public policy advocacy for the professional engineer                                                  January 16, 2014    

Happy New Year!  Thank you for taking the time to read the NC Legislative News for Professional Engineers – the source of information on legislative, regulatory and policy news that affects the Profession of Engineering in North Carolina. 

Legislative advocacy is one of the most important benefits PENC performs on behalf of the Profession.  However, as a member, only you receive this critical information that helps you keep abreast of regulatory and policy changes that affect your Profession and, only as a member can you have the opportunity to work with others like you to make real change and have true influence with decision-makers in the legislative and regulatory arena on issues that affect your Profession.

While the Engineering Profession can be proud of many accomplishments during the 2013 legislative session, there’s still work to be done through interim studies happening now, where findings and recommendations can be turned into legislation introduced in the short session this year.  The legislature is scheduled to convene May 14th and will adjourn soon after adoption of an amended 2014-15 budget which goes into effect July 1.  The following items are a few of the issues we are working on or following now:     

Regulatory Review of Engineering Work

The Omnibus Regulatory Reform legislation, HB 74, enacted during the 2013 legislative session, includes a requirement that the Environmental Review Commission (ERC) study the regulatory review of engineering work performed by NCDENR, NCDOT, NCDHHS and local governments.  Specifically, these agencies and local governments are required to study the internal processes that they use in reviewing applications and permit requests submitted by Professional Engineers and to report their findings and recommendations to the ERC by January 1, 2014.  The ERC, with assistance from the aforementioned agencies as well as PENC and NC Board of Examiners for Engineers and Land Surveyors will study these findings and report to the General Assembly their recommendations upon its convening in May.   

The study is intended to evaluate ways to improve these review processes and to ensure that staff engaged in the review of engineering work who are not PEs  are not practicing engineering (as defined in NC GS 89C) and also to guard against any reviewer going beyond their regulatory purview during the review process. 

Yesterday, during the regular meeting of the ERC, both the agencies and PENC presented their findings and recommendations.  PENC Past President, Gus Simmons, PE, Cavanaugh and Associates presented the PENC findings and Tracy Davis, PE, Director of the Division of Energy, Mineral and Land Resources in NCDENR made the summary presentation of the agency and local government findings.  Tracy is also a member of PENC. 

The PENC recommendations are a result of significant outreach to our members and the engineering community and the work of an internal Action Group of members representing consultants as well as local and state government.  Through surveys, personal interviews and an open workgroup session at the PENC conference in Raleigh this past December, the Action Group identified common themes and elements that were then used as the basis for the recommendations to the ERC – keeping in mind the mission of PENC “to promote the competent and ethical practice of Professional Engineering that protects the health and welfare of the general public above all else”.  

1)     PENC supports the review of applications by regulatory staff for the purpose of determining regulatory compliance and not for the purpose of evaluating the application of science (Engineering).

2)     PENC encourages regulatory reviewers refer any work completed by a PE that is purported to be negligent or incompetent to NCBELS.

3)     PENC encourages training of regulatory reviewers in identification of work that constitutes the Practice of Engineering and is available to facilitate training for reviewers.

4)     PENC encourages pre-submittal meetings to clarify understanding among applicant and reviewer on the front end.

5)     PENC supports owners and operators being responsible for determining the required level of review.

6)     PENC encourages regulatory agencies to implement programs or training that increases standardization and consistency among regulatory reviewers.

7)     PENC recommends that all regulatory reviews be conducted by staff under the direct supervision of a licensed PE and that those PEs be held to the standards set forth by NCGS 89C.

PENC Presentation to ERC

Several of the recommendations coming from the agencies were identical to those proposed by PENC:

-         Training for reviewers who are not PEs on what constitutes “the practice of engineering”

-         More Pre-submittal review meetings

Agency recommendations are included in the link below.

Review of Engineering Work Session Law 2013-413

Beginning next week the ERC workgroup which includes legislators, agency representatives, NCBELS and PENC, will meet to review the information presented yesterday and prepare their findings to be presented to the full ERC at their meeting on March 15th. 

 If you have questions about this issue feel free to contact Betsy Bailey (, or Gus Simmons, PE, the Chair of the PENC Section 58 Action Group (  We will continue to keep our membership updated as the work continues. 

Many thanks to Gus for his presentation yesterday as well as the other members of the Action Group:  Kevin Plemmons, PE, City of Concord, Stephanie Sudano, PE, Town of Holly Springs, Tommy Faulkner, PE, Falcon Engineering, Dan Dawson, PE, WK Dickson, Whit Rawls, PE, S&ME and the PENC Executive Committee. 


NC Building Code Council and HB 120


HB 120 – Building Codes/Local Consistency enacted during the 2013 Session, changed the code cycle for residential construction from 3 years to 6 years.  It also prohibits a city from adopting an ordinance or policy that requires additional inspections beyond those required by the state Building Code without approval by the NC Building Code Council. 


Since the passage of the legislation, there have been several attempts by the NC Building Code Council to also change the code cycle for commercial construction from 3 years to 6 years, the most recent attempt being at their meeting on December 10, 2013.  At this meeting, approximately 32 individuals spoke on behalf of themselves or an organization they represented, overwhelmingly opposed to changing the commercial cycle.  Only two individuals spoke in favor of the proposed change to 6 years and one, Carolinas AGC, was neutral.  Ultimately, the issue was not resolved at the December meeting but will be discussed and possibly voted on again at their next meeting in March. 


Based on the comments from the engineering groups and individuals speaking on this issue at the meeting, it is clear that the Engineering Industry is divided on the issue.  The Structural Engineers were one of the two groups that spoke in favor of the change to a 6 year cycle for commercial.  However, the mechanical and electrical engineering groups, including ASHRAE, Healthcare Facilities Engineers, and Fire Protection Engineers are adamantly opposed to this change and feel it could negatively affect the public health, safety and welfare. 


