{ "id": 11916910, "name": "AIR-A-PLANE CORPORATION, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES, Respondent", "name_abbreviation": "Air-A-plane Corp. v. North Carolina Department of Environment, Health & Natural Resources", "decision_date": "1995-03-07", "docket_number": "No. 9410SC480", "first_page": "118", "last_page": "129", "citations": [ { "type": "official", "cite": "118 N.C. App. 118" } ], "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": "40 C.F.R. \u00a7 262.11", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 3, "pin_cites": [ { "page": "(c)(2)" } ], "opinion_index": -1 }, { "cite": "40 C.F.R. \u00a7 260.10", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "40 C.F.R. \u00a7 261.1", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": 0 }, { "cite": "427 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546975 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0533-01" ] }, { "cite": "419 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "584", "parenthetical": "court should defer to agency's interpretation of statute as long as interpretation is reasonable and based on a permissible construction" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 278", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527496 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "279", "parenthetical": "court should defer to agency's interpretation of statute as long as interpretation is reasonable and based on a permissible construction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0278-01" ] }, { "cite": "402 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539448, 2545427, 2542900 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0098-03", "/nc/328/0098-01", "/nc/328/0098-02" ] }, { "cite": "397 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "354" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527049 ], "year": 1990, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0498-01" ] }, { "cite": "273 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564256, 8564233, 8564290, 8564187 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0107-03", "/nc/301/0107-02", "/nc/301/0107-04", "/nc/301/0107-01" ] }, { "cite": "269 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "300 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562647 ], "opinion_index": 0, "case_paths": [ "/nc/300/0381-01" ] }, { "cite": "372 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "error of law" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525947 ], "year": 1988, "pin_cites": [ { "parenthetical": "error of law" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0459-01" ] }, { "cite": "427 S.E.2d 627", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2547848, 2548041, 2548241, 2548471 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0466-02", "/nc/333/0466-01", "/nc/333/0466-04", "/nc/333/0466-03" ] }, { "cite": "424 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "686" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525390 ], "year": 1993, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0689-01" ] }, { "cite": "443 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "91-92" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527957 ], "year": 1994, "pin_cites": [ { "page": "716-17" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0711-01" ] }, { "cite": "365 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2566467, 2568453, 2572653, 2570776, 2570206 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0746-01", "/nc/321/0746-04", "/nc/321/0746-05", "/nc/321/0746-02", "/nc/321/0746-03" ] }, { "cite": "362 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358977 ], "year": 1987, "pin_cites": [ { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0637-01" ] }, { "cite": "40 C.F.R. \u00a7 262.11", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 27, "pin_cites": [ { "page": "(c)(2)" }, { "page": "(c)(2)" }, { "page": "(c)(2)" }, { "page": "(c)(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 912, "char_count": 25586, "ocr_confidence": 0.758, "pagerank": { "raw": 3.761376981906183e-07, "percentile": 0.8956943049575478 }, "sha256": "181f384da04946acee6144a121f8cf6c9797cfac515caccb07b9c46971e3c08b", "simhash": "1:01e49125253acf6c", "word_count": 4161 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and WALKER concur." ], "parties": [ "AIR-A-PLANE CORPORATION, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES, Respondent" ], "opinions": [ { "text": "GREENE, Judge.