Coon v. N. Dakota Dep't of Health & Rolling Green Family Farms Re, LLP, 20170089.

• Decision Date: 30 August 2017
• Docket Number: No. 20170089.,20170089.
• Citation: 901 N.W.2d 718
• Parties: Deb COON, Randal Coon, Carolyn Dostert, Alan Dostert, Lee Fraase, Carol Hoveskeland, Lee Fischer, Ametta Frueh, Tim Frueh, Jan Kasowski, Paul Kasowski, Bill Marcks, Jackie Marcks, Gerald Marcks, David Percel, Liane Stout, Roy Thompson, Sheila Thompson, Judith VonBank, Robert VonBank, Craig Wendt, and Vicki Wendt, Appellants v. NORTH DAKOTA DEPARTMENT OF HEALTH and Rolling Green Family Farms RE, LLP, Appellees
• Court: North Dakota Supreme Court

901 N.W.2d 718

Deb COON, Randal Coon, Carolyn Dostert, Alan Dostert, Lee Fraase, Carol Hoveskeland, Lee Fischer, Ametta Frueh, Tim Frueh, Jan Kasowski, Paul Kasowski, Bill Marcks, Jackie Marcks, Gerald Marcks, David Percel, Liane Stout, Roy Thompson, Sheila Thompson, Judith VonBank, Robert VonBank, Craig Wendt, and Vicki Wendt, Appellants

v.NORTH DAKOTA DEPARTMENT OF HEALTH and Rolling Green Family Farms RE, LLP, Appellees

No. 20170089.

Supreme Court of North Dakota.

Filed August 30, 2017

Rehearing Denied September 29, 2017

Derrick L. Braaten (argued), J.J. William England (appeared) and David C. Keagle (on brief), Bismarck, ND, for appellants.

Margaret I. Olson, Office of the Attorney General, Bismarck, ND, for appellee North Dakota Department of Health.

Robin W. Forward, Bismarck, ND, for appellee Family Farms RE, LLP.

Crothers, Justice.

[¶1] Numerous landowners from the Buffalo area appeal from a district court judgment affirming the Department of Health's decision to issue Rolling Green Family Farms an animal feeding operation (AFO) permit. The landowners argue the Department erred by issuing Rolling Green an AFO permit and by failing to reopen the public comment period after Rolling Green provided further information to supplement its permit application. We affirm.

I

[¶2] In September 2015 Rolling Green applied to the Department for a permit to operate an animal feeding operation near Buffalo. The application stated Rolling Green planned to have a 8,832 head swine sow facility, which included 800 nursery pigs, 1,120 farrowing sows, 5,312 gestation sows and 1,600 finish pigs. The application included information about the proposed facility, including facility design information, facility plans, technical specifications, zoning requirements, water quality information, geologic and soil information, an operation and maintenance plan and a nutrient management plan. The Department requested additional information from Rolling Green, which was provided. In December 2015 Rolling Green submitted a revised permit application. The revised application stated the facility would be a 9,056 head swine sow facility with 800 nursery pigs, 1,344 farrowing sows, 5,312 gestation sows and 1,600 finish pigs.

[¶3] On December 28, 2015, the Department issued a public notice of its intent to issue a permit to Rolling Green. The notice included the proposed location of the facility and informed the public where comments could be sent and how to obtain additional information. The notice stated a public hearing would be scheduled if there was significant interest.

[¶4] After receiving numerous comments, the Department extended the public comment period and announced the time and location of a public hearing. On March 17, 2016, the Department held a public hearing. Over 130 people attended the hearing, including some of the landowners. After the comment period ended the Department asked Rolling Green to provide additional information, including additional soil borings and air quality information; to correct inaccuracies in its nutrient management plan; and to provide additional information about its design plan. Rolling Green provided the additional information. On June 30, 2016, the Department issued its response to comments. On August 4, 2016, the Department issued its findings and conclusions, an updated fact sheet and the final AFO permit.

[¶5] On September 2, 2016, the landowners appealed to the district court. The landowners argued the permit was not in accordance with the law, the Department did not have authority to issue an AFO permit to Rolling Green and a North Dakota pollutant discharge elimination system (NDPDES) permit was required. The landowners also claimed the Department violated their constitutional due process rights because it failed to provide further opportunity to comment after Rolling Green submitted additional information following the comment period.

[¶6] The district court affirmed the Department's permit decision, ruling its decision was supported by the record and was in accordance with applicable laws and regulations.

II

[¶7] This Court reviews a district court's decision reviewing an administrative agency's decision under the standards set out in N.D.C.C. § 28-32-46. People to Save the Sheyenne River, Inc. v. N.D. Dep't of Health , 2005 ND 104, ¶ 15, 697 N.W.2d 319. We review the agency's decision and record compiled before the agency while giving respect to the district court's sound reasoning. Id. This Court has said the Department's permitting decision is entitled to even greater deference than a decision after an adjudicative proceeding, and we review the Department's permitting decision to determine whether the decision is arbitrary, capricious or unreasonable. Id. at ¶ 24. "A decision is arbitrary, capricious, or unreasonable if it is not the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation." Id.

