North Carolina v. Eubanks

71-CR-15358 (N.C. Super. Ct. December 31, 1971)

Prohibition of "open burning" as opposed to "smokestack burning" by a State Regional Air Pollution Control Board does not constitute an unreasonable classification in violation of the equal protection clause of the North Carolina Constitution. The prohibition of only open burning does not constitute an exclusive privilege granted to industry in violation of the North Carolina Constitution.

Counsel for North Carolina
James Freeman Asst. Solicitor
Buncombe County Courthouse
Asheville, North Carolina 28802

Counsel for Defendant
George W. Moore
304 Northwestern Bank Building
Asheville, North Carolina 28801

[2 ELR 20245]

Falls, J.

JUDGEMENT

THIS cause coming on to be heard upon the State's appeal from the allowance of Defendant's motion to quash made in the District Court Divsion; It having been stipulated by counsel for defense and the State that this warrant was quashed in the District Court as violative of the following provisions on [sic]the North Carolina Constitution:

1. Article I, S 19

2. Article II, S 32

3. Article II, S 1

AND the Court having considered the record proper and the arguments of Counsel for Defendant and the Solicitor for the State makes the following:

FINDINGS OF FACT:

1. This charge was made under Section II, Regulation Number 1, Subsection 1.2 of the Western North Carolina Regional Air Pollution Control Board which states:

"No person shall cause, suffer, allow or permit open burning of refuse or other combustible material except as may be allowed in compliance with Section 1.3, or except those covered by a permit issued by the Board under Section 143-215.1 (c) of the Act or the regulations of a duly certified local air pollution control program having jurisdiction."

II. The warrant was quashed in District Court as being based upon statutes and regulations which violate Constitutional mandates.

III. An appeal was taken in appropriate time by the State and thereafter calendared for trial December 6, 1971, and heard in Superior Court on December 15, 1971.

IV. The classification scheme adopted by the Western North Carolina Regional Air Pollution Control Board distinguishes between "open" and "smokestack" burning. "Open" burning, with certain designated exceptions, is absolutely prohibited under Section [2 ELR 20246] II, Regulation Number 1, Subsection 1.2. "Smokestack" burning is prohibited by Section II, Regulation Number 2, Subsection 2.2 if pollution exceeds specified maximum limits. Open burning is defined by Article 4, Section 1(8) of the Rules and Regulations as meaning "any fire wherein the products of combustion are emitted directly into the outdoor atmosphere and are not directed thereto through a stack or chimney, approved incinerator, or other similar device."

This classification scheme rests upon reasonable basis and is not arbitrary.

V. The State Board is empowered to retain jurisdiction in certain instances by North Carolina General Statutes 143-215.3(a) (11) (d) (4) which states:

"If the Board finds that the control of a particular class of air contaminant source because of its complexity or magnitude is beyond the reasonable capability of the local air pollution control authorities or may be more efficiently and economically performed at the State level, it may assume and retain jurisdiction over that class of air contaminant source.Classification pursuant to this paragraph may be either or [sic] the basis of the nature of the sources involved or on the basis of their relationship to the size of the communities in which they are located."

The stated rationale (capability and efficency) for this retention of jurisdiction rests upon a reasonable basis and is not arbitrary.

VI. North Carolina General Statutes 143-215(a) (4) empowers the State Board "to develop and adopt classification for use in classifying air contaminant sources, which in the judgment of the Board may cause or contribute to air pollution, according to levels and types of emissions and other characteristics which relate to air pollution and may require reporting for any such class or classes. Such classifications may be for application to the State as a whole or to any designated area of the State, and shall be made with special reference to effects on property."

This Statute refers to the power of the State Board and is not restrictive of the power of the Western North Carolina Regional Air Pollution Control Board to classify pollution for purposes of control or absolute prohibition.

In addition, the power given by the above Statute to classify according to "other characteristics which relate to air pollution" includes the power to distinguish between "open" and "smokestack" burning.

VII. Section II, Regulation Number 2, Subsection 2.2 or [sic] the Rules and Regulations of the Western North Carolina Regional Air Pollution Control Board prohibits "smokestack" burning which exceeds certain maximum pollution levels. This regulation allows everyone to conduct "smokestack" burnings and this permitted burning is not limited to industry alone.

Based upon the foregoing findings of fact, the Court makes the following:

CONCLUSIONS OF LAW:

1. The classification scheme of "open" versus "smokestack" burning does not violate the equal protection clause of Article I, Section 19 of the Constitution of North Carolina.

II. North Carolina General Statute 143-215(a) (11) (d) (4) which allows the State Board to retain jurisdiction of certain classes of pollution does not violate the equal protection clause of Article I, Section 19 of the Constitution of the State of North Carolina.

III. The Western North Carolina Regional Air Pollution Control Board did not violate North Carolina General Statute 143-215(a) (4) by adopting an "open" versus "smokestack" burning classification scheme.

IV. The classification scheme of "open" versus "smokestack" burning does not constitute an exclusive or separate emolument or privilege granted to industry in violation of Article I, Section 32 of the Constitution of North Carolina.

Based upon the foregoing findings of fact and conclusions of law the Court orders the following:

I. That the Order of the District Court quashing the warrant as being based upon Statutes and Regulations which violate the Constitutional mandates is error and should be reversed.

II. This cause should be remanded to the District Court for trial.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED

I. That the Order of the District Court granting the motion to quash is reversed.

II. That the case be remanded to District Court for proceedings in accordance with this Judgement.