\nAir-A-Plane Corporation (petitioner) appeals from an order signed and filed on 28 February 1994 in Wake County Superior Court, affirming the decision of the North Carolina Department of Environment, Health and Natural Resources (DEHNR) which upheld the issuance of a compliance order and $225,000.00 administrative penalty by the Solid Waste Management Division of DEHNR (the Division) against petitioner for violating 40 C.F.R. \u00a7 262.11.\nPetitioner, a Virginia corporation with its main plant in Norfolk, Virginia, operates a plant in Elm City, Wilson County, North Carolina, which assembles air support systems, such as air conditioners, as ground support equipment for aircraft. On 31 May 1991, William L. Meyer (Mr. Meyer), Director of the Division, issued a compliance order with an administrative penalty for $225,000.00 (the Order) against petitioner for violating 40 C.F.R. \u00a7 262.11, part of the federal Resource Conservation and Recovery Act (RCRA), codified at 15A N.C.A.C. 13A.0007, which provides that a \u201cperson who generates a solid waste, as defined in 40 CFR 262.2, must determine if that waste is a hazardous waste using the following method\u201d:\n(a) He should first determine if the waste is excluded from regulation under 40 CFR 261.4.\n(b) He must then determine if the waste is listed as a hazardous waste in subpart D of 40 CFR part 261.\n(c) For purposes of compliance with 40 CFR part 268, or if the waste is not listed in subpart D of 40 CFR part 261, the generator must then determine whether the waste is identified in subpart C of 40 CFR part 261 by either:\n(1) Testing the waste according to the methods set forth in subpart C of 40 CFR part 261, or according to an equivalent method approved by the Administrator under 40 CFR 260.21; or\n(2) Applying knowledge of the hazard characteristic of the waste in light of the materials or the processes used.\n40 C.F.R. \u00a7 262.11. The Order stated petitioner violated 40 C.F.R. \u00a7 262.11 \u201cin that it did not determine if its waste is a hazardous waste.\u201d The penalty period was from 7 February 1991 until 18 March 1991, and the penalty was calculated at $5,000.00 per day plus a base penalty of $25,000.00. An informal conference between petitioner and the Division was held on 4 April 1991, but the Order was not changed. Petitioner contested the Order and filed a request for an administrative hearing with the Office of Administrative Hearings (OAH) on 3 July 1991. The Administrative Law Judge (AU) limited the hearing to whether DEHNR erred in determining petitioner had not made a waste determination required by 40 C.F.R. \u00a7 262.11 as of 7 February 1991 and continuing through 18 March 1991 and limited testimony to those events that occurred during the penalty period from 7 February 1991 to 18 March 1991.\nThe evidence is as follows: On 7 February 1991, Larry David Perry (Mr. Perry), a compliance supervisor for DEHNR, and Mike Williford (Mr. Williford), a waste management specialist for DEHNR, met with David M. Shank (Mr. Shank), petitioner\u2019s Elm City plant manager, for an on-site visit and an investigation of a complaint that petitioner\u2019s plant site had approximately 150 to 160 abandoned and leaking drums on it. Some of the drums, which were shipped from petitioner\u2019s Virginia facility, were leaking, some were corroding and were not completely closed, some were bulging, material had run down the side of a drum, yellow material had leaked in front of and underneath a wooden pallet on which some of the drums were stored, one drum was labeled SOLV/H20, one drum was labeled with a DOT flammable label, and the remaining drums were not labeled. Mr. Shank informed Mr. Williford and Mr. Perry that he did not know what was in all the drums, but to the best of his knowledge, the kinds of materials that would be in the drums were paint thinners, paint residues, lubricating oils, engine oils, hydraulic oils, and similar materials. Mr. Perry and Mr. Williford informed Mr. Shank petitioner needed to do a chemical analysis on the contents of the drums and send the results to DEHNR because they \u201chad to have laboratory analysis or some information to identify this material.