ruling and the” in the third sentence, and deleted the former last two sentences; and added subsection (a1).

Legal Periodicals.

For article, “Advisory Rulings by Administrative Agencies: Their Benefits and Dangers,” see 2 Campbell L. Rev. 1 (1980).

CASE NOTES

Editor’s Note. —

Most of the cases below were decided under corresponding provisions of former G.S. 150B-17 or Chapter 150A.

Former G.S. 150A-17 clearly did not contemplate an evidentiary proceeding. If evidence were required to establish the facts, then the proper procedure would have been to hold a contested case hearing. In re Ford, 52 N.C. App. 569, 279 S.E.2d 122, 1981 N.C. App. LEXIS 2448 (1981).

Good Cause for Denial. —

Good cause exists for denial of a request for a declaratory ruling where the denial is based on the existence of a prior agency ruling which necessarily required an interpretation on the same statute which is the subject of the request for declaratory ruling. Catawba Mem. Hosp. v. North Carolina Dep't of Human Resources, 112 N.C. App. 557, 436 S.E.2d 390, 1993 N.C. App. LEXIS 1203 (1993).

North Carolina Department of State Treasurer could properly determine that good cause existed to deny a corporation’s request for a declaratory ruling as to the potential future agreements because given the missing material terms of the contracts, any ruling on whether the contracts were in compliance with G.S. 116B-78 would be purely hypothetical; the corporation could not how that any of its legal rights were legally impaired. Equity Solutions of the Carolinas, Inc. v. N.C. Dep't of State Treasurer, 232 N.C. App. 384, 754 S.E.2d 243, 2014 N.C. App. LEXIS 169 (2014).

North Carolina Department of State Treasurer properly determined that good cause existed to decline to issue a declaratory ruling because it would be a waste of administrative resources for the State Treasurer to issue a ruling on a matter that would likely be judicially determined during the course of pending litigation between it and a corporation. Equity Solutions of the Carolinas, Inc. v. N.C. Dep't of State Treasurer, 232 N.C. App. 384, 754 S.E.2d 243, 2014 N.C. App. LEXIS 169 (2014).

Trial court applied the proper standard of review when it affirmed the North Carolina Department of State Treasurer’s decision to deny a corporation’s request for a declaratory ruling and dismissing its petition for judicial review because the trial court properly applied a de novo standard of review to the issue of whether the reasons given by the State Treasurer constituted good cause to decline to issue a ruling. Equity Solutions of the Carolinas, Inc. v. N.C. Dep't of State Treasurer, 232 N.C. App. 384, 754 S.E.2d 243, 2014 N.C. App. LEXIS 169 (2014).

A declaratory ruling by an administrative agency is subject to judicial review as though it were an agency final decision or order in a contested case. High Rock Lake Ass'n v. North Carolina Envtl. Mgt. Comm'n, 51 N.C. App. 275, 276 S.E.2d 472, 1981 N.C. App. LEXIS 2251 (1981).

Party Not Aggrieved. —

Where the former caretaker sought a declaratory judgment pursuant to G.S. 150B-4 in the caretaker’s action alleging that the caretaker could be harmed in the future by the department of health and human services’ calculation of debt owed to the State for benefits taken under a certain program, the caretaker was not entitled to a declaratory judgment, because the caretaker was not aggrieved under G.S. 150B-2(6); the caretaker could be aggrieved in the future if certain events were to occur, but nothing in the record indicated that these events were certain to come to pass, imminently threatened, or likely to occur. Diggs v. N.C. HHS, 157 N.C. App. 344, 578 S.E.2d 666, 2003 N.C. App. LEXIS 540 (2003).

Declaratory Ruling Has No Effect When Petitioner Was Not Aggrieved. —

Where the former caretaker argued that the former caretaker became aggrieved pursuant to G.S. 150B-2 when the department of health and human services issued a declaratory ruling pursuant to G.S. 150B-4 , thereby entitling the former caretaker to a declaratory ruling pursuant to G.S. 150B-4 , the argument failed, as the former caretaker was not a person aggrieved at the time the former caretaker requested a declaratory ruling, the declaratory ruling had no effect. Diggs v. N.C. HHS, 157 N.C. App. 344, 578 S.E.2d 666, 2003 N.C. App. LEXIS 540 (2003).

Plaintiff Failing to Exhaust Administrative Remedies Not Entitled to Judicial Relief. —

Plaintiff collection agency was not entitled to seek a declaratory judgment in the superior court as to the validity and applicability of a regulation of the Department of Insurance prohibiting collection agencies from instituting judicial proceedings on behalf of other persons, where plaintiff failed to exhaust available administrative remedies by petitioning the Department of Insurance for amendment or repeal of the regulation under former G.S. 150A-16 or seeking a declaratory ruling from the Department of Insurance as to the validity and applicability of the regulation under former G.S. 150A-17, and then by seeking judicial review of an adverse Department of Insurance decision under former G.S. 150A-43 et seq. Porter v. North Carolina Dep't of Ins., 40 N.C. App. 376, 253 S.E.2d 44, 1979 N.C. App. LEXIS 2257 , cert. denied, 297 N.C. 455 , 256 S.E.2d 808, 1979 N.C. LEXIS 1448 (1979).

Work First benefits recipient’s appeal of the denial of a declaratory judgment that the Work First Manual violated the Americans With Disabilities Act, 42 U.S.C.S. § 12101 et seq., was dismissed as the recipient failed to exhaust her administrative remedies; she could have sought a declaratory ruling under G.S. 150B-4 and the trial court did not obtain subject matter jurisdiction over the complaint. Chatmon v. N.C. HHS, 175 N.C. App. 85, 622 S.E.2d 684, 2005 N.C. App. LEXIS 2711 (2005), overruled in part, Meza v. Div. of Soc. Servs. & Div. of Med. Assistance of the N.C. HHS, 364 N.C. 61 , 692 S.E.2d 96, 2010 N.C. LEXIS 343 (2010).

Trial Court Lacked Jurisdiction Where Declaratory Relief Not Pursued in Agency Proceeding. —

Original jurisdiction for a declaratory ruling as to the rights and interest of parties in a pier and boat ramp extending over a state-owned lake rested in the Department of Natural Resources and Community Development (now the Department of Environment and Natural Resources). As the parties did not pursue such declaratory relief and failed to exhaust their administrative remedies prior to instituting their civil action, the trial court lacked subject matter jurisdiction. Woodlief v. Johnson, 75 N.C. App. 49, 330 S.E.2d 265, 1985 N.C. App. LEXIS 3584 (1985).

Appeal Held Moot. —

Trial court properly concluded that a lobbyist’s appeal of a decision of the North Carolina Department of the Secretary of State was moot because although the Department applied aggravating factors under G.S. 120C-602(b) to enhance a civil fine, it did not enhance the fine in its final agency decision using those factors; therefore, a legal determination of whether the Department had authority to enhance the fine had no practical effect on the controversy. Beason v. N.C. Dep't of the Secy. of State, 226 N.C. App. 233, 741 S.E.2d 663, 2013 N.C. App. LEXIS 350 (2013).

Trial court did not err in refusing to conduct judicial review of a lobbyist’s request for review because there was no longer any controversy once the North Carolina Department of the Secretary of State decided to not apply aggravating factors to the lobbyist’s fine; thus, the trial court properly concluded that the case was moot regardless of whether the lobbyist was a “person aggrieved” pursuant to G.S. 150B-4 and G.S. 150B-4 3. Beason v. N.C. Dep't of the Secy. of State, 226 N.C. App. 233, 741 S.E.2d 663, 2013 N.C. App. LEXIS 350 (2013).

Editor’s Note.

Session Laws 1991, ch. 418 repealed former Articles 2 and 5 and enacted in their place a new Article 2A. Where appropriate, the historical citations to sections in the repealed Articles have been added to corresponding sections in new Article 2A.

Session Laws 2004-124, s. 22A.1.(a), provides: “All personnel and equipment presently assigned to the Rules Review Commission for the purpose of carrying out Article 2A of Chapter 150B of the General Statutes, are transferred to the Office of Administrative Hearings by a Type I transfer as defined by G.S. 143A-6(a) . The Chief Administrative Law Judge shall be responsible for the hiring of the Director and other staff of the Rules Review Commission.”

Session Laws 2011-145, s. 6.3(b), provides: “Notwithstanding G.S. 150B-21.1 A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1 A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes.”

Session Laws 2013-360, s. 9.3(d), provides: “For the 2013-2014 fiscal year only and notwithstanding Article 2A of Chapter 150B of the General Statutes, the State Board of Education shall be exempt from rulemaking in establishing a schedule of fees for teacher licensure and administrative changes pursuant to G.S. 115C-296(a2), as amended by this section.”

Session Laws 2013-360, s. 13.6, provides: “Notwithstanding 02 NCAC 20B.0104, the Board of Agriculture may set admission fees for the 2013 State Fair without complying with the requirements of Article 2A of Chapter 150B of the General Statutes. When this act becomes law, the Board shall post the 2013 admission fee schedule on its Web site and provide notice of the fee schedule, along with a citation to this section, to all persons named on the mailing list maintained pursuant to G.S. 150B-21.2(d).”

Session Laws 2013-360, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2013.’ ”

Session Laws 2013-360, s. 38.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium.”

Session Laws 2013-360, s. 38.5, is a severability clause.

Effect of Amendments.

Session Laws 2011-398, s. 1, effective July 25, 2011, added the last sentence.

Legal Periodicals.

For article, “Advisory Rulings by Administrative Agencies: Their Benefits and Dangers,” see 2 Campbell L. Rev. 1 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1017 (1981).

For article discussing limitations on ad hoc adjudicatory rulemaking by an administrative agency, see 61 N.C.L. Rev. 67 (1982).

For note, “The Forty-Two Hundred Dollar Question: ‘May State Agencies Have Discretion in Setting Civil Penalties Under the North Carolina Constitution?’ ,” see 68 N.C.L. Rev. 1035 (1990).

For article, “Wind Over North Carolina Waters: The State’s Preparedness to Address Offshore and Coastal Water-Based Wind Energy Projects,” see 87 N.C.L. Rev. 1819 (2009).

CASE NOTES

Editor’s Note. —

Many of the cases below were decided under corresponding provisions of former Article 2 or earlier statutes.

Notice and Opportunity to Be Heard Required. —

Substantial compliance under former G.S. 150A-9, among other things, required notice and the opportunity to be heard, as provided by former G.S. 150A-12, before the adoption of a rule. American Guar. & Liab. Ins. Co. v. Ingram, 32 N.C. App. 552, 233 S.E.2d 398, 1977 N.C. App. LEXIS 1992 , cert. denied, 292 N.C. 729 , 235 S.E.2d 782, 1977 N.C. LEXIS 1181 (1977).

Limitation on Authority of Social Services Commission to Make Rules. —

The Social Services Commission has and continues to have general rule making authority under its grant in G.S. 143B-153 and by the provision of G.S. 108A-71 which authorizes the Department of Human Resources to accept all “State appropriations” for programs of social services. That grant became limited, however, by this Chapter upon its enactment, thereby requiring the Commission to comply with certain procedural requirements in adopting rules if specifically authorized by legislative enactment to adopt rules. Whittington v. North Carolina Dep't of Human Resources, 100 N.C. App. 603, 398 S.E.2d 40, 1990 N.C. App. LEXIS 1125 (1990).

Rule denying Medicaid payments to those who are eligible for Medicare, but have failed to enroll, would be struck down as unsupported by statutory or regulatory authority and as denying a substantial right. Duke Univ. Medical Ctr. v. Bruton, 134 N.C. App. 39, 516 S.E.2d 633, 1999 N.C. App. LEXIS 663 (1999).

Compliance with This Chapter in Administering State Abortion Fund. —

Since the State Abortion Fund prior to the enactment of Session Laws 1985, c. 479, s. 93 was merely a “state appropriation,” the Department of Human Resources, through its Social Services Commission, could and did enact rules and regulations pertaining to the program. However, by the passage of s. 93, which specifically limits, by legislative enactment, how the Fund is to be administered, the Department of Human Resources and the Commission’s rule making authority must comply with the requirements of this Chapter. Whittington v. North Carolina Dep't of Human Resources, 100 N.C. App. 603, 398 S.E.2d 40, 1990 N.C. App. LEXIS 1125 (1990).

Construction with Coastal Area Management Act. —

The mandatory provisions of the Administrative Procedure Act must be read as complementing the procedural safeguards in the Coastal Area Management Act of 1974. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683 , 249 S.E.2d 402, 1978 N.C. LEXIS 1126 (1978).

Construction with State Bar Rules. —

North Carolina State Bar could not rely upon the felonious misconduct portion of N.C. St. Bar R. B.0111(e) to avoid dismissal of its claims for relief because that portion of the rule was not properly adopted under G.S. 84-21 , the enabling statute governing the state bar’s rulemaking authority; moreover, G.S. 84-21 did not contain a provision permitting only substantial compliance with its requirements, in contrast to G.S. 150B-18 , and the more specific directions of G.S. 84-21 governed over the general rule-making provision of the North Carolina Administrative Procedures Act. N.C. State Bar v. Brewer, 183 N.C. App. 229, 644 S.E.2d 573, 2007 N.C. App. LEXIS 1040 (2007).

Administrative agency rules may be grouped into three categories: (1) Procedural rules which describe how the agency will discharge its assigned functions and the requirements others must follow in dealing with the agency; (2) Legislative rules which are established by an agency as a result of a delegation of legislative power to the agency; and (3) Interpretative rules which interpret and apply the provisions of the statute under which the agency operates. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381 , 269 S.E.2d 547, 1980 N.C. LEXIS 1125 (1980).

The Supreme Court is not limited to the label placed on a rule by an agency, but must look instead to the substance of the rule in question. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381 , 269 S.E.2d 547, 1980 N.C. LEXIS 1125 (1980).

Amendments to State Guidelines as Administrative Rule-Making. —

Amendments to the State guidelines by the Coastal Resources Commission are considered administrative rule-making under this section and thus subject to the comprehensive additional safeguards contained in the Administrative Procedure Act. Adams v. North Carolina Dep't of Natural & Economic Resources, 295 N.C. 683 , 249 S.E.2d 402, 1978 N.C. LEXIS 1126 (1978).

Requirement by the Commissioner of Insurance that audited data be submitted in a ratemaking case was a legislative rule and therefore subject to the rule-making provisions of the North Carolina Administrative Procedure Act. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381 , 269 S.E.2d 547, 1980 N.C. LEXIS 1125 (1980).

Construction of Former G.S. 150A-10(4). —

The exclusion of policy statements or interpretations “made in the decision of a contested case” included in subdivision (4) of former G.S. 150A-10 clearly was not intended to embrace substantive rules with anticipated future applicability. This is so because of the difference between interpretative and legislative rules and because subdivision (6) of former G.S. 150A-10, which excludes “interpretative rules and general statements of policy of the agency” would be unnecessary if subdivision (4) of former G.S. 150A-10 were intended to apply to matters beyond the contested case in question. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 381 , 269 S.E.2d 547, 1980 N.C. LEXIS 1125 (1980).

Rule Not Properly Promulgated. —

Provision in 2005 waiver was neither state nor federal law, and the state’s erred in relying on the waiver to deny services to a Medicaid recipient as, although the provision interpreted Medicaid eligibility and was a rule under the North Carolina Administrative Procedures Act (APA), G.S. 150B-2(8a), it was not promulgated in accordance with either the APA or the federal Administrative Procedures Act as required by G.S. 150B-18 , and the circumstances presented did not fit within the Arrowood v. North Carolina Dep’t Health & Human Servs., 543 S.E.2d 481 (2001), rev’g per curiam for reasons stated in the dissenting opinion, 535 S.E.2d 585 (2000), exception. McCrann v. N.C. HHS, 209 N.C. App. 241, 704 S.E.2d 899, 2011 N.C. App. LEXIS 81 (2011).

It was error to conclude a dentist violated the North Carolina State Board of Dental Examiners’ Record Content Rule (Rule) by not recording reasons for prescribing medication because: (1) the Rule’s plain language had no such requirement, and (2) such a requirement would constitute a “rule” under G.S. 150B-2(8a) that had not been adopted pursuant to G.S. 150B-18 et seq. Walker v. N.C. State Bd. of Dental Exam'rs, 245 N.C. App. 559, 782 S.E.2d 518, 2016 N.C. App. LEXIS 187 (2016), aff'd, 369 N.C. 517 , 796 S.E.2d 784, 2017 N.C. LEXIS 131 (2017).

General Assembly did not impliedly exempt the Board of Trustees from the necessity of compliance with APA’s rulemaking provisions in adopting a cap factor where G.S. 135-5(a3) and G.S. 135-6 ( l ) could be harmonized, the adoption of a cap factor was not a ministerial act in which the Board did nothing more than ratify the actuary’s recommendation, case law did not support such an implied exemption, and the public interests supported the Board of Education’s contention that the cap factor should be established by using the APA’s rulemaking provisions to ensure the opportunity for adequate public input before a decision became final. This case was decided prior to the enactment of G.S. 150B-1(d)(30) by Session Laws 2020-48, s. 4.1(c). Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

Formal Rule-Making Procedure Not Required. —

There is statutory authority under G.S. 95-126(b)(2)(m) granted to the North Carolina Department of Labor to protect the health and safety of all employees in North Carolina; the operations manual is a non-binding interpretive statement, not a rule requiring formal rule-making procedures — accordingly, the exception that requires rule-making if the rights and duties of the employer are affected does not apply; thus, the operations manual merely established guidelines that directed Occupational Safety and Health Act inspectors as to what parties could be cited for violation of a rule and thus did not require formal rule-making. Comm'r of Labor v. Weekley Homes, L.P., 169 N.C. App. 17, 609 S.E.2d 407, 2005 N.C. App. LEXIS 521 (2005).

Editor’s Note.

Session Laws 2009-216, s. 2(c), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Sections 3(c) through 3(i) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Session Laws 2011-39, s. 4, provides: “Rule-making Authority. — No later than January 1, 2012, the Commission for Public Health shall adopt rules consistent with the provisions of Sections 1 and 2 of this act. Notwithstanding G.S. 150B-19(4), the rules adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 1 and 2 of this act.” Session Laws 2011-39, ss. 1 and 2, which are noted in full under G.S. 130A-280 and 130A-282, modify the applicability of certain fencing requirements to public swimming pools and provide that requirements related to dressing and sanitary facilities do not apply to interactive play attractions.

Session Laws 2011-48, s. 2(c), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Permitting by Regulation Rule 15A NCAC 02U.0113. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).”

Session Laws 2011-48, s. 3(c), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Reclaimed Water Utilization Rule 15A NCAC 02U.0501. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 3(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Session Laws 2011-48, ss. 2(b) and 3(b), which are noted in full under G.S. 143-211 , 143-215.1 and 143-215.3, provide that uses of reclaimed water for irrigation of ornamental crops by field nurseries and aboveground container nurseries are deemed to be permitted by regulation without issuance of an individual permit or coverage under a general permit, and that artificial lakes or ponds that are used for storage and irrigation of reclaimed water are exempt from certain setback requirements and design criteria for wastewater treatment storage facilities.”

Session Laws 2011-394, s. 15(a), provides: “Notwithstanding G.S. 150B-19 , as amended by S.L. 2011-13, the Commission for Public Health may adopt rules to incorporate all or part of the United States Food and Drug Administration Food Code 2009 and to require that employees of establishments regulated under subsections (a) and (a2) of G.S. 130A-248 be certified in food protection in accordance with the United States Food and Drug Administration Food Code 2009.”

Session Laws 2013-77, s. 4, provides: “Additional rule-making authority. — Notwithstanding G.S. 150B-19(4), the Commission shall adopt amendments to the Homeless Shelter Provision to be substantively identical to the provisions of Section 3 of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).”

Session Laws 2013-413, s. 21(a)-(d), as amended by Session Laws 2015-263, s. 16, provides: “(a) 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards). — Until the effective date of the revised permanent rules that the Environmental Management Commission is required to adopt pursuant to Section 21(c) of this act, the Commission and the Department of Environment and Natural Resources shall implement 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) as provided in Section 21(b) of this act.

“(b) Implementation. — Notwithstanding 15A NCAC 02T.1302 (Definitions), “new animal waste management system” means animal waste management systems which are constructed and operated at a site where no feedlot existed previously or where a permit for a system has been rescinded, and is then reissued when the permittee confines animals in excess of the thresholds established in G.S. 143-215.10 B. Notwithstanding subsection (a) of 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards), the Swine Waste Management System Performance Standards shall:

“(1) Apply to any farm facility that receives a permit for its animal waste management system that allows a level of production at the farm, as measured by steady state live weight, greater than the largest production for which the farm has received a permit in the past, and so that they also apply to any other animal waste management system otherwise subject to regulation under G.S. 143-215.10 I.

“(2) Not apply to any facility that meets all of the following conditions:

“a. Has had no animals on site for five continuous years or more.

“b. Notifies the Division of Water Resources in writing at least 60 days prior to bringing any animals back on to the site.

“c. The system depopulated after January 1, 2005, and the system ceased operation no longer than 10 years prior to the current date.

“d. At the time the system ceased operation, the system was in compliance with an individual permit or a general permit issued pursuant to G.S. 143-215.10 C.

“e. The Division of Water Resources issues an individual permit or certificate of coverage under a general permit issued pursuant to G.S. 143-215.10 C for operation of the system before any animals are brought on the facility.

“f. The permit for the animal waste management system does not allow production, measured by steady state live weight, to exceed the greatest steady state live weight previously permitted for the system under G.S. 143-215.10 C.

“g. No component of the animal waste management system and swine farm, other than an existing swine house or land application site, shall be constructed on land that is located within the 100-year floodplain.

“h. The inactive animal waste management system was not closed using the expenditure of public funds and was not closed pursuant to a settlement agreement, court order, cost share agreement, or grant condition.

“(c) Additional Rule-Making Authority. — The Environmental Management Commission shall adopt rules as promptly as practicable to amend 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) consistent with Section 21(b) of this act. Notwithstanding G.S. 150B-19(4), the rules adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 21(b) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(d) Sunset. — Section 21(b) of this act expires on the date that rules adopted pursuant to Section 21(c) of this act become effective.”

Session Laws 2013-413, s. 22(a)-(e), provides: “(a) The definitions set out in G.S. 143-212 and 15A NCAC 02U.0103 (Definitions) apply to this section.

“(b) 15A NCAC 02U.0701 (Setbacks). — Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 22(d) of this act, the Commission and the Department shall implement 15A NCAC 02U.0701 (Setbacks) as provided in Section 22(c) of this act.

“(c) Implementation. — Notwithstanding 15A NCAC 02U.0701 (Setbacks), the rule shall be implemented as provided in this section.

“(1) Setbacks in subsection (c) of the rule for surface waters not classified as SA shall not apply provided that the reclaimed water to be utilized contains no more than 10 mg/l of Total Nitrogen and no more than 2 mg/l of Total Phosphorus. The elimination of setbacks to surface waters does not exempt any discharge of reclaimed water to waters of the State from meeting permit requirements established in 15A NCAC 02U.0101 (Purpose).

“(2) Notwithstanding subsections (a) and (b) of the rule, no setback shall be required between final reclaimed water effluent storage facilities and property lines provided that the proposed final effluent storage facility was constructed prior to June 18, 2011.

“(3) Setbacks between reclaimed water storage ponds and property lines or wells under separate ownership may be waived by the adjoining property owner. A copy of the signed waiver shall be provided to the Department.

“(4) Setbacks between reclaimed water storage ponds and wells under the same ownership as the reclaimed water storage pond may be waived by the property owner.

“(d) Additional Rule-Making Authority. — The Environmental Management Commission shall adopt a rule to amend 15A NCAC 02U.0701 (Setbacks) consistent with Section 22(c) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 22(c) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(e) Sunset. — Section 22(c) of this act expires on the date that rules adopted pursuant to Section 22(d) of this act become effective.”

Session Laws 2013-413, s. 28(a)-(d), provides: “(a) 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit). — Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 28(c) of this act, the Commission, the Department, and any other political subdivision of the State that implements 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) shall implement the rule, as provided in Section 28(b) of this act.

“(b) Implementation. — Notwithstanding 15A NCAC 02D.1903(b)(2)(F)(Open Burning Without an Air Quality Permit), open burning for land clearing or right-of-way maintenance is permissible without an air quality permit if materials are not carried off site or transported over public roads for open burning unless the materials are carried or transported to:

“(1) Facilities permitted in accordance with 15A NCAC 02D.1904 (Air Curtain Burners) for the operation of an air curtain burner at a permanent site; or

“(2) A location, where the material is burned not more than four times per year, that meets all of the following criteria:

“a. At least 500 feet from any dwelling, group of dwellings, or commercial or institutional establishment, or other occupied structure not located on the property on which the burning is conducted.

“b. There are no more than two piles, each 20 feet in diameter, being burned at one time.

“c. The location is not a permitted solid waste management facility.

“(c) Additional Rule-Making Authority. — The Commission shall adopt a rule to amend 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) consistent with Section 28(b) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 28(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(d) Sunset. — Section 28(b) of this act expires on the date that rules adopted pursuant to Section 28(c) of this act become effective.”

Session Laws 2013-413, s. 34(a)-(d), as amended by Session Laws 2014-120, s. 53, provides: “(a) 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units). — Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 34(c) of this act, the Commission, the Department, and any other political subdivision of the State shall implement 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units) as provided in Section 34(b) of this act.

“(b) Implementation. — Notwithstanding the Daily Flow for Design rates listed for dwelling units in 15A NCAC 18A .1949(a) or for other establishments in Table No. 1 of 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units), a wastewater system shall be exempt from the Daily Flow for Design, and any other design flow standards that are established by the Department of Health and Human Services or the Commission for Public Health provided flow rates that are less than those listed in 15A NCAC 18A .1949 (Sewage Flow Rates for Design Units) can be achieved through engineering design that utilizes low-flow fixtures and low-flow technologies and the design is prepared, sealed, and signed by a professional engineer licensed pursuant to Chapter 89C of the General Statutes. The Department and Commission may establish, by rule, lower limits on reduced flow rates as necessary to ensure wastewater system integrity and protect public health, safety, and welfare, provided that the Commission relies on scientific evidence specific to soil types found in North Carolina that the lower limits are necessary for those soil types. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). Proposed daily design flows for wastewater systems that are calculated to be less than 3,000 total gallons per day shall not require State review pursuant to 15A NCAC 18A .1938(e). Neither the State nor any local health department shall be liable for any damages caused by a system approved or permitted pursuant to this section.

“(c) Additional Rule-Making Authority. — The Commission shall adopt a rule to amend 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units) consistent with Section 34(b) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 34(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(d) Sunset. — Section 34(b) of this act expires on the date that rules adopted pursuant to Section 34(c) of this act become effective.”

Session Laws 2013-413, s. 61(a) is a severability clause.

Session Laws 2017-10, s. 5.1 , is a severability clause.

Session Laws 2019-129, s. 1, provides: “Notwithstanding G.S. 150B-19(4), the Commission for Public Health may adopt rules to incorporate all or part of the 2017 edition of the United States Food and Drug Administration Food Code.”

Session Laws 2021-183, s. 3(a)-(e), provides: “(a) Definitions. – As used in this section, ‘Council’ means the North Carolina Building Code Council and ‘Code’ means the current North Carolina Building Code collection, and amendments to the Code, as adopted by the Council.

“(b) Code Amendment. – Until the effective date of the Code amendment that the Council is required to adopt pursuant to this section, the Council, Code enforcement official, or fire code official enforcing the Code shall follow the provisions of subsection (c) of this section as it relates to Sections D107.1 and D107.2 of the 2018 North Carolina Fire Code and other provisions that relate to the fire apparatus access roads for one- or two-family dwelling residential developments.

“(c) Implementation. – Notwithstanding any provision of the Code or law to the contrary, in a one- or two-family dwelling residential development where two fire apparatus access roads are required, the Council, Code enforcement official, or fire code official shall not require that fire apparatus access roads are placed a distance apart equal to not less than one-half of the length of the maximum overall diagonal dimension of the property or area to be served, measured in a straight line between accesses, where conformance is technically infeasible, as determined by the property owner or developer. Reasons that conformance is technically infeasible may include road connectivity limitations, real property dimensions or limitations, real property acquisition constraints, or environmental constraints. For developments where compliance is technically infeasible, the Council, Code enforcement official, or fire code official shall either not require two fire apparatus access roads or allow for alterations that provide for fire apparatus access road remoteness to the maximum extent technically feasible.

“(d) Additional Rulemaking Authority. – The Council shall adopt a rule to amend Sections D107.1 and D107.2 of the 2018 North Carolina Fire Code consistent with subsection (c) of this section. Notwithstanding G.S. 143-136(c), the Residential Code Committee within the Council shall consider the amendment required by this section. Notwithstanding G.S. 150B-19(4), the rule adopted by the Council pursuant to this subsection shall be substantively identical to the provisions of subsection (c) of this section. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1), as though 10 or more written objections had been received as provided in G.S. 150B-21.3(b2).

“(e) Sunset. – This section expires on the date that rules adopted pursuant to subsection (d) of this section become effective.”

Effect of Amendments.

Session Laws 2011-13, s. 1, effective March 25, 2011, and applicable to rules published in the North Carolina Register by an agency on or after that date, added subdivision (7).

Session Laws 2011-398, s. 61.2, effective July 25, 2011, repealed subdivision (7), as added by Session Laws 2011-13, s. 1.

CASE NOTES

Implementation or Adoption of Rules. —

Because neither G.S. 160A-325(a) nor any other statute specifically authorized the North Carolina Department of Environment and Natural Resources to implement or interpret G.S. 160A-325(a), it was not part of the Department’s regulatory permitting scheme for solid waste management landfills; assuming, arguendo, that a town was required to adhere to its requirements, the failure to do so did not require withdrawal of a facility permit for a proposed landfill. County of Wake v. N.C. Dep't of Env't, 155 N.C. App. 225, 573 S.E.2d 572, 2002 N.C. App. LEXIS 1632 (2002).

OPINIONS OF ATTORNEY GENERAL

The Water Quality Committee of the Environmental Management Commission is authorized to adopt rules requiring permits for impacts to isolated wetlands and surface waters. See opinion of Attorney General to Dr. Charles H. Peterson, Vice Chairman, Environmental Management Commission, and Ms. Coleen Sullins, Water Quality Section, Division of Water Quality, (9/5/01).

Editor’s Note.

Session Laws 2011-398, s. 63, made this section effective October 1, 2011, and applicable to rules adopted on or after that date.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Session Laws 2013-294, s. 11, provides: “Notwithstanding G.S. 150B-21.2 , the Industrial Commission shall adopt permanent rules in accordance with the provisions of this act using the procedure and time lines for temporary rules set forth in G.S. 150B-21.1(a3). Rules adopted by the Industrial Commission in accordance with this section shall be subject to review by the Rules Review Commission as provided by G.S. 150B-21.1(b); provided however, that if the rules are approved by the Rules Review Commission, they shall become effective as provided by G.S. 150B-21.3(b). Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(h) or G.S. 150B-21.4 . The Industrial Commission shall consult with the Office of Administrative Hearings to ensure that rules adopted in accordance with this section are submitted to the Rules Review Commission in time to be eligible for legislative disapproval in the 2014 Regular Session of the 2013 General Assembly. The rules of the Industrial Commission that were in effect on the effective date of S.L. 2011-287 shall remain in effect with regard to rules disapproved by Sections 1 and 2 of this act until rules adopted to replace the disapproved rules become effective pursuant to this section.”

Session Laws 2014-4, s. 2(g), provides: “The Mining and Energy Commission, the Environmental Management Commission, and the Commission for Public Health are exempt from the provisions of Chapter 150B of the General Statutes that require that a certification be obtained from the Office of State Budget and Management, including requirements under G.S. 150B-19.1(h) and G.S. 150B-21.4 , and any requirement for preliminary review by the Office of State Budget and Management pursuant to G.S. 150B-21.26 , for any rule proposed for the creation of a modern regulatory program for the management of oil and gas exploration and development activities in the State, including the use of horizontal drilling and hydraulic fracturing for that purpose.”

