{ "id": 8524357, "name": "SAVE OUR RIVERS, INC. and JOHNNY R. WALKER, MARY E. WALKER, HELEN C. BAYLEY, GEORGE C. LANERI, ELIZABETH C. LANERI, PAT THOMPSON, DOUG THOMPSON, MORRIS BRYSON, JANICE McCLURE, ALENE MUNGER, KIM THOMPSON, EUNICE QUEEN, JOHN NORTHERN, JOYCE NORTHERN, NELLIE CARPENTER, CHRISTINE WEBB, BUTCH DEAL, W. M. MOSES, JAMES STEPHEN RABY, PEARL MOSES, BETA TILSON, HALLIE STILES, JACK McEACHIN, CLAIRE McEACHIN, JOSEPH J. JOHNSON, RUTH C. JOHNSON, ROBERT WATERS, JAMES BOWSER, PAUL E. GEER, FLORENCE GEER, CAROLINE RONEY, DANNY McDOWELL, VIRGIL L. WATKINS, ROSALIE K. WATKINS, RANDY KUSHIN, ROBERT J. WILLIAMS and MARY EDWARDS, Petitioners v. TOWN OF HIGHLANDS, N.C. DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES, DIVISION OF ENVIRONMENTAL MANAGEMENT, and WILLIAM W. COBEY, JR., Secretary, Respondents", "name_abbreviation": "Save Our Rivers, Inc. v. Town of Highlands", "decision_date": "1994-03-01", "docket_number": "No. 9330SC382", "first_page": "716", "last_page": "725", "citations": [ { "type": "official", "cite": "113 N.C. App. 716" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "404 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "170" }, { "page": "170" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 24", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519356 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "28" }, { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0024-01" ] }, { "cite": "194 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "liberally construing Section 143-310 to preserve and effectuate primary purpose of statute which is to confer right to review" } ], "opinion_index": 0 }, { "cite": "282 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568262, 8568339, 8568309, 8568188, 8568221 ], "year": 1972, "pin_cites": [ { "parenthetical": "liberally construing Section 143-310 to preserve and effectuate primary purpose of statute which is to confer right to review" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0672-03", "/nc/282/0672-05", "/nc/282/0672-04", "/nc/282/0672-01", "/nc/282/0672-02" ] }, { "cite": "190 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "parenthetical": "liberally construing Section 143-310 to preserve and effectuate primary purpose of statute which is to confer right to review" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552092 ], "year": 1972, "pin_cites": [ { "parenthetical": "liberally construing Section 143-310 to preserve and effectuate primary purpose of statute which is to confer right to review" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0531-01" ] }, { "cite": "339 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "liberally construing Section 150A-46, predecessor to Section 150B-46 and containing similar language" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519831 ], "year": 1986, "pin_cites": [ { "parenthetical": "liberally construing Section 150A-46, predecessor to Section 150B-46 and containing similar language" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0173-01" ] }, { "cite": "353 S.E.2d 869", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "871" }, { "page": "872", "parenthetical": "statements in petition that petitioner \"excepts to each of the . . . findings of fact and conclusions of law\" made by agency sufficient for superior court review of whole record under 150A-51(5)" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169074 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "632" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0630-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-215.