{
  "id": 8411291,
  "name": "ANSON COUNTY CITIZENS AGAINST CHEMICAL TOXINS IN UNDERGROUND STORAGE, BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, INC., MARY GADDY, BOBBY SMITH and EMMA SMITH, Petitioners v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF WASTE MANAGEMENT, Respondent, and CHAMBERS DEVELOPMENT OF NORTH CAROLINA, INC., Respondent-Intervenor",
  "name_abbreviation": "Anson County Citizens Against Chemical Toxins in Underground Storage, Blue Ridge Environmental Defense League, Inc. v. N.C. Department of Environment & Natural Resources, Division of Waste Management",
  "decision_date": "2004-12-07",
  "docket_number": "No. COA03-1346",
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    "judges": [
      "Judges TYSON and BRYANT concur."
    ],
    "parties": [
      "ANSON COUNTY CITIZENS AGAINST CHEMICAL TOXINS IN UNDERGROUND STORAGE, BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, INC., MARY GADDY, BOBBY SMITH and EMMA SMITH, Petitioners v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF WASTE MANAGEMENT, Respondent, and CHAMBERS DEVELOPMENT OF NORTH CAROLINA, INC., Respondent-Intervenor"
    ],
    "opinions": [
      {
        "text": "HUDSON, Judge.\nOn 1 June 2000, the North Carolina Department of Environment and Natural Resources Division of Waste Management (\u201cDENR\u201d) issued a permit to Chambers Development of North Carolina, Inc. (\u201cChambers\u201d), to build a multi-state solid waste landfill in Anson County. Anson County Citizens Against Chemical Toxins in Underground Storage, Blue Ridge Environmental Defense League, Inc., and Anson County residents Mary Gaddy, Bobby Smith, and Emma Smith (\u201cpetitioners\u201d) appealed the issuance of the permit, by filing a contested case petition on 30 June 2000. The Administrative Procedures Act was amended by the General Assembly, but the amendments apply only to contested cases filed after 1 January 2001. This case is governed by the previous statute and cases decided thereunder.\nFollowing an evidentiary hearing, an administrative law judge (ALJ) issued a recommended decision filed 5 June 2001. The ALJ concluded that DENR had \u201cacted erroneously, failed to follow proper procedure, acted arbitrarily or capriciously, and failed to act as required by law or rule\u201d and that the permit was void. On review by DENR, all parties had the opportunity to file exceptions and briefs with the agency, which also heard oral arguments. On 5 January 2002, DENR filed its final agency decision, which declined to adopt the findings and conclusions of the recommended decision, and ruled against petitioners on all contentions. Petitioners filed a petition for judicial review of the final agency decision, and on 1 July 2003, the Superior Court in Wake County filed its order affirming that decision. Petitioners appeal. For the reasons discussed below, we affirm.\nOur Supreme Court recently adopted a dissenting opinion of this Court, which clarified this Court\u2019s standard of review of a superior court order examining an agency decision. An appellate court\u2019s review \u201ccan be accomplished by addressing the dispositive issue(s) before the agency and the superior court without examining the scope of review utilized by the superior court.\u201d Capital Outdoor, Inc. v. Guilford Cty. Bd. of Adjust., 146 N.C. App. 388, 392, 552 S.E.2d 265, 268 (2001), rev\u2019d per curiam, 355 N.C. 269, 559 S.E.2d 547 (2002) (Greene, J., dissenting). \u201cThus, in reviewing a superior court order examining an agency decision, an appellate court must determine whether the agency decision (1) violated constitutional provisions; (2) was in excess of the statutory authority or jurisdiction of the agency; (3) was made upon unlawful procedure; (4) was affected by other error of law; (5) was unsupported by substantial admissible evidence in view of the entire record; or (6) was arbitrary, capricious, or an abuse of discretion.\u201d Shackleford-Moten v. Lenoir County Dep\u2019t of Soc. Servs., 155 N.C. App. 568, 572, 573 S.E.2d 767, 770 (2002) (citing N.C. Gen. Stat. \u00a7 150B-51 (2001)). In our review, we consider only \u201cthose grounds for reversal or modification raised by the petitioner before the superior court and properly assigned as error and argued on appeal to this Court.\u201d Id.\nHere, petitioners argue that DENR\u2019s compliance review of Chambers \u201cwas improperly conducted and that the agency\u2019s conclusion to grant the permit was arbitrary and capricious, and otherwise contrary to law.\u201d Specifically, petitioners first argue that DENR failed to properly review Chambers\u2019 environmental compliance record under the terms of N.C. Gen. Stat. \u00a7130A-294. That statute mandates, in pertinent part:\n(b2) The Department may require an applicant for a permit under this Article to satisfy the Department that the applicant, and any parent, subsidiary, or other affiliate of the applicant or parent:\n(1) Is financially qualified to carry out the activity for which the permit is required.\n(2) Has substantially complied with the requirements applicable to any solid waste management activity in which the applicant has previously engaged and has been in substantial compliance with federal and state laws, regulations, and rules for the protection of the environment.\n(b3) An applicant for a permit under this Article shall satisfy the Department that the applicant has met the requirements of subsection (b2) of this section before the Department is required to otherwise review the application. In order to continue to hold a permit under this Article, a permittee must remain financially qualified and must provide any information requested by the Department to demonstrate that the permittee continues to be financially qualified.\nN.C. Gen. Stat. \u00a7130A-294 (1999).