Session Laws 2014-120, s. 6(c), made the repeal of subsection (h) by Session Laws 2014-120, s. 6(a), applicable to proposed rules published on or after September 18, 2014.

Session Laws 2014-120, s. 60, is a severability clause.

Effect of Amendments.

Session Laws 2014-120, s. 6(a), effective September 18, 2014, deleted subsection (h). See Editor’s note for applicability.

CASE NOTES

Rule Making Required. —

Retirement Systems Division of the Department of State Treasurer (Division) erred in invoicing a school employee or school board for contributions to the employee’s retirement fund pursuant to a statutory cap factor because (1) the factor was a rule not properly adopted pursuant to the Administrative Procedure Act, and (2) the Division was a state agency not exempt from rule making requirements. Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 261 N.C. App. 325, 821 S.E.2d 196, 2018 N.C. App. LEXIS 948 (2018), aff'd, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

Editor’s Note.

Former G.S. 150B-19.2 pertained to review of existing rules.

Session Laws 2013-413, s. 61(b), provides: “Except as otherwise provided, this act is effective when it becomes law [August 23, 2013].” Session Laws 2013-413, s. 60(c), had provided that: “This act becomes effective July 1, 2015.” Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to “This act” with the words “This Part.”

Session Laws 2013-413, s. 61(a), is a severability clause.

Editor’s Note.

Session Laws 2011-398, s. 63, made this section effective October 1, 2011, and applicable to rules adopted on or after that date.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2014-4, s. 2(e), provides: “G.S. 150B-19.3 shall not apply to rules adopted by the Mining and Energy Commission, the Environmental Management Commission, the Sedimentation Control Commission, and the Commission for Public Health for the management of oil and gas exploration, development, and production activities in the State, including the use of horizontal drilling and hydraulic fracturing for that purpose.”

Effect of Amendments.

Session Laws 2014-4, s. 4(c), effective August 1, 2015, substituted “Oil and Gas Commission” for “Mining and Energy Commission” in subdivision (b)(8).

Session Laws 2014-120, s. 57, effective September 18, 2014, in the introductory language of subsection (a), substituted “subdivisions of this subsection” for “following” at the end of the first sentence and added the present last sentence.

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in subdivision (b)(1).

Editor’s Note.

Session Laws 1999-237, s. 11 provides that the Codifier of Rules may reorganize Titles 10 and 15A of the North Carolina Administrative Code to reflect the recent reorganization of the Department of Health and Human Services and the Department of Environment and Natural Resources.

Effect of Amendments.

Session Laws 2017-211, s. 1(a), effective January 1, 2018, added the fifth and sixth sentences to subsection (a).

Legal Periodicals.

For article, “Advisory Rulings by Administrative Agencies: Their Benefits and Dangers,” see 2 Campbell L. Rev. 1 (1980).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Article 2 or earlier statutes.

Judicial Review of Denial. —

An agency’s denial of a petition for rule making under former G.S. 150A-16 is subject to judicial review pursuant to the provisions of former G.S. 150A-43. In re Wheeler, 85 N.C. App. 150, 354 S.E.2d 374, 1987 N.C. App. LEXIS 2572 (1987).

Where the Commission denied plaintiffs’ rule-making petition, judicial review of the decision to deny the petition was available pursuant to subsection (d). Act-Up Triangle v. Commission for Health Servs., 345 N.C. 699 , 483 S.E.2d 388, 1997 N.C. LEXIS 190 (1997).

Use of “Whole Record” Test. —

The superior court properly employed the “whole record test” in its judicial review of the Commission’s decision to deny plaintiffs’ rule-making petition. Act-Up Triangle v. Commission for Health Servs., 345 N.C. 699 , 483 S.E.2d 388, 1997 N.C. LEXIS 190 (1997).

Plaintiff Failing to Exhaust Administrative Remedies Not Entitled to Judicial Relief. —

Plaintiff collection agency was not entitled to seek a declaratory judgment in the superior court as to the validity and applicability of a regulation of the Department of Insurance prohibiting collection agencies from instituting judicial proceedings on behalf of other persons, where plaintiff failed to exhaust available administrative remedies by petitioning the Department of Insurance for amendment or repeal of the regulation under former G.S. 150A-16 or seeking a declaratory ruling from the Department of Insurance as to the validity and applicability of the regulation under former G.S. 150A-17, and then by seeking judicial review of an adverse Department of Insurance decision under former G.S. 150A-43 et seq. Porter v. North Carolina Dep't of Ins., 40 N.C. App. 376, 253 S.E.2d 44, 1979 N.C. App. LEXIS 2257 , cert. denied, 297 N.C. 455 , 256 S.E.2d 808, 1979 N.C. LEXIS 1448 (1979).

Federal Court Jurisdiction. —

Where plaintiff filed a petition for rule-making requesting that North Carolina Department of Human Resources remove rule from the North Carolina Food Stamp Manual, cease all further application of rule, and adopt proposed rule, and the Secretary of the United States Department of Agriculture moved to intervene, then removed the case to federal district court, pursuant to 28 U.S.C. §§ 1441(b) and 1442(a)(1), the case was remanded to the State Supreme Court because the federal court lacked subject matter jurisdiction. Thomas v. North Carolina Dep't of Human Resources, 898 F. Supp. 315, 1995 U.S. Dist. LEXIS 13837 (M.D.N.C. 1995).

Editor’s Note.

For subject matter similar to former subsection (f), see subsection (g) of G.S. 150B-19.1 .

Effect of Amendments.

Session Laws 2011-398, s. 3, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted subsection (f).

OPINIONS OF ATTORNEY GENERAL

The Water Quality Committee of the Environmental Management Commission could immediately adopt temporary rules under G.S. 150B-21(a)(5) to establish a permit program for regulating impacts to isolated wetlands and surface waters because a recent decision of the U.S. Supreme Court invalidating the Army Corps of Engineers’ exercise of jurisdiction over such isolated waters was a court order under G.S. 150B-21.1(a)(5). See opinion of Attorney General to Dr. Charles H. Peterson, Vice Chairman, Environmental Management Commission, and Ms. Coleen Sullins, Water Quality Section, Division of Water Quality, (9/5/01).

Part 2. Adoption of Rules.

Editor’s Note.

Session Laws 2000-69, s. 4, in part, provides:

“Interpretation of Act.

“(a) Additional Method. This act provides an additional and alternative method for the doing of the things it authorizes and is as supplemental and additional to powers conferred by other laws. Except as otherwise expressly provided, it does not derogate any powers now existing.

“(b) Statutory References. References in this act to specific sections or Chapters of the General Statutes are intended to be references to those sections or Chapters as they may be amended from time to time by the General Assembly.

“(c) Liberal Construction. This act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect its purposes.”

This section, as rewritten by Session Laws 2003-229, s. 2, effective July 1, 2003, is applicable to temporary and emergency rules adopted on or after that date and to permanent rules adopted on or after October 1, 2003.

Session Laws 2003-229, s. 14, provides that nothing in the act shall be construed to limit or repeal any specific grant of temporary rule-making authority to an agency enacted by the General Assembly prior to July 1, 2003.

Session Laws 2003-284, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2003’.”

Session Laws 2003-284, s. 10.19(s), provides: “The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1 A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments.”

Session Laws 2003-284, s. 35.1(c), provides: “Notwithstanding G.S. 150B-21.1 , the Department of Environment and Natural Resources may adopt temporary rules to establish fees under G.S. 113-35(b)(3), as amended by subsection (b) of this section, within six months after the effective date of this section.” Session Laws 2003-284, s. 35.1 became effective on July 1, 2003.

Session Laws 2003-284, s. 48.1, provides: “Parts 32 through 47 of this act do not affect the rights or liabilities of the State, a taxpayer, or another person arising under a statute amended or repealed by those parts before the effective date of its amendment or repeal; nor do they affect the right to any refund or credit of a tax that accrued under the amended or repealed statute before the effective date of its amendment or repeal.”

Session Laws 2003-284, s. 49.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium.”

Session Laws 2003-284, s. 49.5, is a severability clause.

Session Laws 2003-352, s. 11, provides: “In order to reduce costs associated with the assessment and cleanup of discharges and releases of petroleum from petroleum underground storage tanks, the Environmental Management Commission may adopt temporary and permanent rules to modify the testing requirements set out in 15A NCAC 2L.0115 (Risk-Based Assessment and Corrective Action for Petroleum Underground Storage Tanks). Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule.”

Session Laws 2003-413, s. 29, provides in part that, if House Bill 1151, 2003 Regular Session, becomes law, then the amendment to G.S. 150B-21.1(a2) made by s. 27 of the act is instead made to G.S. 150B-21.1(a)(8). House Bill 1151 is Session Laws 2003-229, which was approved on June 19, 2003.

Session Laws 2003-427, ss. 1 and 2 provide: “Pursuant to G.S. 113A-118.1 , the Coastal Resources Commission may adopt temporary and permanent rules to establish a general permit to allow the construction of offshore parallel sills made of stone or other suitable riprap materials for shoreline protection in conjunction with existing, created, or restored wetlands. The permit shall be applicable only where a shoreline is experiencing erosion in public trust areas and estuarine waters. The permit shall not apply to oceanfront shorelines or to waters and shorelines adjacent to the ocean hazard areas of environmental concern except that the permit may apply to those shorelines that exhibit characteristics of estuarine shorelines. Characteristics of estuarine shorelines include the presence of wetland vegetation, lower wave energy, and lower erosion rates than are generally characteristic of ocean erodible areas. Notwithstanding G.S. 150B-21.1 (a), the authorization to adopt temporary rules pursuant to this section shall continue in effect until 1 July 2004. Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule set out in G.S. 150B-21.1 .

“The fee for a general permit established by temporary rules pursuant to Section 1 of this act shall be one hundred dollars ($100.00). In adopting permanent rules pursuant to Section 1 of this act, the Coastal Resources Commission shall set a fee for the general permit as provided in G.S. 113A-119.1 .”

Session Laws 2003-433, s. 4, provides: “The Environmental Management Commission shall adopt temporary and permanent rules to amend the North Carolina Administrative Code to incorporate the provisions of Section 1 of this act. Notwithstanding G.S. 150B-21.1 , this act shall not be construed to authorize the Environmental Management Commission to adopt a temporary rule related to the subject matter of this act except as specifically provided by this section, and the Environmental Management Commission shall not be required to provide prior notice or a hearing to adopt the temporary rule required by this section. Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule set out in G.S. 150B-21.1 .”

Session Laws 2003-184, s. 3, amended this section by enacting a new subsection (a)(11); however, because of the rewrite of this section by Session Laws 2003-229, s. 2, the subsection was redesignated as (a1) at the direction of the Revisor of Statutes. As a result, the last paragraph of subsection (a) and former subsection (a1), as enacted by Session Laws 2003-229, s. 2, were redesignated as subsections (a2) and (a3), respectively, also at the direction of the Revisor of Statutes.

Session Laws 2004-148, s. 3(a), which expires June 30, 2005, provides: “The Secretary of Transportation may adopt temporary rules in accordance with G.S. 150B-21.1 to implement the provisions of G.S. 136-28.1(k) governing the acceptance of bids by electronic means. The authority granted to the Secretary by this section shall expire when the permanent rules necessary to implement this provision are adopted.”

Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”

Session Laws 2005-276, s. 46.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium.”

Session Laws 2005-276, s. 46.5 is a severability clause.

Session Laws 2006-66, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2006’.”

Session Laws 2006-66, s. 10.3(e), as amended by Session Laws 2006-198, s. 1, provides: “Services and Payment Bases. — Funds appropriated for Medicaid services shall be expended in accordance with the following schedule of services and payment bases. All services and payments are subject to the language at the end of this subsection. Unless otherwise provided, services and payment bases will be as prescribed in the State Plan as established by the Department of Health and Human Services and may be changed with the approval of the Director of the Budget.

“(1) Hospital inpatient.

“(2) Hospital outpatient. — Eighty percent (80%) of allowable costs or a prospective reimbursement plan as established by the Department of Health and Human Services.

“(3) Nursing facilities. — Nursing facilities providing services to Medicaid recipients who also qualify for Medicare must be enrolled in the Medicare program as a condition of participation in the Medicaid program. State facilities are not subject to the requirement to enroll in the Medicare program. Residents of nursing facilities who are eligible for Medicare coverage of nursing facility services must be placed in a Medicare-certified bed. Medicaid shall cover facility services only after the appropriate services have been billed to Medicare. The Division of Medical Assistance shall allow nursing facility providers sufficient time from the effective date of this act to certify additional Medicare beds if necessary. In determining the date that the requirements of this subdivision become effective, the Division of Medical Assistance shall consider the regulations governing certification of Medicare beds and the length of time required for this process to be completed.

“(4) Physicians, certified nurse midwife services, nurse practitioners. — Fee schedules as development by the Department of Health and Human Services.

“(5) Community Alternative Program, EPSDT Screens. — Payments in accordance with rate schedule developed by the Department of Health and Human Services.

“(6) Home health and related services, durable medical equipment. — Payments according to reimbursement plans developed by the Department of Health and Human Services.

“(7) Hearing aids. — Wholesale cost plus dispensing fee to provider.

“(8) Rural health clinical services. — Provider-based, reasonable cost; non-provider-based, single cost reimbursement rate per clinic visit.

“(9) Family planning. — Negotiated rate for local health departments. For other providers see specific services, e.g. hospitals, physicians.

“(10) Independent laboratory and X-ray services. — Uniform fee schedules as developed by the Department of Health and Human Services.

“(11) Ambulatory surgical centers.

“(12) Private duty nursing, clinic services, prepaid health plans.

“(13) Intermediate care facilities for the mentally retarded.

“(14) Chiropractors, podiatrists, optometrists, dentists.

“(15) Limitations on Dental Coverage. — Dental services shall be provided on a restricted basis in accordance with criteria adopted by the Department to implement this subsection.

“(16) Medicare Buy-In. — Social Security Administration premium.

“(17) Ambulance services. — Uniform fee schedules as developed by the Department of Health and Human Services. Public ambulance providers will be reimbursed at cost.

“(18) Optical supplies. — Payment for materials is made to a contractor in accordance with 42 C.F.R. § 431.54(d). Fees paid to dispensing providers are negotiated fees established by the State agency based on industry charges.

“(19) Medicare crossover claims. — The Department shall apply Medicaid medical policy to Medicare claims for dually eligible recipients. The Department shall pay an amount up to the actual coinsurance or deductible or both, in accordance with the State Plan, as approved by the Department of Health and Human Services.

“(20) Physical therapy, occupational therapy, and speech therapy. — Services limited to EPSDT-eligible children. Payments are to be made only to qualified providers at rates negotiated by the Department of Health and Human Services. Physical therapy, occupational therapy, and speech therapy services are subject to prior approval and utilization review.

“(21) Personal care services.

“(22) Case management services. — Reimbursement in accordance with the availability of funds to be transferred within the Department of Health and Human Services.

“(23) Hospice.

“(24) Medically necessary prosthetics or orthotics. — In order to be eligible for reimbursement, providers must be licensed or certified by the occupational licensing board or the certification authority having authority over the provider’s license or certification, or in the case of ocular prosthetists Board certified, licensed, or accredited in accordance with the requirements established by the Department. Medically necessary prosthetics and orthotics are subject to prior approval and utilization review.

“(25) Health insurance premiums.

“(26) Medical care/other remedial care. — Services not covered elsewhere in this section include related services in schools; health professional services provided outside the clinic setting to meet maternal and infant health goals; and services to meet federal EPSDT mandates.

“(27) Pregnancy-related services. — Covered services for pregnant women shall include nutritional counseling, psychosocial counseling, and predelivery and postpartum home visits by maternity care coordinators and public health nurses.

“(28) Drugs. — Reimbursements. Reimbursements shall be available for prescription drugs as allowed by federal regulations plus a professional services fee per month, excluding refills for the same drug or generic equivalent during the same month. Payments for drugs are subject to the provisions of this subdivision or in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. Payment of the professional services fee shall be made in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. The professional services fee shall be five dollars and sixty cents ($5.60) per prescription for generic drugs and four dollars ($4.00) per prescription for brand-name drugs. Adjustments to the professional services fee shall be established by the General Assembly. In addition to the professional services fee, the Department may pay an enhanced fee for pharmacy services.

“Limitations on quantity. — The Department of Health and Human Services may establish authorizations, limitations, and reviews for specific drugs, drug classes, brands, or quantities in order to manage effectively the Medicaid pharmacy program, except that the Department shall not impose limitations on brand-name medications for which there is a generic equivalent in cases where the prescriber has determined, at the time the drug is prescribed, that the brand-name drug is medically necessary and has written on the prescription order the phrase ‘medically necessary’. In addition to the entities listed in subsection (a) of this section, the Department shall report to the Joint Legislative Commission on Governmental Operations on authorizations, limitations, and reviews established under this subparagraph, including limitations on monthly brand-name and generic prescriptions as well as restrictions on the total number of medications. The Department shall submit the report not later than May 1, 2006.

“Dispensing of generic drugs. — Notwithstanding G.S. 90-85.27 through G.S. 90-85.31, or any other law to the contrary, under the Medical Assistance Program (Title XIX of the Social Security Act), and except as otherwise provided in this subsection for atypical antipsychotic drugs and drugs listed in the narrow therapeutic index, a prescription order for a drug designated by a trade or brand name shall be considered to be an order for the drug by its established or generic name, except when the prescriber has determined, at the time the drug is prescribed, that the brand-name drug is medically necessary and has written on the prescription order the phrase ‘medically necessary’. An initial prescription order for an atypical antipsychotic drug or a drug listed in the narrow therapeutic drug index that does not contain the phrase ‘medically necessary’ shall be considered an order for the drug by its established or generic name, except that a pharmacy shall not substitute a generic or established name prescription drug for subsequent brand or trade name prescription orders of the same prescription drug without explicit oral or written approval of the prescriber given at the time the order is filled. Generic drugs shall be dispensed at a lower cost to the Medical Assistance Program rather than trade or brand-name drugs. As used in this subsection, ‘brand name’ means the proprietary name the manufacturer places upon a drug product or on its container, label, or wrapping at the time of packaging; and ‘established name’ has the same meaning as in section 502(e)(3) of the Federal Food, Drug, and Cosmetic Act as amended, 21 U.S.C. § 352(e)(3).

“Prior authorization. — The Department of Health and Human Services shall not impose prior authorization requirements or other restrictions under the State Medical Assistance Program on medications prescribed for Medicaid recipients for the treatment of: (i) mental illness, including, but not limited to, medications for schizophrenia, bipolar disorder, and major depressive disorder, or (ii) HIV/AIDS.

“(29) Other mental health services. — Unless otherwise covered by this section, coverage is limited to:

“a. Services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) when provided in agencies meeting the requirements of the rules established by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services and reimbursement is made in accordance with a State Plan developed by the Department of Health and Human Services not to exceed the upper limits established in federal regulations, and

“b. For children eligible for EPSDT services provided by:

“1. Licensed or certified psychologists, licensed clinical social workers, certified clinical nurse specialists in psychiatric mental health advanced practice, nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, certified clinical addictions specialists, and certified clinical supervisors, when Medicaid-eligible children are referred by the Community Care of North Carolina primary care physician, a Medicaid-enrolled psychiatrist, or the area mental health program or local management entity, and

“2. Institutional providers of residential services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) for children and Psychiatric Residential Treatment Facility services that meet federal and State requirements as defined by the Department.

“c. For Medicaid-eligible adults, services provided by licensed or certified psychologists, licensed clinical social workers, certified clinical nurse specialists in psychiatric mental health advanced practice, and nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, licensed clinical addictions specialists, and licensed clinical supervisors, Medicaid-eligible adults may be self-referred.

“d. Payments made for services rendered in accordance with this subdivision shall be to qualified providers in accordance with approved policies and the State Plan. Nothing in sub-subdivision b. or c. of this subdivision shall be interpreted to modify the scope of practice of any service provider, practitioner, or licensee, nor to modify or attenuate any collaboration or supervision requirement related to the professional activities of any service provider, practitioner, or licensee. Nothing in sub-subdivision b. or c. of this subdivision shall be interpreted to require any private health insurer or health plan to make direct third-party reimbursements or payments to any service provider, practitioner, or licensee.

“e. The Department of Health and Human Services shall not enroll licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, licensed clinical addiction specialists, and licensed clinical supervisors until all of the following conditions have been met:

“1. The fiscal impact of payments to these qualified providers has been projected;

“2. Funding for any projected requirements in excess of budgeted Division of Medical Assistance funding has been identified from within State funds appropriated to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services to support area mental health programs or county programs, or identified from other sources; and

“3. Approval has been obtained from the Office of State Budget and Management to transfer these State or other source funds from the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services to the Division of Medical Assistance. Upon approval and implementation, the Department of Health and Human Services shall, on a quarterly basis, provide a status report to the Office of State Budget and Management and the Fiscal Research Division.

“Notwithstanding G.S. 150B-21.1(a), the Department of Health and Human Services may adopt temporary rules in accordance with Chapter 150B of the General Statutes further defining the qualifications of providers and referral procedures in order to implement this subdivision. Coverage policy for services defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services under sub-subdivisions a. and b.2 of this subdivision shall be established by the Division of Medical Assistance.”

Session Laws 2006-66, s. 10.3(h), provides: “Rules, Reports, and Other Matters. —

“(1) Rules. — The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1 A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments.

“(2) Changes to Medicaid program; reports. — The Department shall report on any change it anticipates making in the Medicaid program that impacts the type or level of service, reimbursement methods, or waivers, any of which require a change in the State Plan or other approval by the Centers for Medicare and Medicaid Services (CMS). The reports shall be provided at the same time they are submitted to CMS for approval. In addition to the entities listed in subsection (a)(4) of this section, the report shall be submitted to the Joint Legislative Health Care Oversight Committee.”

Session Laws 2006-66, s. 28.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year.”

Session Laws 2006-66, s. 28.6 is a severability clause.

Session Laws 2006-240, s. 5, provides: “The Governor’s Commission on Early Childhood Vision Care may adopt temporary rules in accordance with G.S. 150B-21.1 to implement this act.”

Session Laws 2006-264, s. 52(b), provides: “This section constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1(a). The Department of Labor shall adopt within 30 days of the effective date of this section temporary rules to clarify when employees who are subject to Article 20 of Chapter 95 of the General Statutes may utilize a preliminary screening procedure involving a single-use test device consistent with this section.”

Session Laws 2006-264, s. 102(a) and (b), provides: “(a) The Department of Labor shall adopt rules in connection with its requirements regarding fall protection for tower climbers as follows:

“(1) With regard to employer-provided rescue procedures, employers must ensure that at least two trained and designated rescue employees are on-site when employees are working at heights over six feet on the tower, except that where only two employees are on-site, then an employer may comply with this requirement if one employee is a trained and designated rescue employee and one employee has been employed for less than nine months and has received documented orientation from the employer outlining steps to take in an emergency.

“(2) With regard to third-party-provided rescue procedures, the employer must obtain verification from the third-party rescue service that the service is able to respond to a rescue summons in a timely manner and that the service is proficient in rescue-related tasks and equipment needed to rescue climbers from elevated heights on communication structures. The employer must also provide the selected third-party rescue service with contact information regarding the tower site and allow the service to conduct whatever preparation for rescue it deems necessary.

“(b) Notwithstanding G.S. 150B-21.1(a), the Department of Labor may adopt the rules provided for by this section as temporary rules within 270 days after the effective date of this act.”

Session Laws 2009-217, s. 5, provides: “Notwithstanding G.S. 150B-21.1 , upon the effective date of this act, the Department of Labor shall immediately adopt a temporary rule that is consistent with the requirements of Section 6 of this act without prior notice or hearing. When the Department adopts the rule, it shall submit the rule and a copy of this act to the Codifier of Rules. Within two business days after submission of the rule, the Codifier must review the rule to determine whether the rule as adopted is consistent with the requirements of this act. If the Codifier of Rules finds that the rule as adopted is consistent with the requirements of this act, the Codifier shall notify the Department and enter the rule in the North Carolina Administrative Code on the sixth business day following approval by the Codifier of Rules. The rule shall become effective and shall expire in accordance with G.S. 150B-21.1 (d).” The effective date of this act is June 30, 2009.

Session Laws 2009-217, s. 6, provides: “The Department of Labor shall adopt a temporary rule in accordance with the procedure set forth in Section 5 of this act. The temporary rule shall establish the scope of application for the Department’s rules governing the standards for cranes and derricks in a manner substantially identical to the rule disapproved by this act, except that the temporary rule shall include an exclusion for service trucks with mobile lifting devices designed specifically for use in the power line and electric service industries such as digger derricks (radial boom derricks).”

Session Laws 2011-145, s. 6.3(b), provides: “Notwithstanding G.S. 150B-21.1 A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1 A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes.”

Session Laws 2011-145, s. 1.1, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2011.’ ”

Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”

Session Laws 2011-145, s. 32.5 is a severability clause.

Session Laws 2011-398, s. 4, which amended subsection (a3), is applicable to rules adopted on or after October 1, 2011.

Session Laws 2011-398, s. 62 is a severability clause.

Session Laws 2011-401, s. 1.10(c), as amended by Session Laws 2015-238, s. 2.7, provides: “The Department of Commerce, Division of Employment Security, shall adopt rules and regulations in accordance with Article 2A of Chapter 150B of the General Statutes. Any existing rule that has not been readopted and filed with the Rules Review Commission by May 20, 2015, shall expire.”

Session Laws 2013-294, s. 11, provides: “Notwithstanding G.S. 150B-21.2 , the Industrial Commission shall adopt permanent rules in accordance with the provisions of this act using the procedure and time lines for temporary rules set forth in G.S. 150B-21.1(a3). Rules adopted by the Industrial Commission in accordance with this section shall be subject to review by the Rules Review Commission as provided by G.S. 150B-21.1(b); provided however, that if the rules are approved by the Rules Review Commission, they shall become effective as provided by G.S. 150B-21.3(b). Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(h) or G.S. 150B-21.4 . The Industrial Commission shall consult with the Office of Administrative Hearings to ensure that rules adopted in accordance with this section are submitted to the Rules Review Commission in time to be eligible for legislative disapproval in the 2014 Regular Session of the 2013 General Assembly. The rules of the Industrial Commission that were in effect on the effective date of S.L. 2011-287 shall remain in effect with regard to rules disapproved by Sections 1 and 2 of this act until rules adopted to replace the disapproved rules become effective pursuant to this section.”

Session Laws 2013-413, s. 61(b), provides: “Except as otherwise provided, this act is effective when it becomes law [August 23, 2013].” Session Laws 2013-413, s. 60(c), had provided that: “This act becomes effective July 1, 2015.” Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to “This act” with the words “This Part.”

Session Laws 2013-413, s. 61(a), is a severability clause.

At the direction of the Revisor of Statutes, the reference in subdivision (a)(10) to “Article 14 of Chapter 143B” has been changed to “Article 15 of Chapter 143B” to conform to the renumbering of that Article.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments.

Session Laws 2003-184, s. 3, effective June 12, 2003 and expiring July 1, 2005, added subsection (a1)[(a)(16)]. See Editor’s note.

Session Laws 2004-156, s. 1, effective August 2, 2004, in subdivision (a)(6), substituted “a rule establishing review criteria as authorized by G.S. 131E-183(b) to complement” for “the rule to implement” and added the language beginning “and the proposed rule” at the end; redesignated subsection (a1) as subdivision (a)(16); rewrote subdivision (a)(16); inserted the subsection designation and the second sentence in the subsection designated as (a4); and inserted the subsection (b1), (b2), (b3) and (c1) designations.

Session Laws 2011-398, s. 4, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted “at least 30 business days prior to adopting a temporary rule” following “provided by law” in the introductory paragraph of subsection (a3); and added “At least 30 business days prior to adopting a temporary rule” in subdivisions (a3)(1) and (a3)(2).

Session Laws 2015-241, s. 7A.4(ee), effective September 18, 2015, in subdivision (a)(10), inserted “State” near the beginning and substituted “Article 14 of Chapter 143B” for “Article 3D of Chapter 147.”

Session Laws 2015-264, s. 22, effective October 1, 2015, repealed subdivision (a)(12).

Session Laws 2020-3, s. 4.25(a), effective retroactively to March 10, 2020, added the second sentence in subdivision (a3)(4).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Article 2.

Rule Making Required. —

Retirement Systems Division of the Department of State Treasurer (Division) erred in invoicing a school employee or school board for contributions to the employee’s retirement fund pursuant to a statutory cap factor because (1) the factor was a rule not properly adopted pursuant to the Administrative Procedure Act, and (2) the Division was a state agency not exempt from rule making requirements. Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 261 N.C. App. 325, 821 S.E.2d 196, 2018 N.C. App. LEXIS 948 (2018), aff'd, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

Rules Not Exempt from Notice and Comment Requirements of Chapter 113A. —

Temporary rule issued under this section failed to comply with Coastal Area Management Act’s (CAMA’s) (G.S. 113A-101 et seq.) notice and comment provisions; the mandatory provisions of this chapter complement the procedural safeguards in the CAMA; the temporary rule provisions of this section exempt agencies only from the notice and comment requirements of this chapter; clearly, the General Assembly did not intend that the Commission use temporary rules promulgated under this chapter to circumvent public review and comment on major projects that could affect the State’s coastal resources. Conservation Council v. Haste, 102 N.C. App. 411, 402 S.E.2d 447, 1991 N.C. App. LEXIS 432 (1991).

Failure to Address Merits of Claim. —

Where petitioners argued that the North Carolina Coastal Resources Commission (CRC) failed to comply with the procedures for adopting a temporary rule under this section, vice-chairman’s order was arbitrary and capricious because it required petitioners to specifically allege that the CRC either acted arbitrarily and capriciously or abused its discretion; this finding did not address the merits of petitioners’ claim and imposed on petitioners an additional burden that G.S. 113A-121.1(b) did not require. Conservation Council v. Haste, 102 N.C. App. 411, 402 S.E.2d 447, 1991 N.C. App. LEXIS 432 (1991).

OPINIONS OF ATTORNEY GENERAL

The Water Quality Committee of the Environmental Management Commission could immediately adopt temporary rules under G.S. 150B-21(a)(5) to establish a permit program for regulating impacts to isolated wetlands and surface waters because a recent decision of the U.S. Supreme Court invalidating the Army Corps of Engineers’ exercise of jurisdiction over such isolated waters was a court order under N.C.G.S. G.S. 150B-21.1(a)(5). See opinion of Attorney General to Dr. Charles H. Peterson, Vice Chairman, Environmental Management Commission, and Ms. Coleen Sullins, Water Quality Section, Division of Water Quality, (9/5/01).

Editor’s Note.

Session Laws 2003-229, s. 14, provides that nothing in the act shall be construed to limit or repeal any specific grant of temporary rule-making authority to an agency enacted by the General Assembly prior to July 1, 2003.

Session Laws 2003-284, s. 10.19(s), provides: “The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1 A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments.”

Session Laws 2003-284, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2003.’ ”

Session Laws 2003-284, s. 49.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium.”

Session Laws 2003-284, s. 49.5, is a severability clause.

Session Laws 2006-66, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2006.’ ”

Session Laws 2006-66, s. 10.3(h), provides: “Rules, Reports, and Other Matters. —

“(1) Rules. — The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1 A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments.

“(2) Changes to Medicaid program; reports. — The Department shall report on any change it anticipates making in the Medicaid program that impacts the type or level of service, reimbursement methods, or waivers, any of which require a change in the State Plan or other approval by the Centers for Medicare and Medicaid Services (CMS). The reports shall be provided at the same time they are submitted to CMS for approval. In addition to the entities listed in subsection (a)(4) of this section, the report shall be submitted to the Joint Legislative Health Care Oversight Committee.”

