Sound Rivers, Inc. v. N.C. Dep't of Envtl. Quality
Decision Date | 02 June 2020 |
Docket Number | No. COA18-712,COA18-712 |
Parties | SOUND RIVERS, INC. and North Carolina Coastal Federation, Inc., Petitioners, v. N.C. DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WATER RESOURCES, Respondent, Martin Marietta Materials, Inc., Respondent-Intervenor. |
Court | North Carolina Court of Appeals |
Southern Environmental Law Center, by Geoffrey R. Gisler, Blakely E. Hildebrand, and Jean Zhuang, for petitioner-appellees.
Attorney General Joshua H. Stein, by Assistant Attorney General Asher P. Spiller and Assistant Attorney General Scott A. Conklin, for respondent-appellant.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., Greensboro, by Matthew B. Tynan, George W. House, Alexander Elkan and V. Randall Tinsley, for respondent-intervenor-appellant.
This case arises from the issuance of a National Pollutant Discharge Elimination System Permit ("Permit") by respondent North Carolina Department of Environmental Quality, Division of Water Resources ("DEQ") to respondent-intervenor Martin Marietta Materials, Inc., ("Martin Marietta") allowing respondent Martin Marietta to discharge wastewater from Vanceboro Quarry ("quarry") into "unnamed tributaries to Blounts Creek[.]" The Administrative Law Judge ("ALJ") of the Office of Administrative Hearings ("OAH") entered a final decision affirming the issuance of the Permit. Petitioners Sound Rivers, Inc. and North Carolina Coastal Federation, Inc. ("Petitioners") filed a petition for judicial review with the superior court.1 The superior court reversed the ALJ's final decision based upon a failure to "ensure reasonable compliance with the biological integrity standard" ("biological integrity standard") found in the North Carolina Administrative Code ("Code") but concluded that the Permit was in compliance with other water quality standards, including "swamp waters supplemental classification and the state antidegradation rule" ("swamp waters") and pH ("pH standards").
Respondent Martin Marietta and respondent DEQ appeal from the superior court's order reversing the ALJ's order due to its conclusion on biological integrity standards. Petitioners cross-appeal from the superior court's order based upon its conclusion that the Permit reasonably ensured compliance with water quality standards regarding swamp waters and pH standards. We note at the outset that at all stages of the proceedings, the parties have filed numerous documents, including briefs, motions, proposed drafts of orders, responses, and exhibits; in this opinion we will mention only those documents relevant to the issue on appeal as the documents are so voluminous, but we have reviewed all of the documents before us and after review of the briefs, record, and transcripts, we affirm the superior court's order as to swamp waters and pH standards and reverse as to the biological integrity standard.
In September of 2013, Sound Rivers and North Carolina Coastal Federation filed a petition for a contested case hearing on DEQ's issuance of the Permit on 24 July 2013 to Martin Marietta. According to the petition, the Permit authorized Martin Marietta to "the discharge of 12 million gallons of mine wastewater into tributaries of Blounts Creek each day." Petitioners alleged the Permit violated "applicable laws" attached and incorporated into the petition.
The Permit was issued under the provisions of North Carolina General Statute § 143-215.1 and "other lawful standards and regulations promulgated and adopted by the North Carolina Environmental Management Commission, and the Federal Water Pollution Control Act, as amended[.]" The Permit was effective on 1 September 2013 and would expire on 31 August 2018.2 The Permit allowed Martin Marietta to discharge water pumped from its quarry "from two pit clarification ponds" identified on an attached map into "receiving waters designated as unnamed tributaries to Blounts Creek in the Tar-Pamlico River Basin in accordance with effluent limitations, monitoring requirements, and other conditions set forth in Parts I, II, and III" of the Permit. The supplement to the Permit cover sheet noted that the "unnamed tributary" into which the wastewater would be discharged was "classified as C-Swamp NSW waters in the Tar-Pamlico River Basin." In this opinion, we will refer to the waters into which wastewater from the quarry would be discharged as "Blounts Creek."
Martin Marietta, who had intervened, also submitted a prehearing statement contending the Permit "would not violate water quality standards" and noted that the Permit had been issued "after years of pre-permitting work, the submission of engineering, economic, and ecological studies and materials by Martin Marietta, and extensive review and analysis by DWR [, Division of Water Resources,] and other state and federal government agencies." Martin Marietta contended state and federal regulatory personnel had thoroughly analyzed the proposed permit over about eighteen months, including "site visits, field work, numerous communications and meetings, the further submission of materials and studies by Martin Marietta, and public comment and a public hearing, in which Petitioners and their members and counsel participated." Thus, Martin Marietta contended state and federal regulatory personnel had already considered the "claims asserted by Petitioners in this contested case" and DEQ "correctly concluded that the proposed discharge allowed by the NPDES Permit would not violate water quality standards and lawfully and appropriately issued the NPDES Permit."
On 6 November 2013, Petitioners filed their prehearing statement contending that the Permit did not comply with biological integrity standards, protection of swamp waters, and pH standards, and identifying the issues as:
In November of 2014 Petitioners filed a motion for summary judgment on the issues of whether Petitioners were "persons aggrieved" under North Carolina's Administrative Procedure Act and whether DWR had exceeded its authority or failed to act as required by law based upon failure to ensure compliance with the biological integrity water quality standard, the pH water quality standard, and Blounts Creek's swamp waters classification. Petitioners also submitted numerous affidavits to support their motion. On 25 November 2014, Martin Marietta filed a motion for summary judgment.
On 23 March 2015, the ALJ entered an order granting summary judgment for respondents. The order stated at length the undisputed facts and concluded "Petitioners are not ‘Persons Aggrieved[;]’ " "Respondent's Decision to Issue the Permit was Not in Violation of N.C. Gen. Stat. § 150B-23(a) [;]" "Respondent Ensured Compliance with Biological Integrity Standard[;]" "Respondent Ensured Compliance with pH Water Quality Standards[;]" and "Respondent Protected Existing Uses[.]" The ALJ also noted the "Re-opener Provision" of the Permit:
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