{ "id": 8520808, "name": "LINDA L. BLACKWELDER, President and member of Steele Creek Residents Association for herself and all other interested persons and WILLIAM B. YOUNG, Member, Arrowood Industrial Park Association for himself and all other interested members v. STATE OF NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, SARAH T. MORROW, M.D., M.P.H., Secretary and HUGH H. TILSON, M.D., Director and SCA CHEMICAL SERVICES, INC., 60 State Street, Boston, Massachusetts 02109", "name_abbreviation": "Blackwelder v. State Department of Human Resources", "decision_date": "1983-01-18", "docket_number": "No. 8210SC6", "first_page": "331", "last_page": "338", "citations": [ { "type": "official", "cite": "60 N.C. App. 331" } ], "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": "432 F. 2d 1155", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2224105 ], "year": 1970, "pin_cites": [ { "page": "1159" } ], "opinion_index": 0, "case_paths": [ "/f2d/432/1155-01" ] }, { "cite": "280 S.E. 2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "53 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521029 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/53/0326-01" ] }, { "cite": "265 S.E. 2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549625 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0162-01" ] }, { "cite": "297 S.E. 2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526890 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0533-01" ] }, { "cite": "265 S.E. 2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550194 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0272-01" ] }, { "cite": "251 S.E. 2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "296 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567731 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0486-01" ] }, { "cite": "240 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "343" }, { "page": "344" }, { "page": "343" } ], "opinion_index": 0 }, { "cite": "294 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572343 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "208" }, { "page": "208" }, { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0200-01" ] }, { "cite": "495 F. 2d 785", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 188351 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "786-87" } ], "opinion_index": 0, "case_paths": [ "/f2d/495/0785-01" ] }, { "cite": "81 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1954, "pin_cites": [ { "page": "275" } ], "opinion_index": 0 }, { "cite": "240 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8595420 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0137-01" ] }, { "cite": "57 S.E. 2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "120 S.E. 2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627858 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0680-01" ] }, { "cite": "214 S.E. 2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "25 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555986 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/25/0655-01" ] }, { "cite": "206 S.E. 2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565058 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0434-01" ] } ], "analysis": { "cardinality": 784, "char_count": 17656, "ocr_confidence": 0.815, "pagerank": { "raw": 1.5317547996445634e-06, "percentile": 0.9920640160874244 }, "sha256": "8d323fe73c91b2bf4722d598554859abdb2e11651ed7cdd0c3281d97a7420d04", "simhash": "1:9a64793dbca2ec94", "word_count": 2878 }, "last_updated": "2023-07-14T17:52:46.639047+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Hill concur." ], "parties": [ "LINDA L. BLACKWELDER, President and member of Steele Creek Residents Association for herself and all other interested persons and WILLIAM B. YOUNG, Member, Arrowood Industrial Park Association for himself and all other interested members v. STATE OF NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, SARAH T. MORROW, M.D., M.P.H., Secretary and HUGH H. TILSON, M.D., Director and SCA CHEMICAL SERVICES, INC., 60 State Street, Boston, Massachusetts 02109" ], "opinions": [ { "text": "JOHNSON, Judge.\nThis is an appeal from a Superior Court order determining the scope of review for an administrative hearing involving a contested hazardous waste treatment facility. Appellant SCA argues that the court erred by determining that the fitness of the applicant to operate the facility could be considered in the permitting process when there is no requirement of \u201cfitness\u201d set out in the applicable rules and regulations. The petitioners correctly contend that the threshold question presented by this appeal is whether the appellant\u2019s appeal from an interlocutory order is allowable. For the reasons set forth below, we conclude that the attempted appeal is premature. The action must run its course in the administrative agency.\nGeneral Statutes 1-277 and 7A-27, taken together, provide that no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless such ruling or order deprives the appellant of a substantial right which he would lose if the ruling or order is not reviewed before final judgment. Consumers Power v. Power Co., 285 N.C. 434, 206 S.E. 2d 178 (1974); accord, Funderburk v. Justice, 25 N.C. App. 655, 214 S.E. 2d 310 (1975). A ruling is interlocutory in nature if it does not determine the issues but directs some further proceeding preliminary to final decree. Greene v. Laboratories, Inc., 254 N.C. 680, 120 S.E. 2d 82 (1961); Veazey v. City of Durham, 231 N.C. 357, 57 S.E. 2d 377 (1950).