§ 143-215.1. Control of sources of water pollution; permits required.

NORTH CAROLINA STATUTES AND CODES

§ 143-215.1. Control of sources of water pollution; permits required.

§ 143‑215.1. Control ofsources of water pollution; permits required.

(a) Activities forWhich Permits Required. No person shall do any of the following things orcarry out any of the following activities unless that person has received apermit from the Commission and has complied with all conditions set forth inthe permit:

(1) Make any outletsinto the waters of the State.

(2) Construct or operateany sewer system, treatment works, or disposal system within the State.

(3) Alter, extend, orchange the construction or method of operation of any sewer system, treatmentworks, or disposal system within the State.

(4) Increase thequantity of waste discharged through any outlet or processed in any treatmentworks or disposal system to any extent that would result in any violation ofthe effluent standards or limitations established for any point source or thatwould adversely affect the condition of the receiving waters to the extent ofviolating any applicable standard.

(5) Change the nature ofthe waste discharged through any disposal system in any way that would exceedthe effluent standards or limitations established for any point source or thatwould adversely affect the condition of the receiving waters in relation to anyapplicable standards.

(6) Cause or permit anywaste, directly or indirectly, to be discharged to or in any manner intermixedwith the waters of the State in violation of the water quality standardsapplicable to the assigned classifications or in violation of any effluentstandards or limitations established for any point source, unless allowed as acondition of any permit, special order or other appropriate instrument issuedor entered into by the Commission under the provisions of this Article.

(7) Cause or permit anywastes for which pretreatment is required by pretreatment standards to bedischarged, directly or indirectly, from a pretreatment facility to anydisposal system or to alter, extend or change the construction or method ofoperation or increase the quantity or change the nature of the waste dischargedfrom or processed in that facility.

(8) Enter into acontract for the construction and installation of any outlet, sewer system,treatment works, pretreatment facility or disposal system or for the alterationor extension of any such facility.

(9) Dispose of sludgeresulting from the operation of a treatment works, including the removal of in‑placesewage sludge from one location and its deposit at another location, consistentwith the requirement of the Resource Conservation and Recovery Act andregulations promulgated pursuant thereto.

(10) Cause or permit anypollutant to enter into a defined managed area of the State's waters for themaintenance or production of harvestable freshwater, estuarine, or marineplants or animals.

(11) Cause or permitdischarges regulated under G.S. 143‑214.7 that result in water pollution.

(12) Construct or operatean animal waste management system, as defined in G.S. 143‑215.10B,without obtaining a permit under either this Part or Part 1A of this Article.

(a1) In the event thatboth effluent standards or limitations and classifications and water qualitystandards are applicable to any point source or sources and to the waters towhich they discharge, the more stringent among the standards established by theCommission shall be applicable and controlling.

(a2) No permit shall begranted for the disposal of waste in waters classified as sources of publicwater supply where the head of the agency that administers the public watersupply program pursuant to Article 10 of Chapter 130A of the General Statutes,after review of the plans and specifications for the proposed disposalfacility, determines and advises the Commission that any outlet for thedisposal of waste is, or would be, sufficiently close to the intake works orproposed intake works of a public water supply as to have an adverse effect onthe public health.

(a3) If the Commissiondenies an application for a permit, the Commission shall state in writing thereason for the denial and shall also state the Commission's estimate of thechanges in the applicant's proposed activities or plans that would be requiredin order that the applicant may obtain a permit.

(a4) The Department shallregulate wastewater systems under rules adopted by the Commission for PublicHealth pursuant to Article 11 of Chapter 130A of the General Statutes except asotherwise provided in this subsection. No permit shall be required under thissection for a wastewater system regulated under Article 11 of Chapter 130A ofthe General Statutes. The following wastewater systems shall be regulated bythe Department under rules adopted by the Commission:

(1) Wastewater systemsdesigned to discharge effluent to the land surface or surface waters.

(2) Wastewater systemsdesigned for groundwater remediation, groundwater injection, or landfillleachate collection and disposal.

(3) Wastewater systemsdesigned for the complete recycle or reuse of industrial process wastewater.

(b) Commission's Poweras to Permits.