\u201d Petitioner did not provide DEHNR with any information regarding the waste analysis of the drums between 7 February 1991 and 18 March 1991 and had not done a waste determination under 40 C.F.R. \u00a7 262.11 as of 4 April 1991, the date of the informal conference.\nWilliam Shepheard (Mr. Shepheard), the executive chief operating officer of petitioner, testified he \u201cjust knew\u201d its industrial wastes were nonhazardous because DuPont and Sherwin Williams told him the components of the paints were nonhazardous; however, he admitted he might have received other paints and paint thinners from Exxon or \u201ca house of similar nature.\u201d He also stated that because petitioner used recycled drums, any labels on the drums might not be what the drums contained. Mr. Shepheard testified he informed DEHNR at the 4 April 1991 informal conference about the nature of petitioner\u2019s business and that its wastes were nonhazardous; however, no one told DEHNR petitioner\u2019s wastes were nonhazardous prior to 7 February 1991 because petitioner \u201c[was]n\u2019t required to do it and [petitioner] did not do it.\u201d\nAlthough Mr. Meyer was not present at the 7 February 1991 inspection, he reviewed the entire file on petitioner and spoke to his staff before deciding the amount of penalty to impose. He considered the mandatory factors to use in assessing a penalty such as the degree and extent of harm, the cost of rectifying the damage, past compliance history, any good faith efforts on the part of petitioner, whether other organisms were potentially threatened, and the potential threat to environmental media such as groundwater, surface water and soil. Mr. Meyer testified that the Environmental Protection Agency (EPA) drafted a policy which North Carolina adopted to determine whether violations were major or minor. Mr. Meyer testified this policy is only a guidance and \u201cthe statutes and rules\u201d prevail. .\nIn assessing the amount of the penalty, Mr. Meyer considered the violation to be major and a \u201ccontinuing violation for forty days and a penalty of five thousand dollars ($5,000.00) per day was used for this forty-day noncompliance period, in addition to the initial penalty matrix, which was twenty five thousand dollars ($25,000.00).\u201d Mr. Meyer testified he signed the Order on 31 May 1991, and that the enforcement meeting with his staff probably took place sometime in May of 1991.\nDEHNR, in its final decision which adopted the AU\u2019s recommended decision, upheld the $225,000.00 penalty assessed against petitioner. DEHNR, in addition to finding there were approximately 150 to 160 drums at the Elm City plant, some leaking, some corroding, some bulging, most not labeled, but one labeled flammable, made the following relevant findings of fact:\n23. Between February 7, 1991, the date of the initial inspection, and March 18, 1991, the closing date of the penalty period, neither Mr. Shank nor anyone else from Air-A-Plane provided Mr. Williford with any information regarding the waste analysis of the [approximately 150 to 160] drums at the site.\n24. There is no evidence that any representative from the Petitioner provided any representative of the Respondent with specific information regarding the contents of the drums during the penalty period.\n36. Mr. Meyer concluded that Air-A-Plane exhibited a total lack of knowledge as to what should have been done to identify the waste material and, therefore, there was a substantial (major) degree of non-compliance and deviation from the regulations.\n37. Mr. Meyer decided that the violation was continuing in nature and he imposed a $5,000 daily penalty in addition to the $25,000 base penalty. The daily penalty ran from the date of the inspection, February 7, 1991 through March 18,1991, the day after the penalty was computed.\n39. If Mr. Meyer had been provided with information prior to the penalty assessment that the material in the drums was not hazardous waste, this information would not have affected the imposition of or the amount of the penalty.\nDEHNR concluded petitioner had produced a solid waste and failed to make a waste determination as required by 40 C.F.R. \u00a7 262.11, and DEHNR had properly followed statutory and regulatory guidelines in assessing the penalty.