Bill Summary for H 765 (2015-2016)

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Summary date: 

Sep 28 2015

Bill Information:

View NCGA Bill Details2015-2016 Session
House Bill 765 (Public) Filed Tuesday, April 14, 2015
Intro. by McElraft.

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Bill summary

The new conference report makes the following changes to the 4th edition. (Note: only changes concerning the deletion of Section 4.2(b) and new Section 4.39 are different from the previously reported conference report.)

Conference report makes the following changes to the 4th edition.

Deletes Section 1.4, which concerned attorneys' fees in cases where the State was a party.

Section 1.5

Amends proposed GS 93B-8.2 to prohibit an occupational board from contracting with or employing a person licensed by the board to serve as an investigator or inspector if the licensee is practicing in the profession or occupation and is in competition with members of the profession or occupation (the 4th edition did not require that the person be in competition with members of the profession or occupation). Adds that nothing in the statute prevents a board from contracting with licensees of the board to serve as expert witnesses or consultants in cases where special knowledge and experience is required, as long as the board limits the duties and authority of the expert or consultant to serving as an information resource to the board and board personnel. Makes clarifying changes.

Section 1.8

Adds that if H44, Local Government Regulatory Reform 2015, becomes law, then GS 160A-381(c) (concerning cities) and GS 153A-340(c1) (concerning counties), are amended to add that the conditions and safeguards in special use or conditional use permits do not include requirements for which the city/county does not have statutory authority to regulate nor requirements for which the courts have held to be unenforceable if imposed directly by the city/county.

Also adds that if H44 becomes law, GS 153A-457 (concerning counties) and GS 160A-499.4 (concerning cities), are amended to provide that notice to property owners and adjacent property owners required before the city/county begins a construction project does not have to be in writing at least 15 day before commencing construction if the construction is of an emergency nature (was, if the construction is a repair of an emergency nature). Also adds a provision defining construction for the purposes of the statute as the building, erection, or establishment of new buildings, facilities, and infrastructure and does not include routine maintenance and repair.

Section 3.3

Changes the effective date of the changes to GS 14-56, concerning expanding the good samaritan exemption from September 1, 2015, to December 1, 2015.

Section 3.4

Amends GS 130A-310.65 by amending the definition of contaminated off-site property so that the definition also applies to off-site property. Amends the definition by adding that the term includes publicly owned property, including rights-of-way for public streets, roads, or sidewalks. Amends the definition of the term contaminated site so that its definition also applies to the term source site. Amends the definition to require that the contaminated property also be the property from which the contamination originated.

Amends GS 130A-310.67 to add that Part 8 (Risk-Based Environmental Remediation of Sites) does not apply to: (1) leaking petroleum aboveground storage tanks and other sources of petroleum releases governed by proposed new Part 7 (Risk-Based Remediation for petroleum releases from aboveground storage tanks and other sources) of Article 21A of GS Chapter 143, or (2) animal waste management systems.

Amends GS 130A-310.73A to require that the remediation of contaminated sites at which contamination has migrated to off-site properties also be consistent with the remediation standards in GS 130A-310.68.

Amends GS 130A-310.75 to require that when DENR decides whether to approve the use of a registered environmental consultant to provide oversight of the assessment and remediation of a site, the decision must be based on the risk posed by the site and the availability of DENR staff for remediation oversight.

Amends GS 130A-310.76 by deleting the current fee requirements and replacing the fee with the following. Establishes a $5,000 per acre application fee for a person who proposes to conduct remediation, with a cap of $100,000. Requires the payment of an oversight fee by a person who has been approved to conduct a remedial action plan; sets the fee at no more than $500 per acre and caps the fee at $25,000. Sets out four factors that DENR must consider before imposing the above fees and requires DENR to provide the person with written documentation of DENR's findings with respect to each factor. Expands the allowable uses of these fees to specify that they may be used to pay the full cost of DENR's activities associated with any human health or ecological risk assessments, groundwater modeling, financial assurance matters, or community outreach. Requires DENR to report annually to the Joint Legislative Commission on Governmental Operations, the ERC, and the Fiscal Research Division on or before October 1 on the amounts and sources of funds collected by year received, the amounts and sources of the funds paid to the new Risk-Based Remediation Fund, the number of acres of contamination for which funds have been received and an annual accounting of how the funds have been used. Makes a conforming repeal of GS 130A-310.10(a)(8a), which contains a similar reporting requirement.

