State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_104E > GS_104E-6_2

§ 104E‑6.2.  Localordinances prohibiting low‑level radioactive waste facilities invalid;petition to preempt local ordinance.

(a)        It is the intent ofthe General Assembly to maintain a uniform system for the management of low‑levelradioactive waste and to place limitations upon the exercise by all units oflocal government in North Carolina of the power to regulate the management oflow‑level radioactive waste by means of special, local, or private actsor resolutions, ordinances, property restrictions, zoning regulations, orotherwise. Notwithstanding any authority granted to counties, municipalities,or other local authorities to adopt local ordinances, including but not limitedto those imposing taxes, fees, or charges or regulating health, environment, orland use, any local ordinance that prohibits or has the effect of prohibitingthe establishment or operation of a low‑level radioactive waste facilitythat the Secretary has preempted pursuant to subsections (b) through (f) ofthis section, shall be invalid to the extent necessary to effectuate thepurposes of this Chapter. To this end, all provisions of special, local, orprivate acts or resolutions are repealed that:

(1)        Prohibit thetransportation, treatment, storage, or disposal of low‑level radioactivewaste within any county, city, or other political subdivision.

(2)        Prohibit the sitingof a low‑level radioactive waste facility within any county, city, orother political subdivision.

(3)        Place anyrestriction or condition not placed by this Chapter upon the transportation,treatment, storage, or disposal of low‑level radioactive waste, or uponthe siting of a low‑level radioactive waste facility within any county,city, or other political subdivision.

(4)        In any manner are inconflict or inconsistent with the provisions of this Chapter.

(a1)      No special, local,or private acts or resolutions enacted or taking effect hereafter may beconstrued to modify, amend, or repeal any portion of this Chapter unless itexpressly provides for such by specific references to the appropriate sectionof this Chapter. Further to this end, all provisions of local ordinances,including those regulating land use, adopted by counties, municipalities, orother local authorities that prohibit or have the effect of prohibiting theestablishment or operation of a low‑level radioactive waste facility areinvalidated to the extent preempted by the Secretary pursuant to this Section.

(b)        When a low‑levelradioactive waste facility would be prevented from construction or operation bya county, municipal, or other local ordinance, the operator of the proposedfacility may petition the Secretary to review the matter. After receipt of apetition, the Secretary shall hold a hearing in accordance with the proceduresin subsection (c) of this section and shall determine whether or to what extentto preempt the local ordinance to allow for the establishment and operation ofthe facility.

(c)        When a petitiondescribed in subsection (b) of this section has been filed with the Secretary,the Secretary shall hold a public hearing to consider the petition. The publichearing shall be held in the affected locality within 60 days after receipt ofthe petition by the Secretary. The Secretary shall give notice of the publichearing by:

(1)        Publication in anewspaper or newspapers having general circulation in the county or countieswhere the facility is or is to be located or operated, once a week for threeconsecutive weeks, the first notice appearing at least 30 days prior to thescheduled date of the hearing; and

(2)        First class mail topersons who have requested notice. The Secretary shall maintain a mailing listof persons who request notice in advance of the hearing pursuant to thissection. Notice by mail shall be complete upon deposit of a copy of the noticein a post‑paid wrapper addressed to the person to be notified at theaddress that appears on the mailing list maintained by the Secretary, in a postoffice or official depository under the exclusive care and custody of theUnited States Postal Service.

(c1)      Any interestedperson may appear before the Secretary at the hearing to offer testimony. Inaddition to testimony before the Secretary, any interested person may submitwritten evidence to the Secretary for the Secretary's consideration. At least20 days shall be allowed for receipt of written comment following the hearing.

(d)        The Secretary shalldetermine whether or to what extent to preempt local ordinances so as to allowthe establishment and operation of the facility no later than 60 days afterconclusion of the hearing. The Secretary shall preempt a local ordinance onlyif the Secretary makes all five of the following findings:

(1)        That there is alocal ordinance that would prohibit or have the effect of prohibiting theestablishment or operation of a low‑level radioactive waste facility.

(2)        That the proposedfacility is needed in order to establish adequate capability to meet thecurrent or projected low‑level radioactive waste management needs of thisState or to comply with the terms of any interstate agreement for themanagement of low‑level radioactive waste to which the State is a partyand therefore serves the interests of the citizens of the State as a whole.

(3)        That all legallyrequired State and federal permits or approvals have been issued by theappropriate State and federal agencies or that all State and federal permitrequirements have been satisfied and that the permits or approvals have beendenied or withheld only because of the local ordinance.

(4)        That local citizensand elected officials have had adequate opportunity to participate in thesiting process.

(5)        That theconstruction and operation of the facility will not pose an unreasonable healthor environmental risk to the surrounding locality and that the facility operatorhas taken or consented to take reasonable measures to avoid or manageforeseeable risks and to comply to the maximum feasible extent with applicablelocal ordinances.

(d1)      If the Secretarydoes not make all five findings set out above, the Secretary shall not preemptthe challenged local ordinance. The Secretary's decision shall be in writingand shall identify the evidence submitted to the Secretary plus any additionalevidence used in arriving at the decision.

(e)        The decision of theSecretary shall be final unless a party to the action files a written appealunder Article 4 of Chapter 150B of the General Statutes, as modified by G.S. 7A‑29and this section, within 30 days of the date of the decision. The record onappeal shall consist of all materials and information submitted to orconsidered by the Secretary, the Secretary's written decision, a completetranscript of the hearing, all written material presented to the Secretaryregarding the location of the facility, the specific findings required bysubsection (d) of this section, and any minority positions on the specificfindings required by subsection (d) of this section. The scope of judicialreview shall be that the court may affirm the decision of the Secretary, or mayremand the matter for further proceedings, or may reverse or modify thedecision if the substantial rights of the parties may have been prejudicedbecause the agency findings, inferences, conclusions, or decisions are:

(1)        In violation ofconstitutional provisions;

(2)        In excess of thestatutory authority or jurisdiction of the agency;

(3)        Made upon unlawfulprocedure;

(4)        Affected by othererror of law;

(5)        Unsupported bysubstantial evidence admissible under G.S. 150B‑29(a) or G.S. 150B‑30in view of the entire record as submitted; or

(6)        Arbitrary orcapricious.

(e1)      If the courtreverses or modifies the decision of the agency, the judge shall set out inwriting, which writing shall become part of the record, the reasons for thereversal or modification.

(f)         In computing anyperiod of time prescribed or allowed by this procedure, the provisions of Rule6(a) of the Rules of Civil Procedure, G.S. 1A‑1, shall apply. (1981, c. 704, s. 9; 1987, c.633, s. 6; c. 850, s. 4; 1987 (Reg. Sess., 1988), c. 993, s. 24; c. 1082, s.10; c. 1100, s. 40.5; 1989, c. 168, s. 14; 1993, c. 501, s. 3; 2001‑474,s. 16.)