NORTH CAROLINA GENERAL ASSEMBLY

1967 SESSION

 

 

CHAPTER 1157

SENATE BILL 466

 

 

AN ACT TO GRANT THE NORTH CAROLINA BOARD OF WATER RESOURCES THE AUTHORITY, WITHIN CERTAIN PRESCRIBED LIMITATIONS, TO ADMINISTER THE LAW RELATING TO WELL CONSTRUCTION.

 

The General Assembly of North Carolina do enact:

 

Section 1.  Short Title. This Act shall be known and may be cited as the North Carolina Well Construction Act.

Sec. 2.  Findings and Policy. The General Assembly of North Carolina finds that improperly constructed, operated, maintained, or abandoned wells can adversely affect the public health and the ground-water resources of the State. Consistent with the duty to safeguard the public welfare, safety, health and to protect and beneficially develop the ground-water resources of this State, it is declared to be the policy of this State to require that the location, construction, repair, and abandonment of wells, and the installation of pumps and pumping equipment conform to such reasonable requirements as may be necessary to protect the public welfare, safety, health and ground-water resources.

Sec. 3.  Definitions. As used in this Act, unless the context otherwise requires:

(a)        "Abandoned well" means a well whose use has been discontinued, or which is in such a state of disrepair that continued use for obtaining ground water or other useful purpose is impracticable.

(b)        "Aquifer" means a geologic formation, group of such formations, or a part of such a formation that is water bearing.

(c)        "Artesian well" means a well tapping a confined or artesian aquifer.

(d)        "Board" means the North Carolina Board of Water Resources or its successor, unless otherwise indicated.

(e)        "Construction of wells" means all acts necessary to construct wells for any intended purpose or use, including the location and excavation of the well; placement of casings, screens and fittings; development and testing.

(f)         "Installation of pumps and pumping equipment" means the procedure employed in the placement and preparation for operation of pumps and pumping equipment, including all construction involved in making entrances to the well and establishing seals.

(g)        "Municipality" means a city, town, county, district, or other public body created by or pursuant to State law, or any combination thereof acting cooperatively or jointly.

(h)        "Nonpotable mineralized water" means brackish, saline, or other water containing minerals of such quantity or type as to render the water unsafe, harmful or generally unsuitable for human consumption and general use.

(i)         "Person" shall mean any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized or existing under the laws of this State or any other state or country.

(j)         "Polluted water" means water containing organic or other contaminants of such type and quantity as to render it unsafe, harmful or unsuitable for human consumption and general use.

(k)        "Pumps" and "pumping equipment" means any equipment or materials utilized or intended for use in withdrawing or obtaining: ground water including well seals.

(l)         "Repair" means work involved in deepening, reaming, sealing, installing or changing casing depths, perforating, screening, or cleaning, acidizing or redevelopment of a well excavation, or any other work which results in breaking or opening the well seal.

(m)       "Well driller," "driller" or "water well contractor" means any person, firm, or corporation engaged in the business of constructing wells.

(n)        "Water supply well" means any well intended or usable as a source of water supply, but not to include a well constructed by an individual on land which is owned or leased by him, appurtenant to a single family dwelling, and intended for domestic use (including household purposes, farm livestock, or gardens).

(o)        "Well" means any excavation that is cored, bored, drilled, jetted, dug or otherwise constructed for the purpose of locating, testing or withdrawing ground water or for evaluating, testing, developing, draining or recharging any ground-water reservoirs or aquifer, or that may control, divert, or otherwise cause the movement of water from or into any aquifer. Provided, however, this shall not include a well constructed by an individual on land which is owned or leased by him, appurtenant to a single family dwelling, and intended for domestic use (including household purposes, farm livestock, or gardens).

(p)        "Well seal" means an approved arrangement or device used to cap a well or to establish and maintain a junction between the casing or curbing of a well and the piping or equipment installed therein, the purpose or function of which is to prevent pollutants from entering the well at the upper terminal.

Sec. 4.  Scope. No person shall construct, repair, or abandon, or cause to be constructed, repaired, or abandoned, any well, nor shall any person install, repair, or cause to be installed or repaired, any pump or pumping equipment contrary to the provisions of this Act and applicable rules and regulations, provided that this Act shall not apply to any distribution of water beyond the point of discharge from the pump.