(1) The Commission shallact on all permits so as to prevent, so far as reasonably possible, consideringrelevant standards under State and federal laws, any significant increase inpollution of the waters of the State from any new or enlarged sources. Nopermit shall be denied and no condition shall be attached to the permit, exceptwhen the Commission finds such denial or such conditions necessary toeffectuate the purposes of this Article.

(2) The Commission shallalso act on all permits so as to prevent violation of water quality standardsdue to the cumulative effects of permit decisions. Cumulative effects areimpacts attributable to the collective effects of a number of projects andinclude the effects of additional projects similar to the requested permit inareas available for development in the vicinity. All permit decisions shallrequire that the practicable waste treatment and disposal alternative with theleast adverse impact on the environment be utilized.

(3) General permits maybe issued under rules adopted pursuant to Chapter 150B of the General Statutes.Such rules may provide that minor activities may occur under a general permitissued in accordance with conditions set out in such rules. All persons coveredunder general permits shall be subject to all enforcement procedures andremedies applicable under this Article.

(4) The Commission shallhave the power:

a. To grant a permitwith such conditions attached as the Commission believes necessary to achievethe purposes of this Article.

b. To require that anapplicant satisfy the Department that the applicant, or any parent, subsidiary,or other affiliate of the applicant or parent:

1. Is financiallyqualified to carry out the activity for which the permit is required undersubsection (a) of this section; and

2. Has substantiallycomplied with the effluent standards and limitations and waste managementtreatment practices applicable to any activity in which the applicant haspreviously engaged, and has been in substantial compliance with other federaland state laws, regulations, and rules for the protection of the environment.

3. As used in thissubdivision, the words "affiliate," "parent," and"subsidiary" have the same meaning as in 17 Code of FederalRegulations § 240.12b‑2 (April 1, 1990, Edition).

4. For a privatelyowned treatment works that serves 15 or more service connections or thatregularly serves 25 or more individuals, financial qualification may bedemonstrated through the use of a letter of credit, insurance, surety, trustagreement, financial test, bond, or a guarantee by corporate parents or thirdparties who can pass the financial test. No permit shall be issued under thissection for a privately owned treatment works that serves 15 or more serviceconnections or that regularly serves 25 or more individuals, until financialqualification is established and the issuance of the permit shall be contingenton the continuance of the financial qualification for the duration of theactivity for which the permit was issued.

c. To modify or revokeany permit upon not less than 60 days' written notice to any person affected.

d. To designate certainclasses of minor activities for which a general permit may be issued, afterconsidering:

1. The environmentalimpact of the activities;

2. How often theactivities are carried out;

3. The need forindividual permit oversight; and

4. The need for publicreview and comment on individual permits.

e. To designate certainclasses of minor activities for which:

1. Performanceconditions may be established by rule; and

2. Individual orgeneral permits are not required.

(5) The Commission shallnot issue a permit for a new municipal or domestic wastewater treatment worksthat would discharge to the surface waters of the State or for the expansion ofan existing municipal or domestic wastewater treatment works that woulddischarge to the surface waters of the State unless the applicant for thepermit demonstrates to the satisfaction of the Commission that:

a. The applicant hasprepared and considered an engineering, environmental, and fiscal analysis ofalternatives to the proposed facility.

b. The applicant is incompliance with the applicable requirements of the systemwide municipal anddomestic wastewater collection systems permit program adopted by theCommission.

(b1) Repealed by SessionLaws 1991, c. 156, s. 1.

(1) All applications forpermits and for renewal of existing permits for outlets and point sources andfor treatment works and disposal systems discharging to the surface waters ofthe State shall be in writing, and the Commission may prescribe the form ofsuch applications. All applications shall be filed with the Commission at least180 days in advance of the date on which it is desired to commence thedischarge of wastes or the date on which an existing permit expires, as thecase may be. The Commission shall act on a permit application as quickly aspossible. The Commission may conduct any inquiry or investigation it considersnecessary before acting on an application and may require an applicant tosubmit plans, specifications, and other information the Commission considersnecessary to evaluate the application.