Session Laws 2006-66, s. 28.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year.”

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2011-145, s. 32.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium.”

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”

Session Laws 2017-57, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium.”

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2018-5, s. 6.1(b), provides: “Notwithstanding G.S. 150B-21.1 A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1 A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes.” For similar provisions see Session Laws 2009-451, s. 6.4(b); Session Laws 2010-31, s. 6.5(b); Session Laws 2012-142, s. 6.10(b); Session Laws 2013-360, s. 6.2(b); Session Laws 2014-100, s. 6.2(b); Session Laws 2015-241, s. 6.2(b); and Session Laws 2016-94, s. 6.1(b).

Session Laws 2018-5, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2018.’ ”

Session Laws 2018-5, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year.”

Session Laws 2018-5, s. 39.7, is a severability clause.

Session Laws 2019-231, s. 1.4(b), provides: “Notwithstanding G.S. 150B-21.1 A(a), the Department of Transportation may adopt an emergency rule in accordance with G.S. 150B-21.1 A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes.”

Session Laws 2019-231, s. 5.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2019-2021 fiscal biennium.”

Session Laws 2019-231, s. 5.5, is a severability clause.

Editor’s Note.

Former G.S. 150B-21.1 B, which established an expedited procedure for adoption of rules to implement the American Recovery and Reinvestment Act, expired June 30, 2012, pursuant to Session Laws 2009-475, s. 16.

Editor’s Note.

Session Laws 1986, Extra Session, c. 2, effective February 18, 1986, s. 1 provided: “Prior to the first publication of the North Carolina Register the notice of publication requirements of G.S. 150B-12(c) [now repealed] are met if an agency publishes in one or more newspapers of general circulation notice which includes:

“(1) A reference to the statutory authority under which the action is proposed.

“(2) The time and place of the public hearing and a statement of the manner in which data, views, and arguments may be submitted to the agency either at the hearing or at other times by any person.

“(3) A statement of the terms or substance of the proposed rule or a description of the subjects and issues involved, and the proposed effective date of the rule.”

Session Laws 2011-398, s. 5, which amended subsections (a), (c), (e), (f), (g), and (i) of this section, is applicable to rules adopted on or after October 1, 2011.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2013-294, s. 11, provides: “Notwithstanding G.S. 150B-21.2 , the Industrial Commission shall adopt permanent rules in accordance with the provisions of this act using the procedure and time lines for temporary rules set forth in G.S. 150B-21.1(a3). Rules adopted by the Industrial Commission in accordance with this section shall be subject to review by the Rules Review Commission as provided by G.S. 150B-21.1(b); provided however, that if the rules are approved by the Rules Review Commission, they shall become effective as provided by G.S. 150B-21.3(b). Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(h) or G.S. 150B-21.4 . The Industrial Commission shall consult with the Office of Administrative Hearings to ensure that rules adopted in accordance with this section are submitted to the Rules Review Commission in time to be eligible for legislative disapproval in the 2014 Regular Session of the 2013 General Assembly. The rules of the Industrial Commission that were in effect on the effective date of S.L. 2011-287 shall remain in effect with regard to rules disapproved by Sections 1 and 2 of this act until rules adopted to replace the disapproved rules become effective pursuant to this section.”

Session Laws 2013-413, s. 21(a)-(d), as amended by Session Laws 2015-263, s. 16, provides: “(a) 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards). — Until the effective date of the revised permanent rules that the Environmental Management Commission is required to adopt pursuant to Section 21(c) of this act, the Commission and the Department of Environment and Natural Resources shall implement 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) as provided in Section 21(b) of this act.

“(b) Implementation. — Notwithstanding 15A NCAC 02T.1302 (Definitions), ‘new animal waste management system’ means animal waste management systems which are constructed and operated at a site where no feedlot existed previously or where a permit for a system has been rescinded, and is then reissued when the permittee confines animals in excess of the thresholds established in G.S. 143-215.10 B. Notwithstanding subsection (a) of 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards), the Swine Waste Management System Performance Standards shall:

“(1) Apply to any farm facility that receives a permit for its animal waste management system that allows a level of production at the farm, as measured by steady state live weight, greater than the largest production for which the farm has received a permit in the past, and so that they also apply to any other animal waste management system otherwise subject to regulation under G.S. 143-215.10 I.

“(2) Not apply to any facility that meets all of the following conditions:

“a. Has had no animals on site for five continuous years or more.

“b. Notifies the Division of Water Resources in writing at least 60 days prior to bringing any animals back on to the site.

“c. The system depopulated after January 1, 2005, and the system ceased operation no longer than 10 years prior to the current date.

“d. At the time the system ceased operation, the system was in compliance with an individual permit or a general permit issued pursuant to G.S. 143-215.10 C.

“e. The Division of Water Resources issues an individual permit or certificate of coverage under a general permit issued pursuant to G.S. 143-215.10 C for operation of the system before any animals are brought on the facility.

“f. The permit for the animal waste management system does not allow production, measured by steady state live weight, to exceed the greatest steady state live weight previously permitted for the system under G.S. 143-215.10 C.

“g. No component of the animal waste management system and swine farm, other than an existing swine house or land application site, shall be constructed on land that is located within the 100-year floodplain.

“h. The inactive animal waste management system was not closed using the expenditure of public funds and was not closed pursuant to a settlement agreement, court order, cost share agreement, or grant condition.

“(c) Additional Rule-Making Authority. — The Environmental Management Commission shall adopt rules as promptly as practicable to amend 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) consistent with Section 21(b) of this act. Notwithstanding G.S. 150B-19(4), the rules adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 21(b) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(d) Sunset. — Section 21(b) of this act expires on the date that rules adopted pursuant to Section 21(c) of this act become effective.”

Session Laws 2013-413, s. 22(a)-(e), provides: “(a) The definitions set out in G.S. 143-212 and 15A NCAC 02U.0103 (Definitions) apply to this section.

“(b) 15A NCAC 02U.0701 (Setbacks). — Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 22(d) of this act, the Commission and the Department shall implement 15A NCAC 02U.0701 (Setbacks) as provided in Section 22(c) of this act.

“(c) Implementation. — Notwithstanding 15A NCAC 02U.0701 (Setbacks), the rule shall be implemented as provided in this section.

“(1) Setbacks in subsection (c) of the rule for surface waters not classified as SA shall not apply provided that the reclaimed water to be utilized contains no more than 10 mg/l of Total Nitrogen and no more than 2 mg/l of Total Phosphorus. The elimination of setbacks to surface waters does not exempt any discharge of reclaimed water to waters of the State from meeting permit requirements established in 15A NCAC 02U.0101 (Purpose).

“(2) Notwithstanding subsections (a) and (b) of the rule, no setback shall be required between final reclaimed water effluent storage facilities and property lines provided that the proposed final effluent storage facility was constructed prior to June 18, 2011.

“(3) Setbacks between reclaimed water storage ponds and property lines or wells under separate ownership may be waived by the adjoining property owner. A copy of the signed waiver shall be provided to the Department.

“(4) Setbacks between reclaimed water storage ponds and wells under the same ownership as the reclaimed water storage pond may be waived by the property owner.

“(d) Additional Rule-Making Authority. — The Environmental Management Commission shall adopt a rule to amend 15A NCAC 02U.0701 (Setbacks) consistent with Section 22(c) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 22(c) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(e) Sunset. — Section 22(c) of this act expires on the date that rules adopted pursuant to Section 22(d) of this act become effective.”

Session Laws 2013-413, s. 61(b), provides: “Except as otherwise provided, this act is effective when it becomes law [August 23, 2013].” Session Laws 2013-413, s. 60(c), had provided that: “This act becomes effective July 1, 2015.” Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to “This act” with the words “This Part.”

Session Laws 2013-413, s. 61(a), is a severability clause.

Effect of Amendments.

Session Laws 2011-398, s. 5, effective October 1, 2011, and applicable to rules adopted on or after that date, inserted “the agency must comply with the requirements of G.S. 150B-19.1 , and” in the introductory paragraph of subsection (a); added “and a link to the agency’s Web site containing the information required by G.S. 150B-19.1(c) ” in subdivision (c)(2); in subsection (e), added the last sentence of the first paragraph, and inserted “and fiscal note” in the first sentence of the second paragraph; inserted “and any fiscal note that has been prepared in connection with the proposed rule” in subsection (f); added the second sentence in subsection (g); and inserted “any fiscal note that has been prepared for the rule” in the last sentence of subsection (i).

Session Laws 2021-88, s. 17, effective July 22, 2021, inserted the (i) and (ii) designations in subdivision (c)(7); substituted “copy of the notice of text” for “copy of the notice or text” in the second sentence of subsection (d); substituted “must publish” for “shall publish” in the last paragraph in subsection (e); substituted “must review” for “shall review” in subsection (g); and made stylistic changes.

Legal Periodicals.

For article, “Wind Over North Carolina Waters: The State’s Preparedness to Address Offshore and Coastal Water-Based Wind Energy Projects,” see 87 N.C.L. Rev. 1819 (2009).

CASE NOTES

Editor’s Note. —

Some of the cases were decided under corresponding provisions of former Chapter 150A.

Rule Making Required. —

Retirement Systems Division of the Department of State Treasurer (Division) erred in invoicing a school employee or school board for contributions to the employee’s retirement fund pursuant to a statutory cap factor because (1) the factor was a rule not properly adopted pursuant to the Administrative Procedure Act, and (2) the Division was a state agency not exempt from rule making requirements. Cabarrus Cty. Bd. of Educ. v. Dep't of State Treasurer, 261 N.C. App. 325, 821 S.E.2d 196, 2018 N.C. App. LEXIS 948 (2018), aff'd, 374 N.C. 3 , 839 S.E.2d 814, 2020 N.C. LEXIS 270 (2020).

Notice and Opportunity to Be Heard Required. —

Substantial compliance under former G.S. 150A-9, among other things, requires notice and the opportunity to be heard, as provided by former G.S. 150A-12, before the adoption of a rule. American Guar. & Liab. Ins. Co. v. Ingram, 32 N.C. App. 552, 233 S.E.2d 398, 1977 N.C. App. LEXIS 1992 , cert. denied, 292 N.C. 729 , 235 S.E.2d 782, 1977 N.C. LEXIS 1181 (1977).

OPINIONS OF ATTORNEY GENERAL

See opinion of Attorney General to Mr. Gary K. Berman, Administrative Procedures Office, Department of Human Resources, 45 N.C.A.G. 217 (1976), issued under corresponding provisions of former Chapter 150A.

Editor’s Note.

Session Laws 1996, Second Extra Session, c. 18, s. 27.36, provides: “ G.S. 150B-21.3(c) does not apply to a rule that extends the data set in 15A NCAC 13B.1627(c)(10)(A) for closure of a municipal solid waste landfill facility beyond January 1, 2000.”

Session Laws 1999-237, s. 11.30 provides that, notwithstanding G.S. 150B-21.3(b), Administrative Rules 10 NCAC 41S and 41T, adopted by the Social Services Commission on January 13, 1999, and approved by the Rules Review Commission on February 18, 1999, and Administrative Rules 10 NCAC 41E, 41G, and 41R, repealed by the Social Services Commission on January 13, 1999, and approved by the Rules Review Commission on February 18, 1999, become effective July 1, 1999.

Session Laws 2000-172, s. 2.2, as amended by Session Laws 2000-140, s. 92.1(b), provides that notwithstanding G.S. 150B-21.3(a) and 25 NCAC 2C.0102(11), the Coastal Resources Commission shall adopt a temporary rule to establish use standards for waterfront development in urban areas to replace G.S. 113A-120.2 when it expires. The temporary rule shall become effective April 1, 2000, and shall remain in effect until a permanent rule that replaces the temporary rule becomes effective.

Session Laws 2000-142, s. 3, provides that, notwithstanding G.S. 150B-21.3(a) and 26 NCAC 2C.0102(11), the Coastal Resources Commission may adopt a temporary rule to establish criteria for exceptions to the regulatory requirement, effective August 1, 2000, of a 30-foot development setback along public trust and estuarine waters to allow construction of residences on previously platted undeveloped lots of 5,000 square feet or less that are located in intensively developed areas and that would otherwise be prohibited under rules adopted by the Commission pursuant to Article 7 of Chapter 113A of the General Statutes. The temporary rule shall become effective upon its adoption by the Commission and shall remain in effect until a permanent rule that replaces the temporary rule becomes effective.

Session Laws 2001-361, s. 1, provides: “Notwithstanding G.S. 150-21.3(b), 15 NCAC 2B.0315 (Neuse River Basin), as amended by the Environmental Management Commission on 12 October 2000 and approved by the Rules Review Commission on 16 November 2000, becomes effective 1 July 2004 unless the 2004 Regular Session of the 2003 General Assembly specifically disapproves 15A NCAC 2B.0315 (Neuse River Basin), as amended by the Environmental Commission of 12 October 2000 and approved by the Rules Review Commission on 16 November 2000, by enactment of a bill as provided in G.S. 150B-21.3(b).”

Session Laws 2001-418, ss. 1 to 3, authorize the Coastal Resources Commission to adopt temporary rules to establish additional exceptions to the 30-foot buffer requirement along public trust and estuarine waters in certain circumstances and to allow structural modifications to piers to prevent or minimize storm damage.

Session Laws 2002-116, s. 1, effective September 17, 2002, provides: “Pursuant to G.S. 150B-21.3(b), the amendment to 15A NCAC 07H.0309 (Use Standards for Ocean Hazard Areas: Exceptions), as adopted by the Coastal Resources Commission and approved by the Rules Review Commission on 15 November 2001, by which subdivision ‘(9) swimming pools;’ would be deleted from subsection (a) of the rule is disapproved and shall not become effective. The remainder of the amendments to 15A NCAC 7H.0309, as adopted by the Coastal Resources Commission and approved by the Rules Review Commission on 15 November 2001, shall become effective on 1 August 2002.”

Session Laws 2003-433, s. 1, provides: “Pursuant to G.S. 150B-21.3(b), 15A NCAC 2B.0225 (Outstanding Resource Waters) and 15A NCAC 2B.0316 (Tar-Pamlico River Basin), as adopted by the Environmental Management Commission on 11 July 2002 and approved by the Rules Review Commission on 15 August 2002, are approved effective 1 August 2003 with respect to all waters and lands that are located west of Nash County State Road 1003 (Red Oak Road).”

Session Laws 2003-433, s. 2, provides: “With respect to all waters and lands that are located east of Nash County State Road 1003 (Red Oak Road), 15A NCAC 2B.0225 (Outstanding Resource Waters) and 15A NCAC 2B.0316 (Tar-Pamlico River Basin), as adopted by the Environmental Management Commission on 11 July 2002 and approved by the Rules Review Commission on 15 August 2002, shall not become effective as provided in G.S. 150B-21.3(b) and shall become effective only as the 2004 Regular Session of the 2003 General Assembly may provide by law.”

Session Laws 2003-433, s. 4, provides: “The Environmental Management Commission shall adopt temporary and permanent rules to amend the North Carolina Administrative Code to incorporate the provisions of Section 1 of this act. Notwithstanding G.S. 150B-21.1 , this act shall not be construed to authorize the Environmental Management Commission to adopt a temporary rule related to the subject matter of this act except as specifically provided by this section, and the Environmental Management Commission shall not be required to provide prior notice or a hearing to adopt the temporary rule required by this section. Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule set out in G.S. 150B-21.1 .”

Session Laws 2007-442, s. 3(b), provides: “Notwithstanding G.S. 150B-21.3(b1), 10A NCAC 21B.0314, adopted by the Department of Health and Human Services on January 19, 2007, and approved by the Rules Review Commission on March 15, 2007, is disapproved.”

Session Laws 2007-442, s. 3.6, provides: “Unless required by federal law, the Department of Health and Human Services, Division of Medical Assistance shall limit notification of estate recovery to the application process for Medicaid and to following the death of the recipient.”

Session Laws 2009-217, s. 1, provides: “Pursuant to G.S. 150B-21.3(b1), 21 NCAC 32X.0103 (Reporting of Medical Judgments, Awards, Payments or Settlements) and 21 NCAC 32X.0105 (Publication of Judgments, Awards, Payments or Settlements), as adopted by the North Carolina Medical Board on July 16, 2008, and approved by the Rules Review Commission on August 21, 2008, are disapproved.”

Session Laws 2009-217, s. 4, provides: “Notwithstanding G.S. 150B-21.3(b1), 13 NCAC 07F.0901 (Scope) as adopted by the Department of Labor on February 19, 2009, and approved by the Rules Review Commission on March 19, 2009, is disapproved.”

Session Laws 2010-157, ss. 1 to 3, provides: “SECTION 1. Notwithstanding G.S. 150B-21.3 , French Broad River Basin Rule 15A NCAC 02B.0304, as adopted by the Environmental Management Commission on March 12, 2009, and approved by the Rules Review Commission on April 16, 2009, is effective July 1, 2011. Nothing in this act restricts the authority of the General Assembly to take further action on this issue, either as to the substance of the Rule or its effective date.

“SECTION 2. No later than January 1, 2011, the Department of Environment and Natural Resources shall provide for at least two public meetings on French Broad River Basin Rule 15A NCAC 02B.0304, as adopted by the Environmental Management Commission on March 12, 2009, and approved by the Rules Review Commission on April 16, 2009, in the vicinity of the area to be affected by the adoption of the Rule. The purpose of the public meetings is to provide information on the operation of the Rule, including what activities would be allowed and what activities would be prohibited by operation of the Rule.

“SECTION 3. No later than January 15, 2011, the Department of Environment and Natural Resources shall report to the Environmental Review Commission regarding the public meetings required by Section 2 of this act.”

Session Laws 2011-24, s. 1, provides: “Notwithstanding G.S. 150B-21.3 and S.L. 2010-157, French Broad River Basin Rule 15A NCAC 02B.0304, as adopted by the Environmental Management Commission on March 12, 2009, and approved by the Rules Review Commission on April 16, 2009, shall not become effective.”

Session Laws 2013-294, s. 1, provides: “Pursuant to G.S. 150B-21.3(b1), 04 NCAC 10A.0102 (Official Forms), 04 NCAC 10A.0105 (Electronic Payment of Costs), 04 NCAC 10A.0405 (Reinstatement of Compensation), 04 NCAC 10A.0601 (Employer’s Obligations Upon Notice; Denial of Liability. . .), 04 NCAC 10A.0603 (Responding to a Party’s Request for Hearing), 04 NCAC 10A.0605 (Discovery), 04 NCAC 10A.0608 (Statement of Incident Leading to Claim), 04 NCAC 10A.0609A (Medical Motions and Emergency Medical Motions), 04 NCAC 10A.0612 (Depositions and Additional Hearings), 04 NCAC 10A.0613 (Expert Witnesses and Fees), 04 NCAC 10A.0701 (Review by Full Commission), 04 NCAC 10A.0704 (Remand from the Appellate Courts), 04 NCAC 10C.0103 (Definitions), 04 NCAC 10C.0109 (Vocational Rehabilitation Services Return to Work), 04 NCAC 10E.0201 (Document and Record Fees), 04 NCAC 10E.0202 (Hearing Costs or Fees), 04 NCAC 10E.0203 (Fees Set by the Commission), 04 NCAC 10G.0104A (Foreign Language Interpreters), as adopted by the Industrial Commission on September 20, 2012, and approved by the Rules Review Commission on October 18, 2012, are disapproved.”

Session Laws 2013-294, s. 2, provides: “Pursuant to G.S. 150B-21.3(b1), 04 NCAC 10A.0801 (Suspension of Rules), 04 NCAC 10B.0501 (Suspension of Rules), 04 NCAC 10C.0108 (Interaction with Physicians), 04 NCAC 10C.0201 (Suspension of Rules), 04 NCAC 10D.0110 (Suspension of Rules), 04 NCAC 10E.0301 (Suspension of Rules), 04 NCAC 10G.0107 (Compensation of the Mediator), 04 NCAC 10G.0110 (Waiver of Rules), 04 NCAC 10H.0206 (Waiver of Rules), 04 NCAC 10I.0204 (Suspension of Rules), as adopted by the Industrial Commission on September 20, 2012, and approved by the Rules Review Commission on November 15, 2012, are disapproved.”

Session Laws 2013-294, s. 11, provides: “Notwithstanding G.S. 150B-21.2 , the Industrial Commission shall adopt permanent rules in accordance with the provisions of this act using the procedure and time lines for temporary rules set forth in G.S. 150B-21.1(a3). Rules adopted by the Industrial Commission in accordance with this section shall be subject to review by the Rules Review Commission as provided by G.S. 150B-21.1(b); provided however, that if the rules are approved by the Rules Review Commission, they shall become effective as provided by G.S. 150B-21.3(b). Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(h) or G.S. 150B-21.4 . The Industrial Commission shall consult with the Office of Administrative Hearings to ensure that rules adopted in accordance with this section are submitted to the Rules Review Commission in time to be eligible for legislative disapproval in the 2014 Regular Session of the 2013 General Assembly. The rules of the Industrial Commission that were in effect on the effective date of S.L. 2011-287 shall remain in effect with regard to rules disapproved by Sections 1 and 2 of this act until rules adopted to replace the disapproved rules become effective pursuant to this section.”

Session Laws 2013-413, s. 28(a)-(d), provides: “(a) 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit). — Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 28(c) of this act, the Commission, the Department, and any other political subdivision of the State that implements 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) shall implement the rule, as provided in Section 28(b) of this act.

“(b) Implementation. — Notwithstanding 15A NCAC 02D.1903(b)(2)(F)(Open Burning Without an Air Quality Permit), open burning for land clearing or right-of-way maintenance is permissible without an air quality permit if materials are not carried off site or transported over public roads for open burning unless the materials are carried or transported to:

“(1) Facilities permitted in accordance with 15A NCAC 02D.1904 (Air Curtain Burners) for the operation of an air curtain burner at a permanent site; or

“(2) A location, where the material is burned not more than four times per year, that meets all of the following criteria:

“a. At least 500 feet from any dwelling, group of dwellings, or commercial or institutional establishment, or other occupied structure not located on the property on which the burning is conducted.

“b. There are no more than two piles, each 20 feet in diameter, being burned at one time.

“c. The location is not a permitted solid waste management facility.

“(c) Additional Rule-Making Authority. — The Commission shall adopt a rule to amend 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) consistent with Section 28(b) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 28(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(d) Sunset. — Section 28(b) of this act expires on the date that rules adopted pursuant to Section 28(c) of this act become effective.”

Session Laws 2013-413, s. 34(a)-(d), as amended by Session Laws 2014-120, s. 53, provides: “(a) 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units). — Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 34(c) of this act, the Commission, the Department, and any other political subdivision of the State shall implement 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units) as provided in Section 34(b) of this act.

“(b) Implementation. — Notwithstanding the Daily Flow for Design rates listed for dwelling units in 15A NCAC 18A .1949(a) or for other establishments in Table No. 1 of 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units), a wastewater system shall be exempt from the Daily Flow for Design, and any other design flow standards that are established by the Department of Health and Human Services or the Commission for Public Health provided flow rates that are less than those listed in 15A NCAC 18A .1949 (Sewage Flow Rates for Design Units) can be achieved through engineering design that utilizes low-flow fixtures and low-flow technologies and the design is prepared, sealed, and signed by a professional engineer licensed pursuant to Chapter 89C of the General Statutes. The Department and Commission may establish, by rule, lower limits on reduced flow rates as necessary to ensure wastewater system integrity and protect public health, safety, and welfare, provided that the Commission relies on scientific evidence specific to soil types found in North Carolina that the lower limits are necessary for those soil types. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). Proposed daily design flows for wastewater systems that are calculated to be less than 3,000 total gallons per day shall not require State review pursuant to 15A NCAC 18A .1938(e). Neither the State nor any local health department shall be liable for any damages caused by a system approved or permitted pursuant to this section.

“(c) Additional Rule-Making Authority. — The Commission shall adopt a rule to amend 15A NCAC 18A .1949(b)(Sewage Flow Rates for Design Units) consistent with Section 34(b) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 34(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(d) Sunset. — Section 34(b) of this act expires on the date that rules adopted pursuant to Section 34(c) of this act become effective.”

Session Laws 2013-413, s. 61(a), is a severability clause.

Session Laws 2014-4, s. 2(a)-(c), provides: “(a) Notwithstanding G.S. 150B-21.3(b1) and Section 1(a) of S.L. 2013-365, all rules adopted pursuant to Section 2(m) of S.L. 2012-143 shall be subject to legislative review during the next regular session of the General Assembly that begins after the date the Rules Review Commission approved the rule or during the regular session that is underway on the date the Commission approved the rule.’

“(b) Notwithstanding G.S. 150B-21.3(b1) and any rule of either house of the General Assembly, any member of the General Assembly may introduce a bill to disapprove any rule adopted pursuant to Section 2(m) of S.L. 2012-143 that has been approved by the Rules Review Commission and that either has not become effective or has become effective by executive order, as follows: (i) if the Rules Review Commission approves the rule prior to the start of a legislative session, during the first 30 calendar days of the regular session of the General Assembly that begins after the date the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143 or (ii) if the Rules Review Commission approves the rule during a legislative session, 30 calendar days from the date the Rules Review Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143.’

“(c) Notwithstanding G.S. 150B-21.3(b1) and any rule of either house of the General Assembly, all rules adopted pursuant to Section 2(m) of S.L. 2012-143 become effective on the earlier of the following:

“(1) If the Rules Review Commission approves all rules adopted pursuant to Section 2(m) of S.L. 2012-143 prior to the start of a legislative session, the earlier of (i) the 31st calendar day of the regular session of the General Assembly that begins after the date the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143 if a bill that specifically disapproves any of these rules has not been introduced in either house of the General Assembly by that date; (ii) if a bill that specifically disapproves a rule is introduced in either house of the General Assembly before the 31st calendar day of that session, the rule becomes effective on the earlier of either the day an unfavorable final action is taken on the bill or the 61st calendar day of that session if by that date a bill that specifically disapproves the rule has not been ratified; or (iii) the day that session of the General Assembly adjourns without ratifying a bill that specifically disapproves the rule.

“(2) If the Rules Review Commission approves all rules adopted pursuant to Section 2(m) of S.L. 2012-143 during a legislative session, the earlier of (i) the 31st calendar day after the date the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143 if a bill that specifically disapproves a rule has not been introduced in either house of the General Assembly by that date; (ii) if a bill that specifically disapproves a rule is introduced in either house of the General Assembly within 30 calendar days of the date that the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143, the rule becomes effective on the earlier of either the day an unfavorable final action is taken on the bill or the 61st day after the date that the Commission approved all rules adopted pursuant to Section 2(m) of S.L. 2012-143 if by that date a bill that specifically disapproves the rule has not been ratified; or (iii) the day that session of the General Assembly adjourns without ratifying a bill that specifically disapproves the rule.”

Effect of Amendments.

Session Laws 2004-156, ss. 2 and 3, effective August 2, 2004, added “or unless the agency that adopted the rule specifies a later effective date” at the end of subsection (b); and in subsection (b2), inserted “no later than 5:00 P.M. of the day following the day the commission approves the rules” in the third sentence, and added the fourth and sixth sentences.

Session Laws 2015-264, s. 23, effective October 1, 2015, substituted “posted on the agency’s Web site pursuant to G.S. 150B-19.1(c)(4)” for “contained in the notice pursuant to G.S. 150B-21.2(c)(9)” in the third sentence of subsection (b2).

Session Laws 2019-198, s. 2, effective January 1, 2020, inserted “Except as provided in G.S. 14-4.1 ” in subsection (b1).

Editor’s Note.

Subsections (d1) and (e), as enacted by Session Laws 2013-413, s. 3(b), were redesignated as subsections (e) and (f), respectively, at the direction of the Revisor of Statutes.

Session Laws 2019-140, s. 3(b), made the rewriting of this section by Session Laws 2019-140, s. 3(a), effective July 19, 2019, and applicable to agency rule reports submitted to the Office of Administrative Hearings pursuant to G.S. 150B-21.3 A(c)(1) on or after October 1, 2019.

Effect of Amendments.

Session Laws 2014-120, s. 2, effective September 18, 2014, rewrote subsection (d).

Session Laws 2015-164, s. 7, effective October 1, 2015, added subsection (e1).

Session Laws 2015-286, s. 1.6(a), effective October 22, 2015, inserted “or if the rule is amended to impose a less stringent burden on regulated persons” in the last sentence of subdivision (d)(2). For applicability, see editor’s note.

Session Laws 2019-140, s. 3(a), effective July 19, 2019, rewrote the section. For effective date and applicability, see editor’s note.

Editor’s Note.

Session Laws 2013-149, s. 2, made subsection (d), as added by Session Laws 2013-149, s. 1, applicable to all proposed rules published in the North Carolina Register on or after June 19, 2013.

Session Laws 2013-294, s. 11, provides: “Notwithstanding G.S. 150B-21.2 , the Industrial Commission shall adopt permanent rules in accordance with the provisions of this act using the procedure and time lines for temporary rules set forth in G.S. 150B-21.1(a3). Rules adopted by the Industrial Commission in accordance with this section shall be subject to review by the Rules Review Commission as provided by G.S. 150B-21.1(b); provided however, that if the rules are approved by the Rules Review Commission, they shall become effective as provided by G.S. 150B-21.3(b). Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(h) or G.S. 150B-21.4 . The Industrial Commission shall consult with the Office of Administrative Hearings to ensure that rules adopted in accordance with this section are submitted to the Rules Review Commission in time to be eligible for legislative disapproval in the 2014 Regular Session of the 2013 General Assembly. The rules of the Industrial Commission that were in effect on the effective date of S.L. 2011-287 shall remain in effect with regard to rules disapproved by Sections 1 and 2 of this act until rules adopted to replace the disapproved rules become effective pursuant to this section.”

Session Laws 2013-413, s. 60(c), had provided that: “This act becomes effective July 1, 2015.”

Session Laws 2014-4, s. 2(g), provides: “The Mining and Energy Commission, the Environmental Management Commission, and the Commission for Public Health are exempt from the provisions of Chapter 150B of the General Statutes that require that a certification be obtained from the Office of State Budget and Management, including requirements under G.S. 150B-19.1(h) and G.S. 150B-21.4 , and any requirement for preliminary review by the Office of State Budget and Management pursuant to G.S. 150B-21.26 , for any rule proposed for the creation of a modern regulatory program for the management of oil and gas exploration and development activities in the State, including the use of horizontal drilling and hydraulic fracturing for that purpose.”

Effect of Amendments.

Session Laws 2005-276, s. 28.8(a), effective July 1, 2005, added subsection (a1).

Session Laws 2006-203, s. 124, effective July 1, 2007, and applicable to the budget for the 2007-2009 biennium and each subsequent biennium thereafter, substituted “State Budget Act, Chapter 143C of the General Statutes” for “Executive Budget Act, Article 1 of Chapter 143,” in the first sentence of subsection (a).

Session Laws 2011-398, s. 6, effective October 1, 2011, and applicable to rules adopted on or after that date, rewrote the section.

Session Laws 2014-120, s. 6(b), effective September 18, 2014, in the catchline substituted “and regulatory impact analysis” for “notes”; substituted “publishes in the North Carolina Register the proposed text of” for “adopts” three times in this section; in subsection (a), near the beginning inserted “submit the text of the proposed rule change, an analysis of the proposed rule change, and a fiscal note on the proposed rule change to the Office of State Budget and Management and” and deleted the former second sentence; added the second sentence in subsection (b)(1). See Editor’s note for applicability.

Editor’s Note.

Session Laws 2013-77, s. 4, provides: “Additional rule-making authority. — Notwithstanding G.S. 150B-19(4), the Commission shall adopt amendments to the Homeless Shelter Provision to be substantively identical to the provisions of Section 3 of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).”