While PENC has not officially adopted a position on this issue, we are currently working with a coalition that is opposed to the change and will likely publicly speak against the 6 year cycle for commercial at the next NCBCC meeting.   

Continued Consideration of Repeal of Energy Portfolio Standard


After failing to repeal the state's renewable energy standard in 2014, legislators are looking at commissioning a study with the long-term aim of building a case against subsidizing green energy. Critics expressed skepticism about solar, wind and other green energy subsidies at a hearing of the Joint Legislative Commission on Energy Policy. The panel is led by two Republicans who oppose subsidizing green power, Rep. Mike Hager of Rutherfordton and Sen. Bob Rucho of Charlotte. After the hearing, Hager said he may propose a study that would focus on how green subsidies affect energy costs, which he sees as a major impediment to economic growth and attracting business to the state. "There's gotta be some end to it," Hager said of state subsidies for renewable energy. "There's gotta be a point where we say, 'You're a business and you gotta operate on your own.'"

Last year Hager, a former Duke Energy engineer, pushed a bill to phase out the subsidies. But it got stuck in the committee he leads, the House Committee on Public Utilities and Energy, after encountering resistance from some of the state's top Republicans. The subsidies date back to 2007 and require electric utilities to generate 12.5 percent of the power they sell to homes and businesses from solar, wind and other renewables by 2021. The complex law includes sweeteners for industry and power companies, and lawmakers were reluctant to dismantle the policy piecemeal. The law requires power companies to pay for the green power even when it costs more to produce than conventional forms of electricity. The cost of the subsidy is typically less than 50 cents a month for a typical North Carolina household. Critics acknowledged that the subsidy paid for solar power by utility customers in power bills is negligible. But they pointed out that solar developers also benefit from a 35 percent state tax credit and a 30 percent federal tax credit, cutting the cost of a solar project by more than half. What's more, farmers and other landowners who host solar farms benefit from an 80 percent property tax break.(John Murawski, THE NEWS & OBSERVER, 1/07/14).

PENC is currently opposed to the repeal of the Renewable Energy Portfolio Standard but is working on a position statement through our Resource Stewardship Action Group to gather more information to determine if this position should be reexamined.

Local Government Pre-Emption – HB 74 Regulatory Reform Act


Another item on the agenda for yesterday’s Environmental Review Commission meeting was “Background Presentations on the Circumstances under which cities and counties should be authorized to enact certain environmental ordinances". 


The Omnibus Regulatory Reform Act, HB 74, prohibits cities or counties from enacting ordinances that are also regulated by a state or federal statute enforced by an environmental agency that are more stringent than the state and federal statute unless approved unanimously by the local governing body.  This prohibition is not retroactive and is only temporary while the study by the ERC is taking place.


Presentations by the League of Municipalities and the Association of County Commissioners provided information of instances where local governments need the authority to enact local ordinances that go beyond state or federal statute based on their own unique environments – the steep slope ordinances in the western part of the state were given as an example as well as the coastal communities and Lake Lure. 


Representatives from the NC Retail Merchants Association, the Commercial Realtors Association and the NC HomeBuilders Association countered that some of these ordinances prohibit commerce and hurt development and redevelopment efforts. 


The prohibition is in effect until October 1, 2014 but ERC recommendations to the 2014 General Assembly could result in changes to this legislation in the short session. 


Environmental Management Commission, Built Upon Area and Defining Gravel


The quarterly report by the EMC was delivered at the ERC meeting yesterday by Benne Hutson, an Environmental Attorney and the Chair of the Commission.  The presentation included:

-         The organization of the “new” commission.  5 individuals reappointed with 9 new appointments and one existing vacancy.

-         The PE appointed to EMC was Dan Dawson, PE, WK Dickson, a PENC member and Fellow.

-         Rulemaking Issues Being Examined by the Commission i.e., Jordan Lake nutrient standards 

-         Significant work on Rules Review as mandated in HB 74


Another item discussed by Mr. Hutson but not included in the presentation was approval last week by the EMC of a temporary rule that provided a definition of gravel for the purposes of clarifying the legislation adopted in HB 74 that changed the definition of “Built Upon Area” for purposes of stormwater management.  (For purposes of implementing stormwater programs, "built‑upon area" means impervious surface and partially impervious surface to the extent that the partially impervious surface does not allow water to infiltrate through the surface and into the subsoil. "Built‑upon area" does not include a wooden slatted deck, the water area of a swimming pool, or gravel.")


Although the minutes from the last EMC meeting are not currently available, Mr. Hutson verbally defined gravel “clean, loose, aggregate material, with certain (defined) dimensions”.  Hearings on the proposed rule change will take place next week.


Legislative Studies and Other Work:


Additional legislative studies and interim committees we will be following include:


The Committee on Jordan Lake (Joint Committee)

The House Committee on Wetland and Stream Mitigation Co-Chaired by Rep. Millis

Joint Legislative Transportation Oversight

Revenue Laws Study Committee (Joint Committee)

House Committee on Mechanics Liens

Joint Program Evaluation Oversight Committee


In addition to these legislative initiatives, our members continue to work on a Stormwater Study Group with NCDENR.  The work of this study group will be transitioned to the new technical working group required in HB 480 – Environmental Permitting Reform -  that is developing Minimum Design Criteria for and a fast track permitting process for stormwater programs.

If there are questions or you need additional information, please feel free to contact me at or phone 919-834-1144, ext. 1.



Betsy Bailey
Professional Engineers of North Carolina





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