(2) a. TheDepartment shall refer each application for permit, or renewal of an existingpermit, for outlets and point sources and treatment works and disposal systemsdischarging to the surface waters of the State to its staff for writtenevaluation and proposed determination with regard to issuance or denial of the permit.If the Commission concurs in the proposed determination, it shall give noticeof intent to issue or deny the permit, along with any other data that theCommission may determine appropriate, to be given to the appropriate State,interstate and federal agencies, to interested persons, and to the public.

a1. The Commission shallprescribe the form and content of the notice. Public notice shall be given atleast 45 days prior to any proposed final action granting or denying thepermit. Public notice shall be given by publication of the notice one time in anewspaper having general circulation within the county.

b. Repealed by SessionLaws 1987, c. 734.

(3) If any persondesires a public hearing on any application for permit or renewal of anexisting permit provided for in this subsection, he shall so request in writingto the Commission within 30 days following date of the notice of intent. TheCommission shall consider all such requests for hearing, and if the Commissiondetermines that there is a significant public interest in holding such hearing,at least 30 days' notice of such hearing shall be given to all persons to whomnotice of intent was sent and to any other person requesting notice. At least30 days prior to the date of hearing, the Commission shall also cause a copy ofthe notice thereof to be published at least one time in a newspaper havinggeneral circulation in such county. In any county in which there is more thanone newspaper having general circulation in that county, the Commission shallcause a copy of such notice to be published in as many newspapers havinggeneral circulation in the county as the Commission in its discretiondetermines may be necessary to assure that such notice is generally availablethroughout the county. The Commission shall prescribe the form and content ofthe notices.

TheCommission shall prescribe the procedures to be followed in hearings. If thehearing is not conducted by the Commission, detailed minutes of the hearingshall be kept and shall be submitted, along with any other written comments,exhibits or documents presented at the hearing, to the Commission for itsconsideration prior to final action granting or denying the permit.

(4) Not later than 60days following notice of intent or, if a public hearing is held, within 90 daysfollowing consideration of the matters and things presented at such hearing,the Commission shall grant or deny any application for issuance of a new permitor for renewal of an existing permit. All permits or renewals issued by theCommission and all decisions denying application for permit or renewal shall bein writing.

(5) No permit issuedpursuant to this subsection (c) shall be issued or renewed for a term exceedingfive years.

(6) The Commission shallnot act upon an application for a new nonmunicipal domestic wastewaterdischarge facility until it has received a written statement from each city andcounty government having jurisdiction over any part of the lands on which theproposed facility and its appurtenances are to be located which states whetherthe city or county has in effect a zoning or subdivision ordinance and, if suchan ordinance is in effect, whether the proposed facility is consistent with theordinance. The Commission shall not approve a permit application for anyfacility which a city or county has determined to be inconsistent with itszoning or subdivision ordinance unless it determines that the approval of suchapplication has statewide significance and is in the best interest of theState. An applicant for a permit shall request that each city and countygovernment having jurisdiction issue the statement required by this subdivisionby mailing by certified mail, return receipt requested, a written request forsuch statement and a copy of the draft permit application to the clerk of thecity or county. If a local government fails to mail the statement required bythis subdivision, as evidenced by a postmark, within 15 days after receivingand signing for the certified mail, the Commission may proceed to consider thepermit application notwithstanding this subdivision.

(c1) Any person who isrequired to obtain an individual wastewater permit under this section for afacility discharging to the surface waters of the State that have beenclassified as nutrient sensitive waters (NSW) under rules adopted by theCommission shall not discharge more than an average annual mass load of totalnitrogen than would result from a discharge of the permitted flow, determinedat the time the Commission makes a finding that those waters are experiencingor are subject to excessive growth of microscopic or macroscopic vegetation,having a total nitrogen concentration of five and one‑half milligrams ofnitrogen per liter (5.5 mg/l). The total nitrogen concentration of 5.5 mg/l fornutrient sensitive waters required by this subsection applies only to:

(1) Facilities that wereplaced into operation prior to 1 July 1997 or for which an authorization toconstruct was issued prior to 1 July 1997 and that have a design capacity todischarge 500,000 gallons per day or more.

(2) Facilities for whichan authorization to construct is issued on or after 1 July 1997.