Session Laws 2013-413, s. 21(a)-(d), as amended by Session Laws 2015-263, s. 16, provides: “(a) 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards). — Until the effective date of the revised permanent rules that the Environmental Management Commission is required to adopt pursuant to Section 21(c) of this act, the Commission and the Department of Environment and Natural Resources shall implement 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) as provided in Section 21(b) of this act.

“(b) Implementation. — Notwithstanding 15A NCAC 02T.1302 (Definitions), “new animal waste management system” means animal waste management systems which are constructed and operated at a site where no feedlot existed previously or where a permit for a system has been rescinded, and is then reissued when the permittee confines animals in excess of the thresholds established in G.S. 143-215.10 B. Notwithstanding subsection (a) of 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards), the Swine Waste Management System Performance Standards shall:

“(1) Apply to any farm facility that receives a permit for its animal waste management system that allows a level of production at the farm, as measured by steady state live weight, greater than the largest production for which the farm has received a permit in the past, and so that they also apply to any other animal waste management system otherwise subject to regulation under G.S. 143-215.10 I.

“(2) Not apply to any facility that meets all of the following conditions:

“a. Has had no animals on site for five continuous years or more.

“b. Notifies the Division of Water Resources in writing at least 60 days prior to bringing any animals back on to the site.

“c. The system depopulated after January 1, 2005, and the system ceased operation no longer than 10 years prior to the current date.

“d. At the time the system ceased operation, the system was in compliance with an individual permit or a general permit issued pursuant to G.S. 143-215.10 C.

“e. The Division of Water Resources issues an individual permit or certificate of coverage under a general permit issued pursuant to G.S. 143-215.10 C for operation of the system before any animals are brought on the facility.

“f. The permit for the animal waste management system does not allow production, measured by steady state live weight, to exceed the greatest steady state live weight previously permitted for the system under G.S. 143-215.10 C.

“g. No component of the animal waste management system and swine farm, other than an existing swine house or land application site, shall be constructed on land that is located within the 100-year floodplain.

“h. The inactive animal waste management system was not closed using the expenditure of public funds and was not closed pursuant to a settlement agreement, court order, cost share agreement, or grant condition.

“(c) Additional Rule-Making Authority. — The Environmental Management Commission shall adopt rules as promptly as practicable to amend 15A NCAC 02T.1302 (Definitions) and 15A NCAC 02T.1307 (Swine Waste Management System Performance Standards) consistent with Section 21(b) of this act. Notwithstanding G.S. 150B-19(4), the rules adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 21(b) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(d) Sunset. — Section 21(b) of this act expires on the date that rules adopted pursuant to Section 21(c) of this act become effective.”

Session Laws 2013-413, s. 22(a)-(e), provides: “(a) The definitions set out in G.S. 143-212 and 15A NCAC 02U.0103 (Definitions) apply to this section.

“(b) 15A NCAC 02U.0701 (Setbacks). — Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 22(d) of this act, the Commission and the Department shall implement 15A NCAC 02U.0701 (Setbacks) as provided in Section 22(c) of this act.

“(c) Implementation. — Notwithstanding 15A NCAC 02U.0701 (Setbacks), the rule shall be implemented as provided in this section.

“(1) Setbacks in subsection (c) of the rule for surface waters not classified as SA shall not apply provided that the reclaimed water to be utilized contains no more than 10 mg/l of Total Nitrogen and no more than 2 mg/l of Total Phosphorus. The elimination of setbacks to surface waters does not exempt any discharge of reclaimed water to waters of the State from meeting permit requirements established in 15A NCAC 02U.0101 (Purpose).

“(2) Notwithstanding subsections (a) and (b) of the rule, no setback shall be required between final reclaimed water effluent storage facilities and property lines provided that the proposed final effluent storage facility was constructed prior to June 18, 2011.

“(3) Setbacks between reclaimed water storage ponds and property lines or wells under separate ownership may be waived by the adjoining property owner. A copy of the signed waiver shall be provided to the Department.

“(4) Setbacks between reclaimed water storage ponds and wells under the same ownership as the reclaimed water storage pond may be waived by the property owner.

“(d) Additional Rule-Making Authority. — The Environmental Management Commission shall adopt a rule to amend 15A NCAC 02U.0701 (Setbacks) consistent with Section 22(c) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 22(c) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(e) Sunset. — Section 22(c) of this act expires on the date that rules adopted pursuant to Section 22(d) of this act become effective.”

Session Laws 2013-413, s. 23, provides: “No later than January 1, 2014, the Commission for Public Health shall amend and clarify its rules adopted pursuant to G.S. 130A-497 for the implementation of the prohibition on smoking in restaurants and bars. The rules shall ensure the consistent interpretation and enforcement of Part 1C of Article 23 of Chapter 130A of the General Statutes and shall specifically clarify the definition of enclosed areas for purposes of implementation of the Part. Rules adopted pursuant to this section (i) shall be exempt from the requirements of G.S. 150B-21.4 , (ii) are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes, and (iii) shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). No later than November 1, 2013, the Commission shall report to the Joint Legislative Oversight Committee on Health and Human Services on its progress in amending and clarifying the rules.”

Session Laws 2013-413, s. 28(a)-(d), provides: “(a) 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit). — Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 28(c) of this act, the Commission, the Department, and any other political subdivision of the State that implements 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) shall implement the rule, as provided in Section 28(b) of this act.

“(b) Implementation. — Notwithstanding 15A NCAC 02D.1903(b)(2)(F)(Open Burning Without an Air Quality Permit), open burning for land clearing or right-of-way maintenance is permissible without an air quality permit if materials are not carried off site or transported over public roads for open burning unless the materials are carried or transported to:

“(1) Facilities permitted in accordance with 15A NCAC 02D.1904 (Air Curtain Burners) for the operation of an air curtain burner at a permanent site; or

“(2) A location, where the material is burned not more than four times per year, that meets all of the following criteria:

“a. At least 500 feet from any dwelling, group of dwellings, or commercial or institutional establishment, or other occupied structure not located on the property on which the burning is conducted.

“b. There are no more than two piles, each 20 feet in diameter, being burned at one time.

“c. The location is not a permitted solid waste management facility.

“(c) Additional Rule-Making Authority. — The Commission shall adopt a rule to amend 15A NCAC 02D.1903 (Open Burning Without an Air Quality Permit) consistent with Section 28(b) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 28(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(d) Sunset. — Section 28(b) of this act expires on the date that rules adopted pursuant to Section 28(c) of this act become effective.”

Session Laws 2013-413, s. 34(a)-(d), as amended by Session Laws 2014-120, s. 53, provides: “(a) 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units). — Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 34(c) of this act, the Commission, the Department, and any other political subdivision of the State shall implement 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units) as provided in Section 34(b) of this act.

“(b) Implementation. — Notwithstanding the Daily Flow for Design rates listed for dwelling units in 15A NCAC 18A .1949(a) or for other establishments in Table No. 1 of 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units), a wastewater system shall be exempt from the Daily Flow for Design, and any other design flow standards that are established by the Department of Health and Human Services or the Commission for Public Health provided flow rates that are less than those listed in 15A NCAC 18A .1949 (Sewage Flow Rates for Design Units) can be achieved through engineering design that utilizes low-flow fixtures and low-flow technologies and the design is prepared, sealed, and signed by a professional engineer licensed pursuant to Chapter 89C of the General Statutes. The Department and Commission may establish, by rule, lower limits on reduced flow rates as necessary to ensure wastewater system integrity and protect public health, safety, and welfare, provided that the Commission relies on scientific evidence specific to soil types found in North Carolina that the lower limits are necessary for those soil types. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2). Proposed daily design flows for wastewater systems that are calculated to be less than 3,000 total gallons per day shall not require State review pursuant to 15A NCAC 18A .1938(e). Neither the State nor any local health department shall be liable for any damages caused by a system approved or permitted pursuant to this section.

“(c) Additional Rule-Making Authority. — The Commission shall adopt a rule to amend 15A NCAC 18A .1949(b) (Sewage Flow Rates for Design Units) consistent with Section 34(b) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 34(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.8 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).

“(d) Sunset. — Section 34(b) of this act expires on the date that rules adopted pursuant to Section 34(c) of this act become effective.”

Session Laws 2017-10, s. 5.1 , is a severability clause.

CASE NOTES

Delegation of Authority to Rules Review Commission. —

Review and approval authority delegated to the North Carolina Rules Review Commission is an appropriate delegable power, and the General Assembly has adequately directed the Commission’s review of the North Carolina State Board of Education proposed rules and limited the role of the Commission to evaluating those proposed rules to ensure compliance with the Administrative Procedure Act. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518, 2017 N.C. App. LEXIS 757 (2017), aff'd, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Rulemaking Authority of State Board of Education Subject to Review and Approval by Commission. —

Trial court erred in granting the North Carolina State Board of Education summary judgment in its action to prevent the North Carolina Rules Review Commission from exercising any authority over it and controlling its enactment of rules because the Board’s rulemaking authority was subject to statutes providing for review and approval by the Commission; this holding fell within the 1942 North Carolina Constitutional amendment’s delineation of the General Assembly’s authority over the Board. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518, 2017 N.C. App. LEXIS 757 (2017), aff'd, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Rules made by the North Carolina State Board of Education are subject to statutes enacted by the General Assembly requiring review and approval by the North Carolina Rules Review Commission; the General Assembly, by enacting laws adopting a uniform statutory scheme governing administrative procedure, including the establishment of the Commission to review administrative rules, has imposed the requirement that the Board’s rules be reviewed and approved prior to becoming effective. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518, 2017 N.C. App. LEXIS 757 (2017), aff'd, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Judicial Review. —

Court of Appeals properly reversed and remanded the trial court’s grant of summary judgment to the State Board of Education regarding procedures for the Board’s proposed rules and regulations because the General Assembly was constitutionally authorized to delegate authority to the Rules Review Commission to review and approve the State Board of Education’s proposed rules, the APA provided a comprehensive statutory scheme for procedures and due process for individuals affected by administrative rules and decisions, and the Board could challenge the Commission’s exercise of its delineated duties by filing a declaratory judgment action. N.C. State Bd. of Educ. v. State, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Editor’s Note.

Session Laws 2003-229, s. 15 provides that the amendments to subsections (a) and (b) by s. 9 of the act are applicable to temporary and emergency rules adopted on or after that date and to permanent rules adopted on or after October 1, 2003. Subsection (a1), as amended by s. 9 of the act, applies only to rules adopted on or after July 1, 2003.

Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor’s note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2(c), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Sections 3(c) through 3(i) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Session Laws 2014-4, s. 2(d), provides: “Notwithstanding G.S. 150B-21.9 , the Rules Review Commission must review any permanent rule adopted pursuant to Section 2(m) of S.L. 2012-143 submitted to it by the end of a month by the last day of the next month.”

CASE NOTES

Rules Properly Adopted. —

Trial court did not err in determining that the North Carolina Environmental Management Commission complied with the North Carolina Administrative Procedure Act in adopting the wetlands rules, because the rules were entered in the North Carolina Administrative Code; therefore, under G.S. 150B-21.9(a) , conclusive evidence existed that the rules were adopted in accordance with Act’s requirements. In re Declaratory Ruling by the Envtl. Mgmt. Comm'n v. Envtl. Mgmt. Comm'n, 155 N.C. App. 408, 573 S.E.2d 732, 2002 N.C. App. LEXIS 1617 (2002).

Commission’s Authority. —

General assembly has given the North Carolina Rules Review Commission the authority to determine whether a proposed rule is within the authority delegated to the agency by the legislature; where, only after the pharmacy board received an unfavorable outcome regarding its proposed pharmacist hours rule did it allege the process was unconstitutional, the board was estopped from raising a constitutional challenge to the commission’s authority, and the trial court did not err by refusing to rule on that challenge. N.C. Bd. of Pharm. v. Rules Review Comm'n, 174 N.C. App. 301, 620 S.E.2d 893, 2005 N.C. App. LEXIS 2362 (2005), rev'd in part, 360 N.C. 638 , 637 S.E.2d 515, 2006 N.C. LEXIS 1188 (2006).

Review and approval authority delegated to the North Carolina Rules Review Commission is an appropriate delegable power, and the General Assembly has adequately directed the Commission’s review of the North Carolina State Board of Education proposed rules and limited the role of the Commission to evaluating those proposed rules to ensure compliance with the Administrative Procedure Act. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518, 2017 N.C. App. LEXIS 757 (2017), aff'd, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

General Assembly has by statute ensured the Rules Review Commission is unable to create and impose rules and has made clear the Commission does not have authority to review the substantive efficacy of rules proposed by the State Board of Education, and its authority to implement the review and approval process is subordinate to the General Assembly’s authority to create the review and approval process; thus, the Commission’s power is not in conflict with the Board’s broad rulemaking authority. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518, 2017 N.C. App. LEXIS 757 (2017), aff'd, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Rulemaking Authority of State Board of Education Subject to Review and Approval by Commission. —

Trial court erred in granting the North Carolina State Board of Education summary judgment in its action to prevent the North Carolina Rules Review Commission from exercising any authority over it and controlling its enactment of rules because the Board’s rulemaking authority was subject to statutes providing for review and approval by the Commission; this holding fell within the 1942 North Carolina Constitutional amendment’s delineation of the General Assembly’s authority over the Board. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518, 2017 N.C. App. LEXIS 757 (2017), aff'd, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Rules made by the North Carolina State Board of Education are subject to statutes enacted by the General Assembly requiring review and approval by the North Carolina Rules Review Commission; the General Assembly, by enacting laws adopting a uniform statutory scheme governing administrative procedure, including the establishment of the Commission to review administrative rules, has imposed the requirement that the Board’s rules be reviewed and approved prior to becoming effective. N.C. State Bd. of Educ. v. State, 255 N.C. App. 514, 805 S.E.2d 518, 2017 N.C. App. LEXIS 757 (2017), aff'd, 371 N.C. 149 , 814 S.E.2d 54, 2018 N.C. LEXIS 433 (2018).

Editor’s Note.

Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor’s note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2(c), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Sections 3(c) through 3(i) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Editor’s Note.

Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor’s note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2(c), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Sections 3(c) through 3(i) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Session Laws 2011-291, s. 2.59, and Session Laws 2011-398, s. 7 both amended G.S. 150B-21.11 in the coded bill drafting format provided by G.S. 120-20.1 . However, the amendment by Session Laws 2011-398, s. 7 did not account for all of the changes made by Session Laws 2011-291, s. 2.59, and the section has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2011-398, s. 62, is a severability clause.

Effect of Amendments.

Session Laws 2011-291, s. 2.59, effective June 24, 2011, substituted “Joint Regulatory Reform Committee” for “Joint Legislative Administrative Procedure Oversight Committee” in the first paragraph.

Session Laws 2011-398, s. 7, effective October 1, 2011, and applicable to rules adopted on or after that date, in the first paragraph, inserted “and” and deleted “and include the text of the approved rule and a summary of the rule in its next report to the Joint Legislative Administrative Procedure Oversight Committee” from the end.

Session Laws 2018-142, s. 22, effective December 15, 2018, deleted “Regulatory Reform” from the end of the first paragraph.

Editor’s Note.

Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor’s note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2(c), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 2 of Session Laws 2009-216 pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Sections 3(c) through 3(i) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” Section 3 of Session Laws 2009-216 pertains to stormwater management, Jordan Lake Reservoir. For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Session Laws 2011-291, s. 2.60, and Session Laws 2011-398, s. 8 both amended G.S. 150B-21.12 in the coded bill drafting format provided by G.S. 120-20.1 . However, the amendment by Session Laws 2011-398, s. 8 did not account for all of the changes made by Session Laws 2011-291, s. 2.60, and the section has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2011-398, s. 62, is a severability clause.

Effect of Amendments.

Session Laws 2011-291, s. 2.60, effective June 24, 2011, substituted “Joint Regulatory Reform Committee” for “Joint Legislative Administrative Procedure Oversight Committee” in the second sentence of subsection (d).

Session Laws 2011-398, s. 8, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted “and must send a copy of the record of the Commission’s review of the rule to the Joint Legislative Administrative Procedure Oversight Committee in its next report to that Committee” from the end of the second sentence in subsection (d).

Editor’s Note.

Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor’s note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2, pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 2(c), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).”

Session Laws 2009-216, s. 3, pertains to stormwater management of the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Sections 3(c) through 3(i) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).”

Editor’s Note.

Session Laws 2009-216, as amended by Session Laws 2009-484, s. 7(a) and (b), provided for improvements in the management of the Jordan Watershed in order to restore water quality in the Jordan Reservoir. See Editor’s note at G.S. 143-214.7 for details.

Session Laws 2009-216, s. 2, pertains to wastewater discharge into the Jordan Lake Reservoir.

Session Laws 2009-216, s. 2(c), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Wastewater Discharge Rule 15A NCAC 02B.0270. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(b) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).”

Session Laws 2009-216, s. 3, pertains to stormwater management of the Jordan Lake Reservoir.

Session Laws 2009-216, s. 3(j), provides: “Additional Rule-Making Authority. — The Commission shall adopt a rule to replace Sections 3(c) through 3(i) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Sections 3(c) through 3(f) of this act. Rules adopted pursuant to this section are not subject to G.S. 150B-21.9 through G.S. 150B-21.14 . Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).” For provisions on interpretation of certain rules to implement nutrient management strategies for the B. Everett Jordan Reservoir adopted pursuant to Session Laws 2009-216, see Session Laws 2012-187, s. 12.1.

Editor’s Note.

Former G.S. 150B-21.16 pertained to reports to the Joint Legislative Administrative Procedure Oversight Committee.

Part 4. Publication of Code and Register.

Editor’s Note.

Session Laws 1985, c. 746, s. 4, effective January 1, 1986, provided: “All personnel and equipment presently assigned to the Department of Justice for the purpose of carrying out the provisions of Article 5, Chapter 150A [recodified as this Article] of the General Statutes, are transferred to the Office of Administrative Hearings by a Type I transfer as defined by G.S. 143A-6(a) .”

Effect of Amendments.

Session Laws 2006-66, s. 18.1, effective July 1, 2006, added subsection (c).

Session Laws 2011-330, s. 33(c), effective June 27, 2011, repealed subdivision (a)(5), which read: “Orders of the Tax Review Board issued under G.S. 105-241.2.”

Session Laws 2011-398, s. 10, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted subdivision (a)(2), which read: “Notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165 ”; and deleted subdivision (a)(5), which read: “Orders of the Tax Review Board issued under G.S. 105-241.2.”

Editor’s Note.

Session Laws 2007-444, s. 5.5(a) and(b), provides: “(a) Wherever the name ‘Division of Facility Services’ appears in the North Carolina Administrative Code, the Codifier of Rules shall replace ‘Division of Facility Services’ with ‘Division of Health Service Regulation.’

“(b) Wherever the name ‘Health Services Commission’ appears in the North Carolina Administrative Code, the Codifier of Rules shall replace ‘Health Services Commission’ with ‘Commission for Public Health.’ ”

Session Laws 2014-115, s. 55.3(h), provides: “The Codifier of Rules shall make all necessary changes in nomenclature in Title 25 of the North Carolina Administrative Rules as follows:

“(1) To change the name of the Office of State Personnel to the Office of State Human Resources.

“(2) To change the name of the State Personnel Commission to the State Human Resources Commission.

“(3) To change the name of the Director of the Office of State Personnel to the Director of the Office of State Human Resources.

“(4) To change the name of the Office of State Personnel Director to the Office of State Human Resources Director.

“(5) Any other change consistent with this section.”

Effect of Amendments.

Session Laws 2019-140, s. 1(b), effective July 19, 2019, deleted “form of” preceding “rules” from the catchline; substituted “a rule” for “the form of a rule submitted for inclusion in the North Carolina Administrative Code” in subsection (a); and added subdivisions (a)(7)-(a)(10).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A.

Judicial Notice of Regulations. —

Where promulgating agency is not subject to the Administrative Procedure Act, the court is only required to take judicial notice of its regulations if submitted in accordance with certain procedures designed to insure their accuracy. Southern Ry. v. O'Boyle Tank Lines, 70 N.C. App. 1, 318 S.E.2d 872, 1984 N.C. App. LEXIS 3623 (1984).

Editor’s Note.

Former G.S. 150B-21.23 pertained to a manual for rule publication.

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A.

Administrative remedies prescribed by environmental regulations were inadequate where they were not published as required by Article 5 of former Chapter 150A. Orange County Sensible Hwys. & Protected Env'ts, Inc. v. North Carolina Dep't of Transp., 46 N.C. App. 350, 265 S.E.2d 890, 1980 N.C. App. LEXIS 2836 (1980).

Editor’s Note.

This Part was enacted by Session Laws 1995, c. 415, s. 3, as Part 4 of Article 2A. It has been renumbered as Part 5 at the direction of the Revisor of Statutes.

Session Laws 2014-4, s. 2(g), provides: “The Mining and Energy Commission, the Environmental Management Commission, and the Commission for Public Health are exempt from the provisions of Chapter 150B of the General Statutes that require that a certification be obtained from the Office of State Budget and Management, including requirements under G.S. 150B-19.1(h) and G.S. 150B-21.4 , and any requirement for preliminary review by the Office of State Budget and Management pursuant to G.S. 150B-21.26 , for any rule proposed for the creation of a modern regulatory program for the management of oil and gas exploration and development activities in the State, including the use of horizontal drilling and hydraulic fracturing for that purpose.”

Effect of Amendments.

Session Laws 2011-398, s. 14, effective October 1, 2011, and applicable to rules adopted on or after that date, in the section catchline and in the introductory paragraph of subsection (a), substituted “Office of State Budget and Management” for “Governor”; in the introductory paragraph of subsection (a), substituted “60 days” for “30 days”; and in the introductory paragraph of subsection (b), deleted “Governor’s” preceding “preliminary review.”

Editor’s Note.

Session Laws 2008-107, s. 1.2, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2008.’ ”

Session Laws 2008-107, s. 30.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year.”

Session Laws 2008-107, s. 30.5, is a severability clause.

This chapter was amended by various sections in Session Laws 2011-398. Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.”

Session Laws 2020-3, s. 1.1(a)-(d), provides: “(a) Interest Waiver. — As a result of the COVID-19 outbreak, the Secretary of Revenue has extended the franchise, corporate income, and individual income tax payment deadline from April 15, 2020, to July 15, 2020, and pursuant to G.S. 105-249.2 , the Secretary will not assess a penalty for failure to file a return or pay a tax due as long as the return is filed and the tax due is paid by July 15, 2020. Notwithstanding G.S. 105-241.21(b), the Secretary of Revenue shall also waive the accrual of interest from April 15, 2020, through July 15, 2020, on an underpayment of tax imposed on a franchise, corporate income, or individual income tax return, including a partnership and estate and trust tax return, due from April 15, 2020, through July 15, 2020. The relief from accrual of interest from April 15, 2020, through July 15, 2020, also includes interest imposed pursuant to G.S. 105-163.15 and G.S. 105-163.41 for payments due on or before July 15, 2020.

“(b) Refund Request. — For franchise, corporate income, and individual income tax, the statute of limitations for obtaining a refund is extended to July 15, 2020, for refund claims for which the statute of limitations to seek a refund expires on or after April 15, 2020, and before July 15, 2020.

“(c) Time-Sensitive Actions. — Certain actions required to be taken by a taxpayer on or after April 1, 2020, and before July 15, 2020, will be considered timely if the request or petition is filed on or before July 15, 2020. This subsection applies to requests for Departmental review under G.S. 105-241.11 , petitions for a contested case hearing at the Office of Administrative Hearings under Article 3 of Chapter 150B of the General Statutes and G.S. 105-241.15 , and petitions for judicial review under Article 4 of Chapter 150B of the General Statutes and G.S. 105-241.16 .

“(d) This section is effective when it becomes law.” Session Laws 2020-3 became law on May 4, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments.

Session Laws 2019-140, s. 2(a), effective July 19, 2019, designated the existing provisions as subsections (a) and (b), and added the last sentence to subsection (b).

Legal Periodicals.

For note on the Brownfields Property Reuse Act of 1997, see 78 N.C.L. Rev. 1015 (1998).

CASE NOTES

Editor’s Note. —

Many of the cases below were decided prior to the 1991 amendments to this Chapter.

Timely Petition. —

Failure to timely petition for a hearing before the Office of Administrative Hearings constituted waiver of any right to that administrative remedy. Citizens for Responsible Roadways v. N.C. DOT, 145 N.C. App. 497, 550 S.E.2d 253, 2001 N.C. App. LEXIS 655 (2001).

Petitioner’s allegation that he had been “demoted in rank without sufficient cause” stated grounds for his department’s action to be deemed “disciplinary” within the meaning and intent of G.S. 126-35 and for his case to be considered “contested” within the meaning and intent of G.S. 126-37(a) (now repealed). Because he had properly pursued all informal procedures mandated by the State Personnel Act [now the North Carolina Human Resources Act] and by the North Carolina Administrative Code for the resolution of his grievance, petitioner’s appeal also fit the procedural profile of a “contested case” for purposes of its review by the Office of Administrative Hearings under this chapter. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Dispute as “Contested Case”. —

Wildlife Resources Commission’s rejection of sewer district’s study and of its request for lower streamflow requirements constituted agency action giving rise to a dispute which ultimately became a “contested case” over which the Office of Administrative Hearings has jurisdiction. Metropolitan Sewerage Dist. v. North Carolina Wildlife Resources Comm'n, 100 N.C. App. 171, 394 S.E.2d 668, 1990 N.C. App. LEXIS 891 (1990).

Where a trade association, adversely affected by certain licensing procedures, was a “person aggrieved” under G.S. 150B-2(6), and where licensing issues were deemed to be “contested cases” under G.S. 150B-2(2), (3) and G.S. 150B-22 , the association had standing to bring a contested case challenging the state agencies’ general permitting procedures for wood chip mills. N.C. Forestry Ass'n v. N.C. Dep't of Env't & Natural Res., 357 N.C. 640 , 588 S.E.2d 880, 2003 N.C. LEXIS 1413 (2003).

Exception to Exhaustion of Remedies Requirement. —

Insured’s breach of contract claim was properly dismissed since she did not exhaust her administrative remedies or allege the inadequacy of her administrative remedies in the complaint; she did not fall within the exception to the North Carolina Administrative Procedure Act’s (APA) exhaustion requirement for when the remedy established by the APA was inadequate. Kane v. N.C. Teachers' & State Emples. Comprehensive Maj. Med. Plan, 229 N.C. App. 386, 747 S.E.2d 420, 2013 N.C. App. LEXIS 939 (2013).

State Employee’s Attempt to Recover for Surgery Costs. —

State employee’s dispute with the Board of Trustees of the Teachers’ and State Employees’ Comprehensive Major Medical Plan (now State Health Plan for Teachers and State Employees), an administrative agency, seeking to recover costs of surgery should have been brought under this Chapter. Vass v. Board of Trustees, 89 N.C. App. 333, 366 S.E.2d 1, 1988 N.C. App. LEXIS 280 (1988), aff'd, 324 N.C. 402 , 379 S.E.2d 26, 1989 N.C. LEXIS 247 (1989).

Authority To Enter Into Settlement Agreements. —

Superior court did not err in affirming the decision of the Office of Administrative Hearings to grant summary judgment for the North Carolina Department of Health and Human Services (DHHS) in corporations’ action challenging the validity of a settlement DHHS entered into with an assisted living limited liability company (LLC), which gave the LLC a contractual right to develop adult care home beds, because the court of appeals was bound by its prior decisions holding that DHHS had the authority to enter settlement agreements pursuant to G.S. 150B-22 . Ridge Care, Inc. v. N.C. HHS, 214 N.C. App. 498, 716 S.E.2d 390, 2011 N.C. App. LEXIS 1742 (2011).

Authority To Settle. —

Where the North Carolina Department of Health and Human Services and the applicant engaged in litigation to determine whether the applicant’s assisted living center projects were exempt from a moratorium on such projects, the Department and the North Carolina Attorney General properly exercised their statutory authority under G.S. 150B-22 to settle the litigation. Carillon Assisted Living, L.L.C. v. N.C. HHS, 175 N.C. App. 265, 623 S.E.2d 629, 2006 N.C. App. LEXIS 60 (2006).

Signature of Attorney General Not Required. —

Superior court did not err in affirming the decision of the Office of Administrative Hearings to grant summary judgment for the North Carolina Department of Health and Human Services (DHHS) in corporations’ action challenging the validity of a settlement DHHS entered into with an assisted living limited liability company (LLC), which gave the LLC a contractual right to develop adult care home beds, because the signature of the attorney general was not required in the settlement; there is no requirement in G.S. 150B-22 that the attorney general must execute a settlement. Ridge Care, Inc. v. N.C. HHS, 214 N.C. App. 498, 716 S.E.2d 390, 2011 N.C. App. LEXIS 1742 (2011).

Editor’s Note.

The bracketed reference, “[(g)]” in subsection (b), was added at the direction of the Revisor of Statutes as it appears to be the intended reference.

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” Session Laws 2011-398, s. 16 rewrote the last paragraph of subsection (a) of this section. For Section 55.2, see editor’s note under G.S. 150B-34 .

Session Laws 2016-94, s. 12H.17(d), effective January 1, 2017, provides: “The corrective action procedures described in this section supersede the corrective action procedures in 10A NCAC 23C .0204 and 10A NCAC 23C .0205 related to timeliness processing of Medicaid applications by county departments of social services.”

Session Laws 2016-94, s. 12H.17(e), effective July 1, 2016, provides: “The Department of Health and Human Services may adopt and amend rules to implement subsections (b) through (d) of this section.”

Session Laws 2016-94, s. 12H.17(f), made subsection (a5), as enacted by Session Laws 2016-94, s. 12H.17(c), effective January 1, 2017, and applicable to monthly timely processing standards beginning on that date.

Session Laws 2016-94, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2016.’ ”

Session Laws 2016-94, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year.”

Session Laws 2016-94, s. 39.7, is a severability clause.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments.

Session Laws 2009-451, s. 21A.1(a), effective October 1, 2009, and applicable to contested cases filed on and after that date, inserted “paying a fee in an amount established in G.S. 150B-23.2 and by” in the first sentence of the introductory language of subsection (a).

Session Laws 2011-332, s. 2.1, effective October 1, 2011, and applicable to notices given on or after that date, rewrote subsection (c).

Session Laws 2014-120, s. 7(a), effective September 18, 2014, added the third undesignated paragraph to subsection (a). See Editor’s note for applicability.

Session Laws 2014-120, s. 48, effective September 18, 2014, added subsection (g).

Session Laws 2014-120, s. 59(a), effective September 18, 2014, added subsection (a4).

Session Laws 2016-94, s. 12H.17(c), effective January 1, 2017, added subsection (a5). See editor’s note for effective date and applicability.

Session Laws 2017-57, s. 11H.22(d), effective June 28, 2017, substituted “G.S. 108A-70.42 or G.S. 108A-70.50 ” for “G.S. 108A-70.37” in subsection (a5).

Session Laws 2018-114, s. 1, effective June 27, 2018, inserted “, electronic delivery,” in the second sentence of subsection (f).

Session Laws 2019-81, s. 11, effective October 1, 2019, rewrote subsection (a3).

Session Laws 2020-3, s. 4.26(a), effective retroactively to March 10, 2020, added the last three sentences in subsection (f).

Session Laws 2021-88, s. 16(e), effective July 22, 2021, in subsection (a), substituted “party that” for “party who” two times and “person that” for “person who”, added “did any of the following” at the end of the first paragraph, and substituted “under this section” for “hereunder”; substituted “shall be served” for “must be served” in subsection (a2); substituted “G.S. 150B-2” for “G.S. 150B-2(1a)” two times, “is not considered” for “shall not be considered” two times, and “is considered” for “shall be considered” in subsection (a3); substituted “is deemed” for “shall be deemed” in subsection (c); and made technical changes throughout subsection (f).

