North Carolina Forestry Ass'n v. North Carolina Dept. of Environment and Natural Resources, Div. of Water Quality

571 S.E.2d 602, 154 N.C. App. 18, 2002 N.C. App. LEXIS 1411
CourtCourt of Appeals of North Carolina
DecidedNovember 19, 2002
DocketCOA01-1329
StatusPublished
Cited by5 cases

This text of 571 S.E.2d 602 (North Carolina Forestry Ass'n v. North Carolina Dept. of Environment and Natural Resources, Div. of Water Quality) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Carolina Forestry Ass'n v. North Carolina Dept. of Environment and Natural Resources, Div. of Water Quality, 571 S.E.2d 602, 154 N.C. App. 18, 2002 N.C. App. LEXIS 1411 (N.C. Ct. App. 2002).

Opinions

THOMAS, Judge.

The North Carolina Forestry Association (NCFA), petitioner, appeals the trial court’s order affirming in part and reversing in part a final agency decision of the North Carolina Environmental Management Commission (EMC).

The trial court upheld EMC’s conclusion that the Department of Environment and Natural Resources, through the Division of Water Quality, acted within its authority in excluding new or expanding wood chip mills from coverage under a general timber products industry permit. The trial court also found EMC’s decision to be timely, and a contrary Recommended Decision of an Administrative Law Judge not to be the final agency decision.

The trial court, however, did reverse the part of EMC’s decision finding NCFA lacked standing to even bring the action. Respondents and respondent-intervenors cross-assign that reversal as error. For [20]*20the reasons herein, we agree with respondents and respondent-inter-venors. NCFA is not an aggrieved party and, therefore, lacks standing.

NCFA is a private organization whose members, are in forest management and timber products industries, including wood chip mills.

Respondents include: (1) the North Carolina Department of Environment and Natural Resources, Division of Water Quality (DWQ); (2) EMC, which adopts rules that the Department of Environment and Natural Resources is responsible for enforcing; and (3) the National Pollutant Discharge Elimination System Committee (NPDES Committee), a committee of EMC which hears appeals of DWQ’s permitting decisions. Respondent-intervenors are The Sierra Club and Dogwood Alliance.

Under the Federal Water and Pollution Control Act, industrial facilities must obtain National Pollutant Discharge Elimination System Permits (NPDES permits) for stormwater discharges. The federal act authorizes individual states to administer the NPDES permit system. 33 U.S.C. § 1342 (2001). In North Carolina, DWQ issues NPDES permits. Permits may be “general,” prescribing conditions to be applied to a group or category of discharges, or “individual,” tailored to the particular discharge and location. N.C. Gen. Stat. § 143-215.1 (2001).

In 1992, DWQ issued a general NPDES permit, NCG040000. The permit was valid for a period of five years and encompassed some segments of the timber products industry, including wood chip mills. It specifically excluded the logging, wood preserving, and cabinet-making segments of the industry, which had to apply for individual permits.

The 1992 general permit expired in August 1997. DWQ then issued general permit NCG210000 in April 1998. In addition to the logging, wood preserving, and cabinet-making segments of the timber products industry, wood chip mills were excluded from general permit NCG210000. As part of this decision, DWQ allowed wood chip mills that had applied for and obtained coverage under general permit NCG040000 before it expired to remain covered. Only new or expanding wood chip mills were required to apply for individual permits.

On 1 June 1998, NCFA filed a Petition for a Contested Case Hearing seeking administrative review of the decision, claiming its members “who decide to locate and permit new chip mills in North Carolina will be subject to, among other things, burdensome applica[21]*21tion procedures and additional monitoring and reporting requirements.” The North Carolina Department of Environment and Natural Resources, and the Sierra Club and Dogwood Alliance, filed a joint motion to dismiss.

The Administrative Law Judge denied the motion to dismiss, with both NCFA and respondents moving for summary judgment. The Administrative Law Judge recommended that summary judgment be entered in favor of NCFA and concluded that DWQ lacked statutory authority to consider secondary water quality impacts of wood chip mills, such as sedimentation and erosion, when it decided to exclude them from general permit NCG210000. The order stated that the final agency decision “shall be rendered by the NPDES Committee of the Environmental Management Commission.”

On 13 October 1999, a hearing was held before the NPDES Committee. It did not take new evidence after receiving the recommended decision from the Administrative Law Judge. The NPDES Committee held NCFA lacked standing to bring the action and therefore summary judgment should be granted in favor of respondents. Moreover, it ruled in the alternative that if NCFA did have standing, then DWQ “did not exceed its authority or jurisdiction, act erroneously, fail to act as required by law or rule, fail to use proper procedure, or act arbitrarily or capriciously in its decision to exclude wood chip mills from coverage under NPDES Stormwater General Permit No. NCG210000.” NCFA then sought judicial review of the final agency decision.

The trial court’s order includes the following: (1) NCFA is a “person aggrieved” and is therefore entitled to commence a contested case proceeding to challenge the decision not to renew a general stormwater permit to the wood chip mill industry; (2) the Director of the DWQ, acting under a delegation of authority from EMC, has the absolute power to issue or not to issue a general permit for any class of activities; and (3) EMC’s final agency decision was timely. Accordingly, the trial court reversed that portion of EMC’s decision dismissing NCFA’s petition for a contested case hearing. It affirmed that portion of EMC’s decision upholding DWQ’s determination not to include wood chip mills in general stormwater permit NCG210000.

NCFA appeals, contending the trial court: (1) erred in finding the final agency decision to be timely; (2) applied the incorrect standard of review in determining respondent had “absolute power to issue or not issue a general permit” under N.C. Gen. Stat. § 143-215.1; (3) [22]*22failed to apply standard rules of statutory construction in determining DWQ’s statutory authority under N.C. Gen. Stat. § 143-215.1; (4) failed to find the final agency decision was affected by errors of law; (5) failed to find the final agency decision was arbitrary and capricious and without substantial evidence; and (6) erred in not ruling on motions to correct and supplement the record.

Respondent and respondent-intervenors’ sole cross-assignment of error is that the trial court erred in concluding NCFA is a “person aggrieved” under the North Carolina Administrative Procedure Act (NCAPA) and therefore has standing to commence a contested case proceeding.

On review of a trial court’s order regarding a final agency decision, we examine for error by determining whether the trial court: (1) exercised the proper scope of review; and (2) correctly applied this scope of review. Dillingham v. N.C. Dep’t. of Human Res., 132 N.C. App. 704, 708, 513 S.E.2d 823, 826 (1999).

In the instant case, we proceed with de novo review of whether the NCAPA confers standing on NCFA, a question of law. See id. (after determining the actual nature of the contended error the appellate court then proceeds utilizing the proper standard of review). De novo review requires the court to “consider a question anew, as if not considered or decided by the agency previously” and to “make its own findings of fact and conclusions of law” rather than relying upon those made by the agency. Jordan v. Civil Serv. Bd.

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Bluebook (online)
571 S.E.2d 602, 154 N.C. App. 18, 2002 N.C. App. LEXIS 1411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-carolina-forestry-assn-v-north-carolina-dept-of-environment-and-ncctapp-2002.