(c2) Any person who isrequired to obtain an individual wastewater permit under this section for afacility discharging to the surface waters of the State that have beenclassified as nutrient sensitive waters (NSW) under rules adopted by theCommission where phosphorus is designated by the Commission as a nutrient ofconcern shall not discharge more than an average annual mass load of totalphosphorus than would result from a discharge of the permitted flow, determinedat the time the Commission makes a finding that those waters are experiencingor are subject to excessive growth of microscopic or macroscopic vegetation,having a total phosphorus concentration of two milligrams of phosphorus perliter (2.0 mg/l). The total phosphorus concentration of 2.0 mg/l for nutrientsensitive waters required by this subsection applies only to:

(2) Facilities for whichan authorization to construct is issued on or after 1 July 1997.

(c3) A person to whomsubsection (c1) or (c2) of this section applies may meet the limits establishedunder those subsections either individually or on the basis of a cooperativeagreement with other persons who hold individual wastewater permits if thecooperative agreement is approved by the Commission. A person to whomsubsection (c1) or (c2) of this section applies whose agreement to acceptwastewater from another wastewater treatment facility that discharges into thesame water body and that results in the elimination of the discharge from thatwastewater treatment facility shall be allowed to increase the average annualmass load of total nitrogen and total phosphorus that person discharges by theaverage annual mass load of total nitrogen and total phosphorus of thewastewater treatment facility that is eliminated. If the wastewater treatmentfacility that is eliminated has a permitted flow of less than 500,000 gallonsper day, the average annual mass load of total nitrogen or phosphorus shall be calculatedfrom the most recent available data. A person to whom this subsection appliesshall comply with nitrogen and phosphorus discharge monitoring requirementsestablished by the Commission. This average annual load of nitrogen orphosphorus shall be assigned to the wastewater discharge allocation of thewastewater treatment facility that accepts the wastewater.

(c4) A person to whomsubsection (c1) of this section applies may request the Commission to approve atotal nitrogen concentration greater than that set out in subsection (c1) ofthis section at a decreased permitted flow so long as the average annual massload of total nitrogen is equal to or is less than that required undersubsection (c1) of this section. A person to whom subsection (c2) of thissection applies may request the Commission to approve a total phosphorusconcentration greater than that set out in subsection (c2) of this section at adecreased permitted flow so long as the average annual mass load of totalphosphorus is equal to or is less than that required under subsection (c2) ofthis section. If, after any 12‑month period following approval of agreater concentration at a decreased permitted flow, the Commission finds thatthe greater concentration at a decreased permitted flow does not result in anaverage annual mass load of total nitrogen or total phosphorus equal to or lessthan those that would be achieved under subsections (c1) and (c2) of thissection, the Commission shall rescind its approval of the greater concentrationat a decreased permitted flow and the requirements of subsections (c1) and (c2)of this section shall apply.

(c5) For surface watersto which the limits set out in subsection (c1) or (c2) of this section applyand for which a calibrated nutrient response model that meets the requirementsof this subsection has been approved by the Commission, mass load limits fortotal nitrogen or total phosphorus shall be based on the results of thenutrient response model. A calibrated nutrient response model shall be developedand maintained with current data, be capable of predicting the impact ofnitrogen or phosphorus in the surface waters, and incorporated into nutrientmanagement plans by the Commission. The maximum mass load for total nitrogen ortotal phosphorus established by the Commission shall be substantiated by themodel and may require individual discharges to be limited at concentrationsthat are different than those set out in subsection (c1) or (c2) of thissection. A calibrated nutrient response model shall be developed by theDepartment in conjunction with the affected parties and is subject to approvalby the Commission.

(c6) For surface watersthat the Commission classifies as nutrient sensitive waters (NSW) on or after 1July 1997, the Commission shall establish a date by which facilities that wereplaced into operation prior to the date on which the surface waters areclassified NSW or for which an authorization to construct was issued prior tothe date on which the surface waters are classified NSW must comply withsubsections (c1) and (c2) of this section. The Commission shall establish thecompliance date at the time of the classification. The Commission shall notestablish a compliance date that is more than five years after the date of theclassification. The Commission may extend the compliance date as provided inG.S. 143‑215.1B. A request to extend a compliance date shall be submittedwithin 120 days of the date on which the Commission reclassifies a surfacewater body as NSW.