\nSCA concedes that Judge Brannon\u2019s ruling is interlocutory as it merely determines an issue to be addressed at the permit hearing, but contends that is immediately appealable because it affects a substantial right. SCA argues that introduction of the fitness issues into the administrative proceeding \u201cdrastically\u201d changed its posture to the prejudice of SCA. In support of its argument, SCA makes the following assertions: (1) prior to entry of the order, the DHR\u2019s Division of Health Services had refused to take the owner\u2019s \u201cfitness\u201d into consideration in either the permitting or review process; (2) accordingly, the Division had defended SCA\u2019s permit against the third party challenge of the petitioners; and (3) as a result of the order, the Division has conducted a review of SCA\u2019s fitness and now refuses to defend the issuance of the permit, in a reversal of its earlier position. SCA contends that the order deprived SCA of \u201cits right to have the State defend the issuance of the permit,\u201d altering the procedural posture of the administrative review process, and permitting the interjection of irrelevant material into that process, thus affecting a substantial right to SCA\u2019s prejudice. Therefore, an immediate appeal is needed to protect SCA\u2019s \u201cright\u201d to have the State defend its permit and to prevent the \u201cunnecessary\u201d course of procedure in a case where the question in need of appellate review is a strictly legal one, not requiring any factual analysis or support. SCA relies upon Edwards v. Raleigh, 240 N.C. 137, 81 S.E. 2d 273 (1954) and Borden, Inc. v. FTC, 495 F. 2d 785 (7th Cir. 1974) to establish an exception to the general rule against interlocutory appeals of agency decisions where the only issue needing resolution is a legal one.\nThe Department of Human Resources, appellee in this appeal, joins SCA in requesting immediate review of Judge Brannon\u2019s order due to the \u201ctime and cost an administrative hearing would involve\u201d and in the interests of judicial economy and consistency.\nAs the Supreme Court recently noted, \u201cthe \u2018substantial right\u2019 test for appealability of interlocutory orders is more easily stated than applied.\u201d Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E. 2d 338, 343 (1978). \u201cIt is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.\u201d Id. The case sub judice presents a somewhat unique factual situation and procedural context. Our research discloses no case directly on point. However, it is apparent that our courts have recently taken a restricted view of the \u201csubstantial right\u201d exception to the general rule prohibiting immediate appeals from interlocutory orders. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979); Waters v. Qualified Personnel, Inc., supra; Davis v. Mitchell, 46 N.C. App. 272, 265 S.E. 2d 248 (1980). See also Smart v. Smart, 59 N.C. App. 533, 297 S.E. 2d 135 (1982); Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240 (1980).\nIn Waters the defendant attempted to appeal from an order setting aside summary judgment in defendant\u2019s favor. The Supreme Court concluded that the defendant\u2019s rights are fully and adequately protected by an exception to the order which may then be assigned as error on appeal should final judgment go against it, and held that the appeal was premature. Regarding the defendant\u2019s claim that a substantial right had been affected, the Court stated:\nAll defendant suffers by its inability to appeal Judge Long\u2019s order is the necessity of rehearing its motion. The avoidance of such a hearing is not a \u2018substantial right\u2019 entitling defendant to an immediate appeal. Neither, for that matter, is the avoidance of trial which defendant might have to undergo should its motion and plaintiff\u2019s motion for summary judgment (which is still pending) both be denied.\nWaters, 294 N.C. at 208, 240 S.E. 2d at 344. Similarly, in Industries the Supreme Court held that a partial summary judgment rendered on the issue of liability alone is not appealable on the theory that it affects a substantial right of defendant and will work injury to it if not corrected before an appeal from the final judgment. The Court again noted that if the ruling is in error, the defendant can preserve its right to complain of the error on appeal from the final judgment by a duly entered exception. \u201cEven if defendant is correct on its legal position, the most it will suffer from being denied an immediate appeal is a trial on the issue of damages.\u201d Industries, 296 N.C. at 491, 251 S.E. 2d at 447.\n\u201cThe reason for these rules is to prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division.\u201d Waters, 294 N.C. at 207, 240 S.E. 2d at 343.\nTaken together, Waters and Industries establish that avoidance of a rehearing or trial is not a \u201csubstantial right\u201d entitling a party to an immediate appeal. Accord, Davis v. Mitchell, supra. The right must be one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment. In other words, the right to immediate appeal is reserved for those cases in which the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed.\nTurning to the case under discussion, SCA argues that the order affected its \u201cright\u201d to have the State defend the issuance of the permit. No authority is cited in support of SCA\u2019s contention that it has a right to the State\u2019s defense. The record discloses that the permit was initially issued without DHR\u2019s observance of the proper administrative procedures designed to protect the petitioners\u2019 rights of due process. Accordingly, the petitioners were granted an administrative hearing to review issuance of the permit. Until the time of a final agency decision, the agency is free to reconsider its decision concerning the issuance of a permit. In re Savings and Loan Assoc., 53 N.C. App. 326, 280 S.E. 2d 748 (1981). Therefore, DHR is under no \u201cduty,\u201d as such, to defend issuance of the permit and SCA entitled to no \u201cright\u201d to have the State\u2019s defense. Accordingly, no \u201cright\u201d was lost by reason of Judge Brannon\u2019s order.\nWe note, in passing, two facts. First, the issue of owner or corporate \u201cfitness\u201d was initially recognized by the administrative hearing officer. Judge Brannon\u2019s order merely affirms that the issue as formulated by the hearing officer is a germane issue and that petitioners may present evidence on it. It is not entirely accurate to assert, as SCA does, that Judge Brannon\u2019s order caused DHR to reverse its position on \u201cfitness.\u201d Second, the \u201cno defense\u201d letter issued by the Division of Health Services, which forms the basis of SCA\u2019s contention that the order changed the procedural posture of the case, states that the Division will not defend \u201con other than technical grounds\u201d the issuance of the subject permit. It is this Court\u2019s understanding that SCA brings this appeal on the basis of its legal argument that the application for a permit is to be judged solely upon \u201ctechnical grounds\u201d and not upon SCA\u2019s past practices in managing similar facilities in other states. Accordingly, it is unclear exactly what \u201cright\u201d to a defense SCA has lost by virtue of Judge Brannon\u2019s order if DHR will defend the permit on \u201ctechnical grounds.\u201d\nThe core of SCA\u2019s argument is that it is entitled not to have evidence presented at the administrative hearing regarding its past practices in managing other hazardous waste treatment facilities. SCA contends that its \u201cfitness\u201d as a plant owner is irrelevant to the permitting process, and the fitness issue ought not to be addressed to avoid an unnecessary course of procedure. SCA cites Edwards v. City of Raleigh, supra, as authority for a right to immediate appeal.\nIt is clear that a hearing must, in any event, be held in this case. Appellant SCA seeks to avoid a portion of that hearing. Under the rule announced in Waters, supra, and Industries, supra, avoidance of a rehearing or trial is not a \u201csubstantial right.\u201d Certainly then, avoidance of a portion of an administrative hearing is not a \u201csubstantial right.\u201d Even if SCA is correct in its legal position, the most it will suffer from being denied an immediate appeal is a portion of a hearing on the issue of fitness. As in Industries this does not give rise to a right of immediate appeal.\nSCA\u2019s reliance upon Edwards v. Raleigh is misplaced. Edwards involved an appeal from the Superior Court\u2019s interlocutory order remanding the cause to the Industrial Commission for a hearing on the plaintiff\u2019s newly discovered evidence. The Supreme Court accepted the defendant\u2019s appeal under its supervisory power, N.C. Const. Art. IV, Sec. 8, to avoid a \u201cwholly unnecessary and circuitous course of procedure.\u201d 240 N.C. at 139, 81 S.E. 2d at 275. Remand to the Industrial Commission was considered unnecessary in Edwards because the parties initially submitted the case upon an agreed statement of facts. As the plaintiff was thus unable to go outside the stipulated facts, a further hearing by the Industrial Commission was found to be \u201cinconvenient, expensive and futile.\u201d Id.\nEdwards is distinguishable in that the parties in the case under discussion have not yet had the opportunity to present their evidence, are not bound by an agreed statement of facts, and must, in any event, appear for a hearing before the Department of Human Resources. A hearing, yet to be held, cannot be considered unnecessary.\nNor does the order under discussion fall within the exception to the general rule prohibiting interlocutory appeals of agency decisions when the issue involved is a strictly legal one as set forth in Borden, Inc. v. FTC, supra. In the course of addressing the issue of exhaustion of administrative remedies prior to seeking judicial intervention, the Seventh Circuit stated the following rules:\nIt is well settled that ordinarily courts will not interfere with an agency until it has completed its action and that administrative remedies may be bypassed only if (1) the agency has clearly violated a right secured by statute or agency regulation ... (2) the issue involved is a strictly legal one not involving the agency\u2019s expertise or any factual determinations ... or (3) the issue cannot be raised upon judicial review of a later order of the agency. (Citations omitted.)