Sec. 5.  Authority to Adopt Rules, Regulations, and Procedures. The Board shall adopt, and may from time to time amend, rules and regulations not inconsistent with this Act governing the location, construction, repair, and abandonment of wells, and the installation and repair of pumps and pumping equipment, and shall be responsible for the administration of this Act. With respect thereto it shall:

(a)        hold public hearings, upon not less than 30 days prior notice setting forth the date, place, and time of hearing, and the proposed rules and regulations to be considered at said public hearing, which notice shall be published in one or more newspapers having general circulation throughout the State, in connection with proposed rules and regulations and amendments thereto;

(b)        enforce the provisions of this Act, and any rules and regulations not inconsistent with the provisions of this Article adopted pursuant thereto;

(c)        establish procedures and forms for the submission, review, approval, and rejection of applications, notifications, and reports required under this Act; and

(d)        issue such additional regulations as may be necessary to carry out the provisions of this Act.

Sec. 6.  General Standards and Requirements. (a) Prior Permission. Prior permission shall be obtained from the Board for the construction of (1) any water well or of well systems with a designed capacity of one hundred thousand gallons per day or greater; and (2) of any well in a geographical area where the Board finds, after public hearings, such permission to be reasonably necessary to protect the ground-water resources and the public welfare, safety and health, taking into consideration other applicable State laws; provided, however, that the Board shall not reject any application under this subsection for permission to construct a well except upon the ground that the well would not be in compliance with a provision of this Act or with a rule or regulation of the Board adopted pursuant to the provisions of Section 5 of this Act. Notification of approval or rejection of an application for permission to construct a well shall be given the applicant within a period of 15 days after receipt of such application.

(b)        Reports. Any person completing or abandoning any well shall furnish the Board a certified record of the construction or abandonment of such well within a period of 30 days after completion of construction or abandonment.

(c)        Prevention of Contamination. Every well shall be constructed and maintained in a condition whereby it is not a source or channel of contamination of the ground-water supply or any aquifer. Contamination as used herein shall mean the act of introducing into water foreign materials of such a nature, quality, and quantity as to cause degradation of the quality of the water.

(d)        Valves and Casing on Flowing Artesian Wells. Valves and casing on all flowing artesian wells shall be maintained in a condition so that the flow of water can be completely stopped when the well is not being put to a beneficial use. Valves shall be closed when a beneficial use is not being made.

(e)        Access Port. Every water-supply well and such other wells, as may be specified by the Board, shall be equipped with a usable access port or air line and to be a minimum of 0.5 inch inside diameter opening so that the position of the water level can be determined at any time. Such port shall be installed and maintained in such manner as to prevent entrance of water or foreign material.

(f)         Mineralized Water. Whenever a water-bearing stratum or aquifer that contains nonpotable mineralized water is encountered in well construction, the stratum shall be adequately cased or cemented off as conditions may require so that contamination of the overlying or underlying ground-water zones will not occur.

(g)        Polluted Water. In constructing any well, all water-bearing zones that are known to contain polluted water shall be adequately cased or cemented off so that pollution of the overlying and underlying groundwater zones will not occur.

(h)        Well Test. Every water-supply well shall be tested for capacity by a method and for a period of time acceptable to the Department and depending on the intended use of the well.

(i)         Chlorination of the Well. Upon completion of the well construction and pump installation, all water-supply wells installed for the purpose of obtaining ground water for domestic consumption shall be sterilized in accordance with standards for sterilization of drinking water wells established by the U. S. Public Health Service.

(j)         Use of Well for Recharge or Disposal. No well shall be used for recharge, injection or disposal purposes without prior permission from the Board of Water Resources after consultation with and recommendation by the State Board of Health.

(k)        Abandonment of Wells.

(1)        Temporary Abandonment. When any well is temporarily removed from service, the top of the well shall be sealed with a water-tight cap or seal.

(2)        Permanent Abandonment. Any well that is to be permanently abandoned shall be filled, plugged, or sealed in such a manner as to prevent the well from being a channel allowing the vertical movement of water and a source of contamination of the ground-water supply.

