GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1993

H	1 

HOUSE BILL 976

Short Title:  Abolish Waste Management Board.	(Public)
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Sponsors: Representatives DeVane; Barnes, Cummings, Hackney, Hightower, and H. Hunter.
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Referred to:  Environment.
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April 19, 1993

A BILL TO BE ENTITLED
AN ACT TO ABOLISH THE GOVERNOR'S WASTE MANAGEMENT BOARD, TO MAKE CONFORMING CHANGES, AND TO TRANSFER THE OFFICE OF ENVIRONMENTAL EDUCATION TO THE OFFICE OF WASTE REDUCTION.
The General Assembly of North Carolina enacts:
Section 1.  Part 4A of Chapter 143B of the General Statutes is repealed.
Sec. 2.  G.S. 7A-29 reads as rewritten:
"§ 7A-29. (See Note) Appeals of right from certain administrative agencies.
(a)	From any final order or decision of the North Carolina Utilities Commission not governed by subsection (b) of this section, the Department of Human Resources under G.S. 131E-188(b), the Commissioner of Banks under Articles 17, 18, 18A, and 21 of Chapter 53 of the General Statutes, the Administrator of Savings and Loans under Article 3A of Chapter 54B of the General Statutes, the North Carolina Industrial Commission, the North Carolina State Bar under G.S. 84-28, the Property Tax Commission under G.S. 105-290 and G.S. 105-342, or an appeal from the Commissioner of Insurance under G.S. 58-2-80, appeal as of right lies directly to the Court of Appeals."
Sec. 3.  G.S. 104E-6.2 reads as rewritten:
"§ 104E-6.2. Local ordinances prohibiting low-level radioactive waste facilities invalid; petition to preempt local ordinance.
(a)	Notwithstanding any authority granted to counties, municipalities, or other local authorities to adopt local ordinances (including but not limited to those imposing taxes, fees, or charges or regulating health, environment, or land use), any local ordinance that prohibits or has the effect of prohibiting the establishment or operation of a low-level radioactive waste facility shall be invalid to the extent necessary to effectuate the purposes of this Chapter or Chapter 104G of the General Statutes.  
(b)	When a low-level radioactive waste facility would be prevented from construction or operation by a county, municipal, or other local ordinance(s), the operator of the proposed facility or the North Carolina Low-Level Radioactive Waste Management Authority established pursuant to Chapter 104G of the General Statutes (hereinafter 'the Authority') may petition the Department to review the matter. After receipt of a petition, the Department shall hold a hearing in accordance with the procedures in subsection (c) of this section and shall determine whether or to what extent to preempt the local ordinance to allow for the establishment and operation of the facility.
(c)	When a petition described in subsection (b) of this section has been filed with the Department, the Department shall hold a public hearing to consider the petition.  Such hearing shall be held in the affected locality within 60 days after receipt of the petition by the Department.  The Department shall give notice of the public hearing by:
(1)	Publication in a newspaper or newspapers having general circulation in the county or counties where the facility is or is to be located or operated, once a week for three consecutive weeks, the first notice appearing at least 30 days prior to the scheduled date of the hearing; and
(2)	First class mail to persons who have requested such notice.  The Department shall maintain a mailing list of persons who request notice in advance of the hearing pursuant to this section.  Notice by mail shall be complete upon deposit of a copy of the notice in a post-paid wrapper addressed to the person to be notified at the address which appears on the mailing list maintained by the Board, in a post office or official depository under the exclusive care and custody of the United States Postal Service.
Any interested person may appear before the Department at the hearing to offer testimony.  In addition to testimony before the Department, any interested person may submit written evidence to the Department for its consideration.  At least 20 days shall be allowed for receipt of written comment following the hearing.