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1993, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "436 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "parenthetical": "third parties entitled to judicial review of DEHNR's decision to grant air quality permit" }, { "page": "598" }, { "page": "598" }, { "page": "598" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 566", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522740 ], "weight": 4, "year": 1993, "pin_cites": [ { "parenthetical": "third parties entitled to judicial review of DEHNR's decision to grant air quality permit" }, { "page": "571" }, { "page": "572" }, { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0566-01" ] }, { "cite": "427 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 229", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524961 ], "year": 1993, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0229-01" ] }, { "cite": "395 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "327 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497547, 2497103, 2495092, 2497208, 2498398 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/327/0432-03", "/nc/327/0432-01", "/nc/327/0432-04", "/nc/327/0432-05", "/nc/327/0432-02" ] }, { "cite": "392 S.E.2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "108-09" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525489 ], "year": 1990, "pin_cites": [ { "page": "651" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0648-01" ] }, { "cite": "408 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "757", "parenthetical": "quoting R. L. Coleman & Co. v. City of Asheville, 98 N.C. App. 648, 651, 392 S.E.2d 107, 108-09, disc. rev. denied, 327 N.C. 432, 395 S.E.2d 689 (1990)" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 188", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520767 ], "year": 1991, "pin_cites": [ { "page": "193", "parenthetical": "quoting R. L. Coleman & Co. v. City of Asheville, 98 N.C. App. 648, 651, 392 S.E.2d 107, 108-09, disc. rev. denied, 327 N.C. 432, 395 S.E.2d 689 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0188-01" ] }, { "cite": "434 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "year": 1993, "pin_cites": [ { "parenthetical": "unpublished opinion" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 862, "char_count": 20972, "ocr_confidence": 0.717, "pagerank": { "raw": 4.4045494977438617e-07, "percentile": 0.9200244879141602 }, "sha256": "c74a5d0e747c956b238d5ccfc350e3352b0f7fa1d2140a91d040050932fbd663", "simhash": "1:59a85c786ea78e78", "word_count": 3224 }, "last_updated": "2023-07-14T17:21:41.323369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and ORR concur." ], "parties": [ "SAVE OUR RIVERS, INC. and JOHNNY R. WALKER, MARY E. WALKER, HELEN C. BAYLEY, GEORGE C. LANERI, ELIZABETH C. LANERI, PAT THOMPSON, DOUG THOMPSON, MORRIS BRYSON, JANICE McCLURE, ALENE MUNGER, KIM THOMPSON, EUNICE QUEEN, JOHN NORTHERN, JOYCE NORTHERN, NELLIE CARPENTER, CHRISTINE WEBB, BUTCH DEAL, W. M. MOSES, JAMES STEPHEN RABY, PEARL MOSES, BETA TILSON, HALLIE STILES, JACK McEACHIN, CLAIRE McEACHIN, JOSEPH J. JOHNSON, RUTH C. JOHNSON, ROBERT WATERS, JAMES BOWSER, PAUL E. GEER, FLORENCE GEER, CAROLINE RONEY, DANNY McDOWELL, VIRGIL L. WATKINS, ROSALIE K. WATKINS, RANDY KUSHIN, ROBERT J. WILLIAMS and MARY EDWARDS, Petitioners v. TOWN OF HIGHLANDS, N.C. DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES, DIVISION OF ENVIRONMENTAL MANAGEMENT, and WILLIAM W. COBEY, JR., Secretary, Respondents" ], "opinions": [ { "text": "GREENE, Judge.\nSave Our Rivers, Inc. (SORI), Johnny R. Walker, Mary E. Walker, Helen C. Bayley, George G. Laneri, Elizabeth C. Laneri, Pat Thompson, Doug Thompson, Morris Bryson, Janice McClure, Alene Munger, Kim Thompson, Eunice Queen, John Northern, Joyce Northern, Nellie Carpenter, Christine Webb, Butch Deal, W.M. Moses, James Stephen Raby, Pearl Moses, Beta Tilson, Hallie Stiles, Jack McEachin, Claire McEachin, Joseph J. Johnson, Ruth C. Johnson, Robert Waters, James Bowser, Paul E. Geer, Florence Geer, Caroline Roney, Danny McDowell, Virgil L. Watkins, Rosalie K. Watkins, Randy Kushin, Robert J. Williams, and Mary Edwards (petitioners) appeal, after petitioning for judicial review in Macon County Superior Court of a permit modification issued by the Division of Environmental Management (DEM), a division of the N.C. Department of Environment, Health, and Natural Resources (DEHNR), to the Town of Highlands (Highlands), from a 4 December 1992 order concluding that \u201c[petitioners\u2019 request . . . that an environmental impact statement or an environmental assessment of the 1991 Permit Modification be required is beyond the scope of review set forth in this Court\u2019s Order dated, 16 July 1992, and G.S. 150B-49.