III

[¶8] The landowners argue N.D. Admin. Code §§ 33-16-03.1-05(1) and 33-16-03.1-03(4) require Rolling Green to obtain a NDPDES permit because it is a concentrated animal feeding operation (CAFO). They claim the Department did not have authority to issue Rolling Green an AFO permit because the administrative rules required Rolling Green to apply for and obtain a NDPDES permit.

[¶9] Rolling Green's permit application stated the facility would be a 9,056 head swine sow facility with 8,256 sows or pigs, each weighing over 55 pounds. A "concentrated animal feeding operation" is "an animal feeding operation that is defined as a large concentrated animal feeding operation, as a medium concentrated animal feeding operation, or is a small or other type of animal feeding operation designated as a concentrated animal feeding operation in accordance with section 33-16-03.1-04." N.D. Admin. Code § 33-16-03.1-03(4). A "large concentrated animal feeding operation" is "any animal feeding operation that stables or confines as many as or more than ... [t]wo thousand five hundred swine, each weighing fifty-five pounds [24.95 kilograms] or more [.]" N.D. Admin. Code § 33-16-03.1-03(11). The proposed Rolling Green facility is a large concentrated animal feeding operation.

[¶10] Section 33-16-03.1-03(4), N.D. Admin. Code, states, "All concentrated animal feeding operations are required to obtain a North Dakota pollutant discharge elimination system permit pursuant to chapter 33-16-01." Section 33-16-03.1-05(1), N.D. Admin. Code, further states, "Any animal feeding operation that has been defined as a concentrated animal feeding operation in section 33-16-03.1-03... must obtain a North Dakota pollutant discharge elimination system permit pursuant to chapter 33-16-01." The plain language of the Department's rules requires all CAFOs to obtain a NDPDES permit. Because Rolling Green is a CAFO, N.D. Admin. Code ch. 33-16-03.1 requires it to obtain a NDPDES permit.

[¶11] The Department responded to a public comment about whether Rolling Green must obtain a NDPDES permit, stating:

"In 2003 and 2008, EPA adopted rules requiring certain non-discharging facilities to apply for National Pollutant Discharge Elimination System (NPDES) permit coverage, but these requirements were held invalid .... Current EPA rules require only discharging facilities to obtain an NPDES permit- 40 CFR § 122.23(d). The Department implements the NPDES program in accordance with current EPA rules. Accordingly, the proper permit for this facility is not an NPDES permit but instead an animal feeding operation Approval to Operate permit under NDAC § 33-16-03.1.

"The Department is in the process of reviewing its rules to determine if any need updating. But even if the Department's rules could be read as requiring a rule that would require a non-discharging facility to apply for an NPDES permit, such requirement would not be grounds for denying this permit or issuing any type of enforcement action against the facility. See NDCC § 23-01-04.1."

The Department did not apply its own rules requiring Rolling Green to obtain a NDPDES permit because it claimed it implements the program in accordance with current federal regulations and the federal regulations do not require a NDPDES permit for a non-discharging facility such as Rolling Green.

[¶12] "An agency has a reasonable range of discretion to interpret and apply its own regulations, and the agency's expertise is entitled to deference when the subject matter is complex." Voigt v. N.D. Pub. Serv. Comm'n , 2017 ND 76, ¶ 28, 892 N.W.2d 149 (quoting St. Benedict's Health Ctr. v. N.D. Dep't of Human Servs. , 2004 ND 63, ¶ 9, 677 N.W.2d 202 ). However, an agency's rules and regulations, if within the agency's authority, generally are binding upon the agency as if they were enacted by the legislature. Fercho v. Montpelier Pub. Sch. Dist. No. 14 , 312 N.W.2d 337, 341 (N.D. 1981).

[¶13] Section 23-01-04.1, N.D.C.C., provides the statutory rulemaking authority and procedure for the Department's regulations related to animal feeding operations, and says the Department may not adopt a rule more stringent than corresponding federal regulations except in certain circumstances:

"1. Except as provided in subsection 2, no rule which the state department of health, hereinafter the department, adopts for the purpose of the state administering a program under the federal Clean Air Act, federal Clean Water Act, federal Safe Drinking Water Act, federal Resource Conservation and Recovery Act, federal Comprehensive Environmental Response, Compensation and Liability Act, federal Emergency Planning and Community Right to Know Act of 1986, federal Toxic Substances Control Act, or federal Atomic Energy Act of 1954, may be more stringent than corresponding federal regulations which address the same circumstances. In adopting such rules, the department may incorporate by reference corresponding federal regulations.

2. The department may adopt

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