April 6, 1992
Subject: Low-Level Radioactive Waste Disposal Facility Sites; Site Designation Review Committees; Right of Entry on Private Property for Surveys, etc.
Requested By: Mr. Glenn Sumpter, Chairman, Richmond County Site Designation Review Committee n1
n1 Mr. Sumpter resigned his duties as a public official while this opinion was under review. The membership of the Site Designation Review Committee subsequently reaffirmed its desire for an opinion on the question submitted.
Question: Are County Site Designation Review Committees appointed pursuant to G.S. § 104G-19 in connection with the State’s siting of a low-level radioactive waste disposal facility empowered to enter upon private lands by G.S. § 143B-285.14 or any other statute for the purpose of monitoring site characterization?
Conclusion: No.
Factual Background
The Site Selection Process
The General Assembly created the North Carolina Low-Level Radioactive Waste Management Authority (the Authority) "to site, finance, build, lease or operate, monitor and close" a low-level radioactive waste disposal facility (the facility). N.C.G.S. § 104G-4. Preliminarily, the Authority must select at least two sites for a lengthy technical testing process called site characterization.
N.C.G.S. § 104G-9(e); see 10 CFR 61.50(a)(2).
The Authority has selected two sites for characterization; one is in Richmond County and the other is located in contiguous portions of Wake and Chatham Counties. Characterization of these two sites began in the fall of 1991 and is expected to be completed in late 1993. Characterization is closely regulated by State regulatory agencies, principally the Division of Radiation Protection (DRP) of the Department of Environment, Health, and Natural Resources (DEHNR). See 15A
N.C. ADMIN CODE 11 .1200 et seq.
The Authority may "employ consultants and contractors to provide services" including site selection and operation of the facility. N.C.G.S. § 104G-6(a)(3). It must "actively seek private operators" for the facility. N.C.G.S. § 104G-10(a). Accordingly, the Authority contracted with Chem-Nuclear Systems, Inc., (CNSI) to operate the eventual facility. CNSI, as the prospective license applicant, is responsible to DRP for the sufficiency of site characterization. Pursuant to their contract with the Authority, CNSI has subcontracted with other entities to implement specific aspects of characterization testing.
All of the "potentially suitable site" in Wake and Chatham Counties is privately owned; all of the site in Richmond County is privately owned except a small portion belonging to the county. DEHNR and the Authority have requested owners of land within and around these two sites to permit them and their employees and contractors to enter their property for the purpose of characterization testing. In addition, however, a statute specifically authorizes DEHNR and the Authority to enter privately owned lands to carry out the testing necessary to determine site suitability absent the permission, and even over the objection, of the owner or occupier of the land. N.C.G.S. § 143B-285.14.
The Site Designation Review Committees
Contemporaneously with creating and tasking the Authority, the General Assembly found "that the reasonable concerns and the reasonable decisions of local authorities should be considered in the siting, licensing, and operation of low-level radioactive waste disposal facilities." N.C.G.S. § 104G-3. To facilitate this goal it permitted, in N.C.G.S. § 104G-19, the board of commissioners of each county in which a potential site for the facility was to be characterized to appoint a Site Designation Review Committee (SDRC), to "consist of 11 members representing, insofar as possible, local government, environmental, health, engineering, business and industry, academic, public interest, and emergency response groups."
The statutory purpose of its SDRC, should the county appoint one, is "to advise the county board of commissioners on matters relating to the siting of a low-level radioactive waste disposal facility." N.C.G.S. § 104G-19(b). The Authority must consider any SDRC recommendations or other SDRC-generated information provided to it by the county board of commissioners.
N.C.G.S. § 104G-19(f). The access to private property provided for in N.C.G.S. § 143B-285.14 does not expressly extend to the SDRCs. It appears that, at present, when SDRC members, staff, or consultants wish to observe on-site testing, the Authority transmits their requests for consensual access to the owners of the property on which testing is in progress.
The State provides "technical assistance grants" to each SDRC for certain specified activities, among which are, "Collect information on site suitability," "Monitor the site characterization and site selection process," and "Conduct socioeconomic and environmental assessments of the proposed site." N.C.G.S. § 104G-19(d), (e).
