THOMAS E. TILLEY, Trustee,
Petitioner
v
.
Wake County
No. 01 CVS 2899
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENT AND NATURAL
RESOURCES
Respondent
Thomas E. Tilley, pro se, for petitioner-appellant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Francis W. Crawley and Associate Attorney General
Nancy R. Dunn, for respondent-appellee.
CALABRIA, Judge.
Thomas E. Tilley (“petitioner”) appeals from order of the Wake
County Superior Court affirming the final agency decision of the
North Carolina Environmental Management Commission (“Commission”),
which imposed civil penalties of $4,183.36 against petitioner for
violations of N.C. Gen. Stat. § 143-215.1 and the conditions of a
permit allowing discharge of wastewater from a facility located at
Riverview Mobile Home Park. We affirm.
In 1991, petitioner applied for a discharge permit in order to
discharge wastewater from a facility located at Riverview Mobile
Home Park. The North Carolina Department of Environment andNatural Resources (the “Department”) issued National Pollutant
Discharge Elimination System Permit number NC0038784 (the “permit”)
to petitioner with certain effluent limitations, monitoring
requirements and other conditions as set out in the permit. The
permit had an effective date of 1 June 1993 and a duration of five
years. The cover letter accompanying the permit notified
petitioner of his right to adjudicate any portion of the permit he
found unacceptable; however, petitioner did not appeal and began
operating the facility pursuant to the permit.
The permit contained mandatory terms and conditions including,
in relevant part, a duty to provide information and to submit
signed Discharge Monitoring Reports (“DMR”) certified by
petitioner, the responsible party, to be “true, accurate, and
complete” to the “best of [the responsible party's] knowledge and
belief[.]” The permit further required petitioner to select and
use “[a]ppropriate flow measurement devices and methods consistent
with accepted scientific practices . . . to ensure the accuracy and
reliability of measurements of the volume of the monitored
discharges.” This included having appropriate devices installed,
calibrated, and maintained with a maximum deviation of less than
ten percent of the true discharge. Finally, the permit required
petitioner to “at all times provide the operation and maintenance
necessary to operate the existing facilities at optimum
efficiency.”
In February of 1999, the Department inspected the wastewater
flow meter at petitioner's facility, discovered it was out ofservice, and instructed petitioner to have it recalibrated. In the
following months of March, April, May, and June, petitioner signed
and submitted DMRs reflecting respective flows of .051 million
gallons per day (“MGD”), .050 MGD, .042 MGD, and .041 MGD, all of
which exceeded the .035 MGD limit for the parameter of flow
provided in the permit. On the May DMR, petitioner added a
handwritten note that the certified wastewater treatment operator
had been called to check the calibration of the flow meter. On the
June DMR, petitioner added a handwritten note that the flow meter
was found to be reading inaccurately and was being corrected.
For each non-compliant single flow violation reflected in the
respective DMRs, the Department assessed petitioner $1,000.00, or
ten percent of the maximum penalty authorized by statute, plus
$45.84 in enforcement costs. The Commission found that the
Department, in assessing the civil penalties, considered each of
the statutory factors contained in N.C. Gen. Stat. § 143B-282.1 as
required by N.C. Gen. Stat. § 143-215.6A and further found that the
amount of the penalty and the cost of enforcement comported with
the standard established penalties and costs for self-monitoring
violations of permit limitations. Petitioner commenced contested
cases, which were consolidated for hearing before the Office of
Administrative Hearings (“OAH”). The administrative law judge
(“ALJ”) issued a recommended decision affirming the penalties
imposed, which was adopted and affirmed by the final agency
decision issued by the Commission. The Commission determined
petitioner violated N.C. Gen. Stat. § 143-215.1(a)(6) and thepermit by having average monthly flow measurements which exceeded
the permit's flow limit between March and June 1999. Petitioner
petitioned for judicial review and sought a declaratory judgment
before the Wake County Superior Court. On 9 December 2003, the
trial court affirmed the Commission's final agency decision and
denied declaratory relief. Petitioner appealed to this Court.
Initially, we set forth the appropriate standard of review.
“On judicial review of an administrative agency's final decision,
the substantive nature of each assignment of error dictates the
standard of review.” N.C. Dep't of Env't & Natural Res. v.
Carroll, 358 N.C. 649, 658, 599 S.E.2d 888, 894 (2004).
