Last Friday, August 23rd, N.C. Governor Pat McCrory signed three bills into law whose passage demonstrates how solid waste has transformed from a regulated industry into a political football.  Some new measures, like changes in application fees, are mundane.  Other measures, however, such as the allowable leak factor in hauling trucks, are highly charged, with opponents claiming everything from environmental disaster to political malfeasance.

 How did solid waste become so politicized?

The politicizing of solid waste took a giant step backwards in October 2005 when the Raleigh News & Observer trumpeted in above-the-fold, front page, 72 point type, “Yankee Trash Invades North Carolina.”

The headline demonized responsible companies developing five landfills already favored and approved by local host governments in the eastern part of the state.  Although each landfill was or would become fully compliant with federal Subtitle D regulations, environmental groups had found a new cause du jour.

In 2006 the legislature imposed a statewide moratorium on the construction and permitting of new facilities, and a year later it enacted the Solid Waste Act of 2007 which legislatively banned 5 large facilities in various stages of permitting but which had already received local approval.

Bias disclosure: I represented developers of two of these landfills (one pre-approval and the other post-approval) and spoke regularly to one of the consultants of a third. The staff of governmental power feels differently depending on whether you’re holding it or being hit by it.

I agree with Democrats who, since 2011, have decried a heavy-handed Republican legislature’s undoing of countless legitimate local government decisions.  But Democrats who think the practice started with this Republican-controlled General Assembly have conveniently forgotten the heavy-handed implications of the aforementioned Act of 2007 which nullified five legal and legitimate local government decisions to approve these facilities.

A pendulum pushed too far in any direction will, in time, react by swinging just as far the other way.

The Regulatory Reform Act of 2013

Regulatory reform was the North Carolina legislative mantra in 2013.  Reform culminated in several bills, but none as sweeping as House Bill 74, termed the “Regulatory Reform Act of 2013.”

H74 touched on everything from meals served at bed and breakfast facilities to regulation of fraternity houses, but the meat of the bill was in changes to rule-making, and the regulation of water quality, sedimentation controls and solid waste.

I’ll focus on solid waste and hit a few highlights.

Environmental Impact Studies

Until now, N.C. G.S. §130A-295.6(a) required NCDENR itself to conduct a study of the environmental impact of a proposed landfill and allowed the agency to pass any study costs to the permit applicant.  As written, the former statute gave a blank check to the permitting agency without a concomitant incentive to spend wisely.  As revised, applicants are required to contract with a qualified third party and only reimburse NCDENR for costs incurred to meet public notice and hearing requirements.

Leachate Collection Lines

Leachate collection line maintenance has been changed from annual cleaning (with two year cleaning allowed under certain conditions) to the more logical five year mandatory cleaning. (N.C.G.S. §130A-295.6(h))

Daily Cover

Currently, alternate daily cover is approved by NCDENR on a facility by facility basis.  However, alternate covers that at one time might have been experimental are now routinely used (e.g. Posi-Shell).  N.C.G.S. §130A-295(h1) provides that once NCDENR approves an alternate daily cover for one landfill, the cover is deemed approved for others.

Research and Development

Landfills receiving at least 240,000 tons of waste per year are required to engage in R&D for alternate disposal technologies, including gas-to-energy and waste-to-energy technologies, and to cooperate with the state’s universities and community colleges in this effort.  (N.C.G.S. §130A-295(h2))

Municipal Solid Waste Fees

N.C.G.S. §160A-314.1 was rewritten to provide that cities may impose and collect solid waste fees.  However the fees may not be used to enhance the city’s general fund.  Rather, fees may only enable the city to recoup solid waste collection and disposal costs.  Certain “surcharges” may be levied when the city contracts with another local government for waste collection or disposal.  Surcharges may be placed in the city’s general fund.

Penalties

Administrative penalties used to be levied based upon NCDENR’s determination of “the degree of harm caused by the violation and the cost of rectifying the damage.”  H74 created a list of 11 factors which made penalty assessment broader and fairer. N.C.G.S. 130A-22(d).

Storage of Nonhazardous Recycled Materials

N.C. G.S. 130A-309.09A forbids local governments from regulating the height or setback of recycled material stockpiles unless within 200 yards of a residential district.  Although I don’t know the backstory, this provision has all the hallmarks of a measure that originated with one legislator’s desire to block one local government’s effort to regulate one company’s business.

Local Government Solid Waste Management Plans

Although not part of the Regulatory Reform Act, House Bill 321 absolved local governments of their responsibility to develop and implement ten-year plans for local management of solid waste.

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There were more statutory changes in the area of solid waste but these are the high points.  This week I’m attending and speaking at the SWANA Quad-State conference in Myrtle Beach.  Stay tuned for interesting updates from the conference.

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.