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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA06-1458

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

ALCHEM, INC.,
RANDALL ANDREWS,
    Petitioner,

     v .                              Wake County
                                     No. 05 CVS 012073
N.C. DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, DIVISION
OF WATER QUALITY,
    Respondent.

    Appeal by petitioner Alchem, Inc., from order entered 22 June 2006 by Judge A. Leon Stanback, Jr., in Wake County Superior Court. Heard in the Court of Appeals 10 May 2007.

    The Yarborough Law Firm, P.A., by H. Addison Winters, for Alchem, Inc., petitioner appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Stormie D. Forte, for the State.

    McCULLOUGH, Judge.

    On 28 December 2004 the Division of Water Quality of the North Carolina Department of Environment and Natural Resources (“NCDENR- DWQ”) issued a water quality permit to Alchem, Incorporated (“petitioner”). NCDENR-DWQ sent a letter along with the permit notifying petitioner of its right to object to any terms or conditions set forth in the permit by requesting an adjudicatory hearing through filing a written petition in the Office of Administrative Hearings (“OAH”) within 30 days following receipt of the permit. Petitioner received the permit on 18 January 2005. On10 February 2005, petitioner wrote a letter to NCDENR-DWQ requesting an extension of 90 days to examine and respond to the permit. Subsequently, on 8 March 2005 petitioner wrote a letter to NCDENR-DWQ stating certain objections and questions with regard to the permit.
    Petitioner thereafter submitted a written letter to OAH stating its intention to appeal the conditions set forth in the permit on 29 April 2005 and on 4 May 2005 OAH issued a notice of contested case and assigned the case to an administrative law judge (“ALJ”). NCDENR-DWQ filed a motion to dismiss on 25 May 2005. On 29 July 2005, the ALJ issued a final decision granting NCDENR-DWQ's motion to dismiss where OAH lacked subject matter jurisdiction over the proceedings.
    On 29 August 2005, petitioner filed a petition for judicial review in Wake County Superior Court for review of the ALJ's order dismissing petitioner's case. NCDENR-DWQ filed a motion to dismiss the petition for judicial review under N.C. Gen. Stat. § 1A-1, Rule 41(b) for failure to comply with the rules requiring a petition for a contested case hearing to be filed within 30 days from notification to the permittee of the Commission's decision. On 22 June 2006, the court entered an order dismissing the petition for judicial review. From this order petitioner appeals.
    On appeal petitioner contends the lower court erred in failing to reverse or remand the case to OAH for failure to enter findings of fact and conclusions of law, failing to state its standard of review and making additional findings of fact, failing to makecertain findings of fact and conclusions of law, concluding that petitioner failed to allege wrongdoing pursuant to N.C. Gen. Stat. § 150B-23 and dismissing the petition for judicial review based on incomplete findings of fact. It appears that petitioner has confused the actual issues in the instant case.   (See footnote 1) 
    “An order of the ALJ issued pursuant to a written pre-hearing motion granting a party's requested relief for failure of the other party to comply with procedural requirements is a final decision under N.C. Gen. Stat. § 150B-36(c)(3) [(2005)]” and a petitioner is entitled to immediate judicial review under N.C. Gen. Stat. § 150B-43. Lincoln Cty. DSS v. Hovis, 150 N.C. App. 697, 700, 564 S.E.2d 619, 621 (2002); N.C. Gen. Stat. § 150B-43 (2005).
    N.C. Gen. Stat. § 150B-36(c)(3) grants an ALJ the authority to allow a party's requested relief upon a pre-hearing motion. An order entered by an ALJ pursuant to a written pre-hearing motion that either dismisses the contested case for failure of the petitioner to prosecute or grants the relief requested when a party does not comply with procedural requirements is directly appealable to the superior court. N.C. Gen. Stat. § 150B-36(c)(3)(2005). This Court has stated that, even though “the superior court's scope of review regarding an ALJ's final decision issued pursuant to section150B-36(c) does not fall precisely within the plain language of any provision in N.C. Gen. Stat. § 150B-51,” the standard of review is that stated in N.C. Gen. Stat. § 150B-51(b). Lincoln v. N.C. Dep't of Health & Human Servs., 172 N.C. App. 567, 571, 616 S.E.2d 622, 625 (2005); see also Hovis, 150 N.C. App. at 701, 564 S.E.2d at 621-22. Therefore, the superior court reviews decisions rendered under N.C. Gen. Stat. § 150B-36(c) to determine “whether the decision of an ALJ contains errors of law, is supported by substantial evidence, and is neither arbitrary nor capricious.” Hovis, 150 N.C. App. at 701, 564 S.E.2d at 625. Under this review and analysis, this Court must make a factual inquiry under the whole record test and a legal inquiry under the de novo standard in order to determine whether the superior court erred.
    However, in the instant case, such review is not applicable nor dispositive where the superior court dismissed the petition for judicial review instead of granting appellate review of the ALJ's decision and applying the standards set forth in N.C. Gen. Stat. § 150B-51(b).
    The administrative code provides that the Rules of Civil Procedure “'shall apply'” to contested cases. Lincoln, 172 N.C. App. at 572, 616 S.E.2d at 626; N.C. Admin. Code tit. 26, r.3.0101(a) (June 2006). Under the Rules of Civil Procedure, Rule 41(b) allows a court to dismiss an action “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court[.]” N.C. Gen. Stat. § 1A-1, Rule 41(b).     The North Carolina General Statutes set forth the proper procedure by which a permittee may object or challenge a permit issued by an administrative agency.
        A permit applicant or permittee who is dissatisfied with a decision of the Commission may commence a contested case by filing a petition under G.S. 150B-23 within 30 days after the Commission notifies the applicant or permittee of its decision. If the permit applicant or permittee does not file a petition within the required time, the Commission's decision is final and is not subject to review.

