Prohibition of Hazardous Waste Facility by Local Ordinance

Subject:

Requested By: O. W. Strickland, Head Solid and Hazardous Waste Management Branch Environmental Health Section

Question: Can a city or county enact an ordinance which prohibits the establishment of a hazardous waste facility within its city or county limits?

Conclusion: No.

The United States Congress enacted the Resource Conservation and Recovery Act of 1976 (R.C.R.A), (42 U.S.C. 6901 et.seq.) to regulate solid waste disposal. Subtitle C of this Act is entitled "Hazardous Waste Management" and it provides for the establishment of standards regulating the treatment, storage, transportation and disposal of hazardous wastes. These federal minimum standards constitute an attempt to provide uniformity among the states in the field of hazardous waste management. Section 6926(b) of R.C.R.A. authorizes individual states to develop their own hazardous waste management programs subject to the approval of the U.S. Environmental Protection Agency. The North Carolina General Assembly responded to this Section in 1979 by amending the Solid Waste Management Act, Article 13B of Chapter 130 of the General Status, to provide for the establishment of a comprehensive program concerning the management and disposal of hazardous waste. See G.S. 130-166.18(c) (1979 Cum. Supp.). As a part of this comprehensive program, this legislation provides for the establishment of extensive rules governing hazardous waste facilities in the following areas: record-keeping and reporting by owners and operators of hazardous waste facilities; treatment, storage and disposal standards of performance and techniques to be used by hazardous waste facilities; location, design, ownership and construction of hazardous waste facilities; proper maintenance and operation of hazardous waste facilities, including requirements for ownership, financial responsibility, training of personnel, continuity of operation and procedures for establishing and maintaining hazardous waste facilities; monitoring by owners and operators of hazardous waste samples from owners and operators of hazardous waste facilities; and a permit system governing the establishment of hazardous waste facilities. In 1979, the North Carolina Commission for Health Services adopted extensive rules and regulations dealing with hazardous waste management, including criteria for the establishment of hazardous waste facilities. See 10 N.C.A.C. 10F.

It is the opinion of this Office that the State of North Carolina has shown a clear legislative intent to provide a complete and integrated regulatory scheme in the area of hazardous waste facilities.

G.S. 160A-174(b) provides: "A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State of Federal law when:

* * *

"(2) The ordinance makes lawful an act, omission, or condition which is expressly made unlawful by State or Federal law;"

* * *

A city ordinance which purports to prohibit hazardous waste facilities within its city limits is not consistent with State law in that it makes unlawful an act which is lawful by State law if appropriate standards are met. It is well established in North Carolina that city ordinances must be in harmony with the general laws of the State and whenever they come in conflict with the general laws the city ordinances must give way. Washington v. Hammond, 76 N.C. 33 (1877); State v. Stevens, 114 N.C. 873, 19 S.E. 861 (1894); State v. Williams, 283 N.C. 550, 196 S.E. 2d 756 (1973); Smith v. Keator, 21 N.C. App. 102, 203 S.E. 2d 411 (1974), cert. denied 285 N.C. 235, 204 S.E. 2d 25, affirmed 285 N.C. 530, 206 S.E. 2d 203, appeal dismissed 95 S. Ct. 613, 419 U.S. 1043, 42 L. Ed. 2d 636. As with a city, a county, through its board of commissioners, cannot enact a valid ordinance which prohibits certain conduct if a statewide statute in effect at the time the ordinance in question was adopted deals specifically with the identical conduct. State

v. Tenore, 280 N.C. 238, 185 S.E. 2d 644 (1972).

A very similar situation was present in Rollins Environmental Services of Louisiana, Inc. v. Iberville Parish Policy Jury, 371 So. 2d 1127 (La. 1979). A suit was instituted by Rollins to enjoin enforcement of a local hazardous waste ordinance which prohibited the storage and disposal of hazardous waste, even if the waste was stored or disposed of properly, within the boundaries of Iberville Parish. The Supreme Court of Louisiana ruled that the federal government, through the enactment of R.C.R.A., and the state governments, through state programs established pursuant to R.C.R.A., had preempted the field of hazardous waste regulation. Therefore, this court ruled, the Iberville Parish ordinance was inconsistent with the general law of Louisiana and thus unconstitutional, null and ineffective.

Current State law makes it lawful to establish a hazardous waste facility if appropriate regulations are met. Therefore it is the opinion of this Office that neither a city nor a county may enact a valid ordinance which prohibits the establishment of a hazardous waste facility within its city or county limits since such an ordinance would be in conflict with the general law of North Carolina.

Rufus L. Edmisten Attorney General

Thomas G. Meacham, Jr. Associate Attorney