Upper Chattahoochee Riverkeeper, Inc. v. Forsyth Cnty.
| Decision Date | 14 November 2012 |
| Docket Number | No. A12A0979.,A12A0979. |
| Citation | 318 Ga.App. 499,734 S.E.2d 242 |
| Parties | UPPER CHATTAHOOCHEE RIVERKEEPER, INC. v. FORSYTH COUNTY et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Andrew McFee Thompson, Atlanta, for Upper Chattahoochee Riverkeeper, Inc.
Patricia T. Barmeyer, Lewis Bondurant Jones, Atlanta, Samuel S. Olens, John Edward Hennelly, for Forsyth County et al.
This case involves the Georgia Environmental Protection Division's (the “EPD”) issuance of a permit to Forsyth County, authorizing two of the county's water-reclamation facilities to discharge treated wastewater into the Chattahoochee River. Following the issuance of the permit, Upper Chattahoochee Riverkeeper, Inc., (“UCR”) challenged the EPD's decision by filing a petition with the Office of State Administrative Hearings. The County intervened to defend the permit, and although the presiding administrative law judge (“ALJ”) dismissed most of UCR's claims on summary determination, after an evidentiary hearing, the ALJ ruled that the permit was issued in violation of Georgia's water anti-degradation rule and ordered the Director of the EPD to reissue the permit with stricter effluent-discharge limits. Subsequently, the EPD and County sought superior-court review. The superior court reversed the ALJ's decision and remanded the case for further proceedings. UCR now appeals, arguing that the superior court erred by (1) failing to properly interpret the anti-degradation rule, (2) treating an EPD guidance document as governing law, (3) ignoring Supreme Court of Georgia precedent, and (4) finding that the ALJ lacked the authority to order the director of the EPD to reissue the permit with revised effluent limits. For the reasons set forth infra, we affirm all but one aspect of the superior court's ruling.
The record shows that on August 18, 2010, the EPD, a division of the Georgia Department of Natural Resources, issued a National Pollutant Discharge Elimination System (“NPDES”) permit to Forsyth County, authorizing the discharge of treated wastewater from the Fowler and Shakerag water reclamation facilities (“WRFs”) into the Chattahoochee River approximately nine miles downstream from the Buford Dam and 27.5 miles upstream from the Morgan Falls Dam. The permit authorized the WRFs to discharge six million gallons of treated wastewater per day into the river. In addition, the permit established limits for the quality of the discharged wastewater by placing restrictions on effluents such as phosphorus and fecal coliform bacteria. Specifically, the permit limited the WRFs' combined monthly average discharge of fecal coliform 1 to 200 colony-forming units per 100 milliliters of water (“cfu/100ml”) and limited the monthly average discharge of total phosphorus 2 to 0.3 milligrams per liter (“mg/l”).
Concerned about the impact of the proposed Fowler/Shakerag WRFs' discharge on the quality of the water in the river, on September 16, 2010, UCR filed a petition with the Office of State Administrative Hearings, challenging the EPD-issued permit on six separate grounds and requesting an evidentiary hearing before an ALJ.3 The County intervened to defend the permit, and thereafter, all three parties filed motions for summary determination, which were argued in a hearing before the ALJ. On December 8, 2010, the ALJ issued an order on the motions for summary determination, dismissing five of UCR's six claims. But the ALJ ruled that UCR's claim that the permit violates Georgia's water anti-degradation rule survived summary determination and scheduled an evidentiary hearing to determine whether, pursuant to the rule, the permit's discharge-pollutant limits would lower the water quality in the river, and if so, whether such degradation was “necessary to accommodate important economic and social development.” 4
Subsequently, the ALJ conducted a lengthy evidentiary hearing, during which expert witnesses on both sides testified as to whether the permit limits for fecal coliform and phosphorus would degrade the water quality in the river and whether it was economically feasible for the Fowler/Shakerag WRFs to comply with more stringent limits for those two pollutants. Following the conclusion of the hearing, the ALJ issued a final decision, finding that the EPD issued the permit in violation of the anti-degradation rule in that it failed to properly assess whether the level of pollutants in the permitted discharge would result in degradation of the river and, if so, whether such degradation was necessary to accommodate important economic and social development. Consequently, the ALJ remanded the permit to the Director of the EPD for re-issuance of the permit with revised monthly average discharge limits of 23 cfu/100 ml for fecal coliform and .08 mg/l for total phosphorus.