\u201d Petitioners also appeal from the denial of their alternative request in the petition to remand to the DEM because petitioners failed to meet \u201cthe criteria for remand in accordance with G.S. 150B-49\u201d which allows the introduction of new evidence.\nOn 26 January 1986, Highlands received, at its request, a modification of its existing National Pollutant Discharge Elimination System (NPDES) Permit No. NC0021407, increasing the capacity of the town\u2019s existing wastewater treatment plant from .248 million gallons per day (MGD) to .500 MGD and permitting discharge at the Mill Creek site already allowed in the existing permit and at an additional point in the Cullasaja River below Lake Sequoyah Dam. Highlands\u2019 permit, allowing the requested limits of .500 MGD to be discharged into Mill Creek and the Cullasaja River from the existing wastewater treatment plant, was renewed in 1988. In October 1990, Highlands applied to the DEM to modify its permit to reflect that Highlands could begin to discharge .500 MGD at the same point on the Cullasaja River below Lake Sequoyah Dam from a new facility to be located at the Cullasaja River discharge point, rather than from the existing facility at Mill Creek.\nDespite considerable opposition to the permit modification exhibited at a 31 January 1991 public hearing, through a petition signed by 4,088 Macon County citizens, and through objections by the North Carolina Wildlife Resources Commission, the U.S. Fish and Wildlife Service, U.S. Senator Terry Sanford, and Lacy Thornburg (Thornburg), then Attorney General of North Carolina, DEM issued the permit modification on 3 April 1991 without any evaluation of potential adverse impacts on the environment of the Cullasaja River and Macon County and without any evaluation of alternative methods of wastewater treatment. DEM conducted \u201cfull water quality modeling to assure that the permitted discharge would not contravene applicable State water quality standards or otherwise have an adverse effect on the receiving stream\u201d and determined that the permit modification represented a \u201cminor construction activity\u201d which falls under the minimum criteria rules of the Environmental Management Commission set out at N.C. Admin. Code tit. XV, subch. 1C \u00a7 .0504(3)(a) (February 1990) such that DEM was not required to prepare environmental documents under the North Carolina Environmental Policy Act (NCEPA) or DEM\u2019s own regulations.\nOn 1 May 1991, petitioners filed a petition for contested case hearing with the Office of Administrative Hearings (OAH) challenging the permit modification\u2019s validity on the grounds that the permit modification was not minor, but authorized a new surface treatment facility with a 500,000 gpd discharge capacity and that the NCEPA and DEM\u2019s regulations required preparation of an environmental assessment to evaluate the potential adverse impact on the Cullasaja River. On 30 August 1991, DEHNR and Highlands moved to dismiss for lack of subject matter jurisdiction which was denied by Senior Administrative Law Judge Beecher R. Gray on 23 September 1991. On 1 October 1991, DEHNR and Highlands petitioned Wake County Superior Court for a writ of certiorari and writ of supersedeas. After a hearing on 3 February 1992, Judge Narley L. Cashwell issued an order that the superior court has exclusive jurisdiction over judicial review of petitioners\u2019 challenge to the NPDES permit issued to Highlands and therefore ordered OAH to dismiss petitioners\u2019 action for lack of subject matter*jurisdiction. SORI appealed that decision to this Court which affirmed the superior court\u2019s dismissal. Town of Highlands v. Save Our Rivers, Inc., 111 N.C. App. 458, 434 S.E.2d 252 (1993) (unpublished opinion).