Sec. 7.  Existing Installations. No well or pump installation in existence and in use on the effective date of this Act shall be required to conform to provisions of subsection (a) of Section 6 of this Act, or any rules or regulations adopted pursuant thereto not inconsistent with the provisions of this Act; provided, however, that any well now or hereafter abandoned, including any well deemed to have been abandoned, as defined in the Act, shall, within such time as may be specified by the Board, be brought into compliance with the requirements of this Act and any applicable rules or regulations with respect to abandonment of wells. It is the intention of the General Assembly that if the provisions of this Section are held invalid as a grant of an exclusive or separate emolument or privilege, within the meaning of Article 1, Section 7 of the North Carolina Constitution, the remainder of this Act shall be given effect without the invalid provision or provisions.

Sec. 8.  Rights of Investigation, Entry, Access and Inspection. The Board shall have the right to conduct such investigations as it may reasonably find necessary to carry on its duties prescribed in this Act, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating the condition, installation, or operation of any well or associated equipment, facility, or property, and to require written statements or the filing of reports under oath, with respect to pertinent questions relating to the installation or operation of any well: Provided, that no person shall be required to disclose any secret formula, processes or methods used in any manufacturing operation or any confidential information concerning business activities carried on by him or under his supervision. No person shall refuse entry or access to any authorized representative of the Board who requests entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out his official duties, consistent with the provisions of this Act.

Sec. 9.  Notice, (a) Whenever the Board has reasonable grounds to believe that there has been a violation of this Act, or any rule or regulation adopted pursuant thereto, the Board shall give written notice to the person or persons alleged to be in violation. Such notice shall identify the provision of this Act, or regulation issued hereunder, alleged to be violated and the facts alleged to constitute such violation.

(b)        Such notice shall be served on the person by sending the same to such person by registered or certified mail to his last known post office address or by personal service by an agent or employee of the Board, and may be accompanied by an order of the Board requiring described remedial action, which if taken within the time specified in such order, will effect compliance with the requirements of this Act and the rules and regulations issued hereunder. Such order shall become final unless a request for a hearing as hereinafter provided is made within 30 days from the date of service of such order. In addition to, or hi lieu of such order, the Board may appoint a time and place for such person to be heard. Notice by the Board may be given to any person upon whom a summons may be served in accordance with the provisions of law governing civil actions in the Superior Courts of this State. The Board may prescribe the form and content of any particular notice.

Sec. 10.  Hearings. The following provisions, together with any additional provisions not inconsistent herewith which the Board may prescribe, shall be applicable in connection with hearings pursuant to this Act, except where other provisions are applicable in connection with specific types of hearings.

(a)        Any hearing held pursuant to this Act whether called at the instance of the Board or of any person, shall be held upon not less than 30 days' written notice given by the Board to any person who is a party to the proceedings with respect to which such hearing is to be held, unless a shorter notice is agreed upon by all such parties.

(b)        All hearings shall be before the Board, or before one or more of its own members, or before one or more of its own qualified employees, and the hearings shall be open to the public. Any employee or member of the Board to whom a delegation of power is made to conduct a hearing shall report the hearing with its evidence and record to the Board for decision.

(c)        A full and complete record of all proceedings at any hearing shall be taken by a reporter appointed by the Board or by any other method approved by the Attorney General. Any party to a proceeding shall be entitled to a copy of such record upon the payment of the reasonable cost thereof as determined by the Board.

(d)        The Board and its agents shall follow generally the procedures applicable in civil actions in the Superior Court insofar as practicable, including rules and procedures with regard to the taking and use of depositions, the making and use of stipulations, and the entering into of agreed settlements and consent orders.

(e)        The Board, or the duly authorized agents of the said Board, may administer oaths and may issue subpoenas for the attendance of witnesses and the production of books, papers, and other documents belonging to the said person.

(f)         Subpoenas issued by the Board, in connection with any hearing, shall be directed to any officer authorized by law to serve process, and the further procedures and rules of law applicable with respect thereto shall be prescribed in connection with subpoenas to the same extent as if issued by a court of record. In case of a refusal to obey a subpoena issued by the Board, application may be made to the Superior Court of the appropriate county for enforcement thereof.

(g)        The burden of proof at any hearing shall be upon the person or the Board as the case may be, at whose instance the hearing is being held.

(h)        No decision or order of the Board shall be made in any proceeding unless the same is supported by competent, material and substantial evidence upon consideration of the whole record.