Legal Periodicals.

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For comment, “The Problem of Procedural Delay in Contested Case Hearings . . .” under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For survey of 1976 case law dealing with administrative law, see 55 N.C.L. Rev. 898 (1977).

For article, “Advisory Rulings by Administrative Agencies: Their Benefits and Dangers,” see 2 Campbell L. Rev. 1 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1017 (1981).

For survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A, or under this Chapter prior to the 1991 amendments thereto.

Filing of Petition for “Contested Case” Hearing. —

The language of G.S. 131E-188(a) leaves no room for judicial construction. The statute clearly contemplates that a petition for a contested case hearing must be filed — not mailed or served — with the Office of Administrative Hearings within the 30-day deadline. Gummels v. North Carolina Dep't of Human Resources, 98 N.C. App. 675, 392 S.E.2d 113, 1990 N.C. App. LEXIS 434 (1990).

Under the 1986 version of G.S. 131E-188(a) in effect at time of petitioner’s request for a contested case hearing, request was timely “filed” with the Division of Facility Services [now the Division of Health Service Regulation] where it was received within 30 days of the contested decision; the version of the subdivision in effect at that time read in pertinent part: “... any affected person shall be entitled to a contested case hearing under Article 3 of Chapter 150A [now Chapter 150B] of the General Statutes, if the department receives a request therefor within 30 days after its decision.” Under the current statutes, a request must be filed within 30 days, not just received. Huntington Manor v. North Carolina Dep't of Human Resources, 99 N.C. App. 52, 393 S.E.2d 104, 1990 N.C. App. LEXIS 471 (1990).

North Carolina Administrative Procedure Act provides in G.S. 150B-23(a) that any person aggrieved may commence a contested case hearing. N.C. Forestry Ass'n v. N.C. Dep't of Env't & Natural Res., 154 N.C. App. 18, 571 S.E.2d 602, 2002 N.C. App. LEXIS 1411 (2002), rev'd, 357 N.C. 640 , 588 S.E.2d 880, 2003 N.C. LEXIS 1413 (2003).

“Representative” Not Coterminous with “Attorney.” —

Dismissal of petition for review of a department’s decision to retract a corporate owner’s eligibility for reimbursement of environmental clean-up costs was in error because, although the petition was signed by a non-attorney agent for owner, 26 N.C. Admin. Code 3.0120(e) stated that a party did not need to be represented by an attorney at administrative hearings; the term “representative” as used in G.S. 150B-23 , was not coterminous with the term “attorney.” Allied Envtl. Servs., PLLC v. N.C. Dep't of Envtl. & Natural Res., Div. of Waste Mgmt., 187 N.C. App. 227, 653 S.E.2d 11, 2007 N.C. App. LEXIS 2369 (2007).

Burden of Proof. —

While neither G.S. 150B-23(a) nor G.S. 150B-29(a) specifically allocated the burden of proof in an administrative appeal, it had been held that that an administrative law judge was to determine whether a petitioner had met its burden in showing that the agency acted or failed to act as provided in G.S. 150B-23(a) (1) — (5), and it had been observed that caselaw held that unless a statute provided otherwise, a petitioner had the burden of proof in Office of Administrative Hearings contested cases. Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 635 S.E.2d 442, 2006 N.C. App. LEXIS 2168 (2006).

Trial court did not err in its allocation of the burden of proof on a chicken processing facility operator because he burden of proof rests on the petitioner challenging the decision of the North Carolina Department of Environment and Natural Resources. House of Raeford Farms, Inc. v. N.C. Dep't of Env't & Natural Res., 242 N.C. App. 294, 774 S.E.2d 911, 2015 N.C. App. LEXIS 631 (2015).

Construction with Other Laws. —

It was within the ALJ’s discretion to dismiss the petition as untimely under the North Carolina Administrative Procedures Act (APA), because although the Individuals with Disabilities Education Act (IDEA) instructs states to make a free appropriate public education (FAPE) available, it has left to the states the procedural mechanisms for putting the same in place, and application of the APA’s 60-day limitation was not inconsistent with the underlying policies of the IDEA. M.E. v. Board of Educ., 88 F. Supp. 2d 493, 1999 U.S. Dist. LEXIS 21394 (W.D.N.C. 1999), aff'd in part and rev'd in part, 241 F.3d 374, 2001 U.S. App. LEXIS 2555 (4th Cir. 2001).

The court held that the 60-day limitations period in this section is the period associated with former G.S. 115C-116 (repealed) and rejected the idea that North Carolina’s catch-all three-year statute of limitations for statutory actions for which no limitations period is otherwise provided, pursuant to G.S. 1-52(2) , constituted a better borrowing choice and one more consistent with federal policies. CM by & Through JM v. Board of Educ., 241 F.3d 374, 2001 U.S. App. LEXIS 2555 (4th Cir. 2001), cert. denied, 534 U.S. 818, 122 S. Ct. 48, 151 L. Ed. 2d 18, 2001 U.S. LEXIS 5551 (2001), dismissed, 186 F. Supp. 2d 630, 2002 U.S. Dist. LEXIS 2984 (W.D.N.C. 2002).

The Administrative Procedure Act does not apply to a case involving the Outdoor Advertising Control Act, G.S. 136-126 through 136-140, because there is no statute or administrative rule which requires the Department of Transportation to make an agency decision after providing an opportunity for an adjudicatory hearing, and the subject controversy is therefore not a “contested case” within the meaning of former G.S. 150A-23. National Adv. Co. v. Bradshaw, 48 N.C. App. 10, 268 S.E.2d 816, 1980 N.C. App. LEXIS 3203 (1980).

Thirty-day time limit specified in G.S. 126-38 (now repealed) only applied to the filing of the petition and not to the payment of the required fee as former G.S. 126-38 indicated that the applicable temporal requirement was satisfied if the petition for a contested case hearing was filed within 30 days of the date upon which the employee received notice of the decision or action which triggered the right of appeal; although G.S. 150B-23(a) treats both the filing of the petition and the payment of the required fee as necessary to permit the commencement of a contested case and although G.S. 150B-23.2(B) requires the North Carolina Office of Administrative Hearings (OAH) to collect any required fees at the time of the commencement of the contested case, nothing in the relevant statutory language requires the payment of the required fee simultaneously with the filing of the petition as a precondition for the invocation of the OAH’s jurisdiction. Scott v. N.C. Dep't of Crime Control & Pub. Safety, 222 N.C. App. 125, 730 S.E.2d 806, 2012 N.C. App. LEXIS 953 (2012).

Filing Fee Did Not Have to Be Paid Simultaneously With Filing of Petition. —

North Carolina Office of Administrative Hearings and North Carolina State Personnel Board had jurisdiction over plaintiff’s challenge to his dismissal as a State trooper, even though he did not pay the contested case filing fee simultaneously with his petition, as G.S. 150B-23(a) and G.S. 150B-23.2(b) did not require payment of the filing fee simultaneously with the petition as a prerequisite for jurisdiction, and under 26 N.C. Admin. Code 03.0103, a litigant was afforded a reasonable time to pay the fee. Scott v. N.C. Dep't of Crime Control & Pub. Safety, 222 N.C. App. 125, 730 S.E.2d 806, 2012 N.C. App. LEXIS 953 (2012).

Delay Due to Rehearing Not “Undue”. —

The delay caused when the full State Personnel Commission [now the North Carolina Human Resources Commission] ordered a rehearing of the dismissal case of a Department of Transportation employee after declining to accept the recommendation of the hearing officer that a default be entered against the department for its failure to appear was not an “undue delay” within the meaning of subsection (a) of former G.S. 150A-23, nor such a delay as would allow the Court of Appeals to treat the order for rehearing as a final agency decision under former G.S. 150A-43. Davis v. North Carolina Dep't of Transp., 39 N.C. App. 190, 250 S.E.2d 64, 1978 N.C. App. LEXIS 2355 (1978), cert. denied, 296 N.C. 735 , 254 S.E.2d 177, 1979 N.C. LEXIS 1431 (1979).

Erroneous Assertion of Jurisdiction Tolls Time Limit. —

In appropriate circumstances, the 60-day time limitation of subsection (f) may be tolled. Specifically, such tolling is appropriate where a court’s erroneous assertion of jurisdiction brings a dispute over an administrative agency’s ruling into the court which would normally review decisions of that agency, and — in reliance on this assertion of jurisdiction — a party fails to seek administrative review within the statutory time limit. House of Raeford Farms, Inc. v. State ex rel. Envt'l Mgt. Comm'n, 338 N.C. 262 , 449 S.E.2d 453, 1994 N.C. LEXIS 645 (1994).

Address Supplied by Agency Must Be Correct to Trigger Time Limitation. —

If an agency supplies a petitioner the address of the entity to which the appeal from its actions must be sent, it must do so accurately in order to trigger the running of the 30-day filing period under G.S. 150B-23(f) . Gray v. Dep't of Env't, Health & Natural Resources, 149 N.C. App. 374, 560 S.E.2d 394, 2002 N.C. App. LEXIS 201 (2002).

The time limitation of subsection (f) of this section was tolled by the superior court’s erroneous assertion of subject matter jurisdiction over respondents’ penalty assessment and remained tolled until the court’s assertion of jurisdiction was vacated by the Court of Appeals’ mandate. The Office of Administrative Hearings (OAH) had subject matter jurisdiction over petitioners’ contested case petition, since this petition was timely filed in the OAH following the issuance of the Court of Appeals’ mandate. House of Raeford Farms, Inc. v. State ex rel. Envt'l Mgt. Comm'n, 338 N.C. 262 , 449 S.E.2d 453, 1994 N.C. LEXIS 645 (1994).

Failure to Comply with Time Limitation. —

Plaintiffs who did not file a petition for a contested case, under former G.S. 115C-116 (repealed) within the time limit prescribed by this section, abandoned the process and sought relief in the courts without exhausting the available administrative remedies, were therefore barred from seeking relief in federal district court. Glen ex rel. Glen v. Charlotte-Mecklenburg Sch. Bd. of Educ., 903 F. Supp. 918, 1995 U.S. Dist. LEXIS 15080 (W.D.N.C. 1995).

Where petitioner mailed his petition to the Office of Administrative Hearings at the incorrect address it had supplied, and a copy was also faxed to OAH, and did not file a subsequent original petition until after the agency moved to dismiss, petition would be considered timely. By failing to object to this omission, and by actively participating in the pre-hearing procedures and hearing, the agency waived its objection. Gray v. Dep't of Env't, Health & Natural Resources, 149 N.C. App. 374, 560 S.E.2d 394, 2002 N.C. App. LEXIS 201 (2002).

The notice requirements in former G.S. 150A-23 were strictly construed. Parrish v. North Carolina Real Estate Licensing Bd., 41 N.C. App. 102, 254 S.E.2d 268, 1979 N.C. App. LEXIS 2392 (1979).

Factual Allegations to Be Specific. —

The same rationale applicable in criminal proceedings, that an indictment must charge the offense with sufficient certainty to apprise the defendant of the specific accusation against him so as to enable him to prepare his defense, is applicable to factual allegations in proceedings pursuant to former G.S. 150A-23. Parrish v. North Carolina Real Estate Licensing Bd., 41 N.C. App. 102, 254 S.E.2d 268, 1979 N.C. App. LEXIS 2392 (1979).

Corporation Required to be Represented by Attorney in DMV Hearings. —

Although corporations were not required to be represented by attorneys in hearings before the Office of Administrative Hearings (OAH), pursuant to G.S. 150B-23 (referring to “attorney or representative” of a party), the DMV was exempted from the provisions of the Administrative Procedure Act authorizing contested cases to be brought in the OAH, G.S. 150B-1(e)(8), and, therefore, in a hearing before the DMV, a corporation was required to be represented by an attorney. In re Twin County Motorsports, Inc., 230 N.C. App. 259, 749 S.E.2d 474, 2013 N.C. App. LEXIS 1135 (2013), rev'd, 367 N.C. 613 , 766 S.E.2d 832, 2014 N.C. LEXIS 959 (2014).

Notice Sufficient. —

Notice of hearing did not list the statutes and rules involved or give a short and plain statement of the facts, but those details were unnecessary since the department had filed its prehearing statement. Lincoln v. N.C. HHS, Nutrition Branch, 172 N.C. App. 567, 616 S.E.2d 622, 2005 N.C. App. LEXIS 1804 (2005).

Notice Held Sufficient to Comply with Due Process. —

Notice published in a newspaper and provided to each member of the county board of elections and each candidate whose name appeared on the ballot for a county office, to the effect that a public hearing would be held at a specified time and place to inquire into the processes relative to a general election conducted in the county, particularly the processes involving absentee ballots, was sufficient to comply with due process, it not being necessary for the State Board of Elections to particularize any charges in the notice of public hearing. In re Judicial Review by Republican Candidates, 45 N.C. App. 556, 264 S.E.2d 338, 1980 N.C. App. LEXIS 2699 (1980).

Any variance between notice and proof was insignificant in notice served defendant real estate broker that Commission would present evidence that defendant doctored tapes he used in his defense, since defendant was not surprised nor deprived of an opportunity to present his defense when he attempted to use tapes to defend himself. Watson v. North Carolina Real Estate Comm'n, 87 N.C. App. 637, 362 S.E.2d 294, 1987 N.C. App. LEXIS 3307 (1987).

Notice Held Insufficient to Comply with Due Process. —

A notice which failed to inform petitioner of her right to contest the designation of her position as “exempt policymaking,” the procedure for contesting the designation, or the time limits for filing her objection to the designation was not sufficient to start the limitation period running. Jordan v. North Carolina DOT, 140 N.C. App. 771, 538 S.E.2d 623, 2000 N.C. App. LEXIS 1272 (2000).

Defendants-school systems failed to adequately notify the parents of disabled children, as required by this section, that school authorities had reached a final decision regarding reimbursement of their special educational costs that could be challenged only in a due process hearing, which had to be requested within sixty days; the letters which the schools relied on were written during negotiations with the parents and were not express enough to trigger the limitations period, and distribution of the Handbook of Parents’ Rights could not remedy the letters’ inadequacies. CM by & Through JM v. Board of Educ., 241 F.3d 374, 2001 U.S. App. LEXIS 2555 (4th Cir. 2001), cert. denied, 534 U.S. 818, 122 S. Ct. 48, 151 L. Ed. 2d 18, 2001 U.S. LEXIS 5551 (2001), dismissed, 186 F. Supp. 2d 630, 2002 U.S. Dist. LEXIS 2984 (W.D.N.C. 2002).

Letter to an employee after her termination while on medical leave that expressed sympathy for her medical condition and reiterated facts regarding the employee’s termination did not constitute sufficient notice of the decision or action regarding the grievance filed by the employee, which triggered the right to appeal for purposes of G.S. 126-38 (now repealed); because the employer, the Department of Social Services (DSS), failed to provide the notice required under G.S. 150B-23(f) as to appealing her termination, an administrative law judge properly denied the DSS’ motion to dismiss the appeal as untimely. Early v. County of Durham Dep't of Soc. Servs., 172 N.C. App. 344, 616 S.E.2d 553, 2005 N.C. App. LEXIS 1788 (2005).

Notice Held Insufficient to Support Suspension of License. —

Notice to professional engineer that charges against him involved gross negligence, incompetence or misconduct resulting from his noncompliance with certain statutes and administrative regulations in the preparation and sealing of certain plans was insufficient to support suspension of his license for misconduct in placing his seal on engineering work not prepared under his direction and for gross negligence in sealing the work of another in order to procure planning board approval when he knew that the plans did not conform to the State Building Code. In re Trulove, 54 N.C. App. 218, 282 S.E.2d 544, 1981 N.C. App. LEXIS 2804 (1981).

Evidentiary Hearing in Contested Case. —

The exercise of the right to an evidentiary hearing under the contested case provision of G.S. 131E-188(a) does not commence a de novo proceeding by the administrative law judge (ALJ) intended to lead to a formulation of the final decision pursuant to subsection (a), the ALJ, in a contested case hearing under the certificate of need law and this Act, determines whether the petitioner has met its burden in showing that the agency substantially prejudiced petitioner’s rights, and that the agency also acted outside its authority, acted erroneously, acted arbitrarily and capriciously, used improper procedure, or failed to act as required by law or rule, based on a hearing limited to the evidence that is presented or available to the agency during the review period. Britthaven, Inc. v. North Carolina Dep't of Human Resources, 118 N.C. App. 379, 455 S.E.2d 455, 1995 N.C. App. LEXIS 243 (1995).

When a provider contested granting a certificate of need to a competitor, an administrative law judge could grant summary judgment because (1) G.S. 131E-188(a) did not give the provider an unconditional right to a hearing, as the right was contingent on a valid petition, and (2) G.S. 150B-33(b)(3a) and G.S. 150B-34(e) allowed summary judgment. Cumberland County Hosp. Sys. v. N.C. HHS, 237 N.C. App. 113, 764 S.E.2d 491, 2014 N.C. App. LEXIS 1129 (2014).

The administrative hearing provisions of this article do not establish the right of a person “aggrieved” by agency action to Office of Administrative Hearings review of that action, but only describe the procedures for such review. Batten v. North Carolina Dep't of Cor., 326 N.C. 338 , 389 S.E.2d 35, 1990 N.C. LEXIS 120 (1990).

Compliance with Procedures Required for Jurisdiction. —

Because Chapter 126 makes compliance with the procedures of this article mandatory, jurisdiction over a contested case hearing arising under Chapter 126 is not conferred upon the Office of Administrative Hearings unless petitioner follows such procedures. Nailing v. UNC-CH, 117 N.C. App. 318, 451 S.E.2d 351, 1994 N.C. App. LEXIS 1275 (1994).

County employee, as a person aggrieved by the North Carolina Office of State Personnel’s [now the North Carolina Office of State Human Resources’] determination that a county’s personnel regulations were substantially equivalent to the North Carolina State Personnel Act, G.S. 126-1 et seq., was able to commence a contested case pursuant to G.S. 150B-23(a) by filing a petition with the North Carolina Office of Administrative Hearings. Steward v. Green, 189 N.C. App. 131, 657 S.E.2d 719, 2008 N.C. App. LEXIS 423 (2008).

Trial court did not err in affirming an administrative law judge’s order retroactively reinstating a sergeant and awarding him back pay and benefits because his supervisor failed to fully comply with the administrative procedures, the sergeant still had unexhausted leave credits and leave benefits when he was terminated, and the Highway Patrol prevented the sergeant from taking his annual firearms training (necessary to retain his credentials). NC Dep't of Pub. Safety v. Owens, 245 N.C. App. 230, 782 S.E.2d 337, 2016 N.C. App. LEXIS 144 (2016).

Subsection (a) of G.S. 150B-23 does not explicitly make a specific administrative procedure part of every contract entered into between the State and a private citizen; accordingly, subsection (a) does not disturb the superior court’s original general jurisdiction of all justiciable matters of a civil nature. Intersal, Inc. v. Hamilton, 373 N.C. 89 , 834 S.E.2d 404, 2019 N.C. LEXIS 1062 (2019).

Where Agency Under No Statutory Obligation to Act. —

Nothing in G.S. 150B-23(a)(5) permits a petition for a contested case proceeding to be filed where an agency has not acted when the agency is under no statutory direction to act. N.C. State Bd. of Educ. v. N.C. Learns, Inc., 231 N.C. App. 270, 751 S.E.2d 625, 2013 N.C. App. LEXIS 1230 (2013).

No statutory authority exists for the State Personnel Commission to review an administrative law judge’s recommended decision in a case involving an exempt employee. Johnson v. Natural Resources & Community Dev., 98 N.C. App. 334, 391 S.E.2d 48, 1990 N.C. App. LEXIS 386 (1990).

Discretionary Intervention Under Former G.S. 150A-23(d). —

While G.S. 1A-1 , Rule 24 contains specific requirements which control and limit intervention, subsection (d) of former G.S. 150A-23 clearly provides for discretionary intervention by the Commissioner of Insurance by providing that the agency may permit any interested person to intervene “and participate in [the] proceeding to the extent deemed appropriate.” This discretionary intervention is without limitation, and the statutory language has been construed to provide intervention broader than the permissive intervention under G.S. 1A-1 , Rule 24. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 460 , 269 S.E.2d 538, 1980 N.C. LEXIS 1126 (1980).

Commissioner of Insurance acted within his discretion in permitting a consumer group to intervene in an automobile insurance rate case and in allowing hearings to be held throughout the State. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 460 , 269 S.E.2d 538, 1980 N.C. LEXIS 1126 (1980).

Intervention Not Approved. —

For purposes of meeting appeal requirements of G.S. 131E-188(b), appellant, proposed intervenor below, was not and could not be a party to the contested hearing at issue below until its motion to intervene was approved. Since this motion was not approved, appellant was not a party to contested case and, therefore, did not meet jurisdictional requirements of G.S. 131E-188(b). HCA Crossroads Residential Centers, Inc. v. North Carolina Dep't of Human Resources, 99 N.C. App. 193, 392 S.E.2d 398 (1990).

While the intervenors had a general interest in an underlying issue, whether the property owner was exempt from the Sedimentation Pollution Control Act of 1973, they did not have a direct interest in the civil penalty imposed by the North Carolina Department of Environment and Natural Resources, which was the property or transaction at issue pursuant to G.S. 113A-64(a)(5); accordingly, the ALJ erred by granting intervention as of right. Holly Ridge Assocs., LLC v. N.C. Dep't of Env't & Natural Res., 361 N.C. 531 , 648 S.E.2d 830, 2007 N.C. LEXIS 811 (2007).

Because the time and expense involved in a second, unanticipated round of discovery in an environmental civil penalty matter was prejudicial to the property owner, as was the requirement that the property owner meet its burden of proof against both intervenors and the state agency authorized to impose the civil penalty, the ALJ abused his discretion in allowing permissive intervention. Holly Ridge Assocs., LLC v. N.C. Dep't of Env't & Natural Res., 361 N.C. 531 , 648 S.E.2d 830, 2007 N.C. LEXIS 811 (2007).

The 60-day time limitation of subsection (f) was tolled by the superior court’s assertion of subject matter jurisdiction over assessment and remained tolled until the court’s assertion of jurisdiction was vacated by the Court of Appeals, accordingly, the Office of Administrative Hearings (OAH) had subject matter jurisdiction over petition since it was filed in the OAH within 60 days of the Court of Appeals’ decision. House of Raeford Farms, Inc. v. State ex rel. Envt'l Mgt. Comm'n, 338 N.C. 262 , 449 S.E.2d 453, 1994 N.C. LEXIS 645 (1994).

Exhaustion of Administrative Remedies Not Required. —

Trial court erred in concluding the court lacked subject matter jurisdiction over a marine research and recovery corporation’s claim that the North Carolina Department of Natural and Cultural Resources breached a settlement agreement because the corporation was not required to exhaust administrative remedies; the corporation’s ability to bring a common law breach of contract claim in superior court was not restricted by any statutory or contractual provision. Intersal, Inc. v. Hamilton, 373 N.C. 89 , 834 S.E.2d 404, 2019 N.C. LEXIS 1062 (2019).

Review of Agency Decision. —

Although a trial court properly reviewed, under G.S. 150B-51(b)(5), a final agency decision of a contested case petition filed pursuant to G.S. 150B-23 , the trial court incorrectly applied the standard of review by making its own findings of fact on unappealed issues. Town of Wallace v. N.C. Dep't of Env't & Natural Res., Div. of Water Quality, 160 N.C. App. 49, 584 S.E.2d 809, 2003 N.C. App. LEXIS 1673 (2003).

Pursuant to G.S. 150B-23(f) , the time for a Medicaid provider’s appeal of a negative decision by the North Carolina Department of Health and Human Services (DHHS) begins to run when DHHS notifies the health care provider of DHHS’s “final decision” and of the provider’s right to appeal from the agency’s final decision to the Office of Administrative Hearings. N.C. HHS v. Parker Home Care, LLC, 246 N.C. App. 551, 784 S.E.2d 552, 2016 N.C. App. LEXIS 346 (2016).

ALJ and trial court had jurisdiction to hear a Medicaid provider’s contest to the North Carolina Department of Health and Human Services’ (DHHS) decision that the provider received an overpayment, despite the provider’s failure to appeal that decision within 60 days of receiving a private contractor’s tentative notice of overpayment (TNO), because the TNO did not begin the time for appealing an administrative decision, as DHHS could not delegate the discretionary authority to decide how to dispose of the issue to the private contractor as (1) DHHS was the state’s single state agency authorized to make such decisions, and (2) the TNO stated a “final decision” would be reached in the future, so the TNO did not inform the provider of DHHS’s final decision on the matter, which initiated the appeal time. N.C. HHS v. Parker Home Care, LLC, 246 N.C. App. 551, 784 S.E.2d 552, 2016 N.C. App. LEXIS 346 (2016).

Substantial Prejudice Sufficiently Alleged. —

Organizations sufficiently alleged substantial prejudice for purposes of G.S. 150B-23 as members had homes and businesses along the creek in which wastewater was to be discharged, and the organizations alleged that the state agency failed to follow its own regulations in issuing the permit, thereby causing damage to the creek’s water quality, biota, and the benefits derived from the creek. Sound Rivers, Inc. v. N.C. Dep't of Envtl. Quality, Div. of Water Res., 271 N.C. App. 674, 845 S.E.2d 802, 2020 N.C. App. LEXIS 438 (2020).

Substantial Prejudice Shown. —

Issuance of a “No Review” letter by the North Carolina DHHS was properly contested because a branch office proposed by a hospice was not located within the service area of the hospice; therefore, the proposed branch office was a new institutional health service for which the hospice had to obtain a certificate of need. Hospice at Greensboro, Inc. v. N.C. HHS Div. of Facility Servs., 185 N.C. App. 1, 647 S.E.2d 651, 2007 N.C. App. LEXIS 1714 (2007).

Substantial Prejudice Not Shown. —

In a hospital’s contested case petition under G.S. 131E-188(a) to challenge the conditional approval of a certificate of need (CON) permitting a medical center to expand its emergency room facilities, the medical center was entitled to summary judgment because the hospital did not prove substantial prejudice from the CON under G.S. 150B-23(a) ; the hospital’s claim of prejudice from challenges by the medical center to a facility it was building had been declared moot in another action, and judicial estoppel did not bar the medical center from claiming that the hospital was not substantially prejudiced because the other action was not related and did not stem from a common set of circumstances. Presbyterian Hosp. v. N.C. HHS, 177 N.C. App. 780, 630 S.E.2d 213, 2006 N.C. App. LEXIS 1184 (2006).

Superior court did not err in affirming the decision of the Office of Administrative Hearings to grant summary judgment for the North Carolina Department of Health and Human Services (DHHS) in corporations’ action challenging the validity of a settlement DHHS entered into with an assisted living limited liability company (LLC), which gave the LLC a contractual right to develop adult care home beds, because the corporation did not demonstrate that they were substantially prejudiced as a matter of law; even if DHHS had not entered the settlement, it could not have required the LLC to submit a certificate of need application in order to give the corporations the opportunity to comment on the LLC’s plans since the Certificate of Need Law, G.S. 131E-175 et seq. was held to be inapplicable to the LLC’s projects. Ridge Care, Inc. v. N.C. HHS, 214 N.C. App. 498, 716 S.E.2d 390, 2011 N.C. App. LEXIS 1742 (2011).

Superior court did not err in affirming the decision of the Office of Administrative Hearings to grant summary judgment for the North Carolina Department of Health and Human Services (DHHS) in corporations’ action challenging the validity of a settlement DHHS entered into with an assisted living limited liability company (LLC), which gave the LLC a contractual right to develop adult care home beds, because the corporation did not demonstrate that they were substantially prejudiced as a matter of law; there was no evidence presented that the LLC was planning to develop facilities in the counties where the corporations were located or that the corporation had suffered any actual harm. Ridge Care, Inc. v. N.C. HHS, 214 N.C. App. 498, 716 S.E.2d 390, 2011 N.C. App. LEXIS 1742 (2011).

N.C. Department of Health and Human Services, Division of Health Service Regulation, Certificate of Need Section, properly concluded that the health care provider failed to prove that it suffered substantial prejudice from the granting of a certificate of need to a medical center for the development of two gastrointestinal endoscopy rooms because the provider’s only alleged harm was only that competition would be increased. CaroMont Health, Inc. v. N.C. HHS Div. of Health Serv. Regulation, 231 N.C. App. 1, 751 S.E.2d 244, 2013 N.C. App. LEXIS 1229 (2013).

When providers contested an agency’s decision to let a competitor move specialty operating rooms to the providers’ area, the agency’s alleged failure to follow the agency’s rules did not establish the providers’ substantial prejudice as a matter of law because the providers also had to show the agency deprived the providers of property, ordered the providers to pay a fine or penalty, or otherwise substantially prejudiced the providers’ rights. Surgical Care Affiliates, LLC v. N.C. HHS, 235 N.C. App. 620, 762 S.E.2d 468, 2014 N.C. App. LEXIS 892 (2014).

Competitor showed no error in the administrative law judge granting summary judgment for a certificate of need applicant’s application because the competitor did not meet the competitor’s burden to show substantial prejudice from granting the application, as (1) the proposed project added no new beds, services, or equipment, and (2) any harm from normal competition was not substantial prejudice. Blue Ridge Healthcare Hosps. Inc. v. N.C. HHS, 255 N.C. App. 451, 808 S.E.2d 271, 2017 N.C. App. LEXIS 764 (2017).

Administrative law judge properly granted summary judgment in favor of the North Carolina Department of Health and Human Services and a kidney dialysis clinic in a competitor’s action for a certificate of need (CON) under because it did not forecast sufficient evidence of substantial prejudice to survive summary judgment, the competitor’s mere status as a denied competitive CON applicant or that it would face increased competition was insufficient to establish substantial prejudice. Bio-Medical Applications of N.C. Inc. v. NC HHS, 2022-NCCOA-199, 2022 N.C. App. LEXIS 247 (April 5, 2022).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— Some of the opinions below were issued prior to the 1991 amendments to this Chapter.

Editor’s Note.

Section 7A-38, referred to in this section, was repealed by Session Laws, 1995, c. 500, s. 3.

Legal Periodicals.

For comment, “Good Faith Mediation: Improving Efficiency, Cost, and Satisfaction in North Carolina’s Pre-Trial Process,” see 18 Campbell L. Rev. 281 (1996).

CASE NOTES

Filing Fee Did Not Have to Be Paid Simultaneously With Filing of Petition. —

North Carolina Office of Administrative Hearings and North Carolina State Personnel Board had jurisdiction over plaintiff’s challenge to his dismissal as a State trooper, even though he did not pay the contested case filing fee simultaneously with his petition, as G.S. 150B-23(a) and G.S. 150B-23.2(b) did not require payment of the filing fee simultaneously with the petition as a prerequisite for jurisdiction, and under 26 N.C. Admin. Code 03.0103, a litigant was afforded a reasonable time to pay the fee. Scott v. N.C. Dep't of Crime Control & Pub. Safety, 222 N.C. App. 125, 730 S.E.2d 806, 2012 N.C. App. LEXIS 953 (2012).

Thirty-day time limit specified in G.S. 126-38 (now repealed) only applied to the filing of the petition and not to the payment of the required fee as former G.S. 126-38 indicated that the applicable temporal requirement was satisfied if the petition for a contested case hearing was filed within 30 days of the date upon which the employee received notice of the decision or action which triggered the right of appeal; although G.S. 150B-23(a) treats both the filing of the petition and the payment of the required fee as necessary to permit the commencement of a contested case and although G.S. 150B-23.2(B) requires the North Carolina Office of Administrative Hearings (OAH) to collect any required fees at the time of the commencement of the contested case, nothing in the relevant statutory language requires the payment of the required fee simultaneously with the filing of the petition as a precondition for the invocation of the OAH’s jurisdiction. Scott v. N.C. Dep't of Crime Control & Pub. Safety, 222 N.C. App. 125, 730 S.E.2d 806, 2012 N.C. App. LEXIS 953 (2012).