\nPetitioner filed a petition for judicial review pursuant to Chapter 150B of the North Carolina General Statutes to Wake County Superior Court. By order filed 28 February 1994, the trial court, after \u201chaving fully reviewed [DEHNR]\u2019s Findings of Fact, Conclusions of Law and Decision, the entire administrative record and the Petition for judicial review and having considered the brief and oral argument,\u201d affirmed the final contested case decision of DEHNR.\nWhile our review of DEHNR\u2019s decision is limited to petitioner\u2019s assignments of error to the superior court\u2019s order, Watson v. N.C. Real Estate Comm\u2019n, Inc., 87 N.C. App. 637, 640, 362 S.E.2d 294, 296 (1987), cert. denied, 321 N.C. 746, 365 S.E.2d 296 (1988), review is further limited by the issues raised in the petition for judicial review made to the superior court. Issues not raised in the petition for judicial review cannot be asserted as a basis in this Court for reversing the agency\u2019s decision. Furthermore, any issue properly raised but not discussed in the brief to this Court is deemed abandoned. N.C.R. App. P. 28.\nPetitioner\u2019s petition for judicial review, assignments of error to the superior court\u2019s order, and brief raise the issues of whether (I) a penalty can be assessed for failing to determine whether a solid waste is hazardous or not under 40 C.F.R. \u00a7 262.11 where testing subsequent to the penalty period shows the solid waste is nonhazaxdous; (II) DEHNR\u2019s actions exceeded its statutory authority; and (III) there was unlawful procedure (A) in DEHNR\u2019s notification of violation and (B) in DEHNR\u2019s calculation of the amount of the civil penalty.\nN.C. Gen. Stat. \u00a7 150B-51(b) provides that this Court, in reviewing a final agency decision, may:\nreverse or modify the agency\u2019s decision if the substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence ... in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nN.C.G.S. \u00a7 150B-51(b) (1991); Brooks v. Ansco & Assocs., 114 N.C. App. 711, 716-17, 443 S.E.2d 89, 91-92 (1994); Teague v. Western Carolina Univ., 108 N.C. App. 689, 691, 424 S.E.2d 684, 686, disc. rev. denied, 333 N.C. 466, 427 S.E.2d 627 (1993). Where petitioner alleges the agency\u2019s decision is based upon an.error of law, in excess of the agency\u2019s statutory authority, or made upon unlawful procedure, de novo review is required. See Brooks, Comm\u2019r of Labor v. Rebarco, Inc., 91 N.C. App. 459, 372 S.E.2d 342 (1988) (error of law); Commissioner of Ins. v. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547 (addressing excessive statutory authority and unlawful procedure), reh\u2019g denied, 301 N.C. 107, 273 S.E.2d 300 (1980). Where' petitioner alleges a constitutional violation by the agency, de novo review is also required because \u201cthe court is the final arbiter and is free to substitute judgment.\u201d See Charles H. Koch, Jr., 2 Administrative Law and Practice 140 \u00a7 9.20 (1985 & Supp. 1995). Where, however, petitioner alleges the agency\u2019s decision is not supported by substantial evidence or is arbitrary and capricious, review of the whole record is required to determine if the agency\u2019s decision was supported by substantial evidence. Walker v. N.C. Dep\u2019t of Human Resources, 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990), disc. rev. denied, 328 N.C. 98, 402 S.E.2d 430 (1991).\nI\nSeveral of petitioner\u2019s arguments center around its contention that because the solid waste it produces is nonhazardous, there can be no violation of 40 C.F.R. \u00a7 262.11. Based on this contention, petitioner argues that because it was not allowed to introduce evidence that testing after 18 March 1991 showed its solid waste to be nonhazardous, it was denied a fair and adequate hearing in violation of due process, DEHNR exceeded its authority, DEHNR\u2019s decision was affected by an error of law, a penalty cannot be assessed under 40 C.F.R. \u00a7 262.11 if the waste is nonhazardous, and DEHNR\u2019s decision was arbitrary and capricious. We disagree.