{ "id": 8524124, "name": "THE STATE OF TENNESSEE, ON BEHALF OF THE TENNESSEE DEPARTMENT OF HEALTH AND ENVIRONMENT AND THE TENNESSEE WILDLIFE RESOURCES AGENCY v. ENVIRONMENTAL MANAGEMENT COMMISSION OF THE STATE OF NORTH CAROLINA", "name_abbreviation": "State ex rel. Tennessee Department of Health & Environment", "decision_date": "1986-01-21", "docket_number": "No. 8510SC590", "first_page": "763", "last_page": "769", "citations": [ { "type": "official", "cite": "78 N.C. App. 763" } ], "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": "N.C. Gen. Stat. \u00a7 143-215.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 143-215.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 0 }, { "cite": "301 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562510, 8562484, 8562391, 8562457, 8562431 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0094-05", "/nc/301/0094-04", "/nc/301/0094-01", "/nc/301/0094-03", "/nc/301/0094-02" ] }, { "cite": "265 S.E. 2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551011 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0350-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-215.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)(2)" } ], "opinion_index": 0 }, { "cite": "33 U.S.C. \u00a7 1342", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1978, "pin_cites": [ { "page": "(b)(3) and (5)" } ], "opinion_index": 0 }, { "cite": "33 U.S.C. \u00a7 1251", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-211", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "282 S.E. 2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "54 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520521 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/54/0136-01" ] }, { "cite": "298 S.E. 2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 418", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521479 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0418-01" ] }, { "cite": "267 S.E. 2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561700, 8561638, 8561752, 8561723, 8561662 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0374-03", "/nc/300/0374-01", "/nc/300/0374-05", "/nc/300/0374-04", "/nc/300/0374-02" ] }, { "cite": "263 S.E. 2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549063 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0400-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-215.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 0 } ], "analysis": { "cardinality": 538, "char_count": 12654, "ocr_confidence": 0.801, "pagerank": { "raw": 6.02738364702571e-07, "percentile": 0.9546266983132994 }, "sha256": "94c0ce8df1e5628740b2eb75233066428b66a4aa03a47106ddfe5422c5f1990e", "simhash": "1:7a994d90f15fd4e1", "word_count": 2049 }, "last_updated": "2023-07-14T22:39:04.225821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Parker concur." ], "parties": [ "THE STATE OF TENNESSEE, ON BEHALF OF THE TENNESSEE DEPARTMENT OF HEALTH AND ENVIRONMENT AND THE TENNESSEE WILDLIFE RESOURCES AGENCY v. ENVIRONMENTAL MANAGEMENT COMMISSION OF THE STATE OF NORTH CAROLINA" ], "opinions": [ { "text": "WELLS, Judge.\nThe sole issue before this Court is whether the trial court erred in granting the Commission\u2019s motion to dismiss under Rule 12(b)(6). The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient. Leasing Corp. v. Miller, 45 N.C. App. 400, 263 S.E. 2d 313, disc. rev. denied, 300 N.C. 374, 267 S.E. 2d 685 (1980). A legal insufficiency may be due to an absence of law to support a claim of the sort made, absence of fact sufficient to make a good claim or the disclosure of some fact which will necessarily defeat the claim. Id. When making a ruling under this rule, the complaint must be viewed as admitted and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted. Andreson v. Eastern Realty Co., 60 N.C. App. 418, 298 S.E. 2d 764 (1983).\nThe State of Tennessee\u2019s petition was made pursuant to N.C. Gen. Stat. \u00a7 150A-43 (1983), which reads in pertinent part as follows:\nAny person who is aggrieved by a final agency 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 such decision under this Article, unless adequate procedure for judicial review is provided by some other statute, in which case the review shall be under such other statute.\nThus, there are five requirements under this statute: (1) plaintiff must be an aggrieved person; (2) there must be a final agency decision; (3) the decision must result from a contested case; (4) petitioner must have exhausted administrative remedies; and (5) there must be no other adequate procedure for judicial review. Dyer v. Bradshaw, 54 N.C. App. 136, 282 S.E. 2d 548 (1981).\nWe first examine whether the State of Tennessee may be termed an \u201caggrieved person.\u201d \u201c \u2018Person aggrieved\u2019 means any person, firm, corporation, or group of persons of common interest who \u00e1re directly or indirectly affected substantially in their person, property, or public office or employment by an agency decision.\u201d N.C. Gen. Stat. \u00a7 150A-2(6) (1983). \u201cPerson\u201d includes any \u201cbody politic.\u201d N.C. Gen. Stat. \u00a7 150A-2(7) (1983).