\nOn 27 February 1992, petitioners filed a petition with Macon County Superior Court for judicial review of the permit modification pursuant to Article 4 of Chapter 150B. In their petition, petitioners stated that \u201cthe Permit Modification was issued by the . . . DEM of DEHNR on April 3, 1991, without any evaluation of potential adverse impacts on the environment of the Cullasaja River and Macon County and without any evaluation of alternative methods of wastewater treatment\u201d and that they \u201cbring this action now to protect and preserve their right to have the substantive issues herein reviewed by the Superior Court.\u201d In addition, petitioners attached their petition for contested case filed with OAH and the entire record of proceedings in OAH to their petition for judicial review. In the record of the OAH proceedings, there is a memorandum to Dr. George Everett from Brenda J. Smith (Smith) summarizing the public meeting held 31 January 1990 about the permit modification. Smith stated that \u201c[rjequests for an Environmental Assessment were also made .. .,\u201d and that \u201c[sjpecifically, it was felt that an EIS is required because ... the new wastewater treatment facility exceeds a stated threshold of \u2018less than 500,000 [gpd]\u2019 for a \u2018new surface discharge facility\u2019,\u201d and the \u201cdischarge to the Cullasaja River meets an exception to the minimum criteria as stated in .0503(3) because the \u2018cumulative\u2019 effects of the discharge have not properly been considered by the Division.\u201d Also in the record of the OAH proceedings is a letter dated 18 April 1991, from Thornburg to James S. Lofton, Secretary of the North Carolina Department of Administration. Thornburg stated \u201c[sjpecifically, I am requesting that you conduct a reconsideration of the April 3, 1991 decision by Dr. George Everett, Director of the Division of Environmental Management, that no environmental review document would be prepared for the modification of NPDES Permit No. 0021407.\u201d\nOn 27 and 31 March 1992, DEHNR and Highlands filed motions to dismiss the petition as untimely. On 16 July 1992, Judge Robert D. Lewis entered an order concluding that \u201cthe conflicts in the law . . . provide good cause for the Superior Court to accept this \u2018untimely petition\u2019 however, because \u201c[pjetitioners failed to allege any [of their] substantial rights [were] prejudice[d] in accordance with G.S. 150B-51,\u201d the trial court allowed petitioners\u2019 petition only to determine whether they should be allowed to present new evidence pursuant to N.C. Gen. Stat. \u00a7 150B-49.\nPetitioners submitted two reports (the Maas report and the McLarney report) that conclude the potential exists for an adverse environmental impact resulting from the permit modification. Highlands, DEHNR, and the DEM presented the affidavit of J. Trevor Clements (Clements), Assistant Chief of the DEM, Water Quality Section, who stated that he supervised the DEM\u2019s water quality wasteland allocation studies relating to the Cullasaja River, including the computer modeling. He concluded that \u201cthere is very little difference between the DEM\u2019s water quality data and modeling assumptions and Dr. Maas\u2019 data,\u201d and that \u201c[u]sing the Maas data did not produce any difference in the effluent limitations which resulted from the application of the computer model.\u201d Highlands, DEHNR, and the DEM also presented the affidavit of Trish Finn MacPherson (MacPherson), an Environmental Biology Supervisor employed by the DEM, Water Quality Section. She stated that '\u201c[t]here is very little difference between the results of Dr. McLarney\u2019s study and the two studies conducted by the DEM in December, 1990 and October, 1991.\u201d\nThe issues presented are whether (I) the trial court erred in concluding that the reports tendered by petitioners did not constitute new non-cumulative evidence material to the issues that could not reasonably have been presented at the administrative hearing so that the taking of additional evidence on remand under N.C. Gen. Stat. \u00a7 150B-49 is not warranted; and (II) petitioners\u2019 petition is sufficiently specific to obtain judicial review under N.C. Gen. Stat. \u00a7 150B-43 where petitioners did not specifically state in their petition what exceptions are taken to the agency decision or how their substantial rights are prejudiced by any errors of the agency decision under N.C. Gen. Stat. \u00a7 150B-51.