15A NCAC 14A .0503. GROUNDS FOR PREEMPTION

(a)  The grounds for preempting a local ordinance are:

(1)           That there is an ordinance applicable to a facility which would prohibit or have the effect of prohibiting establishment or operation of a facility;

(2)           That the proposed facility is needed in order to establish adequate capability for the management of hazardous waste generated in this state and therefore serves the interests of the citizens of the state as a whole;

(3)           That all legally required state and federal permits or approvals have been issued by the appropriate state and federal agencies or that all state and federal permit requirements have been satisfied and that the permits or approvals have been denied or withheld only because of the ordinance;

(4)           That local citizens and elected officials have had adequate opportunity to participate in the siting process; and

(5)           That the construction and operation of a facility will not pose an unreasonable health or environmental risk to the surrounding locality and that the facility operator or commission has taken or consented to take any reasonable measures to avoid or manage foreseeable risks and to comply to the maximum feasible extent with any applicable ordinance.

(b)  Factors that may be considered in determining whether an ordinance would prohibit or have the effect of prohibiting the establishment or operation of a facility include:

(1)           That any legally required local permit, license, certification or other form of permission to initiate or continue establishment or operation of the facility has been granted by the city or county with conditions that in effect prevent establishment or operation;

(2)           That any legally required local permit, license, certification or other form of permission to initiate or continue establishment or operation of the facility has been withheld by the city or county for any unreasonable time so as to constitute denial;

(3)           That compliance with the ordinance is so economically burdensome beyond what is necessary to protect the public health and safety as to make it impracticable for the facility to be established or operated;

(4)           That the petitioner has exhausted any appeal procedures provided by the ordinance, or that despite his good faith efforts to appeal as provided by such ordinance, the city or county has been responsible for such unreasonable delay as to effectively constitute denial; and

(5)           Any other grounds constituting a basis for relief under G.S. 130A‑293.

 

History Note:        Authority G.S. 130A‑293; 143B‑216.13(14);

Eff. February 1, 1990.