§ 159D-7. Approval of project by Secretary of Commerce. - North Carolina Statutes

§ 159D‑7.  Approval ofproject by Secretary of Commerce.

(a)        Approval Required.– No bonds may be issued by the agency pursuant to this Article unless theproject for which their issuance is proposed is first approved by the Secretaryof Commerce. The agency shall file an application for approval of its proposedproject with the Secretary of Commerce, and shall notify the Local GovernmentCommission of such filing.

(b)        Findings. – TheSecretary shall not approve any proposed project unless the Secretary makes allof the following, applicable findings:

(1)        In the case of aproposed industrial project, that the proposed project will not have amaterially adverse effect on the environment.

(2)        In the case of aproposed pollution control project, that such project will have a materiallyfavorable impact on the environment or will prevent or diminish materially theimpact of pollution which would otherwise occur.

(2a)      In the case of ahazardous waste facility or low‑level radioactive waste facility that isused as a reduction, recovery or recycling facility, that such project willfurther the waste management goals of North Carolina and will not have anadverse effect upon public health or a significant adverse effect on theenvironment.

(3)        In any case (whetherthe proposed project is an industrial or a pollution control project),

a.         That the jobs to begenerated or saved, directly or indirectly, by the proposed project will belarge enough in number to have a measurable impact on the area immediatelysurrounding the proposed project and will be commensurate with the size andcost of the proposed project,

b.         That the proposedoperator of the proposed project has demonstrated or can demonstrate thecapability to operate such project, and

c.         That the financingof such project by the agency will not cause or result in the abandonment of anexisting industrial or manufacturing facility of the proposed operator or anaffiliate elsewhere within the State unless the facility is to be abandonedbecause of obsolescence, lack of available labor in the area, or sitelimitations.

(c)        Initial Operator. –If the initial proposed operator of a project is not expected to be theoperator for the term of the bonds proposed to be issued, the Secretary maymake the findings required pursuant to subdivisions (b)(1)a. and (3)b. of thissection only with respect to the initial operator. The initial operator shallbe identified in the application for approval of the proposed project.

(d)        Public Hearing,Generally. – The Secretary of Commerce shall not approve any proposed projectpursuant to this section unless the governing body of the county in which theproject is located has first conducted a public hearing and, at or after thepublic hearing, approved in principle the issuance of bonds under this Articlefor the purpose of paying all or part of the cost of the proposed project.Notice of the public hearing shall be published at least once in at least onenewspaper of general circulation in the county not less than 14 days before thepublic hearing. The notice shall describe generally the bonds proposed to beissued and the proposed project, including its general location, and any otherinformation the governing body considers appropriate or the Secretary ofCommerce prescribes for the purpose of providing the Secretary with the viewsof the community. The notice shall also state that following the public hearingthe agency intends to file an application for approval of the proposed projectwith the Secretary of Commerce.

(d1)      Public Hearing,Multiple Projects. – Notwithstanding subsection (d) of this section, in theevent the bonds proposed to be issued are to finance more than one project, thepublic hearing shall be conducted by the agency or by a hearing officerdesignated by the agency to conduct public hearings. The public hearing may beheld at any location designated by the agency. Notice of the public hearingshall be published at least once in at least one newspaper of generalcirculation in each county in which a proposed project is to be located notless than 14 days before the public hearing. The notice shall describegenerally the bonds proposed to be issued and any proposed project in thatcounty, including its general location, and any other information the agencyconsiders appropriate or the Secretary of Commerce prescribes for the purposeof providing the Secretary with the views of the community. A copy of thenotice of public hearing must be mailed to the board of county commissioners ofany county in which a proposed project is to be located and to the governingbody of any municipality in which a proposed project is to be located.