\nI\nN.C. Gen. Stat. \u00a7 150B-49 provides:\n[a]n aggrieved person who files a petition in the 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. If an administrative law judge did not make a recommended decision in the case, the court shall remand the case to the agency that conducted the administrative hearing ....\nN.C.G.S. \u00a7 150B-49 (1991). Because, under Section 150B-49, the trial judge sits as factfinder to determine whether the \u201cnew\u201d evidence proffered by the moving party is \u201cmaterial to the issues, is not merely cumulative, and could not reasonably have been presented at the administrative hearing,\u201d \u201chis findings of fact are binding [on appeal] if they are supported by any competent evidence in the record . . . .\u201d Williamson v. Savage, 104 N.C. App. 188, 193, 408 S.E.2d 754, 757 (1991) (quoting R. L. Coleman & Co. v. City of Asheville, 98 N.C. App. 648, 651, 392 S.E.2d 107, 108-09, disc. rev. denied, 327 N.C. 432, 395 S.E.2d 689 (1990)). In this case, there is competent evidence in the record, the affidavits of MacPherson and Clements, to support the findings that \u201cthe proposed evidence is cumulative and not materially different from that considered by the administrative agency when the decisions were made.\u201d Therefore, the trial court did not err in denying petitioners\u2019 petition for remand to the DEM for the taking of additional evidence pursuant to N.C. Gen. Stat. \u00a7 150B-49.\nII\nAlthough petitioners are not entitled for a remand to the DEM for the taking of additional evidence, they are entitled to judicial review. Our Court recently clarified the procedure third parties are to follow when challenging an agency decision. Third parties do not have the right to a contested case hearing to challenge an administrative decision concerning an NPDES permit, Citizens for Clean Industry, Inc. v. Lofton, 109 N.C. App. 229, 234, 427 S.E.2d 120, 123 (1993); however, pursuant to Section 143-215.5 of Article 21 which states that \u201cArticle 4 of Chapter 150B of the General Statutes governs judicial review of a final decision of the Secretary or of an order of the Commission under this Article . . . ,\u201d they are entitled to judicial review under N.C. Gen. Stat. \u00a7 150B-43. N.C.G.S. \u00a7 143-215.5 (Supp. 1992); see Empire Power Co. v. North Carolina Dep\u2019t of Env\u2019t, Health & Natural Resources, 112 N.C. App. 566, 436 S.E.2d 594 (1993) (third parties entitled to judicial review of DEHNR\u2019s decision to grant air quality permit).\nSection 150B-43 provides that\n[a]ny person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to him by statute or agency rule, is entitled to judicial review of the decision under this Article, unless adequate procedure for judicial review is provided by another statute, in which case the review shall be under such other statute ....\nN.C.G.S. \u00a7 150B-43 (1991). Petitioners qualify as aggrieved persons because SORI is a non-profit corporation composed of residents of Macon County, North Carolina, who use the Cullasaja River for recreational, religious, and other purposes, and the individual petitioners own land adjoining the Cullasaja River below Highlands. See N.C.G.S. \u00a7 150B-2(6) (1991) (aggrieved person is any person directly or indirectly affected substantially in his person, property, or employment by administrative decision); Empire, 112 N.C. App. at 571, 436 S.E.2d at 598. DEHNR\u2019s decision to modify Highlands\u2019 permit is a \u201cfinal decision\u201d because Highlands did not challenge DEHNR\u2019s decision within 30 days after DEHNR notified Highlands of the permitting decision so it became \u201cfinal and . . . not subject to review\u201d under N.C. Gen. Stat. \u00a7 143-215.1(e) (1993). See Empire, 112 N.C. App. at 572, 436 S.E.2d at 598. Furthermore, the decision making process of holding a public hearing, receiving public comments, and conducting water quality modeling constitutes a \u201ccontested case,\u201d N.C.G.S. \u00a7 150B-2(2) (1991); see Empire, 112 N.C. App. at 572, 436 S.E.2d at 598, and petitioners have exhausted their only available administrative remedy by participating in the agency\u2019s decision making process.