(a) It is the intent ofthe General Assembly to maintain a uniform system for the management ofhazardous waste and to place limitations upon the exercise by all units oflocal government in North Carolina of the power to regulate the management ofhazardous waste by means of special, local, or private acts or resolutions,ordinances, property restrictions, zoning regulations, or otherwise. Notwithstandingany authority granted to counties, municipalities, or other local authoritiesto adopt local ordinances, including but not limited to those imposing taxes,fees, or charges or regulating health, environment, or land use, any localordinance that prohibits or has the effect of prohibiting the establishment oroperation of a hazardous waste facility that the Secretary has preemptedpursuant to subsections (b) through (f) of this section, shall be invalid tothe extent necessary to effectuate the purposes of this Chapter. To this end,all provisions of special, local, or private acts or resolutions are repealedthat:
(1) Prohibit thetransportation, treatment, storage, or disposal of hazardous waste within anycounty, city, or other political subdivision.
(2) Prohibit the sitingof a hazardous waste facility within any county, city, or other politicalsubdivision.
(3) Place anyrestriction or condition not placed by this Article upon the transportation,treatment, storage, or disposal of hazardous waste, or upon the siting of ahazardous waste facility within any county, city, or other politicalsubdivision.
(4) In any manner are inconflict or inconsistent with the provisions of this Article.
(a1) No special, local,or private act or resolution enacted or taking effect hereafter may beconstrued to modify, amend, or repeal any portion of this Article unless itexpressly provides for such by specific references to the appropriate sectionof this Article. 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 hazardous waste facility are invalidated to theextent preempted by the Secretary pursuant to this section.
(b) When a hazardouswaste facility would be prevented from construction or operation by a county,municipal, or other local ordinance, the operator of the proposed facility maypetition the Secretary to review the matter. After receipt of a petition, theSecretary shall hold a hearing in accordance with the procedures in subsection(c) of this section and shall determine whether or to what extent to preemptthe local ordinance to allow for the establishment and operation of thefacility.
(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 Board, 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) A local zoning orland‑use ordinance is presumed to be valid and enforceable to the extentthe zoning or land‑use ordinance imposes requirements, restrictions, orconditions that are generally applicable to development, including, but notlimited to, setback, buffer, and stormwater requirements, unless the Secretarymakes a finding of fact to the contrary. The Secretary shall determine whetheror to what extent to preempt local ordinances so as to allow for theestablishment 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 of the following findings:
(1) That there is alocal ordinance that would prohibit or have the effect of prohibiting theestablishment or operation of a hazardous waste facility.
(2) That the proposedfacility is needed in order to establish adequate capability to meet thecurrent or projected hazardous waste management needs of this State or tocomply with the terms of any interstate agreement for the management ofhazardous waste to which the State is a party and therefore serves theinterests 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 facilityoperator has 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 of the findings under subsection (d) of this section, theSecretary shall not preempt the challenged local ordinance. The Secretary'sdecision shall be in writing and shall identify the evidence submitted to theSecretary plus any additional evidence 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.
(g) Repealed by SessionLaws 1989, c. 168, s. 13. (1981, c. 704, s. 5; 1983, s. 891, s. 2; 1983 (Reg.Sess., 1984), c. 973, ss. 3‑5; 1987, c. 827, s. 249; 1987 (Reg. Sess.,1988), c. 993, s. 28; c. 1082, s. 13; 1989, c. 168, s. 13; 1993, c. 501, s. 13;2001‑474, s. 17; 2007‑107, s. 1.10(a).)
(a) It is the intent ofthe General Assembly to maintain a uniform system for the management ofhazardous waste and to place limitations upon the exercise by all units oflocal government in North Carolina of the power to regulate the management ofhazardous waste by means of special, local, or private acts or resolutions,ordinances, property restrictions, zoning regulations, or otherwise. Notwithstandingany authority granted to counties, municipalities, or other local authoritiesto adopt local ordinances, including but not limited to those imposing taxes,fees, or charges or regulating health, environment, or land use, any localordinance that prohibits or has the effect of prohibiting the establishment oroperation of a hazardous waste facility that the Secretary has preemptedpursuant to subsections (b) through (f) of this section, shall be invalid tothe extent necessary to effectuate the purposes of this Chapter. To this end,all provisions of special, local, or private acts or resolutions are repealedthat:
(1) Prohibit thetransportation, treatment, storage, or disposal of hazardous waste within anycounty, city, or other political subdivision.
(2) Prohibit the sitingof a hazardous waste facility within any county, city, or other politicalsubdivision.
(3) Place anyrestriction or condition not placed by this Article upon the transportation,treatment, storage, or disposal of hazardous waste, or upon the siting of ahazardous waste facility within any county, city, or other politicalsubdivision.
(4) In any manner are inconflict or inconsistent with the provisions of this Article.
(a1) No special, local,or private act or resolution enacted or taking effect hereafter may beconstrued to modify, amend, or repeal any portion of this Article unless itexpressly provides for such by specific references to the appropriate sectionof this Article. 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 hazardous waste facility are invalidated to theextent preempted by the Secretary pursuant to this section.
