January 28, 1987
Subject:
Health; Hazardous Waste Facility; Issuance of Moratorium by Governor.
Requested By:
Mr. Tom Karnoski Hazardous Waste Treatment Commission
Question:
May the Governor issue a moratorium on the granting of permits for hazardous waste facilities?
Conclusion:
No.
"The Governor is a constitutional officer elected by the qualified voters of the State. N.C. Const. Art. III, s. 2. The executive power of the State is vested in him, N.C. Const. Art. III, s. 1.
"The State possesses the police power in its capacity as a sovereign, and in the exercise thereof, the Legislature may enact laws, within constitutional limits, to protect or promote the health, morals, order, safety, and general welfare of society." State v. Warren, 252 N.C. 690, 694, 114 S.E.2d 660 (1960). "(A)lthough the General Assembly may not delegate its authority to make laws, it may delegate to an administrative agency the authority to make determinations of fact upon which the application of a statute to particular situations will depend, provided the General Assembly has fixed adequate standards for guidance of the administrative agency." Tripp v. Flaherty, 27 N.C. App. 180, 184, 218 S.E.2d 709, (1975). Similarly, the General Assembly may delegate authority to adopt rules. See Adams v. Department of Natural and Economic Resources, 295 N.C. 683, 249 S.E. 2d 402 (1978).
The separation of powers between the legislative and executive branches of government was discussed in State ex rel. Wallace v. bone, 304 N.C. 591, 286 S.E. 2d 79 (1982). The Court quoted from the Instructions to the Orange Delegation for the drafting of the State’s first constitution:
"Fifthly. That the power of making laws shall have authority to provide remedies for any evils which may arise in the community, subject to the limitations and restraints provided by the principal supreme power.
* * *
"Seventhly. That the executive power shall have the authority to apply the remedies provided by the law makers in that manner only which the laws shall direct, and shall be entirely distinct from the power of making laws." (Id. at 597, 82) (emphasis added.)
The General Assembly enacted G.S. 130A-291 which provides in part: ". . . the Department of Human Resources shall maintain an appropriate administrative unit to promote sanitary processing, treatment, disposal, and statewide management of solid waste (which includes hazardous waste)."
"In establishing a (Statewide solid waste management) program, the Department shall have authority to . . . (d)evelop a permit system governing the establishment and operation of solid waste management facilities." G.S. 130A-294(a)(4). "The Commission (for Health Services) shall adopt and the Department shall enforce rules concerning the management of hazardous waste. These rules shall establish a complete and integrated regulatory scheme in the area of hazardous waste management . . . ." G.S. 130A-294(c).
The General Assembly has also established the Governor’s Waste Management Board. G.S. 143B-216.10, entitled "Declaration of findings", states in part:
"The General Assembly of North Carolina hereby finds and declares that the safe management of hazardous wastes and low-level radioactive wastes, and particularly the timely establishment of adequate facilities for the disposal and management of hazardous wastes and low-level radioactive wastes is one of the most urgent problems facing North Carolina." (Emphasis added.)
The Board has the extraordinary authority to invalidate any local ordinance to the extent necessary to effectuate the purposes of the hazardous waste management program. G.S. 130A
293.
Also created by the General Assembly is the North Carolina Hazardous Waste Treatment Commission whose "Declaration of findings" is similar to that of the Governor’s Waste Management Board. The principal function of the Commission is "to site, finance, build, lease or operate, or oversee a hazardous waste treatment facility if private enterprise fails to do so within a specified time." G.S. 143B-470.1. The time schedule is set forth in G.S. 143B-470.4(b).
The General Assembly has recognized the problem posed by hazardous waste in this State and has enacted an elaborate system to provide for the safe management of hazardous waste. The Commission for Health Services adopts rules necessary to govern hazardous waste facilities. The Hazardous Waste Treatment Commission seeks out private enterprise to construct and operate the facilities. If necessary, the Commission assumes the responsibility. Finally, the Governor’s Waste Management Board invalidates local ordinances that obstruct the construction and operation of the facilities. The Legislative Branch has provided the remedy for management of hazardous waste; the Executive Branch has been given the authority to implement that remedy. The remedy not only omits authority to impose a general moratorium on the granting of permits for hazardous waste facilities but is inconsistent with a moratorium. G.S. 143B-470.4 establishes an explicit time schedule for the siting, construction and operation of a hazardous waste treatment facility. In fact, the General Assembly itself has imposed a moratorium – but only on hazardous waste landfills until a comprehensive hazardous waste treatment facility is operating.
G.S. 130A-294(h)(1).
Therefore, it is the opinion this Office that the Governor does not have the authority to issue a moratorium on the granting of permits for hazardous waste facilities in this State.
LACY H. THORNBURG Attorney General
Robert R. Reilly Assistant Attorney General