\nDEHNR argues, and we agree that 40 C.F.R. \u00a7 262.11 requires any person who generates a solid waste to make a determination, by either testing the waste or applying knowledge in light of the materials or processes used, whether the waste is hazardous or not. 40 C.F.R. \u00a7 262.11; see Carpenter v. N.C. Dep\u2019t of Human Resources, 107 N.C. App. 278, 279, 419 S.E.2d 582, 584 (1992) (court should defer to agency\u2019s interpretation of statute as long as interpretation is reasonable and based on a permissible construction), disc. rev. denied, 333 N.C. 533, 427 S.E.2d 874 (1993). The purpose of this regulation is to arm a person with knowledge concerning the solid waste he or she produces, which may then be subject to RCRA or other permitting requirements. If the solid waste produced is hazardous, the person will be subject to RCRA with some enumerated exceptions; however, if the solid waste produced is nonhazardous, the person will not be subject to RCRA. EPA explained:\nThe Agency believes that there are many people who suspect, but are not sure, that their activities are subject to control under the RCRA Subtitle C rules. This appendix is written for these people. . . .\nThe first question which such a person should ask himself is: \u201cIs the material I handle a solid waste?\u201d If the answer to this question is \u201cNo\u201d, then the material is not subject to control under RCRA and, therefore, the person need not worry about whether he should comply with the Subtitle C rules. . . .\nIf a person has determined that his material is a \u201csolid waste\u201d, the next question he should ask is: \u201cIs the solid waste I handle a hazardous waste?\u201d\n260 C.F.R. app. I. The agency continues to explain the steps to take if a person determines the solid waste is hazardous. Therefore, the burden is placed upon a person who generates a solid waste to make a determination whether that waste is hazardous or not and whether the person will be subject to special rules and regulations governing hazardous wastes. Thus, petitioner had the burden of determining whether its solid waste shipped to North Carolina in drums was hazardous or not by. either testing the material or by applying knowledge of the processes used, and failure to do so can result in the assessment of a penalty against petitioner under N.C. Gen. Stat. \u00a7 130A-22(a).\nDEHNR\u2019s compliance order stated that petitioner violated 40 C.F.R. \u00a7 262.11 from 7 February 1991 through 18 March 1991 and assessed a penalty for that time period. See 15A N.C.A.C. 13 (Solid Waste Management). Petitioner does not dispute that the materials contained in the barrels in question were solid waste as defined in 40 C.F.R. \u00a7 261.1 or that it is a \u201cperson\u201d within the meaning of N.C. Gen. Stat. \u00a7 130A-290(22). See N.C.G.S. \u00a7 130A-290(22) (1989) (person means \u201can individual, corporation, company, association, partnership, unit of local government, State agency, federal agency or other legal entity\u201d); 15A N.C.A.C. 13A.0002(b) (40 C.F.R. \u00a7 260.10, Definitions, has been incorporated by reference except that defini- \u25a0 tion for \u201cperson\u201d is defined by G.S. 130A-290). Because under 40 C.F.R. \u00a7 262.11, it is irrelevant whether petitioner\u2019s solid waste ultimately tested nonhazardous and because the subject matter of the compliance order was whether petitioner had been in violation of the requirements of 40 C.F.R. \u00a7 262.11 from 7 February 1991 through 18 March 1991, the period for which DEHNR assessed a penalty, the AU did not err in limiting the evidence to that occurring before 18 March 1991. For the same reasons, DEHNR did not act in excess of its statutory authority by assessing a penalty without hearing evidence after 18 March 1991, there was no error of law in excluding evidence that the contents of the barrel had been tested after 18 March 1991 and was determined to be nonhazardous, and the ALJ properly limited the hearing to one issue.\nII \u2014 Exceeding Statutory Authority\nPetitioner argues DEHNR\u2019s actions exceeded its statutory authority because it did not allow petitioner to choose the means of compliance under 40 C.F.R. \u00a7 262.11 because petitioner had applied its knowledge of the solid waste it produced sufficient to satisfy the requirements of 40 C.F.R. \u00a7 262.11(c)(2). We disagree.\nIn this case, the evidence shows that on 7 February 1991, petitioner was unable to provide DEHNR with a proper waste determination under 40 C.F.R. \u00a7 262.11 although given the opportunity to do so. 40 C.F.R. \u00a7 262.11 requires a producer of solid waste to either perform a chemical analysis on the waste or apply knowledge of the characteristics of the wastes, i.e., its components, in light of the processes used to produce the waste. 