County of Durham v. NCDENR, No. COA98-157.

• Docket Nº: No. COA98-157.
• Citation: 131 NC App. 395, 507 S.E.2d 310
• Case Date: November 17, 1998
• Court: Court of Appeal of North Carolina (US)

507 S.E.2d 310
131 NC App. 395

COUNTY OF DURHAM, Appellant,
v.
NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, Appellee, and
Currin Bros., Inc., a North Carolina Corporation, Intervenor-Appellee

No. COA98-157.

Court of Appeals of North Carolina.

November 17, 1998.

507 S.E.2d 311

Assistant Durham County Attorney Lesley F. Moxley, Durham, for petitioner-appellant County of Durham

Attorney General Michael F. Easley by Assistant Attorney General Nancy E. Scott, for the respondent-appellee North Carolina Department of Environment and Natural Resources.

Poyner & Spruill, L.L.P. by Timothy P. Sullivan, Raleigh, for intervenor-appellee Currin Bros., Inc.

SMITH, Judge.

Located within the County of Durham (County) are three Land Clearing and Inert Debris (LCID) landfills, two of which are owned and operated by Intervenor-Appellee, Currin Brothers. As LCID landfills, each is permitted to receive solid waste generated from land clearing activities, yard trash, untreated or unpainted wood, and solid waste that is virtually inert and likely to retain its physical and chemical structure. See N.C. Gen.Stat. § 130A-290(a)(14)-(15) (1997). The North Carolina Department of Environment and Natural Resources (NCDENR) approved the applications for each of the LCID landfills and issued permits for their operation "in accordance with Article 9, Chapter 130A, of the General Statutes of North Carolina and all rules promulgated thereunder." NCDENR notified County's planning department of the proposed landfills and County provided NCDENR with zoning approval letters. See N.C. Admin. Code tit. 15A, r. 13B.0565 (January 1993) (stating that before the situs of an LCID landfill can be approved, NCDENR must receive "[a]n approval letter from the unit of local government having zoning authority over the area... stating that the site meets all of the requirements of the local zoning ordinance"). A public hearing was not held prior to the approval of the permits nor was the clerk to the board of commissioners informed of the applications.

Pursuant to N.C. Gen.Stat. § 150B-45 (1991), County requested a declaratory ruling from NCDENR that (1) LCID landfills are not "demolition landfills" within the meaning of N.C. Gen.Stat. § 130A-294(a)(4)a. (1997), and (2) LCID landfills are subject to the notice and hearing provisions of N.C. Gen.Stat. § 130A-294(b1)(2) (1997). On 20 November 1996, NCDENR issued a declaratory ruling that LCID landfills are not "sanitary landfills" pursuant to N.C. Gen.Stat. § 130A-294(a)(4)a. and that the notice procedures under the statute only apply to sanitary landfills. Thus, NCDENR concluded, the notice requirements of the statute do not apply to LCID landfills.

County then filed a petition for judicial review of NCDENR's findings, pursuant to N.C. Gen.Stat. § 150B-4 (1991). On 28 October 1997, the Superior Court of Durham County upheld the declaratory ruling issued by NCDENR. County appeals.

In determining whether an agency erred in interpreting a statutory term, an appellate court employs a de novo review. See Brooks, Comr. of Labor v. McWhirter Grading Co., 303 N.C. 573, 580-81, 281 S.E.2d 24, 29 (1981). However, even when reviewing a case de novo, courts recognize the long-standing tradition of according deference to the agency's interpretation. See Newsome v. N.C. State Bd. of Elections, 105 N.C.App. 499, 507, 415 S.E.2d 201, 205 (1992) (citing State ex rel. Comr. of Insurance v. North Carolina Automobile Rate Administrative Office, 294 N.C. 60, 241 S.E.2d 324 (1978)). It is a tenet of statutory construction that a reviewing court should defer to the agency's interpretation of a statute it administers "so [ ] long as the agency's interpretation is reasonable and based on a permissible construction of the statute." Carpenter v. N.C. Dept. of Human Resources, 107 N.C.App. 278, 279, 419 S.E.2d 582, 584, temporary stay allowed, 332 N.C. 482, 421 S.E.2d 348, review allowed, 332 N.C. 664, 424 S.E.2d 398 (1992), review denied as improvidently granted, 333 N.C. 533, 427 S.E.2d 874 (1993). "[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, 703, reh'g denied, 468 U.S. 1227, 105...