Enacts new GS 130A-310.76A establishing the Risk-Based Remediation Fund, consisting of fees collected under GS 130A-310.76. 

Amends GS Chapter 143, Article 21A, by enacting new Part 7, Risk-Based Remediation for Petroleum Releases from Aboveground Storage Tanks and Other Sources, which provides as follows. Sets out the General Assembly's findings and intent. Directs the EMC to adopt rules to establish a risk-based approach for the cleanup of discharges and releases of petroleum from above ground storage tanks and other sources. Specifies the minimum of what must be addressed in the rules, including circumstances where site-specific information should be considered, the acceptable level or range of levels of risk to human health and the environment, and requirements for financial assurance when the EMC deems it necessary. Sets out notice requirements that vary depending on whether it has been determined that a discharge poses a degree of risk to human health or the environment that requires cleanup. Allows an owner, operator, or landowner to select a cleanup method other than the one approved by the EMC so long as the EMC determines that the alternative method will address imminent threats to human health and the environment. Sets out provisions governing the remediation of sites with off-site migration, including conditions under which the site may be remediated under this new Part; development of a publication by DENR for property owners that will provide information on the nature of risk based remediation, how it differs from remediation to unrestricted use stands, potential health impacts from residual contamination, and identification of liabilities that arise from contaminated property; and liability for additional remediation. Specifies that the EMC's authority to require investigation, initial response, and abatement of a discharge or release pending a determination by the EMC on whether to require cleanup is not limited by the new statute. Sets out minimum actions that must be taken by a responsible party.

Amends GS 130A-310.8 (concerning recordation of inactive hazardous substance or waste disposal sites), GS 143-215.85A (concerning recordation of oil or hazardous substance discharge sites), and GS 143-279.10 (concerning recordation of contaminated sites) by adding that if a site that is subject to the statute is remediated under GS Chapter 130A, Article 9, Part 8 (Risk-Based Environmental Remediation of Industrial Sites), a Notice of Residual Contamination may be prepared and filed instead of a Notice prepared and filed under the applicable statute.

Section 4.2

While it was not in the 4th edition, this conference report deletes Section 4.2(b) which appeared in the original conferece report. Section 4.2(b) required DENR to study issues associated with siting and operation of utility-scale solar projects in the State.

Section 4.8

Delays the date by which DENR must take specified actions from January 1, 2016, to March 1, 2016. Adds to the items that DENR must do, examining the criteria for development of site-specific remediation standards, specifically distances between water bodies and other receptors to plumes of contamination that originate from the source, to ensure that such standards are protective of public health, safety, and welfare; the environment; and natural resources.

Section 4.8A

Requires DENR, in conjunction with the Department of Health and Human Services, to study the State's groundwater standards under 15A NCAC 2L, or State Interim Allowable Maximum Contaminant Levels (IMAC), as well as State health screening levels, for hexavalent chromium and vanadium relative to other southeastern states' standards for these contaminants and the federal maximum contaminant levels (MCLs) for these contaminants under the Safe Drinking Water Act, in order to identify appropriate standards to protect public health, safety, and welfare; the environment; and natural resources. Requires evaluating background standards for these contaminants where they naturally occur in groundwater. Requires an interim report by November 1, 2015, and a final report no later than April 1, 2016, to the ERC and the Joint Legislative Oversight Committee on Health and Human Services on its activities and any pertinent findings or recommendations, including any legislative proposals that it deems advisable.

Section 4.9

Adds new provisions concerning landfills and transfer stations.

Amends GS 130A-294, as amended, to require that permits for sanitary landfills and transfer stations be issued for the life of site of the facility unless revoked or upon the expiration of any local government franchise required for the facility. Defines life of site to mean the period from the initial receipt of solid waste at the facility until DENR approves final closure. Requires that permits take into account the duration of previously issued permits and the facility's remaining capacity. Sets out and defines the following terms for use in the statute: new permit; permit amendment; and permit modification. Makes conforming changes by deleting references to permit renewals and substantial amendments to a permit. 