Editor’s Note.

Pursuant to the direction of the Revisor of Statutes, quotation marks were added to the definitions in subdivisions (1) through (3).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A, or under this Chapter prior to the 1991 amendments thereto.

Former G.S. 150A-25 was permissive, not mandatory. Frieson v. North Carolina Real Estate Licensing Bd., 72 N.C. App. 665, 325 S.E.2d 293, 1985 N.C. App. LEXIS 3093 (1985).

Subsection (a) of Former G.S. 150A-25 Was Permissive and Not Mandatory. —

The language of subsection (a) of former G.S. 150A-25, providing that if a party fails to appear after proper service of notice the agency may proceed and render its decision in the absence of that party, is permissive and not mandatory. Davis v. North Carolina Dep't of Transp., 39 N.C. App. 190, 250 S.E.2d 64, 1978 N.C. App. LEXIS 2355 (1978), cert. denied, 296 N.C. 735 , 254 S.E.2d 177, 1979 N.C. LEXIS 1431 (1979).

Contested Case Hearing Appropriate. —

Where parties forecast evidence to support recommendation by the administrative law judge and final agency decision which were contrary, a genuine issue of material fact existed regarding hospital’s application for a certificate of need so that a contested case hearing would be required. Presbyterian-Orthopaedic Hosp. v. North Carolina Dep't of Human Resources, 122 N.C. App. 529, 470 S.E.2d 831, 1996 N.C. App. LEXIS 460 (1996).

Editor’s Note.

Session Laws 2015-286, s. 1.2(c), made this section effective October 22, 2015, and applicable to contested cases commenced on or after that date.

Session Laws 2015-286, s. 1.2(b), provides: “The Joint Legislative Administrative Procedure Oversight Committee shall study whether there are other categories of contested cases in which the burden of proof should be placed with the agency.”

Session Laws 2015-286, s. 5.1 is a severability clause.

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A.

One of the purposes of a subpoena duces tecum is to insure that documents are described with sufficient particularity and with such definiteness that they can be identified without prolonged or extensive search. Myers v. Holshouser, 25 N.C. App. 683, 214 S.E.2d 630, 1975 N.C. App. LEXIS 2379 , cert. denied, 287 N.C. 664 , 216 S.E.2d 907, 1975 N.C. LEXIS 1174 (1975).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A, or under this Chapter prior to the 1991 amendments thereto.

The standard of review, known as the “whole record test,” presents to the trial judge a task which must be distinguished from both de novo review and the any competent evidence standard of review. Goodwin v. Goldsboro City Bd. of Educ., 67 N.C. App. 243, 312 S.E.2d 892, 1984 N.C. App. LEXIS 3065 (1984).

The whole record test is not a tool of judicial intrusion; instead it merely gives a reviewing court the capability to determine whether an administrative decision has a rational basis in the evidence. Thus, the task before the trial court is to consider all the evidence, both that which supports the decision of the board and that which detracts from it. Goodwin v. Goldsboro City Bd. of Educ., 67 N.C. App. 243, 312 S.E.2d 892, 1984 N.C. App. LEXIS 3065 (1984).

The whole record test does not allow the reviewing court to replace the board’s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo. On the other hand, the whole record rule requires the court, in determining the substantiality of evidence supporting the board’s decision, to take into account whatever in the record fairly detracts from the weight of the board’s evidence. Goodwin v. Goldsboro City Bd. of Educ., 67 N.C. App. 243, 312 S.E.2d 892, 1984 N.C. App. LEXIS 3065 (1984).

Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the board’s result, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn. Goodwin v. Goldsboro City Bd. of Educ., 67 N.C. App. 243, 312 S.E.2d 892, 1984 N.C. App. LEXIS 3065 (1984).

Standard of Proof. —

The standard of proof in administrative matters is by the greater weight of the evidence, and it is error to require a showing by clear, cogent, and convincing evidence. Dillingham v. North Carolina Dep't of Human Resources, 132 N.C. App. 704, 513 S.E.2d 823, 1999 N.C. App. LEXIS 263 (1999).

Burden of Proof. —

While neither G.S. 150B-23(a) nor G.S. 150B-29(a) specifically allocated the burden of proof in an administrative appeal, it had been held that that an administrative law judge was to determine whether a petitioner had met its burden in showing that the agency acted or failed to act as provided in G.S. 150B-23(a) (1) — (5), and it had been observed that caselaw held that unless a statute provided otherwise, a petitioner had the burden of proof in Office of Administrative Hearings contested cases. Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 635 S.E.2d 442, 2006 N.C. App. LEXIS 2168 (2006).

Trial court did not err in its allocation of the burden of proof on a chicken processing facility operator because he burden of proof rests on the petitioner challenging the decision of the North Carolina Department of Environment and Natural Resources. House of Raeford Farms, Inc. v. N.C. Dep't of Env't & Natural Res., 242 N.C. App. 294, 774 S.E.2d 911, 2015 N.C. App. LEXIS 631 (2015).

Board of Adjustment Not Required to Sound-Record Hearings. —

Municipal corporations were specifically excluded from requirements under former G.S. 150A-29 and former G.S. 150A-37 that trial rules of evidence and production of evidence be followed in proceedings before State agencies. Thus, a Board of Adjustment was not required to sound-record its hearings. Washington Park Neighborhood Ass'n v. Winston-Salem Zoning Bd. of Adjustment, 35 N.C. App. 449, 241 S.E.2d 872, 1978 N.C. App. LEXIS 3006 (1978).

As to admissibility of evidence in proceeding before Property Tax Commission, see In re McLean Trucking Co., 281 N.C. 375 , 189 S.E.2d 194, 1972 N.C. LEXIS 923 (1972).

Reports of physicians are acceptable as evidence, since an agency may use its experience, technical competence, and specialized knowledge in the evaluation of evidence presented to it. Lackey v. North Carolina Dep't of Human Resources, 306 N.C. 231 , 293 S.E.2d 171, 1982 N.C. LEXIS 1437 (1982).

Burden of Proof on Unemployment Claimant. —

Where a claimant for unemployment previously quit her job to retire and was presently claiming to have reentered the labor market, the degree of proof required of the claimant was by the greater weight of the evidence. In re Thomas, 281 N.C. 598 , 189 S.E.2d 245, 1972 N.C. LEXIS 1116 (1972).

School Board’s Dismissal of At-Will Employee Upheld. —

It was not arbitrary or capricious, nor an abuse of discretion, for school board to terminate an at-will employee for making a racial comment in a school setting. Cooper v. Board of Educ., 135 N.C. App. 200, 519 S.E.2d 536, 1999 N.C. App. LEXIS 979 (1999).

Evidence Properly Admitted. —

When a terminated state law enforcement agent alleged discrimination on the basis of political affiliation, the testimony by a former deputy secretary of the North Carolina Department of Public Safety (DPS) that a state senator told the deputy secretary that the agent’s reassignment shouldn’t have occurred and that they were going to fix it and that the incoming Secretary of the DPS had agreed that the reassignment shouldn’t have happened was admissible in an administrative hearing to show the declarant’s existing mental state and motive. N.C. Dep't of Pub. Safety v. Ledford, 247 N.C. App. 266, 786 S.E.2d 50, 2016 N.C. App. LEXIS 505 (2016).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A and earlier statutes.

One of the purposes behind the creation of administrative agencies was the necessity for the supervision and experience of specialists in difficult and complicated fields. Lackey v. North Carolina Dep't of Human Resources, 306 N.C. 231 , 293 S.E.2d 171, 1982 N.C. LEXIS 1437 (1982).

Reports of physicians are acceptable as evidence, since an agency may use its experience, technical competence, and specialized knowledge in the evaluation of evidence presented to it. Lackey v. North Carolina Dep't of Human Resources, 306 N.C. 231 , 293 S.E.2d 171, 1982 N.C. LEXIS 1437 (1982).

Reliance on Paper Presented in Hearing on Prior Rate Filing. —

While it is the better practice to produce a witness in a rate-making hearing rather than to rely on exhibits furnished by the witness in earlier hearings, the Commissioner of Insurance did not commit prejudicial error in a homeowners’ insurance rate hearing in taking official notice of a paper presented by a witness in a hearing on a prior rate filing and made a part of the order disapproving the prior filing, where the commissioner gave the rate bureau adequate notice in the notice of public hearing that he would rely on the paper in the present hearing. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 300 N.C. 474 , 269 S.E.2d 595, 1980 N.C. LEXIS 1119 (1980).

State Board of Assessment (now Department of Revenue) is neither required nor permitted to shut its eyes to an established fact of common knowledge. In re Valuation of Property Located at 411-417 W. Fourth St., 282 N.C. 71 , 191 S.E.2d 692, 1972 N.C. LEXIS 887 (1972).

For discussion of respective powers and duties of Commissioner of Insurance and his designated hearing officer in the review of filed rates and entry of a final agency decision in a contested insurance rate case, see State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 506, 300 S.E.2d 845, 1983 N.C. App. LEXIS 2728 (1983).

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Effect of Amendments.

Session Laws 2011-398, s. 17, deleted subdivision (b)(12), which pertained to the acceptance of a remanded case from an agency. For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment, “The Problem of Procedural Delay in Contested Case Hearings . . .” under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For article, “Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment,” see 79 N.C.L. Rev. 1571 (2001).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A and earlier statutes, or under this Chapter prior to the 1991 amendments thereto.

Powers Generally. —

When an agency of State government determines to use the services of a hearing officer (now administrative law judge), it is former G.S. 150A-33 that prescribes his powers. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262, 300 S.E.2d 586, 1983 N.C. App. LEXIS 2631 (1983).

Proposal for Decision Required of Hearing Officer (Now Administrative Law Judge). —

Under the Administrative Procedure Act, when the services of a hearing officer (now administrative law judge) are used, there must be a “proposal for decision” by the hearing officer. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262, 300 S.E.2d 586, 1983 N.C. App. LEXIS 2631 (1983).

Administrative Law Judge’s Decision Reviewed by Personnel Commission. —

The administrative law judge must render a decision on the motion which is presented, but the administrative law judge’s ruling is subject to review by the ultimate factfinder, the Personnel Commission. Eury v. North Carolina Emp. Sec. Comm'n, 115 N.C. App. 590, 446 S.E.2d 383, 1994 N.C. App. LEXIS 778 (1994), limited, Warren v. N.C. Dep't of Crime Control & Pub. Safety, 221 N.C. App. 376, 726 S.E.2d 920, 2012 N.C. App. LEXIS 770 (2012).

Procedural Due Process. —

Lumber company was never unconstitutionally deprived of its permit as a result of the state agency failing to provide proper due process, since it was through due process provided by G.S. 150B that the lumber company’s permit was reinstated. Godfrey Lumber Co. v. Howard, 151 N.C. App. 738, 566 S.E.2d 825, 2002 N.C. App. LEXIS 880 (2002).

For discussion of respective powers and duties of Commissioner of Insurance and his designated hearing officer in the review of filed rates and entry of a final agency decision in a contested insurance rate case, see State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 506, 300 S.E.2d 845, 1983 N.C. App. LEXIS 2728 (1983).

Commissioner of Insurance Has No Statutory Power to Issue Restraining Orders or Injunctions. —

The statutes creating the Department of Insurance and prescribing the powers and duties of the Commissioner do not purport to grant him the power of issuing restraining orders and injunctions. Charlotte Liberty Mut. Ins. Co. v. State ex rel. Lanier, 16 N.C. App. 381, 192 S.E.2d 57, 1972 N.C. App. LEXIS 1711 (1972).

Commissioner May Apply to the Courts Therefor. —

In administering the laws relative to the insurance industry, the Commissioner, if he deems it necessary, may apply to the courts for restraining orders and injunctions. Charlotte Liberty Mut. Ins. Co. v. State ex rel. Lanier, 16 N.C. App. 381, 192 S.E.2d 57, 1972 N.C. App. LEXIS 1711 (1972).

Attempted grant to the Commissioner of Insurance of judicial power to impose a penalty upon an insurance agent for a violation of the insurance laws, varying in the Commissioner’s discretion from a nominal sum to $25,000, violated N.C. Const., Art. IV, there being no reasonable necessity for conferring such judicial power upon the Commissioner. State ex rel. Lanier v. Vines, 274 N.C. 486 , 164 S.E.2d 161, 1968 N.C. LEXIS 805 (1968).

Authority to Determine Validity of Rules. —

This section provides that an Administrative Law Judge (ALJ) may determine that a rule as applied in a particular case is void; however, it does not authorize an ALJ to make a final decision with respect to the validity of agency rules. Fearrington v. University of N.C. 126 N.C. App. 774, 487 S.E.2d 169, 1997 N.C. App. LEXIS 637 (1997).

When the North Carolina Department of Health and Human Resources, Division of Facility Services, Certificate of Need Section, denied a health system’s request for a certificate of need (CON) to build a hospital and granted a CON to the system’s competitor, an administrative law judge was authorized to find that 10A N.C. Admin. Code 14C.2303(3), regarding findings of the utilization of computerized axial tomography equipment in a geographic area, was “void as applied” to the facts because the rule required consideration of the health system’s underutilization of such equipment in a hospital that was about to close in determining whether to authorize the competitor to install such equipment in the hospital the competitor proposed for the area, and the system’s underutilization was irrelevant to the area’s need for such equipment, and G.S. 150B-33(b)(9)(3) allowed the administrative law judge to find that a rule was void in a particular case because the rule was not reasonably necessary to enable an agency to fulfill a duty delegated to the agency by the general assembly. Good Hope Health Sys., LLC v. N.C. HHS, 188 N.C. App. 68, 658 S.E.2d 665, 2008 N.C. App. LEXIS 79 (2008).

Administrative Law Judge Had Authority to Award Attorneys’ Fees. —

Court of appeals erred in invalidating an administrative law judge’s decision to award back pay and attorneys’ fees to a county department of social services employee because the judge had express statutory authority to award back pay and attorneys’ fees to the employee; the absence of any reference to an attorneys’ fee award in subdivision (b)(11) had no bearing upon the proper resolution of the issue of whether the judge had the authority to award attorneys’ fees to the employee. Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 409 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

Fact that G.S. 150B-33(b)(11) makes no reference to the making of an attorneys’ fee award to a wrongfully discharged local government employee has no bearing upon the issue of whether such an award is authorized for unlawfully discharged local government employees by the North Carolina Human Resources Act, G.S. 126-34.02(e) . Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 409 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

Summary Judgment. —

When a provider contested granting a certificate of need to a competitor, an administrative law judge could grant summary judgment because (1) G.S. 131E-188(a) did not give the provider an unconditional right to a hearing, as the right was contingent on a valid petition, and (2) G.S. 150B-33(b)(3a) and G.S. 150B-34(e) allowed summary judgment. Cumberland County Hosp. Sys. v. N.C. HHS, 237 N.C. App. 113, 764 S.E.2d 491, 2014 N.C. App. LEXIS 1129 (2014).

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.”

Effect of Amendments.

Session Laws 2011-398, s. 18, rewrote the section. For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment, “The Problem of Procedural Delay in Contested Case Hearings . . .” under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For article, “Advisory Rulings by Administrative Agencies: Their Benefits and Dangers,” see 2 Campbell L. Rev. 1 (1980).

For article, “Administrative Justice: No Longer Just a Recommendation,” see 79 N.C.L. Rev. 1639 (2001).

For article, “What Were We Thinking?: Legislative Intent and the 2000 Amendments to the North Carolina APA,” see 79 N.C.L. Rev. 1657 (2001).

CASE NOTES

Editor’s Note. —

Many of the cases below were decided under former G.S. 150B-36 , or under this Chapter prior to the 1991 amendments thereto.

Powers of Hearing Officer (Now Administrative Law Judge) Generally. —

When an agency of State government determined to use the services of a hearing officer (now administrative law judge), it was former G.S. 150A-33 that prescribed his powers. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262, 300 S.E.2d 586, 1983 N.C. App. LEXIS 2631 (1983) (decided under corresponding provisions of Chapter 150A).

Administrative law judge’s (ALJ) conclusion that an agency did not establish just cause for a state employee’s dismissal was upheld because (1) the ALJ did not have to defer to the agency in finding if just cause existed, as the agency had the burden to show just cause, and (2) substantial evidence supported the ALJ’s factual findings that the employee’s unacceptable personal conduct did not warrant the sanction of dismissal, making those findings binding on appeal, as the ALJ was the sole fact-finder. Harris v. N.C. Dep't of Pub. Safety, 252 N.C. App. 94, 798 S.E.2d 127, 2017 N.C. App. LEXIS 130 , aff'd, 370 N.C. 386 , 808 S.E.2d 142, 2017 N.C. LEXIS 1020 (2017).

Proposal for Decision Required. —

Under the Administrative Procedure Act, when the services of a hearing officer (now administrative law judge) are used, there must be a “proposal for decision” by the hearing officer. State ex rel. Comm'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262, 300 S.E.2d 586, 1983 N.C. App. LEXIS 2631 (1983) (decided under corresponding provisions of Chapter 150A).

New Evidence Admissible at Medicaid Hearing. —

In a medicaid case, an Administrative Law Judge properly admitted evidence about the patient’s medical needs that was not provided to the agency by his case manager before the initial agency decision to modify and reduce services. Under 26 N.C. Admin. Code § 3.0122(1)(1), the ALJ could admit all evidence that had probative value. Robinson v. N.C. HHS, 215 N.C. App. 372, 715 S.E.2d 569, 2011 N.C. App. LEXIS 1882 (2011).

Administrative Law Judge’s Decision Reviewed by Personnel Commission. —

The administrative law judge must render a decision on the motion which is presented, but the administrative law judge’s ruling is subject to review by the ultimate factfinder, the Personnel Commission. Eury v. North Carolina Emp. Sec. Comm'n, 115 N.C. App. 590, 446 S.E.2d 383, 1994 N.C. App. LEXIS 778 (1994), limited, Warren v. N.C. Dep't of Crime Control & Pub. Safety, 221 N.C. App. 376, 726 S.E.2d 920, 2012 N.C. App. LEXIS 770 (2012).

No statutory authority exists for the State Personnel Commission [now the North Carolina Human Resources Commission] to review an administrative law judge’s recommended decision in a case involving an exempt employee. Johnson v. Natural Resources & Community Dev., 98 N.C. App. 334, 391 S.E.2d 48, 1990 N.C. App. LEXIS 386 (1990).

Administrative agency’s failure to comply with the mandate of G.S. 150B-34(c) and address all unadopted findings of an administrative law judge (ALJ) in its final agency decision prejudiced a party’s right to meaningful appellate review to the limited extent that the party was not afforded the opportunity to address the agency’s reasoning for rejecting material and essential findings by the ALJ. Upon remand, the agency was to address all unadopted findings of the ALJ in its final agency decision. Mission Hosps., Inc. v. N.C. HHS, 189 N.C. App. 263, 658 S.E.2d 277, 2008 N.C. App. LEXIS 548 , writ denied, 667 S.E.2d 464, 2008 N.C. LEXIS 752 (N.C. 2008).

Standard of Review for Certificate of Need. —

Final sentence of G.S. 150B-34(c) exempts certificate of need proceedings from the newly amended portions of G.S. 150B-51 and requires an appellate court to review those decisions under the previous version of G.S. 150B-51 . Total Renal Care of N.C. LLC v. N.C. HHS, 171 N.C. App. 734, 615 S.E.2d 81, 2005 N.C. App. LEXIS 1354 (2005).

Deference Based on Specialized Knowledge of Agency. —

Administrative law judge (ALJ) erred in failing to give deference to the reasonable explanation of the North Carolina Department of Health and Human Services, Division of Health Service Regulation, Certificate of Need Section (the Agency) for its decision to exclude hospital-affiliated facilities from its calculation of the county average based on its specialized knowledge because the evidence presented at the hearing corroborated the Agency’s assertion that hospital-affiliated facilities typically had significantly fewer Medicaid patients than other skilled nursing facilities within Wake County and artificially skewed the county average. AH N.C. Owner LLC v. N.C. HHS, 240 N.C. App. 92, 771 S.E.2d 537, 2015 N.C. App. LEXIS 288 (2015).

Agency Decision Reversed. —

Final agency decision of the North Carolina Department of Health and Human Services (DHHS), which upheld two settlement agreements between the DHHS Certificate of Need (CON) section and a group of medical centers and issued a CON to the group for a hospital project was reversed on appeal, because the DHHS failed to follow statutory procedure when it rejected an administrative law judge’s recommendation to deny the CON applications of the group by erroneously considering new evidence, which it had no statutory authority to do. Mooresville Hosp. Mgmt. Assocs. v. N.C. HHS, Div. of Facility Servs., 169 N.C. App. 641, 611 S.E.2d 431, 2005 N.C. App. LEXIS 796 , vacated, 360 N.C. 156 , 622 S.E.2d 621, 2005 N.C. LEXIS 1311 (2005).

Remand Required Where Findings Are Found Insufficient. —

Where, on review of an order of a state commission permitting petitioner savings and loan association to open a branch office, the trial court determined that the commission’s findings were insufficient in that they lacked the specificity required by this section, the trial court should never have reached the question of whether reversal under former G.S. 150A-51(5) was appropriate, as remand for further findings was essential upon concluding that the findings of record presented an inadequate basis for review. Under no applicable theory of law would it be appropriate for the trial court to reverse the commission and substitute its judgment for the commission’s. Community Sav. & Loan Ass'n v. North Carolina Sav. & Loan Comm'n, 43 N.C. App. 493, 259 S.E.2d 373, 1979 N.C. App. LEXIS 3097 (1979).

Case was remanded because the final decision did not indicate that the conduct of a technician who worked for a county department of social services amounted to unacceptable personal conduct, and no conclusion of law asserted the department had substantive just cause for any disciplinary action; the ALJ had to make findings of fact and conclusions of law regarding whether the conduct was unacceptable personal conduct, and whether it amounted to just cause for the disciplinary action taken. Watlington v. Dep't of Soc. Servs. Rockingham Cnty., 252 N.C. App. 512, 799 S.E.2d 396, 2017 N.C. App. LEXIS 220 (2017), overruled in part, Rouse v. Forsyth Cty. Dep't of Soc. Servs., 373 N.C. 400 , 838 S.E.2d 390, 2020 N.C. LEXIS 93 (2020).

Administrative agencies should be encouraged to continue cases under active deliberation until rendition of a final decision, to assure that that decision is the product of adequate, sound deliberation. In re Alamance Sav.& Loan Ass'n, 53 N.C. App. 326, 280 S.E.2d 748, 1981 N.C. App. LEXIS 2592 (1981).

Final agency decision in writing envisioned by former G.S. 150A-36 was not merely a memorialization of the decision, but was the decision itself, without which agency action did not become final. In re Alamance Sav.& Loan Ass'n, 53 N.C. App. 326, 280 S.E.2d 748, 1981 N.C. App. LEXIS 2592 (1981).

Under subsection (b) of this section, a final agency decision in a contested case hearing must be based on the official record prepared pursuant to G.S. 150B-37 l; the agency is not permitted to hear new evidence, and if it does so, the trial court on review is required to reverse or remand the agency decision. Everhart & Assocs. v. Department of Env't, Health & Natural Resources, 127 N.C. App. 693, 493 S.E.2d 66, 1997 N.C. App. LEXIS 1186 (1997).

Local Appointing Authority. —

A “local appointing authority,” within the meaning of G.S. 126-37 (now repealed), is required to render its decision in accordance with subsection (b) of this section. Cunningham v. Catawba County, 128 N.C. App. 70, 493 S.E.2d 82, 1997 N.C. App. LEXIS 1208 (1997).

DSS was required, in rejecting the recommended decision of the Commission, to state the specific reasons why it did not adopt the recommended decision and serve a copy of its final decision on the petitioner; however, because the legislature did not specifically require that the “local appointing authority” comply with subsection (b), there was no obligation to enter findings of fact and conclusions of law, as required by subsection (b). Cunningham v. Catawba County, 128 N.C. App. 70, 493 S.E.2d 82, 1997 N.C. App. LEXIS 1208 (1997).

In discrimination cases, G.S. 126-37(b1) (now repealed) and G.S. 150B-36 provide that when the State Personnel Commission [now the North Carolina Human Resources Commission] makes a finding of discrimination, this is binding upon the local appointing authority; the case is then subject to judicial review. Due process concerns are not as strong in discrimination cases because the local appointing authority will never have an opportunity to reverse a finding of discrimination by the State Personnel Commission. Enoch v. Alamance County Dep't of Soc. Servs., 164 N.C. App. 233, 595 S.E.2d 744, 2004 N.C. App. LEXIS 810 (2004).

Duty of Agency to Allow Adequate Opportunity to File Exceptions. —

This section places an affirmative duty on the agency to allow parties an adequate opportunity to file exceptions to the recommended decision, but in no way obligates parties to file specific exceptions to the recommended decision before issuance of the final agency decision. Owen v. UNC-G Physical Plant, 121 N.C. App. 682, 468 S.E.2d 813, 1996 N.C. App. LEXIS 152 (1996).

Subsection (a) simply provides the parties with an opportunity to file written exceptions and/or written arguments; it does not create an additional exhaustion hurdle. Jackson v. Department of Admin., 127 N.C. App. 434, 490 S.E.2d 248, 1997 N.C. App. LEXIS 886 (1997).

No Obligation to File Specific Exceptions. —

Although this section places an affirmative duty on the agency to provide the opportunity to file exceptions to the parties, the plain language in no way obligates petitioners to file specific exceptions to the recommended decision before issuance of the final agency decision. Jackson v. Department of Admin., 127 N.C. App. 434, 490 S.E.2d 248, 1997 N.C. App. LEXIS 886 (1997).

Decision Not Made on Unlawful Procedure. —

A decision of the State Board of Elections ordering a new election for certain county officers was not made on “unlawful procedure” without findings of fact where the chairman orally announced the board’s decision on December 6, 1978, to order a new election because of irregularities in assistance rendered to persons who voted by absentee ballots and in the collection and return of voted absentee ballots; a written decision was filed on the same day incorporating the oral decision; and order was entered December 14, 1978, setting a date for the new election and setting out the rules and procedures for its conduct; and on February 13, 1979, the state board filed a written order containing its findings of fact and conclusions of law. In re Judicial Review by Republican Candidates, 45 N.C. App. 556, 264 S.E.2d 338, 1980 N.C. App. LEXIS 2699 (1980).

Service of Final Decision. —

Plain language of G.S. 150B-36(b3) and G.S. 150B-42(a) applies to agencies, not the North Carolina Office of Administrative Hearings, and there was no requirement that the Office of Administrative Hearings serve a final decision personally or by certified mail; in any event, a day care did not deny receiving a copy of the final decision and its substantial rights were not prejudiced in any way. Lincoln v. N.C. HHS, Nutrition Branch, 172 N.C. App. 567, 616 S.E.2d 622, 2005 N.C. App. LEXIS 1804 (2005).

University of North Carolina’s State Residence Committee (SRC) is exempt from the entire Administrative Procedure Act; therefore, although provisions in the act requiring judicial review of final administrative review were applicable, the SRC was not governed by this section, which requires agencies to state reasons for their decisions. Wilson v. State Residence Comm., 92 N.C. App. 355, 374 S.E.2d 415, 1988 N.C. App. LEXIS 1045 (1988).

Recusal From Decision Review. —

Failure of the Director of the Division of Facility Services [now the Division of Health Service Regulation] of DHHS to recuse herself from reviewing her own decision did not amount to a violation of the applicant’s competitor’s due process rights. Bio-Medical Applications of N.C. Inc. v. North Carolina Dep't of Human Resources, Div. of Facility Servs., Certificate of Need Section, 136 N.C. App. 103, 523 S.E.2d 677, 1999 N.C. App. LEXIS 1372 (1999).

Administrative Law Judge’s Decision Reviewed by Personnel Commission. —

The administrative law judge must render a decision on the motion which is presented, but the administrative law judge’s ruling is subject to review by the ultimate factfinder, the Personnel Commission. Eury v. North Carolina Emp. Sec. Comm'n, 115 N.C. App. 590, 446 S.E.2d 383, 1994 N.C. App. LEXIS 778 (1994), limited, Warren v. N.C. Dep't of Crime Control & Pub. Safety, 221 N.C. App. 376, 726 S.E.2d 920, 2012 N.C. App. LEXIS 770 (2012).

No statutory authority exists for the State Personnel Commission [now the North Carolina Human Resources Commission] to review an administrative law judge’s recommended decision in a case involving an exempt employee. Johnson v. Natural Resources & Community Dev., 98 N.C. App. 334, 391 S.E.2d 48, 1990 N.C. App. LEXIS 386 (1990).

Failure to Adequately Explain Rejection of Administrative Law Judge’s Decision. —

In light of the fact that the North Carolina Department of Health and Human Services had never revoked licenses of ambulance providers for understaffing their ambulances and had no guidelines for such license revocation, the Department failed to explain adequately both its revocation of a provider’s license for understaffing and its rejection of an administrative law judge’s decision to stay revocation, as required by G.S. 150B-36(b1). Cape Med. Transp., Inc. v. N.C. HHS, 162 N.C. App. 14, 590 S.E.2d 8, 2004 N.C. App. LEXIS 17 (2004).

Dismissal Proper. —

Substantial evidence in the record supported an administrative law judge’s findings and its dismissal of a day care’s petition for a contested case hearing where the day care filed nothing in nearly six months following the filing of the petition, despite receiving several orders from the administrative law judge to file and serve prehearing statements and other responses to motions. Lincoln v. N.C. HHS, Nutrition Branch, 172 N.C. App. 567, 616 S.E.2d 622, 2005 N.C. App. LEXIS 1804 (2005).

Summary Judgment. —

When a provider contested granting a certificate of need to a competitor, an administrative law judge could grant summary judgment because (1) G.S. 131E-188(a) did not give the provider an unconditional right to a hearing, as the right was contingent on a valid petition, and (2) G.S. 150B-33(b)(3a) and G.S. 150B-34(e) allowed summary judgment. Cumberland County Hosp. Sys. v. N.C. HHS, 237 N.C. App. 113, 764 S.E.2d 491, 2014 N.C. App. LEXIS 1129 (2014).

Memorandum of Consideration Not Final Decision. —

Trial court properly held that an administrative law judge’s (ALJ’s) recommended decision became the final decision of the North Carolina State Personnel Commission [now the North Carolina Human Resources Commission] where the Commission was evenly divided and its Memorandum of Consideration did not recite any findings of fact or conclusions of law; as the Memorandum of Consideration did not constitute a final decision, the Commission failed to make a final decision within the time set forth in G.S. 150B-44 and in order to protect the employee from unreasonable delay resulting from the Commission’s failure to issue a final decision, the ALJ’s recommended decision became the final decision by operation of law. Teague v. N.C. DOT, 177 N.C. App. 215, 628 S.E.2d 395, 2006 N.C. App. LEXIS 863 (2006), cert. denied, 362 N.C. 373 , 662 S.E.2d 395, 2008 N.C. LEXIS 363 (2008), cert. dismissed, 677 S.E.2d 842, 2009 N.C. LEXIS 466 (N.C. 2009), cert. denied, 365 N.C. 556 , 722 S.E.2d 602, 2012 N.C. LEXIS 381 (2012), cert. denied, 568 U.S. 949, 133 S. Ct. 444, 184 L. Ed. 2d 271, 2012 U.S. LEXIS 7842 (2012).

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first.With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Effect of Amendments.

Session Laws 2011-398, s. 19, deleted “neither” preceding “the administrative law judge” and “nor a member or employee of the agency making a final decision in the case” following “contested case,” and substituted “may not communicate” for “may communicate.” For effective date and applicability, see editor’s note.

