{ "id": 491640, "name": "NORTH CAROLINA FORESTRY ASSOCIATION, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF WATER QUALITY, and the NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION and its NPDES COMMITTEE, Respondents; and THE SIERRA CLUB and DOGWOOD ALLIANCE", "name_abbreviation": "North Carolina Forestry Ass'n v. North Carolina Department of Environment & Natural Resources", "decision_date": "2003-12-05", "docket_number": "No. 653A02", "first_page": "640", "last_page": "645", "citations": [ { "type": "official", "cite": "357 N.C. 640" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "571 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": -1 }, { "cite": "154 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248708 ], "year": 2002, "opinion_index": -1, "case_paths": [ "/nc-app/154/0018-01" ] }, { "cite": "447 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "779" }, { "page": "779" }, { "page": "779" } ], "opinion_index": 0 }, { "cite": "337 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551286 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "588" }, { "page": "588" }, { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0569-01" ] }, { "cite": "524 U.S. 11", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11181205 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "25" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/us/524/0011-01" ] }, { "cite": "33 U.S.C. \u00a7 1342", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "opinion_index": 0 }, { "cite": "571 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "606" }, { "page": "606-08" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248708 ], "year": 2002, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0018-01" ] } ], "analysis": { "cardinality": 482, "char_count": 10460, "ocr_confidence": 0.741, "pagerank": { "raw": 8.658321479124278e-08, "percentile": 0.49166244827401134 }, "sha256": "cc6e5e7e9062d54ae339302ad00e115c5053cf35e335449430d7e96f7448c5d2", "simhash": "1:089fc19c6e73cfde", "word_count": 1627 }, "last_updated": "2023-07-14T16:54:45.083013+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NORTH CAROLINA FORESTRY ASSOCIATION, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF WATER QUALITY, and the NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION and its NPDES COMMITTEE, Respondents; and THE SIERRA CLUB and DOGWOOD ALLIANCE" ], "opinions": [ { "text": "WAINWRIGHT, Justice.\nPetitioner-appellant North Carolina Forestry Association (NCFA) is a non-profit trade association whose members engage in forest management and timber products industries, including wood chip mills. Wood chip mills take cut logs and other large pieces of wood and process them into smaller chips that are used in the production of paper and plywood products.\nRespondent-appellees are state agencies responsible for regulating water quality in North Carolina. These agencies have authority to issue permits pursuant to the National Pollutant Discharge Elimination System (NPDES) required by the federal Clean Water Act. 33 U.S.C. \u00a7 1342 (2000). The Clean Water Act, along with Chapter 143 of our General Statutes, and the rules of the North Carolina Environmental Management Commission, require facilities to obtain NPDES permits for stormwater discharges associated with their industrial activities. See 33 U.S.C. \u00a7 1342 (2000); N.C.G.S. \u00a7 143-215.1 (2001); 15A NCAC 2B, 2H (2003).\nThe present case arises from the decision of the North Carolina Department of Environment and Natural Resources, Division of Water Quality (DWQ), to exclude new and expanding wood chip mills from a generally available stormwater permitting system and to instead subject the wood chip industry to a more rigorous individual permitting process.\nIn 1992, DWQ issued thirteen NPDES stormwater general permits. One of these permits, NPDES Stormwater General Permit No. NCG040000 (NCG04), authorized the discharge of stormwater runoff associated with the industrial activities of certain segments of the timber products industry, including wood chip mills. The NCG04 general permit expired on 31 August 1997.\nOn 1 April 1998, DWQ issued NPDES Stormwater General Permit No. NCG210000 (NCG21). Unlike NCG04, the NCG21 permit excluded wood chip mills. As a result, DWQ began requiring new and expanding wood chip mills to obtain more detailed and time-consuming individual NPDES stormwater permits.