(d)	The Department shall determine whether or to what extent to preempt local ordinance(s) so as to allow for the establishment and operation of the facility no later than 60 days after conclusion of the hearing.  The Department shall preempt a local ordinance only if it makes all five of the following findings:
(1)	That there is a local ordinance which would prohibit or have the effect of prohibiting the establishment or operation of a low-level radioactive waste facility;
(2)	That the proposed facility is needed in order to establish adequate capability to meet the current or projected low-level radioactive waste management needs of this State or to comply with the terms of any interstate agreement for the management of low-level radioactive waste to which the State is a party and therefore serves the interests of the citizens of the State as a whole;
(3)	That all legally required State and federal permits or approvals have been issued by the appropriate State and federal agencies or that all State and federal permit requirements have been satisfied and that the permits or approvals have been denied or withheld only because of the local ordinance(s);
(4)	That local citizens and elected officials have had adequate opportunity to participate in the siting process; and
(5)	That the construction and operation of the facility will not pose an unreasonable health or environmental risk to the surrounding locality and that the facility operator or the Authority has taken or consented to take reasonable measures to avoid or manage foreseeable risks and to comply to the maximum feasible extent with any applicable local ordinance(s).
If the Department does not make all five findings set out above, the Department shall not preempt the challenged local ordinance(s).  The Department's decision shall be in writing and shall identify the evidence submitted to the Department plus any additional evidence used in arriving at the decision.
(e)	The decision of the Department shall be final unless a party to the action shall, pursuant to Article 4 of Chapter 150B of the General Statutes as modified by G.S. 7A-29 and this section, files a written appeal within 30 days of the date of such decision.  The record on appeal shall consist of all materials and information submitted to or considered by the Department, the Department's written decision, a complete transcript of the hearing, all written material presented to the Department regarding the location of the facility, the specific findings required by subsection (d) of this section, and any minority positions on the specific findings required by subsection (d) of this section.  The scope of judicial review shall be that the court may affirm the decision of the Department, or may remand the matter for further proceedings, or may reverse or modify the decision if the substantial rights of the parties may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:
(1)	In violation of constitutional provisions; or
(2)	In excess of the statutory authority or jurisdiction of the agency; or
(3)	Made upon unlawful procedure; or
(4)	Affected by other error of law; or
(5)	Unsupported by substantial evidence admissible under G.S. 150B-29(a) or G.S. 150B-30 in view of the entire record as submitted; or
(6)	Arbitrary or capricious.
¨	If the court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become part of the record, the reasons for such reversal or modification.
(f)	In computing any period of time prescribed or allowed by this procedure, the provisions of Rule 6(a) of the Rules of Civil Procedure, G.S. 1A-1, shall apply."
Sec. 4.  G.S. 104G-2(2) is repealed.
Sec. 5.  G.S. 113-8.01 reads as rewritten:
"§ 113-8.01.  Pollution Prevention Pays Programs.
There is established within the Department a non-regulatory technical assistance program to be known as the Pollution Prevention Pays Program.  The purpose of this program is to encourage voluntary waste and pollution reduction efforts through research and by providing information, technical assistance, and matching grants to businesses and industries interested in establishing or enhancing activities to prevent, reduce, or recycle waste.  The Pollution Prevention Pays Program shall coordinate its activities with the appropriate regulatory agencies."
Sec. 6.  G.S. 120-70.33 reads as rewritten:
"§ 120-70.33.  Powers and duties.