\nPetitioners raised this issue at a public hearing on 13 July 1999, and in written comments to DENR. Philip Prete, the head of the Field Operations Branch of DENE\u2019s Solid Waste section, conducted the review. Mr. Prete conducts three to four compliance reviews for solid waste landfills each year. In reviewing Chambers\u2019 compliance record, Prete did not contact any other states in which violations by Chambers or its affiliates occurred to obtain details or follow-up information. Mr. Prete stated that his agency\u2019s experience with an applicant in North Carolina carries much more weight than actions in other states, and that violations by Chambers or its affiliates in other states had little or no bearing on his decision. On 14 October 1999, following his review, Mr. Prete concluded that \u201cthere is nothing apparent that warrants any negative consideration for [Chambers\u2019] facility permit.\u201d\nN.C. Gen. Stat. \u00a7130A-294 requires that an applicant satisfy DENR that it \u201chas substantially complied with the requirements applicable to any solid waste management activity in which the applicant has previously engaged and has been in substantial compliance with federal and state laws, regulations, and rules for the protection of the environment.\u201d The statute contains no list of factors which Mr. Prete was required to consider, but rather leaves the details and methods of conducting the compliance review to DENR\u2019s discretion. However, Mr. Prete testified that he considered at least seven specific criteria, such as DENR\u2019s experience with Chambers at its North Carolina facilities, whether and how any violations were resolved, whether out-of-state violations would have violated North Carolina regulations, as well as the nature and duration of any violations. In addition, the applicant need only show compliance to DENR\u2019s satisfaction. Thus, under this statute, the agency has broad discretion both to determine what factors to consider and how to weigh those factors. Although on this record, DENR could have reached other conclusions than it did, we see no violation of the statute here in DENR\u2019s compliance review of Chambers.\nPetitioners next argue that DENR\u2019s decision to issue a permit to Chambers was arbitrary and capricious. We disagree.\nIn determining whether an agency decision is arbitrary or capricious:\n\u201cthe reviewing court does not have authority to override decisions within agency discretion when that discretion is exercised in good faith and in accordance with law. The \u2018arbitrary or capricious\u2019 standard is a difficult one to meet. Administrative agency decisions may be reversed as arbitrary or capricious if they are patently in bad faith, or whimsical in the sense that they indicate a lack of fair and careful consideration or fail to indicate any course of reasoning and the exercise of judgment. . . .\u201d\nLewis v. N.C. Dep\u2019t of Human Resources, 92 N.C. App. 737, 740, 375 S.E.2d 712, 714 (1989) (citations and internal quotation marks omitted). As discussed above, DENR had broad discretion under N.C. Gen. Stat. \u00a7130A-294(b2) in conducting Chambers compliance review. Petitioners do not suggest that DENR acted patently in bad faith, and we see no evidence that DENR\u2019s review process was whimsical. To the contrary, Mr. Prete articulated the factors he considered and how he weighed them relative to each other. While petitioners argue effectively that more thorough review or different weighing of factors would have been reasonable, we cannot say that DENR\u2019s process \u201cfail[s] to indicate any course of reasoning and the exercise of judgment.\u201d The order of the superior court concluded as much, and we find insufficient justification to overturn it given the statutory standard as applied in the cases above.\nAffirmed.\nJudges TYSON and BRYANT concur.",
        "type": "majority",
        "author": "HUDSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Nancy E. Scott, for respondent-appellee North Carolina Department of Environment and Natural Resources, Division of Waste Management.",
      "John W. Runkle and Legal Aid of North Carolina, Inc., by Melany Earnhardt and Nicole Gooding-Ray, for petitioner-appellants.",
      "Helms, Mulliss & Wicker, P.L.L.C., by Benne C. Hutson, and Smith Moore L.L.P., by Ramona Cunningham O\u2019Bryant and William E. Burton, III, for respondent-appellee Chambers Development of North Carolina, Inc."
    ],
    "corrections": "",
    "head_matter": "ANSON COUNTY CITIZENS AGAINST CHEMICAL TOXINS IN UNDERGROUND STORAGE, BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, INC., MARY GADDY, BOBBY SMITH and EMMA SMITH, Petitioners v. N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF WASTE MANAGEMENT, Respondent, and CHAMBERS DEVELOPMENT OF NORTH CAROLINA, INC., Respondent-Intervenor\nNo. COA03-1346\n(Filed 7 December 2004)\nEnvironmental Law\u2014 solid waste landfill \u2014 compliance review\nThe trial court did not err by affirming an agency decision that upheld the North Carolina Department of Environment and Natural Resources Division of Waste Management\u2019s (DENR) issuance of a permit to a company to build a multistate solid waste landfill in Anson County, because: (1) although DENR could have reached other conclusions than it did, there was no violation under N.C.G.S. \u00a7 130A-294 in DENR\u2019s compliance review of the pertinent company; (2) DENR\u2019s decision to issue a permit was not arbitrary and capricious when DENR had broad discretion under N.C.G.S. \u00a7 130A-294(b2) in conducting the compliance review; and (3) while petitioners argue effectively that more thorough review or different weighing of factors would have been reasonable, it cannot be said that DENR\u2019s process failed to indicate any course of reasoning and the exercise of judgment.\nAppeal by petitioners from order entered 1 July 2003 by Judge Henry W. Hight, Jr., in the Superior Court of Wake County. Heard in the Court of Appeals 25 August 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Nancy E. Scott, for respondent-appellee North Carolina Department of Environment and Natural Resources, Division of Waste Management.\nJohn W. Runkle and Legal Aid of North Carolina, Inc., by Melany Earnhardt and Nicole Gooding-Ray, for petitioner-appellants.\nHelms, Mulliss & Wicker, P.L.L.C., by Benne C. Hutson, and Smith Moore L.L.P., by Ramona Cunningham O\u2019Bryant and William E. Burton, III, for respondent-appellee Chambers Development of North Carolina, Inc."
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