Shortly thereafter, Forsyth County and the EPD sought review of the ALJ's ruling in the Superior Court of Forsyth County. Both the County and the EPD argued, inter alia, that the ALJ erred in its interpretation of the anti-degradation rule, which required a stricter threshold inquiry than the plain meaning of the rule mandates. The superior court agreed, specifically finding that the ALJ erred in interpreting the anti-degradation rule as focusing on the particular limits of certain pollutants in the additional discharge rather than on the capacity of the additional wastewater as a whole. The superior court also ruled that the ALJ exceeded her authority in remanding the permit to the EPD with the directive that it revise the monthly average discharge limits. Subsequently, UCR filed an application for discretionary appeal with this Court, which we granted. This appeal follows.5
At the outset, we note that this Court conducts “a de novo review of claimed errors of law in the superior court's appellate review of an ALJ's decision.” 6 Furthermore, the interpretation of a statute or regulation is a question of law and, thus, is also reviewed de novo on appeal.7 With these guiding principles in mind, we now address UCR's claims of error.
1. UCR contends that the superior court erred in its interpretation of the Georgia water quality anti-degradation rule. Specifically, it argues that the superior court's interpretation allows water quality degradation that is not necessary to accommodate important economic or social development. We disagree.
In construing agency regulations, we employ the basic rules of statutory construction and look to the plain language of the regulation to determine its meaning.8 Nevertheless, even if words are apparently plain in meaning, they must not be read in isolation and instead, must be read in the context of the regulation as a whole.9 Furthermore, “we must defer to an agency's interpretation and enforcement of its own rules.” 10
Turning to the statutory scheme and regulation at issue here, pursuant to the Federal Clean Water Act, the individual states are permitted to enact and administer their own water-quality programs, subject to certain federal minimum standards.11 Toward that end, OCGA § 12–5–21(a) of the Georgia Water Quality Control Act provides in part that “the water resources of the state shall be utilized prudently for the maximum benefit of the people, in order to restore and maintain a reasonable degree of purity in the waters of the state and an adequate supply of such waters....” 12 and ocga § 12–5–30 Mandates that any person owning or operating a facility that discharges a pollutant from a point source into the waters of the State must obtain an NPDES permit prior to any such discharge.13 In Georgia, the Board of Natural Resources (the “Board”) is the agency responsible for promulgating rules and regulations governing the administration of the NPDES.14 And pursuant to that responsibility, the Board promulgated a rule pertaining generally to anti-degradation of water-quality standards, Ga. Comp. R. & Regs. r. 391–3–6–.03, as well as a separate rule pertaining to effluent limits for discharge permits, Ga. Comp. R. & Regs. r. 391–3–6–.06. Finally, the responsibility for administering and enforcing the NPDES program in the State falls to the EPD.15
The specific issue for determination by the ALJ in the case sub judice was whether the NPDES permit granted to Forsyth County's Fowler/Shakerag WRFs violated the Georgia water quality anti-degradation rule. That rule, in relevant part, provides:
Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the division finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the division's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.16
In its order granting in part and denying in part the County's motion for summary determination, the ALJ construed Ga. Comp. R. & Regs. r. 391–3–6–.03(2)(b)(ii) such that the “EPD, as part of its anti-degradation review, was required to assess whether the level of pollutants in the permitted discharge would result in degradation of the receiving water, and if so, whether such degradation was ‘necessary to accommodate important economic and social development.’ ” Then upon finding that the EPD failed to comply with the rule, the ALJ further ruled that a genuine issue of fact remained as to whether “the pollutant levels set forth in the Fowler/Shakerag permit represent a necessary degradation of water quality based on an analysis of the technical and economic feasibility of alternative treatment levels, or whether such degradation is unnecessary.” Thereafter, following the evidentiary hearing, the ALJ concluded that the permit's specific pollutant levels were not necessary.
We agree with the superior court that the ALJ erred as a matter of law in construing the...
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