N.C. Gen. Stat. § 143-215.1(e)(2005) (emphasis added).
    “The time limitation, whether established by another statute, federal statute, or federal regulation, or this section, shall commence when notice is given of the agency decision to all persons aggrieved who are known to the agency[.]” N.C. Gen. Stat. § 150B- 23(f) (2005). The requirements set forth under the administrative code are mandatory, and a petition shall be dismissed for lack of subject matter jurisdiction where a petitioner failed to comply with the standards set forth in order to obtain judicial review. See Lewis v. N.C. Dep't of Human Resources, 92 N.C. App. 737, 739, 375 S.E.2d 712, 714 (1989) (“The right to appeal to an administrative agency is granted by statute, and compliance with statutory provisions is necessary to sustain the appeal.”).
    In the instant case, the lower court made findings and the record supports that petitioner received notice of the permit and its contents on 18 January 2005, and that on 2 May 2005, petitioner filed a petition for a contested case hearing with OAH. This iswell outside of the 30-day limitation placed on filing a petition for a contested case set by the statute. Therefore the lower court properly dismissed the petition for judicial review under N.C. Gen. Stat. § 1A-1, Rule 41(b) where the OAH lacked subject matter jurisdiction to hear the petition based on the untimely filing and petitioner is not entitled to review. See N.C. Gen. Stat. § 143- 215.1(e). Further, a review of the order and record on appeal reveals that the findings of fact and conclusions of law set forth in the lower court's order address all matters before the court and any contention that such findings or conclusions are incomplete is wholly without merit.
    Moreover, the court concluded as a matter of law that OAH lacked subject matter jurisdiction over the petition for a contested case hearing. Conclusions of law are reviewed by an appellate court under a de novo standard. See Starco, Inc. v. AMG Bonding & Ins. Services, 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996). As stated supra, it is clear from the record that the petitioner failed to file the petition for a contested case hearing within the statutory required deadline of 30 days; and where such statutory rules are mandatory, OAH was deprived of jurisdiction.
    Petitioner's assignments of error are overruled.
    Accordingly, the order of the lower court dismissing the petition for judicial review is affirmed.
    Affirmed.
    Judges BRYANT and STROUD concur.
    Report per Rule 30(e).


Footnote: 1
    Petitioner cites numerous cases regarding the superior court's role as an appellate court under the administrative code in which there was a final decision issued by an ALJ, an agency decision and then judicial review of the prior proceedings by the superior court. In the instant case, the ALJ issued a final order dismissing the case and allowing for immediate appeal to the superior court. Therefore, the procedural requirements stand in stark contrast to those cited by petitioner.

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