(i)         Following any hearing, the Board shall afford the parties thereto a reasonable opportunity to submit within such time as prescribed by the Board proposed findings of fact and conclusions of law and any brief in connection therewith. The record in the proceeding shall show the Board's ruling with respect to each such requested finding of fact and conclusion of law.

(j)         All orders and decisions of the Board shall set forth separately the Board's findings of fact and conclusions of law and shall, wherever necessary, cite the appropriate provision of law or other source of authority on which any action or decision of the Board is based.

(k)        As previously recited above, the Board shall have the authority to adopt a seal which shall be the seal of said Board and which shall be judicially noticed by the courts of the State. Any document, proceeding, order, decree, special order, rule, regulation, rule of procedure or any other official act or records of the Board or its minutes may be certified by the director or assistant director of the department under his hand and the seal of the Board and when so certified shall be received in evidence in all actions or proceedings in the courts of the State without further proof of the identity of the same if such records are competent, relevant and material in any such action or proceeding. The Board shall have the right to take judicial notice of all studies, reports, statistical data or any other official reports or records of the Federal Government or of any sister state and all such records, reports and data may be placed in evidence by the Board or by any other person or interested party where material, relevant and competent.

Sec. 11.  Judicial Review. Any person against whom any final order or decision has been made except where no appeal is allowed as provided by Section 143-215.2(j) shall have a right of appeal to the Superior Court of Wake County or of the county where the order or decision is effective within 30 days after such order or decision has become final. Upon such appeal the Board shall send a certified transcript of all testimony and exhibits introduced before the Board, the order or decision, and the notice of appeal to the Superior Court. The matter on appeal shall be heard and determined de novo on the transcript certified to the court and any evidence or additional evidence as shall be competent under rules of evidence then applicable to trials in the Superior Court without a jury upon any question of fact; provided, the court shall allow any party to introduce evidence or additional evidence upon any question of fact. At the conclusion of the hearing, the Judge shall make findings of fact and enter his decision thereto. Appeals from the judgment and orders of the Superior Court shall lie to the Supreme Court. No bond shall be required of the Board to the Supreme Court.(a) Upon appeal filed by any party, the Board shall forthwith furnish each party to the proceeding with a copy of the certified transcript and exhibits filed with the Board. A reasonable charge shall be paid the Board for said copies.(b) Within 15 days after receipt of copy of certified transcript and exhibits, any party may file with the court exceptions to the accuracy or omissions of any evidence or exhibits included in or excluded from said transcript.

Sec. 12.  Penalties. Any person who violates any provisions of this Act, or regulations issued hereunder, or order pursuant thereto, shall be subject to penalty of one hundred dollars ($100.00). In addition, if any person is adjudged to have committed such violation willfully, the court may determine that each day during which such violation continued constitutes a separate violation.

Sec. 13.  Injunctive Relief. Upon violation of any of the provisions of this Act, the Director of the Department may, either before or after the institution of proceedings for the collection of the penalty imposed by this Act for such violations, institute a civil action in the Superior Court in the name of the State upon the relation of the Director of the Department for injunctive relief to restrain the violation and for such other or further relief in the premises as said court shall deem proper. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from the penalty prescribed by this Act for any violation of same.

Sec. 14.  Conflict With Other Laws. The provisions of any law, or regulation of the State or any municipality establishing standards affording greater protection to the public welfare, safety, health and groundwater resources shall prevail within the jurisdiction of such agency or municipality over the provisions of this Act and regulations adopted hereunder.

This Act or any rules or regulations adopted pursuant thereto, shall not be in conflict with any laws, rules, or regulations of the State Board of Health pertaining to public health, wells and ground-water supplies. All laws, rules, and regulations presently in effect that are administered by the State Board of Health shall remain in effect.

Sec. 15.  The provisions of this Act are severable, and if any of the provisions shall be declared unconstitutional by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions.

Sec. 16.  The various Sections of this Act shall be given appropriate numbers and codified by the Attorney General as a new Article of General Statutes Chapter 87.

Sec. 17.  All laws and clauses of laws in conflict with this Act are hereby repealed to the extent of such conflict.

Sec. 18.  This Act shall become effective upon ratification.

In the General Assembly read three times and ratified, this the 6th day of July, 1967.