\nThe State of Tennessee has two interests, one legal and one property, which are substantially affected by the issuance of the Commission\u2019s consent special order. A National Pollutant Discharge Elimination System (NPDES) permit, issued pursuant to North Carolina\u2019s Water and Air Resources Act, N.C. Gen. Stat. \u00a7 143-211 et seq., must be in conformity with the requirements of the Federal Clean Water Act, 33 U.S.C. \u00a7 1251 et.seq., specifically 33 U.S.C. \u00a7 1342(b)(3) and (5) (1978), which requires that an affected state must be given notice and opportunity to be heard by the issuing state regarding the terms and conditions of the proposed permit. This federal requirement is reflected in N.C. Gen. Stat. \u00a7 143-215.1(c)(2)a and (c)(3) (1983). The Commission is currently in the process of reissuing an NPDES permit to Champion to discharge effluents into the Pigeon River, which flows across North Carolina for twenty-six miles into Tennessee. Petitioner alleges that the dark color and foul odor of the effluent has rendered the river useless to Tennessee citizens and that it desires to have the problem corrected through this State\u2019s permitting process. The consent special order was issued by the Commission to Champion pursuant to N.C. Gen. Stat. \u00a7 143-215.2 (1983) and does not require a hearing. Petitioner alleges that, by the terms of the consent special order, it purports to take precedence in some respects over the terms of the proposed NPDES permit to Champion as it is scheduled to be heard. Since this allegation must be taken as true, Andreson, supra, it can be seen that petitioner\u2019s right to be heard on these aspects of the permit has been substantially impaired. This \u201cprocedural injury\u201d is sufficient under G.S. 150A-43 to qualify petitioner as an \u201caggrieved person.\u201d See Orange County v. Dept. of Transportation, 46 N.C. App. 350, 265 S.E. 2d 890, disc. rev. denied, 301 N.C. 94 (1980).\nAlso, the State of Tennessee alleges that the consent special order contains provisions substantially identical to provisions it opposes in the proposed NPDES permit, which affects the property rights of the State of Tennessee in the Pigeon River. These allegations also establish petitioner\u2019s \u201caggrieved person\u201d status.\nThe second issue is whether the consent special order constituted a final decision by the Commission. The statutes are clear on this point. \u201cAny person against whom a special order is issued shall have the right to appeal in accordance with the provisions of G.S. 143-215.5. Unless such appeal is taken within the prescribed time limit, the special order of the Environmental Management Commission shall be final and binding.\u201d G.S. 143-215.2(c). The cross-referenced statute deals with the procedure of parties to the order to obtain judicial review of final orders or decisions. G.S. 143-215.5. A consent special order has the same force and effect as a special order issued pursuant to a hearing. G.S. 143-215.2(a). We hold that the consent special order is a final decision by the Commission.\nThe petitioner next contends that a consent special order is a \u201ccontested case,\u201d as required by G.S. 150A-43. \u201cContested case\u201d is defined as \u201cany agency proceeding, by whatever name called, wherein the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for an adjudicatory hearing.\u201d G.S. 150A-2(2). The Legislature has provided that no special order shall be issued by the Commission without an adjudicatory hearing. G.S. 143-215.2(b). Though such a hearing is not required for a consent special order, consent special orders \u201cshall have the same force and effect as a special order . . . issued pursuant to a hearing.\u201d G.S. 143-215.2(a).\nAlso, though this case arises on its technical basis solely from a challenge to the consent special order, which does not require an adjudicatory hearing, this particular order is alleged to intrude upon the NPDES permit process, which does require such a hearing. The statutorily-created rights of those not parties to the order have been affected and can be contested. The unique procedural overlap here mandates that this consent special order not be treated simply as an action between two parties in which no third party is affected.\nWe hold that this case was \u201ccontested\u201d for the purposes of G.S. 150A-43. To hold otherwise in this case would produce the anomalous result that an NPDES permittee and the Commission could join in a consent agreement to circumvent the procedures of the permitting process. Such a holding would be antithetical to the avowed letter and spirit of federal and North Carolina legislation guaranteeing the public a right to be heard. Where possible, it is the duty of the appellate courts to interpret statutes so as to be consistent with each other. Orange County v. Dept. of Transportation, supra.\nThe petitioner has exhausted all its administrative remedies. In fact, as regards the consent special order, the Commission contends that the petitioner has no remedies whatsoever and can avail itself only of the chance to be heard on the issuance of the new NPDES permit. Since the petitioner alleges that the consent special order is being used to circumvent the permitting process, and we must accept this as true, opportunity to be heard only during the permitting process cannot be an effective remedy for this injury.\nFinally, the State of Tennessee has no other avenue for judicial review. The Water and Air Resources Act has a provision for judicial review, N.C. Gen. Stat. \u00a7 143-215.5 (1983), but it applies by its terms only to parties to a Commission order. \u201cPerson aggrieved,\u201d the phrase in G.S. 150A-43 that grants petitioner standing, is not used here. Petitioner\u2019s only choice is to use the broader terms of G.S. 150A-43.