Amends GS 130A-295.8 by deleting the existing term definitions as well as landfill, transfer, and related permit fees. Sets out new fees that must be paid by August 1 of each year for: Municipal Solid Waste Landfills accepting less than 100,000 tons/year of solid waste; Municipal Solid Waste Landfills accepting 100,000 tons/year or more but less than 250,000 tons/year of solid waste; Municipal Solid Waste Landfills accepting 250,000 tons/year or more of solid waste; Post-Closure Municipal Solid Waste Landfills; Construction and Demolition Landfills accepting less than 25,000 tons/year of solid waste; Construction and Demolition Landfills accepting 25,000 tons/year or more of solid waste; Post-Closure Construction and Demolition Landfills; Industrial Landfill accepting less than 100,000 tons/year of solid waste; Industrial Landfills accepting 100,000 tons/year or more of solid waste; Post-Closure Industrial Landfills; Transfer Stations accepting less than 25,000 tons/year of solid waste; Transfer Stations accepting 25,000 tons/year or more of solid waste; Treatment and Processing Facilities; Tire Monofill; Incinerators; Large Compost Facilities; and Land Clearing and Inert Debris Landfills. Requires permit applicants to pay, upon submission of an application, an application fee in the amount of 10% of the annual permit fee imposed for that facility.

Makes conforming changes to GS 130A-295.3, as amended.

Provides that GS 130A-294 [except (b1)(2)] applies to existing sanitary landfills and transfer stations, with a valid permit issued before the date the act becomes effective, on July 1, 2016, at which point a permittee may choose to apply for a life-of-site permit or apply for a life-of site-permit for the facility when the facility's permit is next subject to renewal after July 1, 2016. Adds that landfills and transfer stations are eligible for issuance of life-of-site permits under GS 130A-294(a2) on July 1, 2016, at which point a permittee may choose to apply for a life-of-site permit or apply for a life-of site-permit for the facility when the facility's permit is next subject to renewal after July 1, 2016.

Section 4.10

This section is the same as old Section 4.9 with the following changes. Amends GS 130A-310.31(b)(10) by deleting the changes to the definition of prospective developer and instead defines the term to mean any person with a bona fide, demonstrable desire to develop or redevelop a brownfields property and who did not cause or contribute to the contamination at the brownfields property. Changes the effective date of this section from July 1, 2015, to December 1, 2015.

Deletes old Section 4.11, which repealed energy audit requirements.

Section 4.14

Amends GS 130A-334 by adding and defining the terms approved agency for special inspection, approved special inspection, construction observation, engineered option permit, licensed geologist, and special inspection. Deletes the term private option permit. Changes the definition of Secretary from the Secretary of Environment and Natural Resources to the Secretary of Health and Human Services.

Amends GS 130A-335 by providing that any proposed site for a residence, place of business, or a place of public assembly located in an area that is not served by an approved wastewater system for which a new wastewater system is approved or repair is necessary for compliance (previously did not include repairs) may be evaluated for soil conditions and site features by a licensed soil scientist or licensed geologist (was, licensed soil scientist only). Requires that wastewater systems be regulated by the Department of Health and Human Services (DHHS), or conform with the engineering option permit (was, private option permit) criteria, with specified exceptions. Makes conforming changes replacing the private option permit with the engineering option permit. Allows DHHS or the owner of a wastewater system to file a written complaint with the NC Board for Licensing of Geologists citing failure of a licensed geologist to adhere to the rules. Also allows DHHS or wastewater system owners to file written complaints with the NC On-Site Wastewater Contractors and Inspectors Certification Board citing failure of a contractor to adhere to the rules.

