ELR Citation: ELR 20453
No(s). 478PA90 (N.C. Aug 14, 1991)

The court rules that a North Carolina county's suit to enjoin the state's Hazardous Waste Management Commission from siting a hazardous waste treatment facility on county land is moot because the site was downgraded and no longer considered a suitable site, and because the state has been expelled from the regional agreement under §104(c)(9) of the Comprehensive Environmental Response, Contribution, and Liability Act (CERCLA) for failure to meet its siting deadline. The regional CERCLA capacity assurance agreement, which North Carolina entered with other neighboring states to comply with federal law, required North Carolina to construct and operate a hazardous waste treatment facility within specified deadlines, including selecting a site by May 1990, obtaining the required permit by December 1990, and beginning construction by July 1991. In 1990, the lower court preliminarily enjoined the Commission from taking further action in siting such a facility in the county after determining that the regional agreement entered into by North Carolina violated the separation-of-powers doctrine of the state constitution. Before the state court of appeals dissolved the injunction on appeal, the state supreme court granted discretionary review. The court first notes that the petition for discretionary review was granted in part because of the injunction's impact on meeting the siting deadline, the importance of the regional agreement, and the potential application of the trial court's constitutional decision to other cases. In addition, shortly after this lawsuit was filed, the Commission downgraded the county site from a "suitable" site to only a "potentially acceptable" site. Thereafter, the lower court ordered the case removed from the calendar and the case files closed, which halted the Commission from further stages of its decisionmaking process. North Carolina was then unable to meet its permit deadline, which automatically eliminated the state from the regional agreement. For these reasons, the court concludes that the case is now moot, vacates the preliminary injunction, and dismisses the case.

The court next rules that although the appeal evades review in this case because of the mootness doctrine, the public interest requires consideration of whether a justiciable issue exists before the Commission makes a final site selection. The court first notes that the Commission remains under a continuing obligation to carry out the statutory mandate of the state hazardous waste law to site, construct, and operate authorized hazardous waste facilities. North Carolina law requires the Commission to make final site selection decisions using a three-step process, which entails designating sites as suitable, preferred, and then permitted by various federal and state agencies. The court holds that the trial court erred in enjoining the Commission from further siting activities pending review because no justiciable issue existed at the time the complaint was filed. The issuance of the injunction at the first stage of the siting process interfered with the Commission's exercise of discretion and judgment. The court rules that unless the Commission makes a final site selection decision, no justiciable issue and no genuine controversy exist between the parties.

Counsel for Plaintiff-Appellee
Michael Crowell
Tharrington, Smith & Hargrove
209 Fayetteville St. Mall, P.O. Box 1151, Raleigh NC 27602
(919) 821-4711

William L. Hopper
Watkins, Finch & Hopper
111 Gilliam St., P.O. Drawer 247, Oxford NC 27565
(919) 693-8161

Counsel for Defendant-Appellant
Lacy H. Thornburg, Attorney Gen.; Edward M. Speas, Sr. Deputy Attorney Gen.; Tiare B. Smiley, Sp. Deputy Attorney Gen.
Department of Justice
P.O. Box 629, Raleigh NC 27611
(919) 733-3377

MITCHELL, J., did not participate in the consideration or decision of this case.