An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-301


Filed: 16 November 2004


v .                         Wake County
                            No. 01 CVS 2899

    Appeal by petitioner from order entered 9 December 2003 by Judge Henry W. Hight, Jr., in Wake County Superior Court. Heard in the Court of Appeals 13 October 2004.

    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.
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).

Footnote: 1
     North Carolina General Statutes § 150B-49 provides as follows:
        An aggrieved person who files a petition inthe superior court may apply to the court to present additional evidence. If the court is satisfied that the evidence is material to the issues, is not merely cumulative, and could not reasonably have been presented at the administrative hearing, the court may remand the case so that additional evidence can be taken.

*** Converted from WordPerfect ***