(d) Applications andPermits for Sewer Systems, Sewer System Extensions and Pretreatment Facilities,Land Application of Waste, and for Wastewater Treatment Facilities NotDischarging to the Surface Waters of the State.

(1) All applications fornew permits and for renewals of existing permits for sewer systems, sewersystem extensions and for disposal systems, and for land application of waste,or treatment works which do not discharge to the surface waters of the State,and all permits or renewals and decisions denying any application for permit orrenewal shall be in writing. The Commission shall act on a permit applicationas quickly as possible. The Commission may conduct any inquiry or investigationit considers necessary before acting on an application and may require anapplicant to submit plans, specifications, and other information the Commissionconsiders necessary to evaluate the application. If the Commission fails to acton an application for a permit, including a renewal of a permit, within 90 daysafter the applicant submits all information required by the Commission, theapplication is considered to be approved. Permits and renewals issued inapproving such facilities pursuant to this subsection shall be effective untilthe date specified therein or until rescinded unless modified or revoked by theCommission. Local governmental units to whom pretreatment program authority hasbeen delegated shall establish, maintain, and provide to the public, uponwritten request, a list of pretreatment applications received.

(2) An applicant for apermit to dispose of petroleum contaminated soil by land application shall givewritten notice that he intends to apply for such a permit to each city andcounty government having jurisdiction over any part of the land on which disposalis proposed to occur. The Commission shall not accept such a permit applicationunless it is accompanied by a copy of the notice and evidence that the noticewas sent to each such government by certified mail, return receipt requested.The Commission may consider, in determining whether to issue the permit, thecomments submitted by local governments.

(d1) Each applicant undersubsections (c) or (d) for a permit (or the renewal thereof) for the operationof a treatment works for a private multi‑family or single familyresidential development, in which the owners of individual residential unitsare required to organize as a lawfully constituted and incorporated homeowners'association of a subdivision, condominium, planned unit development, ortownhouse complex, shall be required to enter into an operational agreementwith the Commission as a condition of any such permit granted. The agreementshall address, as necessary, construction, operation, maintenance, assurance offinancial solvency, transfers of ownership and abandonment of the plant,systems, or works, and shall be modified as necessary to reflect any changedcondition at the treatment plant or in the development. Where the Commissionfinds appropriate, it may require any other private residential subdivision,condominium, planned unit development or townhouse complex which is served by aprivate treatment works and does not have a lawfully constituted andincorporated homeowners' association, and for which an applicant applies for apermit or the renewal thereof under subsections (c) or (d), to incorporate as alawfully constituted homeowners' association, and after such incorporation, toenter into an operational agreement with the Commission and the applicant as acondition of any permit granted under subsections (c) or (d). The localgovernment unit or units having jurisdiction over the development shall receivenotice of the application within an established comment period and prior tofinal decision.

(e) AdministrativeReview. A permit applicant or permittee who is dissatisfied with a decisionof the Commission may commence a contested case by filing a petition under G.S.150B‑23 within 30 days after the Commission notifies the applicant orpermittee of its decision. If the permit applicant or permittee does not file apetition within the required time, the Commission's decision is final and isnot subject to review.

(f) Local PermitPrograms for Sewer Extension and Reclaimed Water Utilization. Municipalities,counties, local boards or commissions, water and sewer authorities, or groupsof municipalities and counties may establish and administer within theirutility service areas their own general permit programs in lieu of State permitrequired in G.S. 143‑215.1(a)(2), (3), and (8) above, for construction,operation, alteration, extension, change of proposed or existing sewer system,subject to the prior certification of the Commission. For purposes of thissubsection, the service area of a municipality shall include only that areawithin the corporate limits of the municipality and that area outside amunicipality in its extraterritorial jurisdiction where sewer service or areclaimed water utilization system is already being provided by themunicipality to the permit applicant or connection to the municipal sewersystem or a reclaimed water utilization system is immediately available to theapplicant; the service areas of counties and the other entities or groups shallinclude only those areas where sewer service or a reclaimed water utilizationsystem is already being provided to the applicant by the permitting authorityor connection to the permitting authority's system is immediately available. Nolater than the 180th day after the receipt of a program and statement submittedby any local government, commission, authority, or board the Commission shallcertify any local program that does all of the following:

(1) Provides byordinance or local law for requirements compatible with those imposed by thisPart and the rules implementing this Part.