40 C.F.R. \u00a7 262.11. The evidence shows petitioner had not performed a chemical analysis as of 18 March 1991. Furthermore, we agree with DEHNR\u2019s interpretation of 40 C.F.R. \u00a7 262.11(c)(2) that it requires more than just the general statements made by petitioner that the barrels contained paint residues and similar materials which it \u201cjust knew\u201d were nonhazardous or that petitioner received information of the paints\u2019 constituents from some paint companies but not all of the companies which supplied paints and similar materials to petitioner. 40 C.F.R. \u00a7 262.11(c)(2); see Carpenter, 107 N.C. App. 278, 419 S.E.2d 582 (court should defer to agency interpretation where interpretation is reasonable). The statements by Mr. Shank and Mr. Shepheard did not demonstrate the characteristics or exact chemical components of the paint residues and similar materials contained in the barrels and therefore were inadequate under 40 C.F.R. \u00a7 262.11(c)(2). The evidence therefore shows that petitioner did not make a proper waste determination prior to 7 February 1991 or from 7 February 1991 to 18 March 1991, the penalty period, sufficient to satisfy the requirements of 40 C.F.R. \u00a7 262.11. DEHNR, therefore, did not exceed its statutory authority in issuing the Order, and the trial court did not err in finding DEHNR did not exceed its statutory authority.\nIll \u2014 Unlawful Procedure\nA\nPetitioner argues there was unlawful procedure because DEHNR \u201cfailed to provide notice of violation to Petitioner.\u201d We disagree.\n40 C.F.R. \u00a7 262.11 places the burden on \u201cany person\u201d who generates solid waste to determine whether it is hazardous or not. Although DEHNR did not prepare an inspection report and did not issue a notice of violation, there is no statutory requirement to do such before issuing a compliance order pursuant to 40 C.F.R. \u00a7 262.11. In any event, both Mr. Williford and Mr. Perry informed Mr. Shank on 7 February 1991 that the material would have to be tested to determine if it was hazardous waste or not because he had generated a solid waste. Therefore, petitioner was on notice on 7 February 1991 that it needed to identify the solid waste stored in the drums at the Elm City plant in order to determine whether or not it was a hazardous waste, and the trial court did not err in finding there was no unlawful procedure in notifying petitioner.\nB\nPetitioner next argues there was unlawful procedure because DEHNR \u201cfailed to follow its own guidelines for calculating the amount of the penalty.\u201d We disagree.\nN.C. Gen. Stat. \u00a7 130A-22 provides that an agency\nmay impose an administrative penalty on a person who violates Article 9 [Solid Waste Management Act] of this Chapter, rules adopted by the Commission pursuant to Article 9, or any order issued under Article 9. Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed five thousand dollars ($5,000) per day in the case of a violation involving nonhazardous waste. The penalty shall not exceed twenty-five thousand dollars ($25,000) per day in case of a first violation involving hazardous waste as defined in G.S. 130A-290.\nN.C.G.S. \u00a7 130A-22(a) (1989) (amendments have not affected this portion of the statute). Our General Assembly recognized that a person may violate 40 C.F.R. \u00a7 262.11 even though he or she produces a nonhazardous solid waste by providing DEHNR may impose a penalty not to exceed $5,000.00 per day in the case of a violation involving nonhazardous waste. N.C. Gen. Stat. \u00a7 130A-22(a).\nUnder N.C. Gen. Stat. \u00a7 130A-22(d), DEHNR must, \u201c[i]n determining the amount of the penalty . . . consider the degree and extent of the harm caused by the violation and the cost of rectifying the damage.\u201d N.C.G.S. \u00a7 130A-22(d). In addition to these two statutory standards, DEHNR promulgated the following standards pursuant to N.C. Gen. Stat. \u00a7 130A-22(f), which requires DEHNR to \u201cadopt rules concerning the imposition of administrative penalties\u201d:\nIn determining the amount of the administrative penalty, the Division shall consider the following standards:\n(1) . . . (a) For a violation of the Solid Waste Management Act, Article 9 of Chapter 130A of the North Carolina General Statutes, and the rules adopted thereunder:\n(i) type of violation;\n(ii) type of waste involved;\n(iii) duration of the violation;\n(iv) cause ...