\nIn June 1998, NCFA, acting on behalf of its timber industry members, challenged DWQ\u2019s exclusion of wood chip mills from the NCG21 general permit. NCFA petitioned for a contested case hearing for administrative review under the North Carolina Administrative Procedure Act. NCFA argued that:\nNCFA and its members are \u201cpersons aggrieved\u201d as defined in N.C.G.S. \u00a7 150B-2(6) because NCFA and its members are persons directly and indirectly affected substantially in the persons and property by the administrative decision to exclude wood chip mills from coverage under the General Permit. NCFA\u2019s members who decide to locate and permit new chip mills in North Carolina will be subject to, among other things, burdensome application procedures and additional monitoring and reporting requirements.\nOn 19 March 1999, an administrative law judge filed a recommended decision in the case, concluding, among other things, that the NCG21 general permit should be reissued without the exclusion of wood chip mills. The administrative law judge also found that NCFA was a \u201cperson aggrieved\u201d and thus had standing to bring the claim at issue. The administrative law judge further noted that the final agency decision in this case would be rendered by the Environmental Management Commission of the Department of Environment and Natural Resources.\nOn 5 November 1999, the Environmental Management Commission issued its Final Agency Decision, rejecting the administrative law judge\u2019s recommendation and instead concluding that NCFA lacked standing to challenge the issuance of NCG21. NCFA thereafter sought judicial review of the agency decision.\nOn 14 March 2001, the Wake County Superior Court heard NCFA\u2019s Petition for Judicial Review. The superior court concluded, among other things, that NCFA had standing to bring the contested case as a \u201cperson aggrieved.\u201d\nNCFA appealed to the Court of Appeals and respondent state agencies cross-assigned error as to the trial court\u2019s conclusion that NCFA had standing. On 19 November 2002, a divided panel of the Court of Appeals reversed the trial court, holding that NCFA was not a \u201cperson aggrieved\u201d and thus lacked standing. North Carolina Forestry Ass\u2019n v. Dep\u2019t of Env\u2019t and Natural Res., 154 N.C. App. 18, 24, 571 S.E.2d 602, 606 (2002). The dissent, however, concluded that NCFA had standing on two independent grounds: (1) because NCFA was a \u201cperson aggrieved,\u201d and (2) because the relevant action involved a \u201clicensing\u201d as defined in N.C.G.S. \u00a7 150B-2. Id. at 25-28, 571 S.E.2d at 606-08; see also N.C.G.S. \u00a7 150B-2(2) (2001) (defining \u201ccontested case\u201d to include disputes over \u201clicensing\u201d); N.C.G.S. \u00a7 150B-2(3) (defining \u201clicense\u201d as \u201cany certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in any activity\u201d (emphasis added)).\nOn 27 December 2002, NCFA filed a Notice of Appeal and Petition for Discretionary Review in this Court. On 12 June 2003, this Court denied NCFA\u2019s Petition for Discretionary Review. Accordingly, our review is focused solely on the issue that formed the basis of the dissent: whether NCFA is a \u201cperson aggrieved\u201d under the North Carolina Administrative Procedure Act and therefore has standing to commence a contested case proceeding to challenge DWQ\u2019s denial of a stormwater general permit for the wood chip industry. Having thoroughly reviewed the applicable statutory authorities and this Court\u2019s precedents, we conclude NCFA is a \u201cperson aggrieved\u201d and therefore has standing to bring the contested case.\nIn general, individuals \u201cadversely affected by a discretionary agency decision generally have standing to complain that the agency based its decision upon an improper legal ground.\u201d FEC v. Akins, 524 U.S. 11, 25, 141 L. Ed. 2d 10, 23 (1998). In North Carolina, disputes between a state government agency and another person may be formally resolved with the filing of an administrative proceeding referred to as a \u201ccontested case.\u201d N.C.G.S. \u00a7 150B-22 (2001). A contested case is intended \u201cto determine the person\u2019s rights, duties, or privileges.\u201d Id. \u201cAny person aggrieved may commence a contested case [proceeding].\u201d N.C.G.S. \u00a7 150B-23(a); see also Empire Power Co. v. North Carolina Dep\u2019t of Env\u2019t, Health and Nat. Resources, 337 N.C. 569, 588, 447 S.E.2d 768, 779 (1994).\nA \u201cperson aggrieved\u201d is \u201cany person or group of persons of common interest directly or indirectly affected substantially in his or its person, property, or employment by an administrative decision.