Under the APA, an agency's final decision may
be reversed or modified only if the reviewing
court determines that the petitioner's
substantial rights may have been prejudiced
because the agency's findings, inferences,
conclusions, or decisions are:
“(1) In violation of constitutional
provisions;
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence
admissible . . . in view of the entire record
as submitted; or
(6) Arbitrary or capricious.”
Id., 358 N.C. at 658-59, 599 S.E.2d at 894 (quoting N.C. Gen. Stat.
§ 150B-51(b)). “The first four grounds for reversing or modifying
an agency's decision . . . may be characterized as 'law-based'
inquiries[,] [and the] final two grounds . . . may be characterized
as 'fact-based' inquiries. Id., 358 N.C. at 659, 599 S.E.2d at
894. Law-based inquiries or questions of law are reviewed de novo,
and fact-based inquiries or factual issues concerning, for example,the sufficiency of the evidence, are reviewed using the whole
record test. Id. De novo review involves the trial court's
consideration of the matter anew with the freedom to substitute its
own judgment for the agency's. Id., 358 N.C. at 660, 599 S.E.2d at
895. Review pursuant to the whole record test, by way of
comparison, does not allow the trial court to substitute its own
judgment for that of the agency when there are “'two conflicting
views, even though it could reasonably have reached a different
result had it reviewed the matter de novo.'” Carroll, 358 N.C. at
660, 599 S.E.2d at 895 (quoting Watkins v. N.C. State Bd. of Dental
Exam'rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769 (2004)). This
review contemplates judicial examination of the record evidence in
light of both detracting evidence and supporting evidence for the
agency's findings with the purpose of determining whether there is
substantial evidence in the record to justify the agency's
decision. Id. Substantial evidence is “relevant evidence a
reasonable mind might accept as adequate to support a conclusion.”
N.C. Gen. Stat. § 150B-2(8b) (2003). “[W]here the findings of fact
of an administrative agency are supported by substantial competent
evidence in view of the entire record, they are binding on the
reviewing court, and that court lacks authority to make alternative
findings at variance with the agency's.” Carroll, 358 N.C. at 663,
599 S.E.2d at 897.
In his first assignment of error, petitioner contends the
Commission erred in considering the conditions, limitations, and
duties set forth in the permit because the permit expired prior tothe months for which petitioner was assessed penalties and costs.
The continued viability of the permit as allowed by the applicable
statutes is a matter of law, and we undertake de novo review.
North Carolina General Statutes § 143-215.1 requires a person
constructing or operating a sewer system, treatment works, or
disposal system within the State to obtain a permit from the
Commission and comply with any conditions contained therein. N.C.
Gen. Stat. § 143-215.1(a) (2003). Subsection (c) governs
applications for permits and renewals for facilities discharging
into surface waters in North Carolina and disallows a permit to be
issued or renewed for a term exceeding five years. N.C. Gen. Stat.
§ 143-215.1(c)(5) (2003). Such applications must be submitted to
the Commission, and the Commission must “act on a permit
application as quickly as possible” but “may conduct any inquiry or
investigation it considers necessary before acting on an
application[.]” N.C. Gen. Stat. § 143-215.1(c)(1) (2003). When an
application for renewal of a license is made, “the existing license
. . . does not expire until a decision on the application is
finally made by the agency[.]” N.C. Gen. Stat. § 150B-3(a) (2003).
We agree with petitioner that the Department could not issue
a permit on 1 June 1993 with a term extending beyond 31 May 1998 by
virtue of N.C. Gen. Stat. § 143-215.1(c)(5). It does not
necessarily follow, however, that the trial court erred in
concluding the permit had not expired upon finding “[s]ubstantial
evidence exists in the record to show that the permit was under
renewal” by virtue of N.C. Gen. Stat. § 150B-3. On appeal,petitioner has proffered no argument or pointed to any evidence
tending to show that the permit was not under renewal or that the
Commission had not acted on the renewal application “as quickly as
possible.” Accepting that the permit was under renewal, N.C. Gen.
Stat. § 150B-3 prevented the expiration of petitioner's permit, and
its terms and conditions remained binding. This assignment of
error is overruled.
In his next three assignments of error, petitioner challenges
the Commission's decision on the basis that it relied on inaccurate
and erroneous flow meter readings. Petitioner argues it is
uncontested that the flow meter readings were inaccurate. The
Department rejoins that there is no evidence of the degree of
inaccuracy, and petitioner's submitted DMRs were certified by him
to be true and accurate to the best of his ability. As these
assignments of error concern, essentially, the sufficiency of the
evidence, our review is based upon the whole record.