\nHighlands, DEHNR, and the DEM contend, however, that despite petitioners\u2019 ability to fulfill the requirements for judicial review under Section 150B-43, they are not entitled to such review because their petition did not \u201cexplicitly state what exceptions are taken to the decision or procedure and what relief the petitioner seeks\u201d under N.C. Gen. Stat. \u00a7 150B-46 (1991). We disagree.\nSection 150B-46 does require that a party aggrieved by a final agency decision \u201cspecifically set out . . . [the exceptions to the agency decision] in the party\u2019s petition for judicial review.\u201d O.S. Steel Erectors v. Brooks, 84 N.C. App. 630, 632, 353 S.E.2d 869, 871 (1987). \u201cThere is no requirement to note exceptions on the agency decision itself.\u201d Id. These requirements, however, are to be given a liberal construction in order to effectuate and preserve a third party\u2019s right to judicial review of an administrative decision under Section 150B-43. See Brooks, 84 N.C. App. at 632, 353 S.E.2d at 872 (statements in petition that petitioner \u201cexcepts to each of the . . . findings of fact and conclusions of law\u201d made by agency sufficient for superior court review of whole record under 150A-51(5)); Vann v. North Carolina State Bar, 79 N.C. App. 173, 339 S.E.2d 97 (1986) (liberally construing Section 150A-46, predecessor to Section 150B-46 and containing similar language); James v. Board of Educ., 15 N.C. App. 531, 190 S.E.2d 224, appeal dismissed, 282 N.C. 672, 194 S.E.2d 151 (1972) (liberally construing Section 143-310 to preserve and effectuate primary purpose of statute which is to confer right to review).\nIn this case, petitioners\u2019 petition for judicial review, which includes the attached record of the OAH proceedings, sufficiently identifies the exceptions petitioners have to the agency decision. In reviewing the attached record, petitioners are obviously challenging the agency\u2019s failure to perform an environmental assessment before modifying Highlands\u2019 permit because the agency determined the modification was a \u201cminor construction activity.\u201d Therefore, the trial court erred in allowing petitioners\u2019 petition only for the purposes set forth in Section 150B-49 rather than reviewing the agency\u2019s decision under Section 150B-51.\nDEHNR, DEM, and Highlands also argue that in order to be entitled to judicial review, petitioners must allege in their petition \u201cthat the agency\u2019s final decision may have prejudiced [their] substantial rights in that the agency\u2019s findings, inferences, conclusions, or decisions are defective because of one of the six reasons stated under G.S. 150B-51.\u201d We reject this argument because although the party alleging error has the burden of making such a showing at trial, Pamlico Tar River Found. v. Coastal Resources Comm\u2019n, 103 N.C. App. 24, 28, 404 S.E.2d 167, 170 (1991), nothing in Sections 150B-43, 150B-46, or 150B-51 require that the party, in order to obtain judicial review pursuant to Section 150B-43, must allege in its petition the particular reason under Section 150B-51(b) which is the basis for reversing or modifying the agency decision.\nWe therefore remand to the trial court for judicial review, pursuant to Sections 150B-43 and 150B-51, of the agency\u2019s finding that the permit modification represented a \u201cminor construction activity\u201d so that an environmental assessment was unnecessary. At this hearing, petitioners have \u201cthe burden of showing that the agency\u2019s final decision may have prejudiced . . . [their] substantial rights in that the agency\u2019s findings, inferences, conclusions, or decisions are defective because of one of the six reasons stated under N.C.G.S. \u00a7 150B-51.\u201d Pamlico, 103 N.C. App. at 28, 404 S.E.2d at 170.\nAffirmed in part, reversed in part, and remanded.