CASE NOTES

Former employee’s proposed amendment to a federal district court action under 42 U.S.C.S. § 1983, which would have added an alleged violation of G.S. 150B-35 , was denied because the proposed amendments could have been addressed in the earlier state court proceedings and did not change the fact that the employee’s claim was barred under the doctrine of res judicata and the Rooker-Feldman doctrine. Hearne v. Sherman, 2002 U.S. Dist. LEXIS 25256 (M.D.N.C. Nov. 12, 2002).

Ex parte communication by a director for an administrative agency to counsel for a party following a contested case hearing in the preparation of a final agency decision violated G.S. 150B-35 and constituted an error of law under G.S. 150B-51(b). Mission Hosps., Inc. v. N.C. HHS, 189 N.C. App. 263, 658 S.E.2d 277, 2008 N.C. App. LEXIS 548 , writ denied, 667 S.E.2d 464, 2008 N.C. LEXIS 752 (N.C. 2008).

Editor’s Note.

Former G.S. 150B-36 pertained to final decisions.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first.With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Effect of Amendments.

Session Laws 2011-398, s. 21, in subdivision (a)(6), substituted “final decision” for “decision”; and in subsection (c), deleted “official record to the agency making the final decision and shall forward a copy of the” following “copy of the” and inserted “final.” For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Some of the cases below were decided prior to the 1991 amendments to this Chapter.

Board of Adjustment Not Required to Sound-Record Hearings. —

Municipal corporations are specifically excluded from requirements under former G.S. 150A-37 and former G.S. 150A-29 that trial rules of evidence and production of evidence be followed in proceedings before State agencies. Thus a Board of Adjustment is not required to sound-record its hearings. Washington Park Neighborhood Ass'n v. Winston-Salem Zoning Bd. of Adjustment, 35 N.C. App. 449, 241 S.E.2d 872, 1978 N.C. App. LEXIS 3006 (1978) (decided under corresponding provisions of former Chapter 150A).

No statutory authority exists for the State Personnel Commission [now the North Carolina Human Resources Commission] to review an administrative law judge’s recommended decision in a case involving an exempt employee. Johnson v. Natural Resources & Community Dev., 98 N.C. App. 334, 391 S.E.2d 48, 1990 N.C. App. LEXIS 386 (1990).

Official Record Required. —

Under G.S. 150B-36(b), a final agency decision in a contested case hearing must be based on the official record prepared pursuant to this section; the agency is not permitted to hear new evidence, and if it does so, the trial court on review is required to reverse or remand the agency decision. Everhart & Assocs. v. Department of Env't, Health & Natural Resources, 127 N.C. App. 693, 493 S.E.2d 66, 1997 N.C. App. LEXIS 1186 (1997).

Offers of Proof Part of Official Record. —

Commission properly considered offers of proof included in the record since offers of proof are part of the official record under subdivision (a)(2) of this section and not “new evidence” violative of G.S. 150B-51(a). Everhart & Assocs. v. Department of Env't, Health & Natural Resources, 127 N.C. App. 693, 493 S.E.2d 66, 1997 N.C. App. LEXIS 1186 (1997).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— The opinion below was issued prior to the 1991 amendments to this Chapter.

The tapes of a contested case which have not been transcribed must be included in the official record prepared by the Office of Administrative Hearings pursuant to subdivision (a)(3) and forwarded to the final agency decision maker pursuant to subsection (c). See opinion of Attorney General to Mr. John B. DeLuca, Assistant Director, Office of Legal Affairs, Dept. of Human Resources, 58 N.C. Op. Att'y Gen. 85 (1988).

Editor’s Note.

Session Laws 2011-398, s. 58, provides: “The Joint Regulatory Reform Committee shall study the procedural and substantive requirements of administrative hearings conducted under Article 3A of Chapter 150B of the General Statutes. The Committee shall examine the various procedures used by the entities that conduct administrative hearings under Article 3A to identify areas of consistency and inconsistency with the purpose of designing procedures that are applicable to all Article 3A hearings and that ensure that the hearings provide a meaningful opportunity to be heard and for dispute resolution. The Joint Regulatory Reform Committee shall report its findings and recommendations to the 2012 Regular Session of the 2011 General Assembly.”

Session Laws 2015-241, s. 7A.3, provides, in part: “The Revisor of Statutes may conform names and titles changed by this section and may correct statutory references as required by this section throughout the General Statutes. In making the changes authorized by this section, the Revisor may also adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority, the Revisor of Statutes substituted “Article 14 of Chapter 143B” for “Article 3D of Chapter 147” in subdivision (a)(4).

Session Laws 2015-241, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2015.’ ”

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments.

Session Laws 2010-169, s. 7, effective August 2, 2010, added subdivision (a)(6).

Session Laws 2011-332, s. 2.3, effective October 1, 2011, and applicable to notices given on or after that date, rewrote subsection (c).

Session Laws 2015-241, s. 7A.4(ff), effective September 18, 2015, added subsection (i).

Session Laws 2018-146, s. 4.4(b), effective December 18, 2018, repealed subdivision (a)(6), which read: “The Bipartisan State Board of Elections and Ethics Enforcement in the administration of any investigation or audit under the provisions of Article 23 of Chapter 163A of the General Statutes.”

Session Laws 2021-88, s. 16(c), effective July 22, 2021, inserted “all of the following” in subsection (b); substituted “party that has” for “party who has,” and “shall be mailed” for “must be mailed” in subsection (d); substituted “an objection” for “his objection,” and “by proceeding” for “if he proceeds” in the last sentence of subsection (e); repealed subsection (i), which read: “Standards adopted by the State Chief Information Officer and applied to information technology as defined in G.S. 143B-1320”; and made stylistic changes.

Legal Periodicals.

For note, “Contested Case Hearings Under the North Carolina Administrative Procedure Act: 1985 Rewrite Contains Dual System of Administrative Adjudication,” see 64 N.C.L. Rev. 852 (1986).

For article, “Expanding the Role of North Carolina State Courts in Resolving Public Housing Disputes,” see 33 N.C. Cent. L. Rev. 40 (2010).

CASE NOTES

Applicability of Article. —

Article 3 of the North Carolina Administrative Procedure Act applies to administrative hearings conducted by the Office of Administrative Hearings before an administrative law judge, while Article 3A applies to “other administrative hearings” which are conducted by state agencies enumerated in this section. Homoly v. North Carolina State Bd. of Dental Examrs., 121 N.C. App. 695, 468 S.E.2d 481, 1996 N.C. App. LEXIS 138 (1996).

Action Sufficient to Trigger Contested Case Provisions. —

Petitioner’s letter, requesting expungement of a record, and requesting an opportunity to meet with the administrative board, was sufficient to trigger the contested case provisions of this section, and respondent’s subsequent denial of the request constituted agency action on a contested case which affected the substantive rights of petitioner. In re Sullivan, 112 N.C. App. 795, 436 S.E.2d 862, 1993 N.C. App. LEXIS 1254 (1993).

Revocation of Law Enforcement Officer’s License. —

Petitioner was entitled to both notice and an opportunity to be heard prior to the revocation of his license as a law enforcement officer by the Criminal Justice Education and Training Standards Commission, where such adjudicatory action constituted agency action on a contested case affecting substantive rights. Scroggs v. North Carolina Criminal Justice Educ. & Training Stds. Comm'n, 101 N.C. App. 699, 400 S.E.2d 742, 1991 N.C. App. LEXIS 156 (1991) (decided prior to the 1991 amendments to this Chapter) .

Charges Against Licensees of a Board. —

The General Assembly intended that any person who prefers charges against, inter alia, a licensee of the Board is entitled to a hearing and decision on those charges. Bryant v. North Carolina State Bd. of Exmrs. of Elec. Contractors, 338 N.C. 288 , 449 S.E.2d 188, 1994 N.C. LEXIS 647 (1994).

Notice of disciplinary hearings by the North Carolina Psychology Board must be given not less than 15 days before the hearing, under G.S. 150B-38(b); under G.S. 150B-40(a), such hearings shall be conducted in a fair and impartial manner and the parties shall be given an opportunity to present evidence on issues of fact, examine and cross-examine witnesses, including the author of a document prepared by, on behalf of or for the use of the agency and offered into evidence, submit rebuttal evidence, and present arguments on issues of law or policy. Farber v. N.C. Psychology Bd., 153 N.C. App. 1, 569 S.E.2d 287, 2002 N.C. App. LEXIS 1085 , cert. denied, 356 N.C. 612 , 574 S.E.2d 679, 2002 N.C. LEXIS 1375 (2002).

Board of Examiners of Electrical Contractors Required to Hold Hearing. —

Though the language is not explicit in requiring that the Board of Examiners of Electrical Contractors hold a hearing on charges, such a requirement is implicit both in the language referring to “hearings of charges” and in the stated purpose of the statute governing the jurisdiction of the Board to hear such charges. Bryant v. North Carolina State Bd. of Exmrs. of Elec. Contractors, 338 N.C. 288 , 449 S.E.2d 188, 1994 N.C. LEXIS 647 (1994).

Majority of Board. —

Administrative hearing revoking a funeral home license was conducted by a “majority of the agency,” as required by G.S. 150B-40(b); although only four members of the nine-member board were present for the entire hearing, which was held in two parts, a majority was present on each occasion. Wilson Funeral Dirs., Inc. v. N.C. Bd. of Funeral Serv., 244 N.C. App. 768, 781 S.E.2d 507, 2016 N.C. App. LEXIS 49 (2016).

Intent of Statute Mandated Hearing. —

It would be contrary to the intent expressed in G.S. 87-47(a1), that of protecting the public, to determine that plaintiff was not entitled to a hearing and decision on charges brought to effectuate that very purpose. Bryant v. North Carolina State Bd. of Exmrs. of Elec. Contractors, 338 N.C. 288 , 449 S.E.2d 188, 1994 N.C. LEXIS 647 (1994).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— Some of the opinions below were issued prior to the 1991 amendments to this Chapter.

CASE NOTES

Changes Against Licensees of a Board. —

The General Assembly intended that any person who prefers charges against, inter alia, a licensee of a board is entitled to a hearing and decision on those charges. Bryant v. North Carolina State Bd. of Exmrs. of Elec. Contractors, 338 N.C. 288 , 449 S.E.2d 188, 1994 N.C. LEXIS 647 (1994).

Notice of disciplinary hearings by the North Carolina Psychology Board must be given not less than 15 days before the hearing, under G.S. 150B-38(b); under G.S. 150B-40(a), such hearings shall be conducted in a fair and impartial manner and the parties shall be given an opportunity to present evidence on issues of fact, examine and cross-examine witnesses, including the author of a document prepared by, on behalf of or for the use of the agency and offered into evidence, submit rebuttal evidence, and present arguments on issues of law or policy. Farber v. N.C. Psychology Bd., 153 N.C. App. 1, 569 S.E.2d 287, 2002 N.C. App. LEXIS 1085 , cert. denied, 356 N.C. 612 , 574 S.E.2d 679, 2002 N.C. LEXIS 1375 (2002).

Intent of Statute Mandated Hearing. —

It would be contrary to the intent expressed in G.S. 87-47(a1), that of protecting the public, to determine that plaintiff was not entitled to a hearing and decision on charges brought to effectuate that very purpose. Bryant v. North Carolina State Bd. of Exmrs. of Elec. Contractors, 338 N.C. 288 , 449 S.E.2d 188, 1994 N.C. LEXIS 647 (1994).

Spirit Not Violated. —

Under the plain language of G.S. 150B-40(d), the prohibition on ex parte communication by agency members “begins at the time of the notice of hearing;” where the probable cause hearing took place two months before the North Carolina Psychology Board issued its statement of charges, and nine months before it issued the notice of hearing, as the probable cause hearing occurred well before the statutory prohibition on ex parte communications arose, the trial court erred in concluding that the Board violated the spirit of G.S. 150B-40(d). Farber v. N.C. Psychology Bd., 153 N.C. App. 1, 569 S.E.2d 287, 2002 N.C. App. LEXIS 1085 , cert. denied, 356 N.C. 612 , 574 S.E.2d 679, 2002 N.C. LEXIS 1375 (2002).

Board of Examiners of Electrical Contractors Required to Hold Hearing. —

Though the language is not explicit in requiring that the Board of Examiners of Electrical Contractors hold a hearing on charges, such a requirement is implicit both in the language referring to “hearings of charges” and in the stated purpose of the statute governing the jurisdiction of the Board to hear such charges. Bryant v. North Carolina State Bd. of Exmrs. of Elec. Contractors, 338 N.C. 288 , 449 S.E.2d 188, 1994 N.C. LEXIS 647 (1994).

Majority of Board. —

Administrative hearing revoking a funeral home license was conducted by a “majority of the agency,” as required by G.S. 150B-40(b); although only four members of the nine-member board were present for the entire hearing, which was held in two parts, a majority was present on each occasion. Wilson Funeral Dirs., Inc. v. N.C. Bd. of Funeral Serv., 244 N.C. App. 768, 781 S.E.2d 507, 2016 N.C. App. LEXIS 49 (2016).

The provisions of this section do not apply to hearings conducted by the Commission for Health Services [now the Commission for Public Health]. Act-Up Triangle v. Commission for Health Servs., 345 N.C. 699 , 483 S.E.2d 388, 1997 N.C. LEXIS 190 (1997).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— Some of the opinions below were issued prior to the 1991 amendments to this Chapter.

CASE NOTES

Peer Review. —

Court of Appeals of North Carolina found that the rationale which the Supreme Court of North Carolina used in its Leahy decision for allowing the North Carolina Board of Nursing to determine the standard of care based on its own expertise was not transferable to a case where the North Carolina State Board of Dental Examiners reviewed the conduct of an orthodontist because no member of the Board of Dental Examiners that sat in judgment of the orthodontist was as orthodontist. Watkins v. N.C. State Bd. of Dental Exam'rs, 157 N.C. App. 367, 579 S.E.2d 510, 2003 N.C. App. LEXIS 746 (2003), rev'd, 358 N.C. 190 , 593 S.E.2d 764, 2004 N.C. LEXIS 207 (2004).

CASE NOTES

Service of Final Decision. —

Plain language of G.S. 150B-36(b3) and G.S. 150B-42(a) applies to agencies, not the North Carolina Office of Administrative Hearings, and there was no requirement that the Office of Administrative Hearings serve a final decision personally or by certified mail; in any event, a day care did not deny receiving a copy of the final decision and its substantial rights were not prejudiced in any way. Lincoln v. N.C. HHS, Nutrition Branch, 172 N.C. App. 567, 616 S.E.2d 622, 2005 N.C. App. LEXIS 1804 (2005).

Editor’s Note.

Session Laws 2000-67, ss. 24(a) and (b), establishes a reserve in the Office of State Budget and Management (now the Office of State Budget, Planning, and Management), consisting of appropriations from the General Assembly and funds received from any State agency in accordance with s. 24. When a State agency files a petition for judicial review of a final decision of the Rules Review Commission under Article 4 of Chapter 150B and the Rules Review Commission prevails in that action, that State agency is to deposit to the reserve a sum equal to the Commission’s actual attorneys’ fees.

Session Laws 2000-67, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2000.’ ”

Session Laws 2000-67, s. 28.2, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2000-2001 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2000-2001 fiscal year.”

Session Laws 2000-67, s. 28.4, is a severability clause.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Session Laws 2020-3, s. 1.1(a)-(d), provides: “(a) Interest Waiver. — As a result of the COVID-19 outbreak, the Secretary of Revenue has extended the franchise, corporate income, and individual income tax payment deadline from April 15, 2020, to July 15, 2020, and pursuant to G.S. 105-249.2 , the Secretary will not assess a penalty for failure to file a return or pay a tax due as long as the return is filed and the tax due is paid by July 15, 2020. Notwithstanding G.S. 105-241.21(b), the Secretary of Revenue shall also waive the accrual of interest from April 15, 2020, through July 15, 2020, on an underpayment of tax imposed on a franchise, corporate income, or individual income tax return, including a partnership and estate and trust tax return, due from April 15, 2020, through July 15, 2020. The relief from accrual of interest from April 15, 2020, through July 15, 2020, also includes interest imposed pursuant to G.S. 105-163.15 and G.S. 105-163.41 for payments due on or before July 15, 2020.

“(b) Refund Request. — For franchise, corporate income, and individual income tax, the statute of limitations for obtaining a refund is extended to July 15, 2020, for refund claims for which the statute of limitations to seek a refund expires on or after April 15, 2020, and before July 15, 2020.

“(c) Time-Sensitive Actions. — Certain actions required to be taken by a taxpayer on or after April 1, 2020, and before July 15, 2020, will be considered timely if the request or petition is filed on or before July 15, 2020. This subsection applies to requests for Departmental review under G.S. 105-241.11 , petitions for a contested case hearing at the Office of Administrative Hearings under Article 3 of Chapter 150B of the General Statutes and G.S. 105-241.15 , and petitions for judicial review under Article 4 of Chapter 150B of the General Statutes and G.S. 105-241.16 .

“(d) This section is effective when it becomes law.” Session Laws 2020-3 became law on May 4, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments.

Session Laws 2011-398, s. 22, substituted “Any party or person aggrieved” for “Any person who is aggrieved” and substituted “the party or person aggrieved” for “him,” or similar language throughout. For effective date and applicability, see editor’s note.

Session Laws 2019-140, s. 2(b), effective July 19, 2019, deleted “Absent a specific statutory requirement, nothing in this Chapter shall require” and inserted “shall not be required” in the last sentence.

Legal Periodicals.

For comment on former Article 33 of Chapter 143, see 31 N.C.L. Rev. 378, 382 (1953).

For note on determination of validity of rules and regulations before their application in specific cases, see 36 N.C.L. Rev. 473 (1958).

For note on judicial review of student disciplinary proceedings, see 43 N.C.L. Rev. 152 (1964).

For case law survey as to judicial review of decisions of administrative agencies, see 45 N.C.L. Rev. 816 (1967).

For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For comment, “The Problem of Procedural Delay in Contested Case Hearings . . .” under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For survey of 1976 case law dealing with administrative law, see 55 N.C.L. Rev. 898 (1977).

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For survey of 1979 tax law, see 58 N.C.L. Rev. 1548 (1980).

For article, “Advisory Rulings by Administrative Agencies: Their Benefits and Dangers,” see 2 Campbell L. Rev. 1 (1980).

For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1017 (1981).

For comment discussing life insurance, divorce, and inheritance tax in light of In re Kapoor, 303 N.C. 102 , 277 S.E.2d 403 (1981), see 13 N.C. Cent. L.J. 253 (1982).

For article, “Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment,” see 79 N.C.L. Rev. 1571 (2001).

CASE NOTES

Analysis

• I. General Consideration
• II. Aggrieved Person
• III. Contested Case
• IV. Final Decision
• V. Exhaustion of Administrative Remedies
• VI. Adequate Judicial Review Under Another Statute
• VII. Illustrative Cases

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first.With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Effect of Amendments.

Session Laws 2008-168, s. 5(b), effective July 1, 2008, added the last sentence.

Session Laws 2011-398, s. 23, deleted the former second through sixth sentences, and rewrote the next-to-last sentence. For effective date and applicability, see editor’s note.

Session Laws 2014-120, s. 59(b), effective September 18, 2014, inserted “final” in the section catchline; deleted the former first sentence which read: “Unreasonable delay on the part of any agency or administrative law judge in taking any required action shall be justification for any person whose rights, duties, or privileges are adversely affected by such delay to seek a court order compelling action by the agency or administrative law judge.”; and deleted the former last sentence which read: “The Board of Trustees of the North Carolina State Health Plan for Teachers and State Employees is a “board” for purposes of this section.”

Legal Periodicals.

For article, “Advisory Rulings by Administrative Agencies: Their Benefits and Dangers,” see 2 Campbell L. Rev. 1 (1980).

For article, “Administrative Justice: No Longer Just a Recommendation,” see 79 N.C.L. Rev. 1639 (2001).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A, or under this Chapter prior to the 1991 amendments thereto.

Due Process Rights Not Violated. —

North Carolina Department of Health and Human Services violated a mother’s due process and equal protection rights because although the hearing officer’s final decision came some time after the hearing date, the mother’s children failed to take advantage of their statutory right to compel the hearing officer to take action; the children were afforded an adequate opportunity to have their concerns addressed in a timely manner, but merely failed to take advantage of that right, and their equal protection rights were not violated by the hearing officer’s delay. Cloninger v. N.C. HHS, 203 N.C. App. 345, 691 S.E.2d 127, 2010 N.C. App. LEXIS 564 (2010).

Decision Held Unreasonably Delayed. —

Trial court did not err in reversing decision by North Carolina State Personnel Commission [now the North Carolina Human Resources Commission] as untimely under G.S. 150B-44 , and in adopting the administrative law judge’s recommended order, due to the delay beyond 60 days in the entry of the Commission’s order; the Commission did not seek to extend the time limit by consent or unilaterally when it reconsidered its original order and then reissued its order. Gordon v. N.C. Dep't of Corr., 173 N.C. App. 22, 618 S.E.2d 280, 2005 N.C. App. LEXIS 1918 (2005).

Trial court properly held that an administrative law judge’s (ALJ’s) recommended decision became the final decision of the North Carolina State Personnel Commission [now the North Carolina Human Resources Commission] where the Commission was evenly divided and its Memorandum of Consideration did not recite any findings of fact or conclusions of law; as the Memorandum of Consideration did not constitute a final decision, the Commission failed to make a final decision within the time set forth in G.S. 150B-44 and in order to protect the employee from unreasonable delay resulting from the Commission’s failure to issue a final decision, the ALJ’s recommended decision became the final decision by operation of law. Teague v. N.C. DOT, 177 N.C. App. 215, 628 S.E.2d 395, 2006 N.C. App. LEXIS 863 (2006), cert. denied, 362 N.C. 373 , 662 S.E.2d 395, 2008 N.C. LEXIS 363 (2008), cert. dismissed, 677 S.E.2d 842, 2009 N.C. LEXIS 466 (N.C. 2009), cert. denied, 365 N.C. 556 , 722 S.E.2d 602, 2012 N.C. LEXIS 381 (2012), cert. denied, 568 U.S. 949, 133 S. Ct. 444, 184 L. Ed. 2d 271, 2012 U.S. LEXIS 7842 (2012).

Protection from Unreasonable Delay. —

Parties are protected from unreasonable delay on the part of agencies in reaching final decisions by former G.S. 150A-44 (see now this section), which allows a party adversely affected by such delay to seek a court order compelling action by the agency. In re Alamance Sav.& Loan Ass'n, 53 N.C. App. 326, 280 S.E.2d 748, 1981 N.C. App. LEXIS 2592 (1981).

The right under former G.S. 150A-44 (see now this section) may be asserted to prevent unreasonable delay in reaching a final agency decision. Stevenson v. North Carolina Dep't of Ins., 31 N.C. App. 299, 229 S.E.2d 209, 1976 N.C. App. LEXIS 1971 , cert. denied, 291 N.C. 450 , 230 S.E.2d 767, 1976 N.C. LEXIS 1016 (1976).

Decision Held Unreasonably Delayed. —

State Personnel Commission’s [now the North Carolina Human Resources Commission’s] decision against a county employee issued 130 days after it had received the official record from the hearing officer was “unreasonably delayed” as defined in this section; however, the hearing officer’s decision would not be reinstated. The only available remedy was a court order compelling action by the agency or hearing officer. Davis v. Vance County Dep't of Soc. Servs., 91 N.C. App. 428, 372 S.E.2d 88, 1988 N.C. App. LEXIS 880 (1988).

The Department of Human Resources did not make its final decision within the time limits of this section, where the Department filed an extension, but did not render its final decision until almost six months after it received the record. Holland Group, Inc. v. North Carolina Dep't of Admin., 130 N.C. App. 721, 504 S.E.2d 300, 1998 N.C. App. LEXIS 1159 (1998).

Since the North Carolina Department of Health and Human Services, Division of Medical Assistance (HHS), did not properly extend the deadline under G.S. 150B-44 for issuing a final decision regarding an administrative law judge’s recommendation that it had improperly withheld Medicaid reimbursements, the judgment of the trial court that HHS adopted the recommendation was affirmed on appeal. Albemarle Mental Health Ctr. v. N.C. Dep't of HHS, 159 N.C. App. 66, 582 S.E.2d 651, 2003 N.C. App. LEXIS 1422 (2003), aff'd, 358 N.C. 134 , 591 S.E.2d 519, 2004 N.C. LEXIS 21 (2004).

Self-Executing Decisions. —

When an Article 3 administrative agency failed to issue a final decision regarding the recognition of a tribe as an indigenous North Carolina Indian tribe within the time limits set forth in G.S. 150B-44 , the recommended decision of an administrative law judge became the final decision in the case by operation of law. Occaneechi Band of the Saponi Nation v. N.C. Comm'n of Indian Affairs, 145 N.C. App. 649, 551 S.E.2d 535, 2001 N.C. App. LEXIS 734 (2001).

Good Cause. —

It is the responsibility of an agency governed by G.S. 150B-44 to articulate “good cause” for extending the final decision deadline when there is no agreement by the parties to extend the deadline. Albemarle Mental Health Ctr. v. N.C. Dep't of HHS, 159 N.C. App. 66, 582 S.E.2d 651, 2003 N.C. App. LEXIS 1422 (2003), aff'd, 358 N.C. 134 , 591 S.E.2d 519, 2004 N.C. LEXIS 21 (2004).

Applicability. —

Pursuant to G.S. 150B-1(c) , the North Carolina Department of Health and Human Services, Division of Medical Assistance, is an Article 3 agency and thereby subject to the mandates of G.S. 150B-44 . Albemarle Mental Health Ctr. v. N.C. Dep't of HHS, 159 N.C. App. 66, 582 S.E.2d 651, 2003 N.C. App. LEXIS 1422 (2003), aff'd, 358 N.C. 134 , 591 S.E.2d 519, 2004 N.C. LEXIS 21 (2004).

Office of Administrative Hearings was not the appropriate forum for review of a virtual charter school applicant’s challenge to the State Board of Education’s inaction on its application where the applicant had not followed the G.S. 150B-44 timeline. N.C. State Bd. of Educ. v. N.C. Learns, Inc., 231 N.C. App. 270, 751 S.E.2d 625, 2013 N.C. App. LEXIS 1230 (2013).

Waiver. —

Forestry association that participated in hearings conducted by the North Carolina Environmental Management Commission (EMC) to review an administrative law judge’s (ALJ’s) decision waived its claim that the EMC lost its power to review the ALJ’s decision, by conducting the hearings beyond the time limits prescribed by G.S. 150B-44 , when it failed to make its claim to the EMC. N.C. Forestry Ass'n v. N.C. Dep't of Env't & Natural Res., 162 N.C. App. 467, 591 S.E.2d 549, 2004 N.C. App. LEXIS 178 (2004).

De Novo Review Proper. —

Trial court properly applied the substantial evidence test in reviewing an administrative law judge’s findings of fact and conclusions of law; the trial court also properly employed a de novo review of the question of the application of G.S. 150B-44 . Teague v. N.C. DOT, 177 N.C. App. 215, 628 S.E.2d 395, 2006 N.C. App. LEXIS 863 (2006), cert. denied, 362 N.C. 373 , 662 S.E.2d 395, 2008 N.C. LEXIS 363 (2008), cert. dismissed, 677 S.E.2d 842, 2009 N.C. LEXIS 466 (N.C. 2009), cert. denied, 365 N.C. 556 , 722 S.E.2d 602, 2012 N.C. LEXIS 381 (2012), cert. denied, 568 U.S. 949, 133 S. Ct. 444, 184 L. Ed. 2d 271, 2012 U.S. LEXIS 7842 (2012).

Editor’s Note.

Session Laws 2007-491, s. 47, provides, in part: “The procedures for review of disputed tax matters enacted by this act apply to assessments of tax that are not final as of the effective date of this act and to claims for refund pending on or filed on or after the effective date of this act. This act does not affect matters for which a petition for review was filed with the Tax Review Board under G.S. 105-241.2 [repealed] before the effective date of this act. The repeal of G.S. 105-122(c) and G.S. 105-130.4(t) and Sections 11 and 12 apply to requests for alternative apportionment formulas filed on or after the effective date of this act. A petition filed with the Tax Review Board for an apportionment formula before the effective date of this act is considered a request under G.S. 105-122(c1) or G.S. 105-130.4(t1), as appropriate.”

Session Laws 2013-143, s. 5, made the amendments to this section by Session Laws 2013-143, s. 4, effective October 1, 2013, and applicable to petitions for judicial review filed on or after that date.

Session Laws 2018-13, s. 6, is a severability clause.

Session Laws 2018-13, s. 7, made subsection (c) of this section, as added by Session Laws 2018-13, s. 3.1, effective June 20, 2018, and applicable to elections held on or after that date.

Session Laws 2018-146, s. 6.1, provides: “Consistent with this act, the Revisor is authorized to change all references to the Bipartisan State Board of Elections and Ethics Enforcement to instead be references to the State Board of Elections, State Ethics Commission, or Secretary of State, as appropriate. The Revisor may modify statutory citations throughout the General Statutes, as appropriate, and may modify any references to statutory divisions, such as ‘Chapter,’ ‘Subchapter,’ ‘Article,’ ‘Part,’ ‘section,’ and ‘subsection’; adjust the order of lists of multiple statutes to maintain statutory order; correct terms and conform names and titles changed by this act; eliminate duplicative references to the State Boards that result from the changes authorized by this section; and make conforming changes to catch lines and references to catch lines. The Revisor may also adjust subject and verb agreement and the placement of conjunctions. The Revisor shall consult with the Bipartisan State Board of Elections and Ethics Enforcement, the State Board of Elections, the State Ethics Commission, and the Secretary of State, as appropriate, on this recodification.” At the direction of the Revisor of Statutes, no substitution was made for the reference to “State Board of Elections and Ethics Enforcement” in subsection (c) due to uncertainty as to the correct replacement.

Effect of Amendments.

Session Laws 2007-491, s. 43, effective January 1, 2008, rewrote subsection (a) and added the subsection heading in subsection (b).

Session Laws 2018-13, s. 3.1, added subsection (c). For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For survey of 1979 tax law, see 58 N.C.L. Rev. 1548 (1980).

For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A, or under this Chapter prior to the 1991 amendments thereto.

Application of Section. —

Where the complaints and notices of hearing were filed prior to Jan. 1, 1986, the action was commenced prior to Jan. 1, 1986, and Chapter 150B had no application in the case; thus, G.S. 150A-45 (rewritten and recodified as this section), requiring a person seeking review to file a petition in the Superior Court of Wake County, and not this section, permitting such filing in either Wake County or the county where the person resides, governed. Pinewood Manor Mobile Homes, Inc. v. North Carolina Manufactured Hous. Bd., 84 N.C. App. 564, 353 S.E.2d 231, 1987 N.C. App. LEXIS 2532 , writ denied, 319 N.C. 674 , 356 S.E.2d 780, 1987 N.C. LEXIS 2096 (1987).

Procedures and requirements of the North Carolina Administrative Procedure Act, G.S. 150B-1 et seq., were not to be incorporated into the statutory requirements under G.S. 53-92(d) for an appeal from a final decision of the North Carolina State Banking Commission. In re Advance Am., Cash Advance Ctrs. of N.C. Inc., 189 N.C. App. 115, 657 S.E.2d 405, 2008 N.C. App. LEXIS 426 (2008).

It was error to dismiss, for a failure to exhaust administrative remedies, a claim by state foresters against the State for overtime compensation for time spent fighting forest fires because G.S. 143-300.35(a) authorized the maintenance of a separate action in the trial division of the general courts of justice for claims brought by state employees against state agencies under the Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq., without exhausting administrative remedies pursuant to G.S. 126-34.1(a)(11)(a) (now repealed). Brown v. N.C. Dep't of Env't & Natural Res., 212 N.C. App. 337, 714 S.E.2d 154, 2011 N.C. App. LEXIS 1056 (2011).