In each of the months at issue, petitioner signed and
certified DMRs reflecting discharge amounts in excess of that
allowed under the issued permit. Petitioner's argument, that the
readings reported on the DMRs were based on a malfunctioning meter,
ignores his duty to maintain such equipment and his certification
of the information contained in the DMRs. In short, petitioner has
submitted certified DMRs indicating a violation and then attacked
those DMRs on the basis that they are, to some unknown degree,
inaccurate without any rebutting evidence that the waste discharge
amounts, during the relevant time period, were compliant. In theabsence of such evidence, we are of the opinion that the Commission
is entitled to rely upon the submissions certified by petitioner.
If petitioner's arguments were adopted, it would negate his duty to
monitor, certify, and report an accurate amount of discharge and to
maintain his equipment. Carried to its logical conclusion, any
permit holder could use malfunctioning equipment as a shield
against penalties or repercussions when a filed DMR indicated non-
compliance. We hold there was no error in relying upon the
certified DMRs filed by petitioner and such DMRs constitute
substantial evidence supporting the Commission's final agency
decision. These assignments of error are overruled.
In his next assignment of error, petitioner summarily asserts
his previous assignments of error establish “the Commission's
decision to impose penalties based on the known erroneous flow
meter readings was arbitrary and capricious,” thus violating his
substantive due process rights. Having considered and rejected
these assignments of error, we likewise hold those arguments fail
to show a violation of petitioner's substantive due process rights.
In his sixth assignment of error, petitioner asserts the
Commission's final agency decision was arbitrary and capricious
because it failed to properly apply the statutory factors found in
N.C. Gen. Stat. § 143B-282.1(b) (2003) for the purpose of assessing
civil penalties as required by N.C. Gen. Stat. § 143-215.6A(c)
(2003). We review the whole record. North Carolina General Statutes § 143B-282.1(b) lists the
following factors for the Commission to consider in assessing
penalties for violations:
(1) The degree and extent of harm to the
natural resources of the State, to the public
health, or to private property resulting from
the violation;
(2) The duration and gravity of the violation;
(3) The effect on ground or surface water
quantity or quality or on air quality;
(4) The cost of rectifying the damage;
(5) The amount of money saved by
noncompliance;
(6) Whether the violation was committed
willfully or intentionally;
(7) The prior record of the violator in
complying or failing to comply with programs
over which the Environmental Management
Commission has regulatory authority; and
(8) The cost to the State of the enforcement
procedures.
Petitioner contends “each of these factors allegedly considered
weigh in [his] favor, yet the decision was against him.” As with
petitioner's prior arguments, this contention is premised primarily
on the assumption that there was compliant discharge of wastewater
and the meter measuring such discharge was merely malfunctioning.
Accordingly, petitioner's argument simply recapitulates his
previous arguments, which have already been rejected for reasons
provided herein, and this assignment of error is overruled.
Petitioner's next assignment of error argues his substantive
due process rights were violated on the grounds that the Commission
ignored the factors set forth in N.C. Gen. Stat. § 143B-282.1(b).
Although no underlying argument is set forth, in an abundance of
caution, we construe this argument to incorporate the argumentcontained in his previous assignment of error. Accordingly, this
assignment of error is overruled.
In his eighth assignment of error, petitioner contends his
hearing before the ALJ violated his state and federal due process
rights because the ALJ was not unbiased or impartial. Petitioner
correctly notes that our legislature enacted certain modifications
concerning administrative procedures in contested cases heard by
OAH commenced on or after 1 January 2001. After summarizing these
modifications, petitioner asserts these changes establish “that the
proceedings under the prior law denied him due process” and “that
by North Carolina's own admissions by amending the statutes he was
denied due process under the prior law.” No appellate court in
North Carolina has held that mere amendment of a statute
necessarily establishes that it was constitutionally infirm or that
the modification of a statute renders all previous applications of
that statute constitutionally invalid. We reject petitioner's
contention that legislative amendment of statutory provisions
equates, ipso facto, to a determination that the previous
provisions were unconstitutional. This assignment of error is
overruled.
In his next three assignments of error, petitioner argues
“N.C. Gen. Stat. § 150B-49, to the extent it prohibits [petitioner]
from presenting evidence to th[e] Court, is unconstitutional as
applied because it violates [his] procedural due process rights.”
(See footnote 1)
Petitioner asserts he was entitled to present new evidence under
N.C. Gen. Stat. § 1-253 rather than having the trial court review
the administrative record, and the deprivation of this entitlement
violated his procedural due process.