(e)        Certificate ofDepartment of Environment and Natural Resources. – The Secretary of Commerceshall not make the findings required by subdivisions (b)(1)b and (2) of thissection unless the Secretary has first received a certification from theDepartment of Environment and Natural Resources that, in the case of a proposedindustrial project, the proposed project will not have a materially adverse effecton the environment and that, in the case of a proposed pollution controlproject, the proposed project will have a materially favorable impact on theenvironment or will prevent or diminish materially the impact of pollutionwhich would otherwise occur. The Secretary shall not make the findings requiredby subdivision (b)(2a) of this section unless the Secretary has first receiveda certification from the Department of Environment and Natural Resources thatthe proposed project is environmentally sound, will not have an adverse effecton public health and will further the waste management goals of North Carolina.The Secretary of Commerce shall deliver a copy of the application to theDepartment of Environment and Natural Resources. The Department of Environmentand Natural Resources shall provide each certification to the Secretary ofCommerce within seven days after the applicant satisfactorily demonstrates toit that all permits, including environmental permits, necessary for theconstruction of the proposed project have been obtained, unless the agencyconsents to a longer period of time.

(f)         Waiver of WageRequirement. – If the Secretary of Commerce has made all of the requiredfindings respecting a proposed industrial project, except that prescribed insubdivision (b)(1)a of this section, the Secretary may, in the Secretary'sdiscretion, approve the proposed project if the Secretary has received (i) aresolution of the governing body of the county in which the proposed project isto be located requesting that the proposed project be approved notwithstandingthat the operator will not pay an average weekly manufacturing wage above theaverage weekly manufacturing wage in the county and (ii) a letter from anappropriate State official, selected by the Secretary, to the effect thatunemployment in the county is especially severe.

(g)        Rules. – Tofacilitate the Secretary's review of each proposed project, the Secretary mayrequire the agency to obtain and submit such data and information about suchproject as the Secretary may prescribe. The Secretary may also prescribe suchforms and such rules as the Secretary considers reasonably necessary toimplement the provisions of this section.

(h)        Certificate ofApproval. – If the Secretary approves the proposed project, the Secretary shallprepare a certificate of approval evidencing such approval and setting forththe findings and shall cause the certificate of approval to be published in anewspaper of general circulation within the county in which the proposedproject is to be located. Any such approval shall be reviewable as provided inArticle 4 of Chapter 150B of the General Statutes only by an action filed,within 30 days after notice of such findings and approval shall have been sopublished, in the Superior Court of Wake County. The superior court is herebyvested with jurisdiction to hear such action, but if no such action is filedwithin the 30 days herein prescribed, the validity of such approval shall beconclusively presumed, and no court shall have authority to inquire into suchapproval. Copies of the certificate of approval of the proposed project will begiven to the agency, the governing body of the county in which the proposedproject is to be located and the secretary of the Local Government Commission.

The certificate of approvalshall become effective immediately following the expiration of the 30‑dayperiod or the expiration of any appeal period after a final determination byany court of any action timely filed pursuant to this section. The certificateshall expire one year after its date unless extended by the Secretary who shallnot extend the certificate unless the Secretary again approves the proposedproject as provided in this section. If bonds are issued within that yearpursuant to the authorization of this Article or Chapter 159C of the GeneralStatutes to pay all or part of the costs of the project, however, thecertificate expires three years after the date of the first issuance of thebonds.

(i)         Certificate IssuedUnder Chapter 159C Effective. – Any certificate of approval with respect to aproject which has become effective pursuant to G.S. 159C‑7 satisfies therequirements of this section to the extent that the findings made by theSecretary pursuant to G.S. 159C‑7 are consistent with the findingsrequired to be made by the Secretary pursuant to this section. (1977, 2nd Sess., c. 1198, s.1; 1987, c. 517, s. 6; c. 827, s. 1; 1989, c. 727, ss. 218(162), 219(39); c.751, s. 8(30); 1991 (Reg. Sess., 1992), c. 959, s. 82; 1997‑443, s. 11A.123;2000‑179, s. 2; 2002‑172, s. 5.2; 2003‑416, s. 2; 2004‑132,s. 2.)