Jurisdiction Properly Asserted. —

Trial court properly asserted jurisdiction over a county board of education because the board submitted to the jurisdiction of the trial court and waived its personal jurisdiction defense when it failed to raise the issue of jurisdiction at the hearing and argued the merits of the case. Tobe-Williams v. New Hanover County Bd. of Educ., 234 N.C. App. 453, 759 S.E.2d 680, 2014 N.C. App. LEXIS 612 (2014).

Applicant’s motion to dismiss for lack of subject matter jurisdiction was properly denied as a petition challenging its NPDES permit was timely filed under G.S. 150B-45 , and there was no challenge to the good cause shown to extend the time for service. Sound Rivers, Inc. v. N.C. Dep't of Envtl. Quality, Div. of Water Res., 271 N.C. App. 674, 845 S.E.2d 802, 2020 N.C. App. LEXIS 438 (2020).

Good Cause Shown. —

Superior court’s conclusion that there was good cause shown to accept applicant’s untimely new petition did not demonstrate a clear abuse of discretion because the superior court found that the applicants were diligent in its attempts to have the merits of the final agency decision litigated and decided, there was little material harm to the agency from any delay in having the petition untimely filed, and the applicants would suffer a grave injustice by being unable to prosecute the action if the agency’s motion to dismiss was granted. High Rock Lake Partners, LLC v. N.C. DOT, 217 N.C. App. 442, 720 S.E.2d 706, 2011 N.C. App. LEXIS 2594 (2011), rev'd, 366 N.C. 315 , 735 S.E.2d 300, 2012 N.C. LEXIS 1004 (2012).

Under Article 3 of Chapter 150B of the General Statutes, judicial review of a final decision under that article is to be had in the Superior Court of Wake County or the superior court of the county where the person seeking review resides. Iredell Mem. Hosp. v. North Carolina Dep't of Human Resources, 103 N.C. App. 637, 406 S.E.2d 304, 1991 N.C. App. LEXIS 883 (1991).

Where declaratory ruling was not served on county in accordance with statute, county did not waive its right to seek judicial review by waiting more than 30 days after it received a copy of the decision to file its petition for review. In re Brunswick County, 81 N.C. App. 391, 344 S.E.2d 584, 1986 N.C. App. LEXIS 2329 (1986).

Former G.S. 150A-45 (rewritten and recodified as this section) confers exclusive jurisdiction for judicial review of final agency decisions on the Superior Court of Wake County when a state rather than a local agency made the initial determination. State ex rel. Lee v. Williams, 55 N.C. App. 80, 284 S.E.2d 572, 1981 N.C. App. LEXIS 2962 (1981).

Strict Construction of Waiver Provisions. —

Statutory provisions providing for the waiver or forfeiture of the right to judicial review under certain conditions should be construed strictly; and, when so construed, the right to petition for review continues unless and until 30 days have expired from the date “a written copy” of the administrative order has been served on the party seeking review, either by personal service or by registered mail, return receipt requested. In re Appeal of Harris, 273 N.C. 20 , 159 S.E.2d 539, 1968 N.C. LEXIS 821 (1968) (decided prior to enactment of this Chapter) .

No statutory authority exists for the State Personnel Commission [now the North Carolina Human Resources Commission] to review an administrative law judge’s recommended decision in a case involving an exempt employee. Johnson v. Natural Resources & Community Dev., 98 N.C. App. 334, 391 S.E.2d 48, 1990 N.C. App. LEXIS 386 (1990).

A petitioner seeking judicial review of a decision of the North Carolina Driver License Medical Review Board must file such petition in the Superior Court of Wake County pursuant to former G.S. 150A-45 (rewritten and recodified as this section), and may not obtain a hearing under G.S. 20-25 in the superior court of the county in which he resides. Cox v. Miller, 26 N.C. App. 749, 217 S.E.2d 198, 1975 N.C. App. LEXIS 2150 (1975).

Denial of ABC Permit Constituting Action on “Issuance”. —

Where application for an ABC permit was initially denied by commission on Dec. 9, 1985, this denial was clearly a commission action on “issuance” of an ABC permit, and, pursuant to the provisions of G.S. 18B-906 , the ruling on the application became a “contested case” for purposes of the Administrative Procedure Act on Dec. 9, 1985. Therefore, former G.S. 150A-45 (rewritten and recodified as this section), which required petitions for review to be filed in Wake County, was applicable, rather than this section, and the trial court properly dismissed petition for judicial review, which had been filed in Craven County. In re Melkonian, 85 N.C. App. 715, 355 S.E.2d 798, 1987 N.C. App. LEXIS 2643 (1987).

Time for Filing Petition. —

Owners of condemned land were required to file their petition within 30 days of publication of final environmental impact statement concerning proposed state highway. DOT v. Blue, 147 N.C. App. 596, 556 S.E.2d 609, 2001 N.C. App. LEXIS 1235 (2001).

Petition for Review Untimely. —

Employee’s petition for judicial review of a school board’s determination which upheld a superintendent’s decision to terminate the employee was untimely because no other statute provided guidance for the judicial review of school board decisions, so the trial court properly looked to Article 4 of the Administrative Procedure Act to determine the correct time limit; under G.S. 150B-45(a), the time limit was 30 days, and the employee filed her petition nine months after the decision, well outside the 30-day limit. Coomer v. Lee County Bd. of Educ., 220 N.C. App. 155, 723 S.E.2d 802, 2012 N.C. App. LEXIS 514 (2012).

Superior court properly denied a managed-care provider’s motion for an extension to serve a petition for judicial review because its good cause evaluation was supported by reason and was not arbitrary; the superior court clearly determined the provider had accused the opposing parties of procedural gamesmanship, rather than acknowledging a procedural mistake during service and asking the court to excuse that mistake for good cause shown. Aetna Better Health of N.C. Inc. v. N.C. HHS, 2021-NCCOA-486, 279 N.C. App. 261, 866 S.E.2d 265, 2021- NCCOA-486, 2021 N.C. App. LEXIS 497 (2021).

The result of a petitioner’s ineffective attempts to file a petition for a contested case hearing was only a contested case. Community Psychiatric Ctrs. v. North Carolina Dep't of Human Resources, 103 N.C. App. 514, 405 S.E.2d 769, 1991 N.C. App. LEXIS 799 (1991).

Without the jurisdictional prerequisite of a contested case hearing, a petitioner cannot utilize G.S. 131E-188(b) to appeal to the Court of Appeals. Community Psychiatric Ctrs. v. North Carolina Dep't of Human Resources, 103 N.C. App. 514, 405 S.E.2d 769, 1991 N.C. App. LEXIS 799 (1991).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A and earlier statutes, or under this Chapter prior to the 1991 amendments thereto.

Purpose of Statute Necessitates Liberal Construction. —

The primary purpose of the statute is to confer the right of review, and the statute should be liberally construed to preserve and effectuate that right. James v. Wayne County Bd. of Educ., 15 N.C. App. 531, 190 S.E.2d 224, 1972 N.C. App. LEXIS 1958 (1972).

“Explicit” means characterized by full clear expression; being without vagueness or ambiguity; leaving nothing implied. Vann v. North Carolina State Bar, 79 N.C. App. 173, 339 S.E.2d 97, 1986 N.C. App. LEXIS 1984 (1986).

Service Requirements for a Petition for Judicial Review of an Agency Decision. —

Conn. Gen. Stat. § 150B-46 deals with the service of a petition for judicial review of an agency decision, while N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 4 applies generally to service in all civil matters; since § 150B-46 is more specific and there is no legislative intent to the contrary, its terms control the service requirements for a petition for judicial review of an agency decision. Follum v. N.C. State Univ., 198 N.C. App. 389, 679 S.E.2d 420, 2009 N.C. App. LEXIS 1173 (2009).

Service of Petition for Judicial Review. —

Service of a petition for judicial review upon the North Carolina State University’s (NCSU) counsel did not comply with G.S. 150B-46 as the counsel was an employee of the North Carolina Department of Justice and a member of North Carolina’s Attorney General’s (AG) staff, not of NCSU; an employee’s decision to effectuate service by certified mail via a private letter carrier did not render the service of the petition upon an agency’s attorney of record under § 150B-46 as the employee was aware of the physical street address of NCSU’s process agent, and the fact that the AG’s office only provided the employee with a post office box for the process agent did not render the service of the employee’s petition in compliance with § 150B-46. Follum v. N.C. State Univ., 198 N.C. App. 389, 679 S.E.2d 420, 2009 N.C. App. LEXIS 1173 (2009).

Superior court did not err in granting the motion to dismiss filed by the North Carolina Department of Health and Human Services because a managed-care provider failed to timely serve it within the ten days after the petition was filed; the service of an amended pleading was not allowed because the provider’s amended petition for judicial review did not assert additional or amend any causes of action but was “amended” merely in an attempt to avoid the strict application of the statute. Aetna Better Health of N.C. Inc. v. N.C. HHS, 2021-NCCOA-486, 279 N.C. App. 261, 866 S.E.2d 265, 2021- NCCOA-486, 2021 N.C. App. LEXIS 497 (2021).

Petition Sufficient. —

Trial court did not err by denying the State of North Carolina Board of Barber Examiners’ motion to dismiss the owner’s petition for judicial review because the petition was sufficiently explicit to allow effective judicial review. Kindsgrab v. State Bd. of Barber Examiners, 236 N.C. App. 564, 763 S.E.2d 913, 2014 N.C. App. LEXIS 1077 (2014).

Extension of Time to Serve. —

Trial court properly allowed the Highway Patrol to serve a sergeant properly, though outside the 10-day statutory window because the sergeant received a copy of the petition (though through regular mail) within 10 days of the filing of the petition, and once proper service was accomplished, the trial court obtained personal jurisdiction over the sergeant. NC Dep't of Pub. Safety v. Owens, 245 N.C. App. 230, 782 S.E.2d 337, 2016 N.C. App. LEXIS 144 (2016).

Jurisdiction Properly Asserted. —

Trial court properly asserted jurisdiction over a county board of education because the board submitted to the jurisdiction of the trial court and waived its personal jurisdiction defense when it failed to raise the issue of jurisdiction at the hearing and argued the merits of the case. Tobe-Williams v. New Hanover County Bd. of Educ., 234 N.C. App. 453, 759 S.E.2d 680, 2014 N.C. App. LEXIS 612 (2014).

Inadequacy of Administrative Remedies Insufficiently Alleged. —

Employee bringing a breach of employment contract claim against North Carolina Central University (University) inadequately alleged inadequate administrative remedies because (1) the employee’s damage claims did not meet this purpose, as the unavailability of damages under G.S. 150B-43 did not make the remedy inadequate, and (2) the fact that only remand to the University was available did not cause the employee’s prediction that the University would again rule against the employee to show the remedy was inadequate. Frazier v. N.C. Cent. Univ., 244 N.C. App. 37, 779 S.E.2d 515, 2015 N.C. App. LEXIS 957 (2015).

Intervention Appropriate. —

Trial court did not err in allowing other school boards to intervene in an action challenging the State Board of Education’s inaction with respect to a virtual charter school application where the boards were faced with an imminent economic injury via loss of school funding based on the ruling of the administrative law judge, and the administrative law judge’s decision could have had a significant impact on all school boards across the State, thus creating a present and substantial matter of concern for both the State Board of Education and the intervening school boards regarding issues of management, oversight, and regulation. N.C. State Bd. of Educ. v. N.C. Learns, Inc., 231 N.C. App. 270, 751 S.E.2d 625, 2013 N.C. App. LEXIS 1230 (2013).

Failure to Comply with Essential Requirements. —

Trial court properly dismissed a teacher’s petition for judicial review in which he sought to challenge the termination of his employment by the county board of education because, given the lack of any statutory provision governing the contents and service of petitions for judicial review, it was appropriate to apply the APA, and the teacher’s petition failed to comply with several essential requirements of the APA where his petition failed to state any specific exceptions to the board’s decision or the relief he sought to obtain, he failed to serve the board with his petition within the 10-day time limit, and instead simply served a copy of his petition upon the attorney for the board. Butler v. Scot. Cty. Bd. of Educ., 257 N.C. App. 570, 811 S.E.2d 185, 2018 N.C. App. LEXIS 89 (2018).

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Effect of Amendments.

Session Laws 2011-398, s. 24, rewrote the first sentence. For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A.

Former G.S. 150A-47 does not apply to decisions made by town boards, including boards of adjustment. Burton v. New Hanover County Zoning Bd. of Adjustment, 49 N.C. App. 439, 271 S.E.2d 550, 1980 N.C. App. LEXIS 3392 (1980), cert. denied, 302 N.C. 217 , 276 S.E.2d 914, 1981 N.C. LEXIS 1155 (1981).

Motion to Supplement the Record Properly Denied. —

Trial court did not abuse its discretion in denying applicants’ motion for leave to supplement the record because deposition testimony was not necessary for a determination of the issues the applicants’ brought forward on appeal. High Rock Lake Partners, LLC v. N.C. DOT, 217 N.C. App. 442, 720 S.E.2d 706, 2011 N.C. App. LEXIS 2594 (2011), rev'd, 366 N.C. 315 , 735 S.E.2d 300, 2012 N.C. LEXIS 1004 (2012).

Record Properly Amended. —

Trial court properly amended the record and allowed a virtual charter school application into the record where the application was related to the actions of the State Board of Education with respect to that application, and nothing in the trial court’s findings indicated that the admission of the application was erroneous or prejudicial to the applicant. N.C. State Bd. of Educ. v. N.C. Learns, Inc., 231 N.C. App. 270, 751 S.E.2d 625, 2013 N.C. App. LEXIS 1230 (2013).

CASE NOTES

Editor’s Note. —

Most of the cases below were decided under corresponding provisions of former Chapter 150A.

Former G.S. 150A-48 must be construed in pari materia with the rest of this Article, and particularly former G.S. 150A-43, which states that any person who is aggrieved by a final agency decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of such decision under Article 4 of former Chapter 150A. Stevenson v. North Carolina Dep't of Ins., 31 N.C. App. 299, 229 S.E.2d 209, 1976 N.C. App. LEXIS 1971 , cert. denied, 291 N.C. 450 , 230 S.E.2d 767, 1976 N.C. LEXIS 1016 (1976); Davis v. North Carolina Dep't of Transp., 39 N.C. App. 190, 250 S.E.2d 64, 1978 N.C. App. LEXIS 2355 (1978), cert. denied, 296 N.C. 735 , 254 S.E.2d 177, 1979 N.C. LEXIS 1431 (1979).

Former G.S. 150A-48 was meant to entitle the aggrieved person to a stay order only after the final agency decision and either before or after initiation of judicial review. Stevenson v. North Carolina Dep't of Ins., 31 N.C. App. 299, 229 S.E.2d 209, 1976 N.C. App. LEXIS 1971 , cert. denied, 291 N.C. 450 , 230 S.E.2d 767, 1976 N.C. LEXIS 1016 (1976); Davis v. North Carolina Dep't of Transp., 39 N.C. App. 190, 250 S.E.2d 64, 1978 N.C. App. LEXIS 2355 (1978), cert. denied, 296 N.C. 735 , 254 S.E.2d 177, 1979 N.C. LEXIS 1431 (1979).

Stay of Decision Unavailable Prior to “Final Agency Decision”. —

Former G.S. 150A-48 is a vehicle for reinstatement only “before or during the review proceeding.” Since, according to former G.S. 150A-43, review is available only after a “final agency decision,” the stay of a decision is similarly only available after a “final agency decision.” Davis v. North Carolina Dep't of Transp., 39 N.C. App. 190, 250 S.E.2d 64, 1978 N.C. App. LEXIS 2355 (1978), cert. denied, 296 N.C. 735 , 254 S.E.2d 177, 1979 N.C. LEXIS 1431 (1979).

Exhaustion of Administrative Remedies Held Unnecessary for Preliminary Injunctive Relief in Federal Civil Rights Action. —

Where a state employee asserted civil rights violations under 42 U.S.C. § 1983 for his wrongful dismissal, the superior court retained its traditional power to grant preliminary injunctive relief without requiring him to exhaust the administrative remedies provided in Chapter 126. Williams v. Greene, 36 N.C. App. 80, 243 S.E.2d 156, 1978 N.C. App. LEXIS 2408 (1978).

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.“ For Section 55.2, see editor’s note under G.S. 150B-34 .

Effect of Amendments.

Session Laws 2011-398, s. 25, substituted “A party or person aggrieved” for “An aggrieved person” in the first sentence; inserted “final” preceding “decision” in the third, fifth, sixth and last sentences; deleted the former next-to-last sentence; and deleted “of the administrative law judge or final decision” following “modification of a final decision” in the last sentence. For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment, “The Problem of Procedural Delay in Contested Case Hearings . . .” under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided prior to the 1991 amendments to this Chapter.

Whether new evidence offered by an organization should “reasonably have been presented” to the Coastal Resources Commission before, or during the course of, the organization’s petition for a contested case hearing was a question which could not be determined from the record, and therefore, had to be remanded to the superior court for determination. Pamlico Tar River Found., Inc. v. Coastal Resources Comm'n, 103 N.C. App. 24, 404 S.E.2d 167, 1991 N.C. App. LEXIS 569 (1991).

When Superior Court Must Remand Case for Taking of New Evidence. —

If the evidence is “material,” “not merely cumulative,” and “could not reasonably have been presented at the administrative hearing,” the superior court must remand the case to the Coastal Resources Commission for the taking of new evidence offered by an organization opposing issuance of a permit. Pamlico Tar River Found., Inc. v. Coastal Resources Comm'n, 103 N.C. App. 24, 404 S.E.2d 167, 1991 N.C. App. LEXIS 569 (1991).

Denial of Remand Upheld. —

Trial court’s decision to deny petitioner’s motion to remand for additional evidence relative to petitioner’s alcohol assessment and subsequent treatment after hearing before the commission upheld. Ritter v. Department of Human Resources, 118 N.C. App. 564, 455 S.E.2d 901, 1995 N.C. App. LEXIS 302 (1995).

Record Properly Amended. —

Trial court properly amended the record and allowed a virtual charter school application into the record where the application was related to the actions of the State Board of Education with respect to that application, and nothing in the trial court’s findings indicated that the admission of the application was erroneous or prejudicial to the applicant. N.C. State Bd. of Educ. v. N.C. Learns, Inc., 231 N.C. App. 270, 751 S.E.2d 625, 2013 N.C. App. LEXIS 1230 (2013).

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Effect of Amendments.

Session Laws 2011-398, s. 26, substituted “administrative” for “agency.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1980 property law, see 59 N.C.L. Rev. 1209 (1981).

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A.

Judge Not Subject to Rule 52(a) Requirements. —

When the judge of the superior court sits as an appellate court to review the decision of an administrative agency pursuant to former G.S. 150B-50 he is not required to make findings of fact and enter a judgment thereon in the same sense as is a trial judge pursuant to G.S. 1A-1 , Rule 52(a). In re Arcadia Dairy Farms, Inc., 43 N.C. App. 459, 259 S.E.2d 368, 1979 N.C. App. LEXIS 3100 (1979).

Appellate Review of Local Government Actions. —

Although this section of the Act provides review only for agency decisions and local units of government are not within the definition of agencies in G.S. 150B-2(1), the principles embodied in the Act “are highly pertinent” to appellate review of local government actions. Vulcan Materials Co. v. Guilford County Bd. of County Comm'rs, 115 N.C. App. 319, 444 S.E.2d 639, 1994 N.C. App. LEXIS 598 (1994).

Review of Order of Real Estate Licensing Board. —

Under G.S. 93A-6 , review of an order of the Real Estate Licensing Board suspending or revoking a license is de novo in the superior court in all cases, and former article corresponding to Article 4 of former Chapter 150A did not apply, regardless of whether or not the Board has made a record of its proceedings. In re Dillingham, 257 N.C. 684 , 127 S.E.2d 584, 1962 N.C. LEXIS 617 (1962).

Standard on Review of City’s Special Zoning Request Decisions. —

Although the North Carolina Administrative Procedure Act provides judicial review only for agency decisions and exempts cities and other local municipalities, a similar standard of review is appropriate to review city council special zoning request decisions. Jennewein v. City Council, 62 N.C. App. 89, 302 S.E.2d 7, 1983 N.C. App. LEXIS 2812 (1983).

Improper Dismissal of Judicial Review Petition. —

Administrative Law Judge’s (ALJ) decision to uphold permits for the use of coal combustion residual as structural fill at open pit mines was reversed because: (1) the ALJ erred in sua sponte converting a motion for summary judgment into a motion for involuntary dismissal and granting the same, as the ALJ had no such authority, and (2) issues raised by environmental groups required distinctly different reviews of the evidence under the whole record standard and of issues of law under the de novo standard, but it was unclear what standards the trial court applied, as the court reweighed the evidence and rewrote the ALJ’s decision without explanation. EnvironmentaLEE v. N.C. Dep't of Env't & Natural Res., 258 N.C. App. 590, 813 S.E.2d 673, 2018 N.C. App. LEXIS 318 (2018).

Editor’s Note.

Session Laws 2011-398, s. 62, is a severability clause.

Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: “Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law.” For Section 55.2, see editor’s note under G.S. 150B-34 .

Effect of Amendments.

Session Laws 2011-398, s. 27, rewrote the section. For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment, “The Problem of Procedural Delay in Contested Case Hearings . . .” under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976).

For survey of 1979 tax law, see 58 N.C.L. Rev. 1548 (1980).

For article, “A Powerless Judiciary? The North Carolina Courts’ Perceptions of Review of Administrative Action,” see 12 N.C. Cent. L.J. 21 (1980).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For article, “What Were We Thinking?: Legislative Intent and the 2000 Amendments to the North Carolina APA,” see 79 N.C.L. Rev. 1657 (2001).

For article, “Negotiating the Federal Government’s Compliance with Court Orders: An Initial Exploration,” see 97 N.C.L. Rev. 899 (2019).

CASE NOTES

Analysis

• I. General Consideration
• II. Exceeding Statutory Authority or Jurisdiction
• III. Unlawful Procedure
• IV. “Whole Record” Test
• V. Arbitrary or Capricious Findings, Decisions, etc

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under corresponding provisions of former Chapter 150A and earlier statutes, or under this Chapter prior to the 1991 amendments thereto.

Scope of Appellate Review. —

The scope of review to be applied by the appellate court under this section is the same as it is for other civil cases. That is, it must be determined whether the trial court committed any errors of law. American Nat'l Ins. Co. v. Ingram, 63 N.C. App. 38, 303 S.E.2d 649, 1983 N.C. App. LEXIS 3028 , cert. denied, 309 N.C. 819 , 310 S.E.2d 348, 1983 N.C. LEXIS 1542 (1983); Tay v. Flaherty, 90 N.C. App. 346, 368 S.E.2d 403, 1988 N.C. App. LEXIS 541 (1988).

Under this section, the appellate court examines the trial court’s order for error of law, determining whether the trial court exercised the appropriate scope of review and, if appropriate, deciding whether the court did so properly. Eury v. North Carolina Emp. Sec. Comm'n, 115 N.C. App. 590, 446 S.E.2d 383, 1994 N.C. App. LEXIS 778 (1994), limited, Warren v. N.C. Dep't of Crime Control & Pub. Safety, 221 N.C. App. 376, 726 S.E.2d 920, 2012 N.C. App. LEXIS 770 (2012).

When an appellate court reviews the decision of a lower court, (as opposed to when it reviews an administrative agency’s decision on direct appeal), the scope of review to be applied by the appellate court under this section is the same as it is for other civil cases. Henderson v. North Carolina Dep't of Human Resources, 91 N.C. App. 527, 372 S.E.2d 887, 1988 N.C. App. LEXIS 902 (1988).

The Court of Appeal’s review of the superior court’s determination under this section, is limited to whether the superior court made any errors in law in light of the record as a whole. Scroggs v. North Carolina Criminal Justice Educ. & Training Stds. Comm'n, 101 N.C. App. 699, 400 S.E.2d 742, 1991 N.C. App. LEXIS 156 (1991).

Pursuant to this section, court review of a trial court’s consideration of a final agency decision is to determine whether the trial court committed any errors of law which would be based upon its failure to properly apply the review standard set forth in G.S. 150B-51 . Sherrod v. North Carolina Dep't of Human Resources, 105 N.C. App. 526, 414 S.E.2d 50, 1992 N.C. App. LEXIS 248 (1992).

Appellate court found that the superior court, which initially reviewed a decision of the Board of Pharmacy reprimanding a permitee pharmacy chain for negligent acts of its licensed pharmacists, had not erred in finding no arbitrary or capricious action by the Board in choosing a sanction; case law already made it clear that the chain could be vicariously responsible for the pharmacists’ actions, and so any sanction listed as applicable to a pharmacist could also be applied against the chain. CVS Pharm., Inc. v. N.C. Bd. of Pharm., 162 N.C. App. 495, 591 S.E.2d 567, 2004 N.C. App. LEXIS 176 (2004).

Appellate court found that the trial court’s conclusion of law that the teaching coordinator was not eligible for the substantial salary increase that accompanied the teaching coordinator’s attainment of national certification could not be supported by a reading of the relevant statute, G.S. 115C-296.2(b)(2); that statute’s language was broad enough to include the teaching coordinator as eligible for the salary increase and the teaching coordinator met all of the statute’s requirements for the increase. Rainey v. N.C. Dep't of Pub. Instruction, 181 N.C. App. 666, 640 S.E.2d 790, 2007 N.C. App. LEXIS 396 (2007), rev'd, 361 N.C. 679 , 652 S.E.2d 251, 2007 N.C. LEXIS 1096 (2007), modified, 193 N.C. App. 243, 667 S.E.2d 237, 2008 N.C. App. LEXIS 1761 (2008).

In an action arising from allegations of age discrimination, while the superior court properly applied both a de novo review and the whole-record test to the respective issues on appeal under G.S. 150B-51(b) when it reviewed the final decision of the State Personnel Commission [now the North Carolina Human Resources Commission] (SPC), it erred when it improperly substituted its judgment for that of the SPC under the whole-record test. Thus, remand was ordered for the superior court to affirm the SPC’s final agency decision. Trotter v. N.C. HHS, 189 N.C. App. 655, 659 S.E.2d 749, 2008 N.C. App. LEXIS 712 (2008).

Employee had abandoned any challenge to the findings of fact where she did not challenge specific finding, refer to any particular portion of the record, address any particular finding as not supported by the evidence, or raise any issues with findings she considered material. Rittelmeyer v. Univ. of N.C. at Chapel Hill, 252 N.C. App. 340, 799 S.E.2d 378, 2017 N.C. App. LEXIS 178 (2017).

Appellate Review of Improper Constitutional Consideration. —

Although the trial court improperly considered a constitutional issue, where that court vacated the Department of Natural Resources and Community Development’s assessment based on an interpretation of N.C. Const., Art. IV, § 3, which the department properly challenged on appeal, the Court of Appeals would address that constitutional ground in the exercise of its supervisory jurisdiction. In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 92 N.C. App. 1, 373 S.E.2d 572, 1988 N.C. App. LEXIS 981 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 873, 1988 N.C. LEXIS 710 (1988), rev'd, 324 N.C. 373 , 379 S.E.2d 30, 1989 N.C. LEXIS 246 (1989).

Examination for Error — A Twofold Task. —

The appellate court should examine the trial court’s order for error of law, which has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly. Amanini v. N.C. Dep't of Human Resources, 114 N.C. App. 668, 443 S.E.2d 114, 1994 N.C. App. LEXIS 484 (1994).

Legal proceeding must be prosecuted by a legal person, whether it be a natural person who is sui juris or a group of individuals or other entity having the capacity to sue and be sued, such as a corporation, partnership, unincorporated association, or governmental body or agency. Even a class action must be prosecuted or defended by one or more named members of the class. A legal proceeding prosecuted by an aggregation of anonymous individuals, known only to their counsel, is a phenomenon unknown to the law of this jurisdiction. In re Coleman, 11 N.C. App. 124, 180 S.E.2d 439, 1971 N.C. App. LEXIS 1463 (1971).

Rule that appeal to appellate division may be prosecuted only at the instance of a party or parties aggrieved by the judgment of the court or tribunal from which the appeal is taken applies with as much force to proceedings governed by former Article 33 of Chapter 143 as to ordinary civil cases. In re Coleman, 11 N.C. App. 124, 180 S.E.2d 439, 1971 N.C. App. LEXIS 1463 (1971).

No statutory authority exists for the State Personnel Commission [now the North Carolina Human Resources Commission] to review an administrative law judge’s recommended decision in a case involving an exempt employee. Johnson v. Natural Resources & Community Dev., 98 N.C. App. 334, 391 S.E.2d 48, 1990 N.C. App. LEXIS 386 (1990).

Failure to Cross-Appeal as Waiver. —

Where trial court erroneously failed to render conclusions concerning all statutory grounds for review raised by the petition for review, petitioners’ failure to cross-appeal any such error to the appellate court waived its consideration on appeal. In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 92 N.C. App. 1, 373 S.E.2d 572, 1988 N.C. App. LEXIS 981 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 873, 1988 N.C. LEXIS 710 (1988), rev'd, 324 N.C. 373 , 379 S.E.2d 30, 1989 N.C. LEXIS 246 (1989).

Appeal Must Follow Theory of Trial. —

Where petitioner relied upon jurisdiction under former G.S. 143-314 before the trial court, on appeal he could not argue that the trial court had original subject matter jurisdiction pursuant to G.S. 7A-240 based upon a constitutional right to hearing and judicial review, since an appeal must follow the theory of the trial. Grissom v. North Carolina Dep't of Revenue, 34 N.C. App. 381, 238 S.E.2d 311, 1977 N.C. App. LEXIS 1703 (1977), cert. denied, 294 N.C. 183 , 241 S.E.2d 517, 1978 N.C. LEXIS 1200 (1978).

Substantial Evidence Found. —

Where the trial court made new findings of fact upon de novo review of an administrative decision, the findings were supported by substantial evidence since they were consistent with the testimony of witnesses at a hearing before the administrative law judge. Cape Med. Transp., Inc. v. N.C. HHS, 162 N.C. App. 14, 590 S.E.2d 8, 2004 N.C. App. LEXIS 17 (2004).

Substantial evidence in the record supported an administrative law judge’s findings and its dismissal of a day care’s petition for a contested case hearing where the day care filed nothing in nearly six months following the filing of the petition, despite receiving several orders from the administrative law judge to file and serve prehearing statements and other responses to motions. Lincoln v. N.C. HHS, Nutrition Branch, 172 N.C. App. 567, 616 S.E.2d 622, 2005 N.C. App. LEXIS 1804 (2005).

Remand for Further Findings. —

Denial of Medicaid benefits to an undocumented immigrant was reversed and remanded for further findings as the findings were inadequate to support the conclusions of law that the Medicaid benefits for rehabilitative services and chemotherapy, following surgery for medullary non-Hodgkin’s lymphoma and spinal cord malignancy, were not to cover the costs of an emergency medical condition. Luna v. Div. of Soc. Servs., 162 N.C. App. 1, 589 S.E.2d 917, 2004 N.C. App. LEXIS 51 (2004).

Demotion Upheld. —

Summary judgment for a state agency employer in an employee’s petition for review of his demotion was proper where the conduct admitted by the employee constituted “unacceptable personal conduct,” and the State Personnel Commission [now the North Carolina Human Resources Commission] determined that its regulations and work rules did not contain any qualification or exception for the explanations asserted by the employee. Hilliard v. N.C. Dep't of Corr., 173 N.C. App. 594, 620 S.E.2d 14, 2005 N.C. App. LEXIS 2121 (2005).

Editor’s Note.

Section 150B-63.1 was repealed by Session Laws 1985 (Reg. Sess., 1986), c. 1022, s. 1(20).