As a preliminary matter, we note this is not a case where
petitioner unsuccessfully attempted to avail himself of the
statutory provisions contained in N.C. Gen. Stat. § 150B-49.
Rather, petitioner attempted to parry the procedures provided in
N.C. Gen. Stat. § 150B-49 altogether by seeking declaratory relief
under N.C. Gen. Stat. § 1-253 that N.C. Gen. Stat. § 150B-49
violated his procedural due process rights by disallowing him to
present new evidence to the trial court. For the reasons that
follow, we hold N.C. Gen. Stat. § 150B-49 is constitutionally
sound.
First, N.C. Gen. Stat. § 150B-49 does not preclude a
petitioner seeking judicial review of an agency's final decision
from presenting new evidence to the trial court. Rather, it
requires that the trial court remand the case back to the agency
for initial consideration of new evidence under certain conditions
as opposed to considering it in the first instance. Second, N.C. Gen. Stat. § 150B-49 is particularly suited to
those situations where an aggrieved party has exhausted his
administrative remedies, the agency has rendered a final decision,
and the aggrieved party has sought judicial review. In such cases,
it stands to reason that any additional evidence be material and
not cumulative and such that it could not have been presented at
the administrative hearing.
Third, neither the requirements of presenting new evidence
under N.C. Gen. Stat. § 150B-49 nor the requirement of having the
Commission initially consider new evidence impermissibly infringes
on petitioner's procedural due process rights. “The fundamental
premise of procedural due process protection is notice and the
opportunity to be heard . . . 'at a meaningful time and in a
meaningful manner.'” Peace v. Employment Sec. Comm'n, 349 N.C.
315, 322, 507 S.E.2d 272, 278 (1998) (quoting Armstrong v. Manzo,
380 U.S. 545, 552, 14 L. Ed. 2d 62, 66 (1965)). North Carolina's
Administrative Procedures Act expressly states, with support from
judicial precedent, that it “confers procedural rights.” N.C. Gen.
Stat. § 150B-1(b) (2003). See also Empire Power Co. v. N.C. Dept.
of E.H.N.R., 337 N.C. 569, 583, 447 S.E.2d 768, 776 (1994); Godfrey
Lumber Co. v. Howard, 151 N.C. App. 738, 741-42, 566 S.E.2d 825,
827 (2002). In the instant case, the trial court undertook, for
purposes of analyzing petitioner's procedural due process claims,
de novo review and examined the final agency decision, the entire
record of the administrative proceedings, the petition for judicial
review, the complaint for declaratory judgment, the briefs, and theoral arguments. The trial court further considered the APA's
provisions safeguarding a party's due process rights. The trial
court correctly noted petitioner had availed himself of and been
active in every stage of the administrative process and judicial
review. Our review of the record on appeal discloses sufficient
evidence from which the trial court could determine, and did
correctly determine, that petitioner's procedural due process
rights were satisfied. These assignments of error are overruled.
In his final three assignments of error, petitioner commingles
his arguments that OAH and “the [Commission] violate[] the
separation of powers doctrine.” However, as the State correctly
points out, the constitutionality of both the OAH and various
delegations of authority to the Commission has previously been
addressed, and no constitutional infirmity has yet been found.
See, e.g., Employment Security Comm. v. Peace, 128 N.C. App. 1, 493
S.E.2d 466 (1997); Town of Spruce Pine v. Avery County, 346 N.C.
787, 488 S.E.2d 144 (1997). Petitioner broadly asserts the
Commission violates the separation of powers doctrine merely
because it can write and judge violations of its own regulations.
However, our appellate courts have long recognized that the General
Assembly may delegate adjudicative and rule-making powers to an
agency so long as the delegation of authority to the agency is
supported by adequate guiding standards and procedural safeguards.
Adams v. Dept. of N.E.R. and Everett v. Dept. of N.E.R., 295 N.C.
683, 697-98, 249 S.E.2d 402, 410-11 (1978). Petitioner has offered
no argument that the delegation of authority in the instant casewas not supported by adequate guiding standards or procedural
safeguards, nor does our independent review of the relevant
codified provisions reveal inadequate guiding standards or
procedural safeguards to overcome the presumption of
constitutionality afforded to legislative enactments. See Adams,
295 N.C. at 690, 249 S.E.2d at 406.
We have carefully considered petitioner's remaining arguments
and found them to be without merit.
Affirmed.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
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