The Joint Select Committee shall have the following powers and duties:
(1)	To study alternatives available to the State for dealing with low-level radioactive waste and the ramifications of each of those alternatives;
(2)	To evaluate actions of the North Carolina Low-Level Radioactive Waste Management Authority, its operator, and other persons with whom the Authority contracts;
(3)	To evaluate actions of the Radiation Protection Commission, the Division of Radiation Protection of the Department of Environment, Health, and Natural Resources, and of any other board, commission, department, or agency of the State or local government as such actions relate to low-level radioactive waste management;
(4)	To receive, review, and evaluate reports and recommendations submitted to the General Assembly by the North Carolina Low-Level Radioactive Waste Management Authority and the Inter-Agency Committee on Low-Level Radioactive Waste;
(5)	To review and evaluate changes in federal law and regulations, relevant court decisions, and changes in technology affecting low-level radioactive waste management;
(6)	To review existing and proposed State law and rules affecting low-level radioactive waste management and to determine whether any modification of law or rules is in the public interest;
(7)	To make reports and recommendations, including draft legislation, to the General Assembly from time to time as to any matter relating to the powers and duties set out in this section; and
(8)	(For applicability see note) To undertake such additional studies as it deems appropriate or as may from time to time be requested by the President Pro Tempore of the Senate, the Speaker of the House of Representatives, either house of the General Assembly, the Legislative Research Commission, the Joint Legislative Commission on Governmental Operations, the Environmental Review Commission, or the Joint Legislative Utility Review Committee, and to make such reports and recommendations to the General Assembly regarding such studies as it deems appropriate."
Sec. 7.  G.S. 120-123(23) is repealed.
Sec. 8.  G.S. 130A-294(c)(18) reads as rewritten:
"(18)	The operator of a hazardous waste disposal facility shall make monthly reports to the board of county commissioners of the county in which the facility is located on the kinds and amounts of hazardous wastes in the facility."
Sec. 9.  G.S. 130A-294(i) reads as rewritten:
"(i)	The Department, in consultation with the Division of Environmental Management of the Department of Environment, Health, and Natural Resources, shall develop a comprehensive hazardous waste management plan for the State.  This plan shall be completed by 1 July 1990 and shall be revised at two-year intervals thereafter."
Sec. 10. G.S. 130B-2(b) reads as rewritten:
"(b)	Unless a different meaning is required by the context, the following definitions shall apply throughout this Chapter:
(1)	'Authorized hazardous waste facility' means a hazardous waste facility authorized by the Governor as provided in G.S. 130B-5(a) and G.S. 130B-5(b)(1).
	(3)	'Commission' means the North Carolina Hazardous Waste Management Commission established pursuant to this Chapter or any successor thereto.
(4)	'Department' means the Department of Environment, Health, and Natural Resources."
Sec. 11.  G.S. 130B-4 reads as rewritten:
"§ 130B-4. Purpose.
It is the purpose of this Chapter to provide for the siting, construction, and operation of hazardous waste facilities to the end that hazardous waste may be treated or disposed of in the most cost-effective manner, while protecting public health and safety and the environment.  It is the purpose of this Chapter to promote a regional approach to hazardous waste management.  It is the purpose of this Chapter to provide a mechanism to assess the need for hazardous waste treatment and disposal in this State and in the region, to determine the scope and capacity of hazardous waste facilities needed in this State in order that North Carolina is in a position to assume its fair share in the management of hazardous waste so that the benefits and burdens of hazardous waste management are equitably shared by all states, and to cause to come into existence such facilities as are needed.  It is the purpose of this Chapter to promote interstate agreements for the management of hazardous waste which will assure access to hazardous waste facilities on a regional basis.  It is the purpose of this Chapter to encourage the development of hazardous waste facilities which are needed in this State through the efforts of private enterprise.  It is the purpose of this Chapter to create a commission to assist private enterprise with the development of needed hazardous waste facilities through the performance of those tasks which private enterprise is unable to undertake or accomplish.  It is the purpose of this Chapter to authorize the Commission, when authorized by the Governor, to site, design, finance, construct, operate, oversee, acquire, hold, sell, lease, or convey needed hazardous waste facilities to the extent that private enterprise fails to provide such facilities.
It is also the purpose of the General Assembly to limit the extent to which units of local government may regulate the management of hazardous waste by means of local acts, laws, resolutions, ordinances, rules, or regulations, including but not limited to those relating to taxes and fees, local land use including zoning and other restrictions on the use of property, building codes, fire protection, civil defense, preparation for and response to emergencies, and public health.
