September 22, 1994
The Honorable Marc Basnight President Pro Tempore North Carolina State Senate Room 2007, Legislative Building Raleigh, NC 27601
RE: Advisory Opinion: Grant Availability for Low Pressure Pipe Sewer System Failures; G.S. 159G-10
Dear Senator Basnight:
The Environmental Management Commission has recently adopted temporary rules and provided up to $500,000 in High Unit Cost Wastewater grant funds for wastewater treatment projects necessary to correct failures of low pressure pipe (LPP) sewer systems in the State. You have asked this office to consider whether there is adequate statutory authorization for this funding.
For the reasons which follow, it is our opinion that the Environmental Management Commission acted within its authority.
During the 1994 Short Session, on July 6, 1994, the General Assembly amended G.S. 159G-10 in Chapter 696 of the Session Laws to allow the Environmental Management Commission to establish special periods for consideration of applications "received on or before December 31, 1994" from "any or all of the High-Unit Cost Wastewater Account, the General Wastewater Revolving Loan and Grant Account, or the Emergency Wastewater Revolving Loan Account" by use of temporary rules. The applications must be preceded by, and based upon, the finding of a "present or imminent serious public health hazard on account of the failure of a low-pressure pipe system" and must be submitted by a specified local government unit.
During the same session, on July 16, 1994, the General Assembly appropriated $2 million to the High Unit-Cost Wastewater Account through the omnibus budget bill. Chapter 769, 1993 Session Laws, Title 1, Part 1, Sec. 3. The purpose of the $2 million line item was described as follows: "Provide additional grants for high unit cost areas to reduce the cost of providing new and expanded wastewater treatment capacity in low wealth areas used consistently with bond funds." Senate and House Conference Report on Base Budget Reductions and Expansion Budget, adopted by reference in Chapter 769 at Title III, Part 43, Sec. 43.1(a). These funds are the only funds currently in that account. Your specific questions is whether this language would prevent the Environmental Management Commission’s proposed use of the funds.
Rules of statutory construction lead us to the opinion that the Environmental Management Commission has acted within its authority. According to our Supreme Court "[T]here is a presumption against inconsistency, and when there are two or more statutes on the same subject, in the absence of an express repealing clause, they are to be harmonized and every part allowed significance, if it can be done by fair and reasonable interpretation." Empire Power Co., et al v. North Carolina Department of Environment, Health and Natural Resources et al (N.C. Supreme Court, September 9, 1994, No. 570 PA 93, slip opinion p. 30). Furthermore, the General
Assembly is presumed to act with knowledge of existing law, and it will never be assumed, if any
other conclusion is permissible, that it has done a vain or meaningless thing. People’s Bank v.
Loven, 90 S.E. 948 172 N.C. 688 (1977).
The existing grant law does not contain any per se exclusion of grant proposals from particular
localities based on wealth. Rather, it contains a sliding eligibility scale based on relative wealth
against which the unit cost of paying for the proposed project is measured. See G.S. 159G6(b)(2). This means, for instance, that the qualifying high unit cost for a project in a poorer
county, such as Hyde, is less than in another county of greater average wealth, such as Orange.
The phrase "low wealth areas" in the 1994 budget bill does not contain within itself any guide to
exclusion of any counties based on a particular level of wealth.
To read into that phrase a prohibition against grants based on some particular county wealth
criterion would require a rewrite of the Environmental Management Commission’s permanent
rules. We do not believe the indefinite language compels that result. Rather, we read it as simply
affirming the relative wealth eligibility scale in the existing law. The temporary emergency LPP
rules do not remove the application of the eligibility scale under G.S. 159-6(b)(2). They simply
displace various permanent priority rules when eligible LPP grant proposals are considered, as
Chapter 696 explicitly authorized.
Thus, it is the opinion of this office that the Environmental Management Commission has
established a proper mechanism for construing the two statutes in a manner which gives meaning
to both. Specifically, G.S. 159G-10, as amended does authorize, inter alia, applications to the
High Unit-Cost Account for LPP emergencies. The General Assembly would not have specified
the exact accounts to be used, if it had not intended that result.
I trust this opinion is responsive to your question.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General