Discussion
In the written inquiry that prompted this opinion, the Chairman of the Richmond County SDRC asks whether SDRC members, staff, and consultants are "project personnel" so as to be allowed access to the site "without waiting seven days for landowner permission." n2 He asserts that "the SDRC cannot effectively monitor the site characterization process, if committee members or professional consultants retained by the committee cannot have access to the site while testing is in progress without giving advance notice." The Chairman maintains that "the SDRC was created by the legislature to protect the integrity of the siting process and, therefore, is an integral part of that process."
n2 The Authority has determined that some of the relevant landowners live outside the State, and they reportedly have asked the SDRCs to give as much as seven days’ notice of their interest in entering particular tracts so as to allow the Authority to secure landowner permission. This appears to be the origin of the inquiry’s reference to a seven-day waiting period.
"Project personnel" is a term that is not defined in relevant statutes. It seems to be used informally by the Authority, its contractors, and the SDRCs to mean persons statutorily entitled to enter private property, but the phrase does not have that inherent legal effect. Thus, the more pertinent inquiry is whether there is some derivative or independent legal basis for SDRC entry upon the private property of others without the owner’s consent.
N.C.G.S. § 143B-285.14 specifically authorizes DEHNR and the Authority to "enter upon any lands and structures upon lands to make surveys, borings, soundings and examinations as may be necessary to determine the suitability of a site for a . . . low-level radioactive waste disposal facility." The General Assembly’s expansive authorization to the Authority to "employ consultants and contractors to provide services including site selection," N.C.G.S. § 104G6(a)(3), has already been noted. Some regulatory agencies may have also engaged private consultants to act as their agents during site characterization.
In view of the exceedingly technical nature of characterization testing, it would appear that agency divisions, employees, and contractors must necessarily enjoy the same extraordinary access to private property as DEHNR and appointed Authority members themselves, or the purpose of the explicit grant to the State agencies would be thwarted. Moreover, as the prospective license applicant, CNSI is separately required by other statutes and by regulation to submit site testing data to regulatory agencies. N.C.G.S. §§ 104E-26, 104G-11(b); 15A N.C. ADMIN CODE 11 .1200 et seq. The purpose of these statutes and conforming regulations would be frustrated by reading N.C.G.S. § 143B-285.14 as excluding such employees and agents of DEHNR and the Authority. See Power Co. v. Herndon, 26 N.C. App. 724, 217 S.E.2d 82 (1975), in which the statutory authorization of a public utility to enter private property to make surveys preliminary to condemnation extended to its "representatives." 26 N.C. App. at 727.
However, the SDRCs have previously been advised by DEHNR and the Authority that these agencies interpret their own statutory authority to enter private property as not extending beyond themselves and their agents. The SDRCs are the agents of neither DEHNR nor the Authority, given their clear statutory allegiance to the county boards of commissioners, the bodies that appoint them and to which they report.
Statutory authority to enter private "lands and structures" without the permission of, and even contrary to the wishes of, the owner of such property is an extraordinary grant of power. In general, property rights are protectible "against all the world." J. Webster, Real Estate Law in North Carolina §§ 3, 4 (3d ed. 1988). As a necessary modern abridgement of property and privacy rights cherished in this State since the Revolution, the reach of N.C.G.S. § 143B-285.14 should be construed strictly. See, generally, Ervin, Privacy and the Constitution, 50 N.C.L. REV. 1016 (1972). Even after a conveyance of some property rights, the landowner’s remaining rights will constrain overly expansive interpretations of their abridgement. See Zagaroli v. Pollock, 94
N.C. App. 46, 379 S.E.2d 653 (1989), holding that the conveyance of an easement permitting a power company to flood plaintiff’s land did not create a further right in the power company to permit the location of a marina over the flooded land.
It is beyond question that public participation in the site-selection process is a goal clearly favored by the General Assembly in Chapter 104G, and the Chapter is seasoned with deference to "the reasonable concerns and the reasonable decisions of local authorities." The principal question thus becomes whether the statutory function of the SDRCs, as entities facilitating that goal, so clearly and necessarily outweighs the law’s inherent, longstanding protection of property and privacy rights that N.C.G.S. § 143B-285.14 must be read as silently granting the SDRCs unrestricted access to private property.