Furthermore, it is the purpose of this Chapter to establish an effective and comprehensive policy of negotiation and arbitration between the Commission or other applicant for a permit to operate a hazardous waste facility pursuant to this Chapter and a committee representing the affected local government(s)	to assure that:
(1)	The legitimate concerns of nearby residents and affected municipalities can be expressed in a public forum, negotiated and, if need be, arbitrated with the Commission in a fair manner and reduced to a written document that is legally binding; and
(2)	Environmentally sound and economically viable hazardous waste facilities will be established."
Sec. 12.  G.S. 130B-5(c) reads as rewritten:
"(c)	The Governor is authorized to enter into interstate agreements for the management of hazardous waste.  Such agreements shall provide for access to suitable facilities for management of hazardous waste; encourage reductions in the volume or quantity and toxicity of hazardous waste; distribute the costs, benefits, and obligations of hazardous waste management equitably among the party states; and provide for protection of human health and the environment in a manner that is both ecologically and economically sound.  In negotiating such agreements, the Governor may request such assistance as he deems appropriate from the Attorney General, the Solid Waste Management Division of the Department, and the Commission.  The Governor shall submit any such agreement to the General Assembly for its approval, and no such agreement shall be effective until approved by the General Assembly."
Sec. 13.  G.S. 130B-6(b) reads as rewritten:
"(b)	Membership. – The Commission shall be composed of nine members. Members of the General Assembly, the Commission for Health Services, and members or employees of any State or federal agency, board, or commission which exercises regulatory authority with respect to any activity of the Commission shall be ineligible for appointment to membership on the Commission."
Sec. 14.  G.S. 130B-7(a)(1) reads as rewritten:
"(1)	Shall (i) with the assistance of the Solid Waste Management Division of the Department, periodically review current and projected hazardous waste generation from all sources within the State, the current and projected effect of efforts to minimize and reduce the generation of hazardous waste, the potential for further reductions in the generation of hazardous waste, current and projected availability and adequacy of facilities for the management of hazardous waste within and outside the State, whether and to what extent private enterprise will provide needed hazardous waste facilities, and capacity assurance requirements under CERCLA/SARA, (ii) determine whether additional facilities for the management of hazardous waste may be needed in this State, and (iii) make appropriate recommendations to the Governor and the General Assembly;".
Sec. 15.  G.S. 130B-19(d) reads as rewritten:
"(d)	Subject to appropriation by the General Assembly, the Department may provide technical assistance grants of up to fifty thousand dollars ($50,000) to each site designation review committee.  In the event that a proposed site is located in more than one county, or that one or more site designation review committees are appointed pursuant to subsection (h) of this section, the Department may provide technical grants to a site designation review committee in each county, provided that the maximum amount the Department may grant to all site designation review committees for a particular site is seventy-five thousand dollars ($75,000)."
¨	Sec. 16.  G.S. 130B-19(i)reads as rewritten:
"(i)	No grant funds shall be used for litigation expenses. Each site designation review committee shall properly account for all funds.  Unexpended funds shall revert to the Department, and at the end of the biennium shall revert to the General Fund."
Sec. 17.  G.S. 130B-20(c) reads as rewritten:
"(c)	An applicant for a permit to operate a hazardous waste facility pursuant to this Chapter shall pay a one-time local application fee of one hundred thousand dollars ($100,000) to the Department.  The Department shall distribute not less than sixty-five thousand dollars ($65,000) of the local application fee to the county or counties where the site of the proposed facility is located.  If the site lies in more than one county, the local application fee will be distributed to the counties in which the site is located in equal amounts.  If the board of commissioners appoints a preferred site local advisory committee the local application fee shall be used to support the work of the committee."
