Does the Governor of North Carolina have authority to declare a moratorium on issuing permits for new hazardous waste facilities?

Plain-English summary

The Hazardous Waste Treatment Commission asked whether North Carolina's Governor could issue a moratorium on granting permits for hazardous waste facilities. The Attorney General answered no under the statutes examined in 1986.

The opinion distinguishes the legislature's power to provide a remedy from the executive's power to carry it out as the law directs. It then describes the hazardous waste scheme the General Assembly had enacted: the Department of Human Resources administered waste management and permits; the Commission for Health Services made hazardous waste rules; the Hazardous Waste Treatment Commission sought or provided treatment facilities; and the Governor's Waste Management Board could invalidate obstructive local ordinances.

The Attorney General says that scheme omitted authority for a general permit moratorium and was inconsistent with one. The law set an explicit schedule for siting, constructing, and operating a treatment facility. The General Assembly itself had imposed a narrower moratorium on hazardous waste landfills until a comprehensive treatment facility was operating. The opinion concludes that the Governor could not impose a general moratorium on facility permits under this framework.

The opinion does not analyze emergency powers or an emergency-powers statute. It gives no answer about how a different emergency statute might apply to a particular incident.

Currency note

This opinion applies the hazardous waste statutes as they stood in 1986. Check current law before relying on its conclusion for a present permit decision.

Background and statutory framework

The opinion cites G.S. 130A-291 and G.S. 130A-294 for the Department's administrative and permitting duties. It cites G.S. 143B-216.10 for the legislature's finding that timely establishment of hazardous waste facilities was an urgent problem, and G.S. 143B-470.4 for the facility schedule. It also cites the legislature's landfill moratorium in G.S. 130A-294(h)(1).

Those provisions supplied the answer. In the opinion's words, the legislative remedy “not only omits authority to impose a general moratorium” on facility permits “but is inconsistent with a moratorium.” The conclusion concerns the Governor's authority under this then-existing statutory scheme, not every possible emergency or permit dispute.

Common questions

Could the Governor declare a general moratorium on hazardous waste facility permits under the laws discussed?

No. The opinion concludes that the Governor lacked authority to issue that moratorium under the 1986 hazardous waste framework.

Was there any moratorium in the statutes the opinion reviewed?

Yes. The opinion says the General Assembly itself imposed one on hazardous waste landfills until a comprehensive hazardous waste treatment facility was operating.

Did the opinion decide whether emergency powers could support a moratorium?

No. It does not cite or analyze an emergency-powers statute. Its answer rests on the hazardous waste provisions it discusses.

Did it decide the outcome of a particular permit application?

No. The question concerned the Governor's general authority to halt permit grants, and the opinion does not evaluate a particular facility or application.

Source

• Landing page: https://ncdoj.gov/opinions/health-hazardous-waste-facility-issuance-of-moratorium-by-governor/

Citations

• N.C. Const. art. III, §§ 1-2
• G.S. § 130A-291, § 130A-293, § 130A-294(a)(4), § 130A-294(c), § 130A-294(h)(1)
• G.S. § 143B-216.10, § 143B-470.1, § 143B-470.4(b)
• State v. Warren, 252 N.C. 690, 114 S.E.2d 660 (1960)
• Tripp v. Flaherty, 27 N.C. App. 180, 218 S.E.2d 709 (1975)
• Adams v. Department of Natural and Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978)
• State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982)

Original opinion text

Requested By:

Mr. Tom Karnoski Hazardous Waste Treatment Commission

Question:

May the Governor issue a moratorium on the granting of permits for hazardous waste facilities?

Conclusion:

No.

"The Governor is a constitutional officer elected by the qualified voters of the State. N.C. Const. Art. III, s. 2. The executive power of the State is vested in him, N.C. Const. Art. III, s. 1.