\u201d N.C.G.S. \u00a7 150B-2(6) (2001); Empire Power, 337 N.C. at 588, 447 S.E.2d at 779. This Court has stated that whether a party is a \u201cperson aggrieved\u201d must be determined based on the circumstances of each individual case. Empire Power, 337 N.C. at 588, 447 S.E.2d at 779.\nIn the present case, NCFA is adversely affected by the exclusion of new and expanding wood chip mills from the NCG21 general permit. Prior to this exclusion, the operation of a new or expanding wood chip mill was a generally permitted activity that required minimal administrative process. As a result of their present exclusion from the NCG21 permit, new and expanding wood chip mills are forced to undergo the lengthy and detailed process of seeking individual permits. Accordingly, because the issuance of the NCG21 general permit adversely affected NCFA and its members, we conclude NCFA is a \u201cperson aggrieved\u201d under the facts of the present case and thus has standing to bring a contested case hearing.\nAdditionally, the present case clearly involves the \u201clicensing\u201d of wood chip mills to operate in our state. The North Carolina Administrative Procedure Act states that any action involving \u201clicensing\u201d is by definition a contested case. N.C.G.S. \u00a7 150B-2(2). The North Carolina Administrative Procedure Act defines a \u201clicense\u201d as \u201cany certificate, permit or other evidence, by whatever name called, of a right or privilege to engage in any activity.\u201d N.C.G.S. \u00a7 150B-2(3) (emphasis added). Because we conclude that the NCG21 permit fits within this definition, we further conclude that the present case involves a licensing. This provides a distinct basis to conclude that NCFA has standing.\nIn sum, we hold that NCFA has standing to bring a contested case hearing and the Court of Appeals\u2019 decision was thus in error. As to any and all issues not herein addressed, we expressly decline to make any conclusions. Accordingly, we reverse the decision of the Court of Appeals and remand this case to that court for further proceedings not inconsistent with this opinion.\nREVERSED.", "type": "majority", "author": "WAINWRIGHT, Justice." } ], "attorneys": [ "Hunton & Williams, by Charles D. Case, Craig A. Bromby, Jeff F. Cherry, and Julie Beddingfield, for petitioner-appellant.", "Roy Cooper, Attorney General, by Jill B. Hickey, Special Deputy Attorney General, for respondent-appellees.", "Southern Environmental Law Center, by Donnell Van Noppen III, and Sierra Weaver, for intervenor-appellees." ], "corrections": "", "head_matter": "NORTH CAROLINA FORESTRY ASSOCIATION, Petitioner v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF WATER QUALITY, and the NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION and its NPDES COMMITTEE, Respondents; and THE SIERRA CLUB and DOGWOOD ALLIANCE\nNo. 653A02\n(Filed 5 December 2003)\nEnvironmental Law\u2014 contested case \u2014 standing\u2014person aggrieved \u2014 stormwater general permit \u2014 wood chip industry\nThe trial court did not err by holding that the N.C. Forestry Association (NCFA) was a person aggrieved under the North Carolina Administrative Procedure Act and therefore had standing to commence a contested case proceeding to challenge respondent EMC\u2019s denial of a stormwater general permit for the wood chip industry, because: (1) the NCFA and its members are adversely affected by the exclusion of new and expanding wood chip mills from the pertinent general permit when the result is that those mills will be forced to undergo the lengthy and detailed process of seeking individual permits instead of the prior minimal administrative process; and (2) the present case involves licensing of wood chip mills to operate in our state, and the North Carolina Administrative Procedure Act states that any action involving licensing is by definition a contested case.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 154 N.C. App. 18, 571 S.E.2d 602 (2002), reversing an order entered 27 March 2001 by Judge Howard E. Manning, Jr., in Superior Court, Wake County. Heard in the Supreme Court 15 October 2003.\nHunton & Williams, by Charles D. Case, Craig A. Bromby, Jeff F. Cherry, and Julie Beddingfield, for petitioner-appellant.\nRoy Cooper, Attorney General, by Jill B. Hickey, Special Deputy Attorney General, for respondent-appellees.\nSouthern Environmental Law Center, by Donnell Van Noppen III, and Sierra Weaver, for intervenor-appellees." }, "file_name": "0640-01", "first_page_order": 686, "last_page_order": 691 }