(b) When a hazardouswaste facility would be prevented from construction or operation by a county,municipal, or other local ordinance, the operator of the proposed facility maypetition the Secretary to review the matter. After receipt of a petition, theSecretary shall hold a hearing in accordance with the procedures in subsection(c) of this section and shall determine whether or to what extent to preemptthe local ordinance to allow for the establishment and operation of thefacility.
(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 Board, 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) A local zoning orland‑use ordinance is presumed to be valid and enforceable to the extentthe zoning or land‑use ordinance imposes requirements, restrictions, orconditions that are generally applicable to development, including, but notlimited to, setback, buffer, and stormwater requirements, unless the Secretarymakes a finding of fact to the contrary. The Secretary shall determine whetheror to what extent to preempt local ordinances so as to allow for theestablishment 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 of the following findings:
(1) That there is alocal ordinance that would prohibit or have the effect of prohibiting theestablishment or operation of a hazardous waste facility.
(2) That the proposedfacility is needed in order to establish adequate capability to meet thecurrent or projected hazardous waste management needs of this State or tocomply with the terms of any interstate agreement for the management ofhazardous waste to which the State is a party and therefore serves theinterests 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 facilityoperator has 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 of the findings under subsection (d) of this section, theSecretary shall not preempt the challenged local ordinance. The Secretary'sdecision shall be in writing and shall identify the evidence submitted to theSecretary plus any additional evidence 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.
(g) Repealed by SessionLaws 1989, c. 168, s. 13. (1981, c. 704, s. 5; 1983, s. 891, s. 2; 1983 (Reg.Sess., 1984), c. 973, ss. 3‑5; 1987, c. 827, s. 249; 1987 (Reg. Sess.,1988), c. 993, s. 28; c. 1082, s. 13; 1989, c. 168, s. 13; 1993, c. 501, s. 13;2001‑474, s. 17; 2007‑107, s. 1.10(a).)
(a) It is the intent ofthe General Assembly to maintain a uniform system for the management ofhazardous waste and to place limitations upon the exercise by all units oflocal government in North Carolina of the power to regulate the management ofhazardous waste by means of special, local, or private acts or resolutions,ordinances, property restrictions, zoning regulations, or otherwise. Notwithstandingany authority granted to counties, municipalities, or other local authoritiesto adopt local ordinances, including but not limited to those imposing taxes,fees, or charges or regulating health, environment, or land use, any localordinance that prohibits or has the effect of prohibiting the establishment oroperation of a hazardous waste facility that the Secretary has preemptedpursuant to subsections (b) through (f) of this section, shall be invalid tothe extent necessary to effectuate the purposes of this Chapter. To this end,all provisions of special, local, or private acts or resolutions are repealedthat:
(1) Prohibit thetransportation, treatment, storage, or disposal of hazardous waste within anycounty, city, or other political subdivision.
(2) Prohibit the sitingof a hazardous waste facility within any county, city, or other politicalsubdivision.
(3) Place anyrestriction or condition not placed by this Article upon the transportation,treatment, storage, or disposal of hazardous waste, or upon the siting of ahazardous waste facility within any county, city, or other politicalsubdivision.
(4) In any manner are inconflict or inconsistent with the provisions of this Article.
(a1) No special, local,or private act or resolution enacted or taking effect hereafter may beconstrued to modify, amend, or repeal any portion of this Article unless itexpressly provides for such by specific references to the appropriate sectionof this Article. 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 hazardous waste facility are invalidated to theextent preempted by the Secretary pursuant to this section.
(b) When a hazardouswaste facility would be prevented from construction or operation by a county,municipal, or other local ordinance, the operator of the proposed facility maypetition the Secretary to review the matter. After receipt of a petition, theSecretary shall hold a hearing in accordance with the procedures in subsection(c) of this section and shall determine whether or to what extent to preemptthe local ordinance to allow for the establishment and operation of thefacility.
(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 Board, 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) A local zoning orland‑use ordinance is presumed to be valid and enforceable to the extentthe zoning or land‑use ordinance imposes requirements, restrictions, orconditions that are generally applicable to development, including, but notlimited to, setback, buffer, and stormwater requirements, unless the Secretarymakes a finding of fact to the contrary. The Secretary shall determine whetheror to what extent to preempt local ordinances so as to allow for theestablishment 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 of the following findings:
(1) That there is alocal ordinance that would prohibit or have the effect of prohibiting theestablishment or operation of a hazardous waste facility.
(2) That the proposedfacility is needed in order to establish adequate capability to meet thecurrent or projected hazardous waste management needs of this State or tocomply with the terms of any interstate agreement for the management ofhazardous waste to which the State is a party and therefore serves theinterests 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 facilityoperator has 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 of the findings under subsection (d) of this section, theSecretary shall not preempt the challenged local ordinance. The Secretary'sdecision shall be in writing and shall identify the evidence submitted to theSecretary plus any additional evidence 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.
(g) Repealed by SessionLaws 1989, c. 168, s. 13. (1981, c. 704, s. 5; 1983, s. 891, s. 2; 1983 (Reg.Sess., 1984), c. 973, ss. 3‑5; 1987, c. 827, s. 249; 1987 (Reg. Sess.,1988), c. 993, s. 28; c. 1082, s. 13; 1989, c. 168, s. 13; 1993, c. 501, s. 13;2001‑474, s. 17; 2007‑107, s. 1.10(a).)