"The State possesses the police power in its capacity as a sovereign, and in the exercise thereof, the Legislature may enact laws, within constitutional limits, to protect or promote the health, morals, order, safety, and general welfare of society." State v. Warren, 252 N.C. 690, 694, 114 S.E.2d 660 (1960). "(A)lthough the General Assembly may not delegate its authority to make laws, it may delegate to an administrative agency the authority to make determinations of fact upon which the application of a statute to particular situations will depend, provided the General Assembly has fixed adequate standards for guidance of the administrative agency." Tripp v. Flaherty, 27 N.C. App. 180, 184, 218 S.E.2d 709, (1975). Similarly, the General Assembly may delegate authority to adopt rules. See Adams v. Department of Natural and Economic Resources, 295 N.C. 683, 249 S.E.2d 402 (1978).

The separation of powers between the legislative and executive branches of government was discussed in State ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982). The Court quoted from the Instructions to the Orange Delegation for the drafting of the State's first constitution:

"Fifthly. That the power of making laws shall have authority to provide remedies for any evils which may arise in the community, subject to the limitations and restraints provided by the principal supreme power.

"Seventhly. That the executive power shall have the authority to apply the remedies provided by the law makers in that manner only which the laws shall direct, and shall be entirely distinct from the power of making laws." (Id. at 597, 82) (emphasis added.)

The General Assembly enacted G.S. 130A-291 which provides in part: ". . . the Department of Human Resources shall maintain an appropriate administrative unit to promote sanitary processing, treatment, disposal, and statewide management of solid waste (which includes hazardous waste)."

"In establishing a (Statewide solid waste management) program, the Department shall have authority to . . . (d)evelop a permit system governing the establishment and operation of solid waste management facilities." G.S. 130A-294(a)(4). "The Commission (for Health Services) shall adopt and the Department shall enforce rules concerning the management of hazardous waste. These rules shall establish a complete and integrated regulatory scheme in the area of hazardous waste management . . . ." G.S. 130A-294(c).

The General Assembly has also established the Governor's Waste Management Board. G.S. 143B-216.10, entitled "Declaration of findings", states in part:

"The General Assembly of North Carolina hereby finds and declares that the safe management of hazardous wastes and low-level radioactive wastes, and particularly the timely establishment of adequate facilities for the disposal and management of hazardous wastes and low-level radioactive wastes is one of the most urgent problems facing North Carolina." (Emphasis added.)

The Board has the extraordinary authority to invalidate any local ordinance to the extent necessary to effectuate the purposes of the hazardous waste management program. G.S. 130A-293.

Also created by the General Assembly is the North Carolina Hazardous Waste Treatment Commission whose "Declaration of findings" is similar to that of the Governor's Waste Management Board. The principal function of the Commission is "to site, finance, build, lease or operate, or oversee a hazardous waste treatment facility if private enterprise fails to do so within a specified time." G.S. 143B-470.1. The time schedule is set forth in G.S. 143B-470.4(b).

The General Assembly has recognized the problem posed by hazardous waste in this State and has enacted an elaborate system to provide for the safe management of hazardous waste. The Commission for Health Services adopts rules necessary to govern hazardous waste facilities. The Hazardous Waste Treatment Commission seeks out private enterprise to construct and operate the facilities. If necessary, the Commission assumes the responsibility. Finally, the Governor's Waste Management Board invalidates local ordinances that obstruct the construction and operation of the facilities. The Legislative Branch has provided the remedy for management of hazardous waste; the Executive Branch has been given the authority to implement that remedy. The remedy not only omits authority to impose a general moratorium on the granting of permits for hazardous waste facilities but is inconsistent with a moratorium. G.S. 143B-470.4 establishes an explicit time schedule for the siting, construction and operation of a hazardous waste treatment facility. In fact, the General Assembly itself has imposed a moratorium, but only on hazardous waste landfills until a comprehensive hazardous waste treatment facility is operating. G.S. 130A-294(h)(1).

Therefore, it is the opinion this Office that the Governor does not have the authority to issue a moratorium on the granting of permits for hazardous waste facilities in this State.

LACY H. THORNBURG
Attorney General

Robert R. Reilly
Assistant Attorney General