\n495 F. 2d at 786-87. SCA correctly argues that the issue involved is a strictly legal one \u2014 the interpretation of a statute \u2014 however, this issue may be raised upon judicial review of the agency\u2019s final decision regarding SCA\u2019s permit to operate the facility. The Division of Health Services has as yet made only the decision to consider whether a review of owner or corporate fitness is required by the applicable statutes and if so, whether SCA meets those requirements. The standard of review will not be altered if the question of whether SCA\u2019s past practices in managing similar facilities is germane is postponed until final appeal of the agency\u2019s determination of the permit issue. See Jewel Companies, Inc. v. FTC, 432 F. 2d 1155, 1159 (7th Cir. 1970). Allowing the DHR\u2019s Division of Health Services to proceed with the hearing, take evidence upon all the contested factual and legal issues, apply its expertise in the area of hazardous waste management, and render a fully informed final decision upon the issuance of SCA\u2019s permit can only serve to clarify the issues which may then be presented for judicial review pursuant to the normal course of procedure outlined in G.S., Chap. 150A, Art. 4.\nSCA\u2019s attempted appeal of this agency action on the grounds of the vagueness, subjectivity, and irrelevancy of corporate fitness as a requirement for obtaining the permit in question is fragmentary, premature, and may ultimately prove to be unnecessary. SCA has not demonstrated that Judge Brannon\u2019s order deprives SCA of a substantial right which it will lose if the order is not reviewed at this time. Therefore, the appeal must be dismissed.\nDismissed.\nJudges Arnold and Hill concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by William E. Poe and Irvin W. Hankins, III, for respondent appellant, SCA Chemical Services, Inc.", "Attorney General Edmisten, by Assistant Attorneys General Robert R. Reilly and Thomas G. Meacham, Jr., for the State, respondent appellee.", "Peter A. Foley, for the petitioner appellee." ], "corrections": "", "head_matter": "LINDA L. BLACKWELDER, President and member of Steele Creek Residents Association for herself and all other interested persons and WILLIAM B. YOUNG, Member, Arrowood Industrial Park Association for himself and all other interested members v. STATE OF NORTH CAROLINA DEPARTMENT OF HUMAN RESOURCES, SARAH T. MORROW, M.D., M.P.H., Secretary and HUGH H. TILSON, M.D., Director and SCA CHEMICAL SERVICES, INC., 60 State Street, Boston, Massachusetts 02109\nNo. 8210SC6\n(Filed 18 January 1983)\nAdministrative Law \u00a7 4; Appeal and Error \u00a7 6.2\u2014 appeal from order determining scope of review for administrative hearing \u2014 premature\nAn appeal from a superior court order determining the scope of review for an administrative hearing involving a contested hazardous waste treatment facility was premature as defendant failed to demonstrate that the order deprived it of a substantial right which it would lose if the order was not reviewed prior to the hearing. G.S. 1-277 and G.S. 7A-27.\nAppeal by respondent from Brannon, Judge. Order entered 28 August 1981 in Superior Court, WAKE County. Heard in the Court of Appeals 18 October 1982.\nThe petitioners, Linda R. Blackwelder, et al., were granted an administrative hearing before respondent, Department of Human Resources (DHR), to review DHR\u2019s issuance of a permit to respondent intervenor, SCA Chemical Services, Inc. (SCA) to operate a hazardous waste incineration facility in Mecklenburg County, N.C. A temporary restraining order and preliminary injunction were issued to stay operation of the permit and construction of the facility pending a final agency decision. SCA intervened.\nPetitioners sought to have the issue of SCA\u2019s fitness to operate the facility, as evidenced by its past management and operating practices, determined at the administrative hearing. Petitioners were ordered to submit a complaint listing the contested factual and legal issues. A hearing was held to consider various motions and responses concerning the issues to be addressed in the permit review hearing. The hearing officer issued an order striking petitioner\u2019s allegations of SCA\u2019s ties to organized crime in other states, price fixing, and SCA\u2019s violation of environmental and health regulations in connection with its facilities in other states. The issue for hearing was designated as whether the proposed facility satisfies the requirement for the issuance of the permit as set out in the applicable statutes and rules. Later the hearing officer, on his own motion, issued a clarification of the earlier order. The clarification states that the issues previously designated for hearing shall include the issues of whether the statutes and rules contain an express or implicit requirement that the owner of the proposed facility be a fit and proper person to exercise the privileges granted by that permit; and if so, whether SCA met that requirement.\nSCA filed a motion in the cause in Superior Court seeking a determination of the proper issues for the hearing. Judge Bran-non determined that the hearing officer\u2019s clarified issue of owner-fitness is relevant to the permitting process in this case. The court noted in passing that one of the statutes involved, G.S. 130-166.18(c), requires the promulgation and enforcement of rules concerning the management of hazardous waste including requirements for ownership. Judge Brannon entered an order holding that the issue of the owner\u2019s fitness is a germane issue and the hearing officer should allow testimony pursuant to that issue at the permit review hearing. From the entry of this order, respondent SCA appeals.\nGrier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by William E. Poe and Irvin W. Hankins, III, for respondent appellant, SCA Chemical Services, Inc.\nAttorney General Edmisten, by Assistant Attorneys General Robert R. Reilly and Thomas G. Meacham, Jr., for the State, respondent appellee.\nPeter A. Foley, for the petitioner appellee." }, "file_name": "0331-01", "first_page_order": 363, "last_page_order": 370 }