\nPetitioner has fulfilled the five requirements set forth in G.S. 150A-43 for judicial review of an administrative agency action. We hold that the trial court should consider the State of Tennessee\u2019s petition on its merits.\nReversed and remanded.\nJudges Arnold and Parker concur.\n. We do not address in this opinion the problem posed by a consent special order which does not provide that its terms will take priority over terms in an NPDES permit.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General and Reporter for the State of Tennessee W. J. Michael Cody, by Deputy Attorney General Frank J. Scan-lon and Assistant Attorney General Michael D. Pearigen; and Sanford, Adams, McCullough & Beard, by Robert W. Spearman, for petitioner.", "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Daniel C. Oakley, for respondent Environmental Management Commission.", "Manning, Fulton & Skinner, by Howard E. Manning, Jr., for respondent Champion International Corporation." ], "corrections": "", "head_matter": "THE STATE OF TENNESSEE, ON BEHALF OF THE TENNESSEE DEPARTMENT OF HEALTH AND ENVIRONMENT AND THE TENNESSEE WILDLIFE RESOURCES AGENCY v. ENVIRONMENTAL MANAGEMENT COMMISSION OF THE STATE OF NORTH CAROLINA\nNo. 8510SC590\n(Filed 21 January 1986)\n1. Administrative Law \u00a7 5; Waters and Watercourses \u00a7 3.2\u2014 dumping industrial wastes into river \u2014 consent order issued without hearing \u2014 petitioner as \u201caggrieved person\u201d\nA consent special order issued by respondent Commission to a corporation allowing it to discharge effluents into the Pigeon River was issued without a hearing and by its own terms purported to take precedence in some respects over the terms of a proposed National Pollutant Discharge Elimination System (NPDES) permit to the corporation so that the right of petitioner State of Tennessee to be heard was impaired, and it therefore qualified as an \u201caggrieved person\u201d; furthermore, petitioner alleged that its property rights in the Pigeon River were affected, and these allegations also established petitioner\u2019s \u201caggrieved person\u201d status. N.C.G.S. 150A-43.\n2. Administrative Law \u00a75\u2014 consent special order \u2014 final order\nA consent special order issued by respondent Commission to a corporation pursuant to N.C.G.S. 143-215.2 was a final order by the Commission.\n3. Administrative Law \u00a7 5; Waters and Watercourses \u00a7 3.2\u2014 dumping industrial wastes into river \u2014 special consent order \u2014 no hearing \u2014 contested case\nA consent special order issued by respondent Commission to a corporation allowing it to discharge effluents into the Pigeon River was a \u201ccontested case\u201d as required by N.C.G.S. 150A-43, though no adjudicatory hearing was required for the consent special order, since such orders, by statute, have the same force and effect as a special order issued pursuant to a hearing; moreover, though this case arose on its technical basis solely from a challenge to the consent special order, which did not require a hearing, this particular order is alleged to intrude upon the NPDES permit process, which does require such a hearing, and the statutorily created rights of those not parties to the order have been affected and can be contested.\n4. Administrative Law \u00a7 5; Waters and Watercourses \u00a7 3.2\u2014 dumping industrial wastes into river \u2014 permit process circumvented \u2014administrative remedies exhausted\nPetitioner exhausted all its administrative remedies within the meaning of N.C.G.S. 150A-43 where respondent contended that petitioner had no remedies whatsoever and could avail itself only of the chance to be heard on the issuance of the new NPDES permit, but petitioner alleged that the consent special order, for which it sought review, was being used to circumvent the permitting process; moreover, petitioner had no other avenue for judicial review, the review provision of the Water and Air Resources Act being applicable only to parties to a Commission order.\nAppeal by petitioner from Bailey, Judge. Judgment entered 4 April 1985 in WAKE County Superior Court. Heard in the Court of Appeals 21 November 1985.\nOn 21 November 1984 the State of Tennessee, on behalf of the Tennessee Department of Health and Environment and the Tennessee Wildlife Resources Agency, filed a petition for judicial review of a consent special order entered into pursuant to N.C. Gen. Stat. \u00a7 143-215.2 (1983) by the North Carolina Environmental Management Commission (Commission) and Champion International Corporation (Champion). Respondent Commission filed a motion to dismiss for failure to state a claim upon which relief can be granted, N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) of the Rules of Civil Procedure. The trial court granted this motion and petitioner appealed.\nAttorney General and Reporter for the State of Tennessee W. J. Michael Cody, by Deputy Attorney General Frank J. Scan-lon and Assistant Attorney General Michael D. Pearigen; and Sanford, Adams, McCullough & Beard, by Robert W. Spearman, for petitioner.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Daniel C. Oakley, for respondent Environmental Management Commission.\nManning, Fulton & Skinner, by Howard E. Manning, Jr., for respondent Champion International Corporation." }, "file_name": "0763-01", "first_page_order": 795, "last_page_order": 801 }