\nJudges COZORT and ORR concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Roberts Stevens & Cogburn, P.A., by William Clarke, for petitioner-appellants.", "John C. Hunter for respondent-appellee Town of Highlands.", "Attorney General Michael F. Easley, by Special Deputy Attorney General Kathryn Jones Cooper, for respondent-appellees N.C. Department of Environment, Health and Natural Resources, Division of Environmental Management, and Jonathan B. Howes, Secretary." ], "corrections": "", "head_matter": "SAVE OUR RIVERS, INC. and JOHNNY R. WALKER, MARY E. WALKER, HELEN C. BAYLEY, GEORGE C. LANERI, ELIZABETH C. LANERI, PAT THOMPSON, DOUG THOMPSON, MORRIS BRYSON, JANICE McCLURE, ALENE MUNGER, KIM THOMPSON, EUNICE QUEEN, JOHN NORTHERN, JOYCE NORTHERN, NELLIE CARPENTER, CHRISTINE WEBB, BUTCH DEAL, W. M. MOSES, JAMES STEPHEN RABY, PEARL MOSES, BETA TILSON, HALLIE STILES, JACK McEACHIN, CLAIRE McEACHIN, JOSEPH J. JOHNSON, RUTH C. JOHNSON, ROBERT WATERS, JAMES BOWSER, PAUL E. GEER, FLORENCE GEER, CAROLINE RONEY, DANNY McDOWELL, VIRGIL L. WATKINS, ROSALIE K. WATKINS, RANDY KUSHIN, ROBERT J. WILLIAMS and MARY EDWARDS, Petitioners v. TOWN OF HIGHLANDS, N.C. DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES, DIVISION OF ENVIRONMENTAL MANAGEMENT, and WILLIAM W. COBEY, JR., Secretary, Respondents\nNo. 9330SC382\n(Filed 1 March 1994)\n1. Administrative Law and Procedure \u00a7 77 (NCI4th)\u2014 denial of remand to take additional evidence \u2014additional evidence cumulative\nThe trial court did not err in denying petitioners\u2019 petition for remand to the Division of Environmental Management for the taking of additional evidence pursuant to N.C.G.S. \u00a7 150B-49, since there was competent evidence in the record to support findings that the proposed new evidence was cumulative and not materially different from that considered by the administrative agency when the decisions were made.\nAm Jur 2d, Administrative Law \u00a7 381.\n2. Administrative Law and Procedure \u00a7 55 (NCI4th); Environmental Protection, Regulation, and Conservation \u00a7 71 (NCI4th) \u2014 modification of NPDES permit \u2014 right of petitioners to judicial review \u2014 specificity required of petition\nPetitioners were entitled to judicial review of DEHNR\u2019s decision to modify respondent city\u2019s wastewater treatment plant discharge permit, since petitioners were aggrieved parties in that they were residents of the county who used the river in question for recreational, religious, and other purposes and owned land adjoining the river; the decision making process of holding a public hearing, receiving public comments, and conducting water quality modeling constituted a \u201ccontested case\u201d; DEHNR\u2019s decision to modify the city\u2019s permit was a \u201cfinal decision\u201d in a contested case; petitioners had exhausted their only available administrative remedy by participating in the agency\u2019s decision making process; petitioners\u2019 petition for judicial review sufficiently identified the exceptions petitioners had to the agency decision; petitioners were obviously challenging the agency\u2019s failure to perform an environmental assessment before modifying the city\u2019s permit because the agency determined the modification was a \u201cminor construction activity\u201d; and petitioners were not required to allege in their petition the particular reason under N.C.G.S. \u00a7 150B-51(b) which was the basis for reversing or modifying the agency decision. N.C.G.S. \u00a7 150B-43.\nAm Jur 2d, Administrative Law \u00a7\u00a7 575, 576; Pollution Control \u00a7\u00a7 153 et seq., 499.\nAppeal by petitioners from order entered 4 December 1992 in Macon County Superior Court by Judge Robert D. Lewis. Heard in the Court of Appeals 2 February 1994.\nRoberts Stevens & Cogburn, P.A., by William Clarke, for petitioner-appellants.\nJohn C. Hunter for respondent-appellee Town of Highlands.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Kathryn Jones Cooper, for respondent-appellees N.C. Department of Environment, Health and Natural Resources, Division of Environmental Management, and Jonathan B. Howes, Secretary." }, "file_name": "0716-01", "first_page_order": 746, "last_page_order": 755 }