Amends proposed new GS 130A-336.1 to allow a licensed professional engineer to, at the discretion of the owner of a proposed wastewater system who wants to use the engineered option permit, prepare signed and sealed drawing, specifications, plans, and reports for the design, construction, operation, and maintenance of the wastewater system. Makes conforming changes, replacing references to the private option permit with the engineered option permit. Amends the information that must be included on the form to be used as the notice of intent to construct to: (1) add that the professional engineer's license number must be included; (2) no longer require a certified copy of the wastewater system owner's contract with the professional engineer; (3) require for the professional engineer, licensed soil scientist, licensed geologist, and any on-site wastewater contractor, proof of errors and omissions insurance coverage or other appropriate liability insurance (deletes provisions setting the minimum amount of the policy and setting the duration of the policy); and (4) require a soil evaluation conducted and signed and sealed by a licensed soil scientist or a licensed geologist (was, only a licensed soil scientist). Requires the local health department to determine whether a notice of intent to construct is complete within 15 business days (was, within 14 days) after receiving the notice of intent to construct. Requires the local health department to make a final determination as to whether the notice of intent to construct is complete within 10 business days (was, 10 days) after receiving the additional information. Provides that if the department does not act within the required time period, the owner or professional engineer may treat the failure to act as a determination of completeness (was, treat the failure to act as a denial of the completeness of the notice of intent and allowed the denial to be challenged under GS Chapter 150B). Allows the owner of a proposed wastewater system to choose between employing a licensed soil scientist or a licensed geologist who has the applicable professional experience. Amends the professional engineer's responsibilities. Adds responsibilities of an on-site wastewater system contractor who is employed by the wastewater system owner. Amends the liability provision to just state that DHHS, DHHS's authorized agents, or local health departments have no liability for wastewater systems designed, constructed, and installed under an engineered option permit. Sets out additional provisions concerning construction observations, special inspections, and inspection reports. Clarifies that the statute does not relieve the owner or operator of a wastewater system from complying with any and all changes and additions to rules adopted by a local heath department to protect public health that are required at the time the owner or operator submits the notice of intent to construct. Amends the provisions concerning the operations and management of wastewater systems to: (1) no longer require the professional engineer to assist the owner in selecting a water pollution control system operator; (2) make the wastewater system owner (was, the person who owns or controls the property upon which the wastewater system is located) responsible for the continued adherence to the operations and management program established by the  engineer; and (3) make clarifying changes. Amends who must be included in the post-construction conference. Amends the documentation that must be given to the owner following the post-construction conference. Amends the information that the wastewater system owner must submit to the health department. Requires the local health department to issue authorization to operate within 15 business days of receiving the required documents and fees. Replaces the allowed fee with language that allows the local health department to assess a fee for the engineered option permit of up to 30% of the cumulative total of the fees the department has established to obtain an improvement permit, and authorization to construct, and an operations permit for wastewater systems under its jurisdiction. Adds that owners, operators, and other specified individuals employed for the construction or installation of the wastewater system are subject to the provisions and remedies provided to DHHS and local health departments. Adds to the items that DHHS must study and report on by January 1, 2017, to include an amount of errors and omissions insurance or other liability sufficient for covering specified individuals who use the engineered option permit; and the fees charged by local health departments to administer the engineered option permit. Makes clarifying and conforming changes throughout the statute. 

Amends GS 130A-339 (limitation on electrical service) to prohibit allowing permanent electrical services until the official electrical inspector certifies that the required improvement permit authorization for wastewater system construction and an operation permit or authorization or the letter of confirmation authorizing wastewater system operation has been obtained.

Change the due date of the Commission for Public Health's report on the minimum on-site wastewater system inspection frequency from January 1, 2016, to March 1, 2016.

Makes conforming changes to GS 130A-336 to include reference to a licensed geologist. Reinstates the language providing that an improvement permit must include, for permits that are valid without expiration, a plat, or, for permits that are valid for five years, a site plan. Deletes the proposed language requiring that the improvement permit and the authorization for wastewater system construction remain valid once issued, without expiration, if the design wastewater flow and characteristics and the description of the proposed facility the wastewater system will serve remains unchanged. Reinstates the provision requiring the authorization for waster system construction be valid for a period equal to the period of validity of the improvement permit and allowing it to be issued at the same time of the improvement permit. Deletes the proposed language that required the local health department to maintain a database of proposed wastewater systems for which the improvement permit and construction authorization were obtained but no activity has started during the five years immediately following the approval.

Requires the Commission for Public Health, in consultation with DHHS, local health departments, stakeholders who represent the wastewater system industry, and other interested parties to study the period of validity for improvement permits and authorizations for wastewater system construction and evaluate the costs and benefits of a range of periods of validity. Requires a report to the ERC and the Joint Legislative Oversight Committee on Health and Human Services on or before April 1, 2016.

Provides that any improvement permit or authorization for wastewater system construction that is in effect on the effective date of this act which is scheduled to expire on or before July 1, 2016, remains in effect until July 1, 2016. 