\n(v) potential effect on public health and the environment;\n(vi) effectiveness of responsive measures taken by the violator;\n(vii) damage to private property.\n15A N.C.A.C. 13B.0702(l)(a).\nThe evidence in this case shows that in assessing the administrative penalty, Mr. Meyer considered the mandatory factors under both statute and rules promulgated by DEHNR. Furthermore, in light of not knowing the contents of the drums when the assessment was made, the penalty was made based on the maximum of $5,000.00 per day for a nonhazardous material. The trial court, therefore, did not err in finding there was no unlawful procedure in DEHNR\u2019s calculation of the penalty against petitioner.\nPetitioner argues DEHNR\u2019s decision was arbitrary and capricious. Because, however, petitioner bases this contention on arguments we have previously discussed and rejected in this opinion, we also reject petitioner\u2019s contention DEHNR\u2019s decision was arbitrary and capricious. For these reasons, the decision of the Superior Court, affirming DEHNR\u2019s final decision to assess a penalty against petitioner is\nAffirmed.\nJudges EAGLES and WALKER concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Carol M. Schiller for petitioner-appellant.", "Attorney General Michael F. Easley, by Assistant Attorney General Judith Robb Bullock, for respondent-appellee." ], "corrections": "", "head_matter": "AIR-A-PLANE CORPORATION, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT, HEALTH AND NATURAL RESOURCES, Respondent\nNo. 9410SC480\n(Filed 7 March 1995)\n1. Sanitation and Sanitary Districts \u00a7 8 (NCI4th)\u2014 failure to determine whether solid waste hazardous \u2014 burden on petitioner \u2014 assessment of penalty proper\nThe Dept, of E.H.N.R. could appropriately assess a penalty against petitioner for failing to determine whether a solid waste was hazardous under 40 C.F.R. \u00a7 262.11 even though testing subsequent to the penalty period showed the solid waste was nonhazardous, since petitioner had the burden of determining whether its solid waste shipped to North Carolina in drums was hazardous by either testing the material or by applying knowledge of the process used.\nAm Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions \u00a7\u00a7 455 et seq.\n2. Sanitation and Sanitary Districts \u00a7 8 (NCI4th)\u2014 showing waste nonhazardous \u2014 method of compliance with regulation \u2014 no exceeding of authority by Dept, of E.H.N.R.\nThere was no merit to petitioner\u2019s contention that the Dept, of E.H.N.R.\u2019s actions exceeded its statutory authority because it did not allow petitioner to choose the means of compliance under 40 C.F.R. \u00a7 262.11, since petitioner was given an opportunity to provide the Dept, of E.H.N.R. with a proper waste determination; petitioner neither performed a chemical analysis on the waste nor applied knowledge of the characteristics of the waste, i.e., its components, in light of the processes used to produce the waste; and 40 C.F.R. \u00a7 262.11(c)(2) requires more than just general statements made by petitioner that its barrels contained paint residues and similar materials which it \u201cjust knew\u201d were nonhazardous or that petitioner received information of the paints\u2019 constituents from some paint companies but not all of the companies which supplied paints and similar materials to petitioner.\nAm Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions \u00a7\u00a7 455 et seq.\n3. Sanitation and Sanitary Districts \u00a7 8 (NCI4th)\u2014 nonhazardous waste \u2014 issuance of compliance order \u2014 assessment of penalty \u2014 no unlawful procedure\nIn issuing a compliance order and assessing a $225,000 penalty against petitioner, the Dept, of E.H.N.R. did not use unlawful procedure in its notification of violation or in its calculation of the amount of the civil penalty.\nAm Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions \u00a7\u00a7 455 et seq.\nAppeal by petitioner from order entered 28 February 1994 by Judge Orlando F. Hudson in Wake County Superior Court. Heard in the Court of Appeals 26 January 1995.\nCarol M. Schiller for petitioner-appellant.\nAttorney General Michael F. Easley, by Assistant Attorney General Judith Robb Bullock, for respondent-appellee." }, "file_name": "0118-01", "first_page_order": 150, "last_page_order": 161 }