(2) Provides that theDepartment receives notice and a copy of each application for a permit and thatit receives copies of approved permits and plans upon request by theCommission.

(3) Provides that plansand specifications for all construction, extensions, alterations, and changesbe prepared by or under the direct supervision of an engineer licensed topractice in this State.

(4) Provides for theadequate enforcement of the program requirements by appropriate administrativeand judicial process.

(5) Provides for theadequate administrative organization, engineering staff, financial and otherresources necessary to effectively carry out its plan review program.

(6) Provides that thesystem is capable of interconnection at an appropriate time with an expandingmunicipal, county, or regional system.

(7) Provides for theadequate arrangement for the continued operation, service, and maintenance ofthe sewer or a reclaimed water utilization system.

(8) Is approved by theCommission as adequate to meet the requirements of this Part and the rulesimplementing this Part.

(f1) The Commission maydeny, suspend, or revoke certification of a local program upon a finding that aviolation of the provisions in subsection (f) of this section has occurred. Adenial, suspension, or revocation of a certification of a local program shallbe made only after notice and a public hearing. If the failure of a localprogram to carry out this subsection creates an imminent hazard, the Commissionmay summarily revoke the certification of the local program. Chapter 150B ofthe General Statutes does not apply to proceedings under this subsection.

(f2) Notwithstanding anyother provision of subsections (f) and (f1) of this section, if the Commissiondetermines that a sewer system, treatment works, or disposal system isoperating in violation of the provisions of this Article and that theappropriate local authorities have not acted to enforce those provisions, theCommission may, after written notice to the appropriate local government, takeenforcement action in accordance with the provisions of this Article.

(g) Any person who isrequired to hold a permit under this section shall submit to the Department awritten description of his current and projected plans to reduce the dischargeof waste and pollutants under such permit by source reduction or recycling. Thewritten description shall accompany the payment of the annual permit fee. Thewritten description shall also accompany any application for a new permit, orfor modification of an existing permit, under this section. The writtendescription required by this subsection shall not be considered part of apermit application and shall not serve as the basis for the denial of a permitor permit modification.

(h) Each applicant fora new permit or the modification of an existing permit issued under subsection(c) of this section shall include with the application: (i) the extent to whichthe new or modified facility is constructed in whole or in part with fundsprovided or administered by the State or a unit of local government, (ii) theimpact of the facility on water quality, and (iii) whether there are cost‑effectivealternative technologies that will achieve greater protection of water quality.The Commission shall prepare a quarterly summary and analysis of theinformation provided by applicants pursuant to this subsection. The Commissionshall submit the summary and analysis required by this subsection to theEnvironmental Review Commission (ERC) as a part of each quarterly report thatthe Commission is required to make to the ERC under G.S. 143B‑282(b). (1951, c. 606; 1955, c. 1131,s. 1; 1959, c. 779, s. 8; 1967, c. 892, s. 1; 1971, c. 1167, s. 6; 1973, c.476, s. 128; c. 821, s. 5; c. 1262, s. 23; 1975, c. 19, s. 51; c. 583, ss. 2‑4;c. 655, ss. 1, 2; 1977, c. 771, s. 4; 1979, c. 633, s. 5; 1985, c. 446, s. 1;c. 697, s. 2; 1985 (Reg. Sess., 1986), c. 1023, ss. 1‑5; 1987, c. 461, s.1; c. 734, s. 1; c. 827, ss. 154, 159; 1989, c. 51, s. 2; c. 168, s. 29; c.453, ss. 1, 2; c. 494, s. 1; c. 727, ss. 160, 161; 1989 (Reg. Sess., 1990), c.1004, s. 17; c. 1024, s. 33; c. 1037, s. 1; 1991, c. 156, s. 1; c. 498, s. 1;1991 (Reg. Sess., 1992), c. 944, s. 12; 1995 (Reg. Sess., 1996), c. 626, s. 2;1997‑458, ss. 6.1, 9.1, 11.2; 1997‑496, s. 3; 1998‑212, s.14.9H(b), (d); 1999‑329, s. 10.1; 2004‑195, s. 1.5; 2006‑250,s. 5; 2007‑182, s. 2.)