Amends proposed GS 130A-342(b) to clarify that the Commission's power to establish additional standards for wastewater systems with a design flow of 1,500 gallons or more per day is in addition to the requirement for a certified Subsurface Water Pollution Control System Operator.

Requires that the Commission for Public Health adopt permanent rules subject to Section 4.14(a) through (e), Section 4.14(g), and Section 4.14(j) of this act by January 1, 2017.

Section 4.14A

Adds new Section 4.14A. Amends GS 90A-72(b), which provides exemptions from the requirements of GS Chapter 90A, Article 5 (Certification of On-Site Wastewater Contractors and Inspectors). Amends the statute to add that the exemption applies to a licensed plumbing contractor so long as the plumber is not installing or repairing a treatment or pretreatment tank or system downstream from the point where the house or building sewer lines from the plumbing system meet the septic tank or similar depository. Adds that a plumbing contractor is not required to become certified as a contractor pursuant to the statute to install or repair a grease trap, interceptor, or separator upstream from a septic tank or similar depository that complies with the requirements of the local health department.

Section 4.15

Amends the definition of the term nationally recognized certification body in GS 130A-343, approval of on-site subsurface wastewater systems, be removing specified entities and defining the term to mean a third-party certification body for wastewater systems or system components that is accredited by an entity widely recognized in the US such as the American National Standards Institute, the Standards Council of Canada, or the International Accreditation Service, Inc. Makes technical changes. Deletes reporting requirements for the Commission for Public Health.

Section 4.17

Adds a section requiring DENR to study whether the amendments to GS 143-215.108 (control of sources of air pollution; permits required) should be expanded into other programs administered by DENR, including whether the changes should be made to the water and solid waste permitting programs. Requires DENR to report study results to the ERC by March 1, 2016.

Section 4.18

Provides that for the purpose of implementing Section .1300 of 2H of Chapter 2 of Title 15A of the North Carolina Administrative Code (Discharges to Isolated Wetlands and Isolated Waters), the isolated wetlands provisions apply only to Basin Wetlands and Bogs and no other wetland types as described in the NC Wetland Assessment User Manual version 4.1 October 2010 that are not jurisdictional wetlands under the federal Clean Water Act (was, the isolated wetlands provisions apply only to Basin Wetlands and Bogs that are not jurisdictional wetlands under the federal Clean Water Act).

Amends Section 54 of SL 2014-120 to reinstate the language providing that in implementing 15A NCAC 02H .1305 (Review of Applications), the amount of impacts of isolated wetlands must be less than or equal to one acre of isolated wetlands east of I-95 for the entire project and less than or equal to 1/3 acre of isolated wetlands west of I-95 for the entire project (the 4th edition required the amount of impacts of isolated wetlands be less than or equal to one acre of isolated wetland for the entire project regardless of location).

Adds a provision requiring the Environmental Management Commission (EMC), by March 1, 2016, to amend 15A NCAC 02H .1305 (Review of Applications) to establish a coastal region, piedmont region, and mountain region for purposes of regulating impacts to isolated wetlands. Sets the amount of impacts for isolated wetlands for each of those regions. Prohibits the regulatory requirements for impact to isolated wetlands from being more stringent than required under current law. Repeals Section 54(b)(1) of SL 2014-120 when the rules required by this provision become effective.

Section 4.19

Adds a new section requiring DENR to evaluate the water quality of the surface waters in the coastal counties and the impact of stormwater on the water quality. Requires determination of the maximum allowable built-upon area for the low density state stormwater option as related to the length of grassed swale treatment length; therefore providing data for a property to achieve increased build-upon area able current limits by providing a longer length of grassed swale through with the stormwater must pass. Requires DENR to make recommendations to the General Assembly if it is determined that increases in the percentage of built-upon area can be allowed in this way without detriment to the water quality. Requires DENR to report the results of the study to the ERC by April 1, 2016.

Section 4.20

Adds a section amending Section 3 of SL 2013-82 to delay the date by which the EMC must adopt rules implementing GS 143-214.7B (Fast-track permitting for stormwater management systems) to November 1, 2016 (was, July 1, 2016).

