Radioactive Material; Radiation Sources; Licensing-Radiation Protection Act

Subject:

Requested By: Mr. I. O. Wilkerson, Jr. Director Division of Facility Services

Question: What is the legal effect upon the licensure activities of the Radiation Protection Section of the Department of Human Resources of current and proposed county ordinances which regulate radiation sources?

Conclusion: The county ordinance attached to your inquiry (purporting to make it unlawful for any person to use, manufacture, produce, process, store, bury, transport, transfer, receive, acquire, own or possess radioactive material except for medical diagnosis or treatment), and substantially similar ordinances, would appear to have no direct legal effect on the licensure activities of the Department in the area of licensure of radioactive material and radiation machines.

The Department of Human Resources derives its powers and duties to license and regulate sources and the possession and use thereof from the North Carolina Radiation Protection Act

(G.S. Chapter 104E) and the regulations of the Radiation Protection Commission duly promulgated thereunder. This Act contemplates a single, effective system of regulation of sources of radiation within the State and an orderly regulatory pattern within the State, among the states, and between the federal government and the State to the end that duplication of regulation may be minimized. G.S. 104E-3, G.S. 104E-4. Further, G.S. 104E-21 contains the proviso that local ordinances and regulations dealing with radioactive materials of the kinds regulated by the State be "consistent and compatible" with the provisions of the Radiation Protection Act and the rules and regulations promulgated by the Radiation Protection Commission.

It is recognized that Article 6 of Chapter 153A of the General Statutes, and specifically, G.S. 153A-128, appear to give the counties very broad authority to regulate, restrict or prohibit any possession or dealing with radioactive substances. Further, the Radiation Protection Act itself, by the aforementioned G.S. 104E-21, provides that ordinances or regulations of local governments ". . . relating to by-product, source and special nuclear materials shall not be superseded by this Chapter." This is immediately followed, however, by the above-mentioned proviso requiring consistency and compatibility. It is an established rule of statutory construction that the latest enactment will control or be regarded as an exemption to or qualification of the prior statute. State Highway Commission v. Hemphill, 269 N.C. 535. Since G.S. 153A-128 was enacted in 1973 and the Radiation Protection Act was enacted in 1975, we must conclude that G.S.

153A-128, as it pertains to radioactive substances of the kind licensed by the State, is qualified by the proviso of G.S. 104E-21 to the extent that a county’s regulation thereof must be "consistent and compatible" with the provisions of Chapter 104E and the rules and regulations of the Commission duly promulgated thereunder. A county Board of Commissioners has no legislative authority not granted to it expressly or by necessary implication from expressly granted powers. State v. Tenore, 280 N.C. 238.

It would appear to be improbable that the county ordinance incorporated in your inquiry purporting to totally prohibit any possession or use of radioactive material in that county (except persons directly involved in the use of radiation machines or radioactive materials for medical diagnosis or treatment) could be construed as being "consistent and compatible" with our Radiation Protection Act by any definition of the quoted words. In view of the above-mentioned single systems and orderly pattern of regulation contemplated by the Radiation Protection Act and the requirement of consistency and compatibility, it appears that the permissible area of regulation by a unit of local government of sources of radiation which are regulated by the State might be quite limited. In view of the mandate of this Act, the Department should refrain from action which might be construed as an endorsement of any questionable local ordinance.

Of course, the issuance of a license by the Radiation Protection Section will not exempt the licensee from an action by a county or unit of local government for the purpose of enforcing its local laws pertaining to the use, possession and handling of sources of radiation. Therefore, if it is deemed desirable, it would be proper to include in all licenses for radiation sources a general admonition to the effect that issuance of the license does not constitute an exemption from such ordinances or regulations of municipalities, counties or boards of health.

This opinion is not to be construed to indicate that the Department should ignore all local ordinances or regulations, of which it may have knowledge, which, directly or indirectly, purport to regulate the use and possession of sources of radiation or the general activities which might be the subject of licensure by the Radiation Protection Division. For instance, a county, by zoning ordinance, might lawfully regulate the location of manufacturing or processing plants or storage warehouses. It is our opinion that the Department should not knowingly license an activity to be conducted in such a location which would obviously be in violation of a zoning ordinance falling within constitutional bounds. Further, it is conceivable that there may be other local ordinances which might be consistent and compatible with the Act. These should be considered on an individual basis.

Rufus L. Edmisten Attorney General

William F. Briley Assistant Attorney General