Bearing heavily upon resolution of this question is the optional nature of most of the specific tasks legislatively granted to the SDRCs. A county need not appoint an SDRC at all. Should it appoint one to advise it, the SDRC may perform a number of additional functions related to site selection, but it is not required to perform any one of them.
It is not clear that "the SDRC was created by the legislature to protect the integrity of the siting process," as the inquiry asserts. At least in the technical sense with which the statutes are concerned, ensuring the integrity of site selection is a function assigned to State regulatory agencies. As to the role of the SDRCs in regard to site characterization, the inquiry correctly focuses on the verb "monitor."
Without any question, the General Assembly authorized the SDRCs to "monitor" site selection and characterization as part of their mission of advising the county boards. The meaning of "monitor," however, is not plain. The term is not defined in either Chapter 104E or 104G of the General Statutes.
General-usage dictionaries define the verb "monitor" in terms denoting a secondary role and a lower level of direct involvement in an activity than that of the principal actor. See, e.g., AMERICAN HERITAGE DICTIONARY, 2d College Edition, 1985; WEBSTER’S NEW WORLD DICTIONARY, 2d College Editon, 1978. See, e.g., AMERICAN HERITAGE DICTIONARY, 2d College Edition, 1978. If it used the word in this more passive sense, the General Assembly would have authorized an SDRC role that would not necessitate their unrestricted access to the testing sites.
A significant clue to the legislative intent may be found in N.C.G.S. § 104G-6(a)(18), which provides in pertinent part that the Authority Shall receive all field data, charts, maps, tracings, laboratory test data, soil and rock samples, and such other records as the Authority deems appropriate, collected or produced by its employees, contractors, or consultants pursuant to siting . . . low-level radioactive waste facilities. All such data and materials shall become the property of the State and shall not be disposed of except in accordance with N.C.G.S. 132-3 except that soil and rock samples may be subjected to tests and reduced in volume for purposes of storage in a manner approved by the Authority.
This statute effectively requires (1) that the Authority will receive all testing data and materials produced by its contractors during site characterization, and (2) that all such data and materials shall be preserved pursuant to Chapter 132 of the General Statutes (the Public Records Law). Since all records retained pursuant to Chapter 132 are, subject to certain exemptions, accessible to the public, by inference this statute enables a level of activity in SDRC "monitoring" of site characterization well below that required of the license applicant, the Authority, and State regulatory agencies, but fully consistent with the purpose of "advis[ing] the county board of commissioners."
SDRC acceptance, summarization, analysis, and provision to the county boards of the technical data specified in the statute represents a level of involvement in the site testing process that does not necessitate nonconsensual entry upon private lands. Such a collateral role in site selection and site characterization may differ from that envisioned by the SDRCs; it appears to differ from the role asserted in the inquiry. However, it would seem to be more consistent with the concept acted upon by the General Assembly in providing for SDRCs, as well as with the legislature’s failure or refusal to mandate clearly unrestricted SDRC access to lands and structures within the express terms of N.C.G.S. § 143B-285.14.
Thus, harmonization of N.C.G.S. §§ 104G-19 and 143B-185.14 does not lead to the conclusion that the General Assembly intended the SDRCs to have the same unrestricted access to private property expressly granted to the Authorityf and State regulatory agencies. On the contrary, because the need for such SDRC access is at best ambiguous, and when such a need is balanced against the privacy rights of the owners of the lands undergoing testing, analysis compels a conclusion that no such access should be implied.
The principal question presented in the inquiry must be resolved in favor of the remaining property and privacy interests of the landowners and against expanding by statutory interpretation the range of persons entitled to the extraordinary access to private property granted by N.C.G.S. § 143B-285.14. However, in view of the importance placed upon "the reasonable concerns and the reasonable decisions of local authorities" in chapter 104G, the Authority should do all it can to effectuate the legislative intent that the SDRCs provide full information to the county boards of commissioners. It should work diligently, if the SDRCs so desire, to secure landowner permission to the fullest possible SDRC access. In this regard, there is no basis in law for the seven-day waiting period that the inquiry complains of in obtaining permission to enter private property, and the Authority should do everything in its power to shorten the time needed to obtain such permission. Alternatively, the SDRCs may do this themselves.
LACY H. THORNBURG Attorney General Terry Richard Kane Special Deputy Attorney General