State of Tenn. on Behalf of Tennessee Dept. of Health and Environment v. Environmental Management Com'n. of State of N.C.

• Decision Date: 21 January 1986
• Docket Number: No. 8510SC590,8510SC590
• Citation: 338 S.E.2d 781,78 N.C.App. 763
• Court: North Carolina Court of Appeals
• 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.

Page 781

338 S.E.2d 781

78 N.C.App. 763

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.

No. 8510SC590.

Court of Appeals of North Carolina.

Jan. 21, 1986.

Atty. Gen. and Reporter for State of Tennessee W.J. Michael Cody by Deputy Atty. Gen. Frank J. Scanlon and Asst. Atty. Gen. Michael D. Pearigen, Nashville, Tenn. and Sanford, Adams, McCullough & Beard by Robert W. Spearman, Raleigh for petitioner.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Daniel C. Oakley, Raleigh, for respondent Environmental Management Com'n.

Manning, Fulton & Skinner by Howard E. Manning, Jr., Raleigh, for respondent Champion Intern. Corp.

WELLS, Judge.

The sole issue before this Court is whether the trial court erred in granting the Commission's 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. Andresen v. Eastern Realty Co., 60 N.C.App. 418, 298 S.E.2d 764 (1983).

The State of Tennessee's petition was made pursuant to N.C. Gen.Stat. § 150A-43 (1983), which reads in pertinent part as follows:

Any 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.

Thus, 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).

We first examine whether the State of Tennessee may be termed an "aggrieved person." " 'Person aggrieved' means any person, firm, corporation, or group of persons of common interest who are directly or indirectly affected substantially in their person, property, or public office or employment by an agency decision." N.C.Gen.Stat. § 150A-2(6) (1983). "Person" includes any "body politic." N.C. Gen. Stat. § 150A-2(7) (1983).

The State of Tennessee has two interests, one legal and one property, which are substantially affected by the issuance of the Commission's consent special order. A National Pollutant Discharge Elimination System (NPDES) permit, issued pursuant to North Carolina's Water and Air Resources Act, N.C. Gen. Stat. § 143-211 et seq., must be in conformity with the requirements of the Federal Clean Water Act, 33 U.S.C. § 1251 et seq., specifically 33 U.S.C. § 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. § 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's permitting process. The consent special order was issued by the Commission to Champion pursuant to N.C. Gen.Stat. § 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. ¹ Since this allegation must be taken as true, Andresen, supra, it can be seen that petitioner's right to be heard on these aspects of the permit has been substantially impaired. This "procedural injury" is sufficient under G.S. 150A-43 to qualify petitioner as an "aggrieved person." 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).

Also, 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's "aggrieved person" status.

The second issue is whether the consent special order constituted a final decision by the Commission. The statutes are clear on this point. "Any 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." 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 purusant to a hearing. G.S. 143-215.2(a). We hold that the consent special order is a final decision by the Commission.

The petitioner next contends that a consent special order is a ...