Amends GS 143-214.7, concerning stormwater runoff rules and programs, to add that for State stormwater programs and approved local stormwater programs, the following apply: (1) the volume, velocity, and discharge rates of water associated with the one-year, 24-hour storm and the difference in stormwater runoff from the predevelopment and postdevelopment conditions for the one-year, 24-hour storm must be calculated using any acceptable engineering hydrologic and hydraulic methods; (2) development may occur within the area that would otherwise be required to be placed within a vegetative buffer required by the Commission under GS 143-214.1 (concerning Water; water quality standards and classifications) and GS 143-214.7 (Stormwater runoff rules and programs) to protect classified shellfish waters, outstanding resource waters, and high-quality waters provided the stormwater runoff from the development is collected and treated from the entire impervious area and discharged so that it passes through the vegetative buffer and is managed so that it otherwise complies with all applicable State and federal stormwater management requirements; (3) the requirements that apply to development activities within one-half mile of and draining to Class SA waters or within one-half mile of Class SA waters and draining to unnamed freshwater tributaries shall not apply to development activities and associated stormwater discharges that do not occur within one-half mile of and draining to Class SA waters or are not within one-half mile of Class SA waters and draining to unnamed freshwater tributaries. Further amends (d) of the statute to require that the EMC approve a stormwater management program if the program's standards equal (was, equal or exceed) those of the model program. Requires, no later than March 1, 2016, a State agency or local government that implements a stormwater management program approved under GS 143-214.7(d) to submit its current program or a revised program to the EMC. Requires the EMC, no later than December 1, 2016, to review and act on each of the submitted programs in accordance with newly amended GS 143-214.7(d).

Requires the ERC, with DENR's assistance, to review the current status of regulations and guidance document related to stormwater management and decided whether they should be recodified or reorganized to clarify State law for the management of stormwater. Requires the ERC to submit recommendations to the 2016 Regular Session of the 2015 General Assembly.

Amends Section 46 of SL 2014-120 to extend the provision allowing the addition of a cluster box unit to a single-family or duplex development permitted by a local government without requiring a modification to any stormwater permit for that development so that it does not expire until December 31, 2017 (was, December 31, 2015).

Section 4.24

Requires the Secretary of Environment and Natural Resources to repeal 15A NCAC 02D .1010 (Heavy-duty Vehicle Idling Restrictions) by March 1, 2016 (was, December 1, 2015).

Section 4.25 

Amends the provision requiring DENR to request the removal of ambient air monitors that are not required by federal law to require that DENR also have determined that the monitors are not necessary to protect public health, safety, and welfare; the environment; and natural resources. Adds the same requirement to the provision concerning the actual discontinuance of those monitors.

Deletes Section 4.29 concerning the disclosure of personal identifying information.

Deletes Section 4.30 which increased the thresholds for mitigation of linear stream impacts.

Section 4.31

Amends proposed GS 143-214.7C by deleting the provision that stated that the requirement that DENR not require mitigation for impacts to intermittent streams was notwithstanding any other provision of State law.

Section 4.32

Deletes the changes to GS 113-129, which defined pigeons as wild birds.

Adds changes to GS 14-360(c) to exclude the taking of pigeons from the statute, which prohibits specified acts considered as cruelty to animals.

Amends GS 19A-1.1 to exclude pigeons from GS Chapter 19A, Civil Remedy for Protection of Animals.

Section 4.36

Amends proposed GS 114-8.7 (Reports of animal cruelty and animal welfare violations) by no longer requiring the animal welfare hotline to be called the "NC Pets We Care Hotline." Also adds that the Department of Justice (1) is authorized to spend funds available for these purposes to administer the statute; and (2) is exempted from external agency project approval standards. Changes the effective date of the statute from January 1, 2016, to March 1, 2016.

Deletes proposed changes to GS 7A-304(a).

Deletes Section 4.37, which amended stormwater management law.

Section 4.38

Changes the date by which the Department of Insurance, Department of Public Safety, and the Building Code Council must report on flood elevations and building height requirements from January 1, 2016, to March 1, 2016.

Section 4.39

Adds a new section amending GS 106-950 as follows. Amends GS 106-950 concerning fires that are exempt from open fire regulations, setting out five specific criteria for when the burning of polyethylene agricultural plastic is allowed, including allowing the burning when it does not violate any State or federal ambient air quality standards and is conducted between an hour after sunrise and an hour before sunset. Allows the Department of Agriculture and Consumer Services to adopt rules to implement the provisions of this section. Effective January 1, 2015.