Sec. 18.  G.S 130B-20(d) reads as rewritten:
"(d)	A preferred site local advisory committee may also be appointed as provided by this section by the board of commissioners of any county whenever the board of commissioners determines that the county may be affected by the siting of a hazardous waste facility in another county.  If a preferred site local advisory committee is appointed pursuant to this subsection, the committee may apply to the Department for a portion of the local application fee to support the work of the committee.  The Department may allocate up to twenty-five thousand dollars ($25,000) to each preferred site local advisory committee appointed pursuant to this subsection, provided that the maximum amount that the Department may allocate to all preferred site local advisory committees appointed pursuant to this subsection for a particular site is thirty-five thousand dollars ($35,000).  The  Department shall base allocations under this subsection on the likelihood that the proposed hazardous waste facility will have a significant effect in the county, taking distance to the facility and other factors into account.  Decisions of the Department regarding allocations under this subsection are final.  Any portion of the local application fee which is not allocated by the Department under this subsection shall be distributed by the Department to the county or counties where the site of the proposed facility is located as provided in subsection (c) of this section."
¨	Sec. 19.  G.S. 130B-21 reads as rewritten:
"§ 130B-21.  Negotiation, mediation, and arbitration.
(a)	Any local government in the county or counties where a hazardous waste facility is proposed to be located pursuant to this Chapter may negotiate with the Commission with respect to any issue relating to the facility except:
(1)	The need for the facility;
(2)	Any proposal to reduce the duties of the Commission under this Chapter or under any permit or license issued for the facility;
(3)	Any proposal to reduce the duties of the Commission for Health Services or the Department, or to make less stringent any rule of the Commission for Health Services;
	(5)	Any act or decision of the Governor pursuant to G.S. 130B-5; or
(6)	Any decision of the Commission regarding site selection, contractor selection, or technology pursuant to G.S. 130B-11, 130B-13, and 130B-14.
(b)	The Commission shall negotiate in good faith with any local government in the county or counties where a hazardous waste facility is proposed to be located.  A local government may designate itself or any other person to negotiate on its behalf.
(c)	Negotiations may be conducted with the assistance of a mediator if mediation is requested by both the Commission and a local government.  The function of the mediator is to encourage a voluntary settlement of unresolved negotiable issues.  
(d)	If the Commission and a local government have not reached agreement on all issues by negotiation within six months after selection of the preferred site pursuant to G.S. 130B-11(d), the following issues may be submitted to arbitration pursuant to the provisions of Article 45A of Chapter 1 of the General Statutes (Uniform Arbitration Act):
(1)	Compensation to any local government for substantial economic impacts which are a direct result of the siting and operation of a hazardous waste facility and for which adequate compensation is not otherwise provided;
(2)	Reimbursement of reasonable costs incurred by the local government relating to negotiation, mediation and arbitration activities under this section;
(3)	Screening, fencing, and other matters related to the appearance of a facility;
(4)	Operational concerns other than design capacity and regulatory issues;
(5)	Traffic flows and patterns which result from the operation of a facility;
(6)	Uses of the site where a facility is located after the facility is closed;
(7)	The applicability or nonapplicability of any local ordinance;
(8)	Emergency response capabilities, including training and resources;
(9)	Access to facility records and monitoring data; and
(10)	Ongoing health surveys of persons living in the area around the facility.
(e)	In addition to those issues set out in subsection (d), any other issue may be submitted for arbitration except:
(1)	Those issues excluded from negotiation under subsection (a) of this section;
(2)	Any issue relating to the imposition by the General Assembly of a tax, or the imposition of a fee not authorized by this Chapter; and
(3)	Any issue requiring an appropriation by the General Assembly.
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Sec. 20.  G.S. 143B-279.3(b)(1) is repealed.
Sec. 21.  G.S. 150B-1(e)(2) is repealed.
Sec. 22.  The Office of Environmental Education in the Department of Environment, Health, and Natural Resources is transferred to the Office of Waste Reduction in the Department of Environment, Health, and Natural Resources.
Sec. 23.  This act becomes effective July 1, 1993.