STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 02 EHR 1353
WATERKEEPER ALLIANCE, et al., )
Petitioners, and )
)
RICHARD DOVE, )
Intervenor-Petitioner, )
)
v. ) DECISION GRANTING
) SUMMARY JUDGMENT
NORTH CAROLINA DEPARTMENT )
OF ENVIRONMENT AND NATURAL )
RESOURCES, DIVISION OF WATER )
QUALITY, )
Respondent, )
)
MURPHY-BROWN, LLC, BROWN’S )
OF CAROLINA, LLC, CARROLL’S )
FOODS, LLC, and MURPHY )
FARMS, LLC, )
Intervenor-Respondent, )
)
NORTH CAROLINA PORK, )
COUNCIL, INC., )
Intervenor-Respondent, and )
)
NORTH CAROLINA POULTRY )
FEDERATION, INC., )
Intervenor-Respondent. )
THIS MATTER came on before the undersigned Administrative Law Judge, Beecher R. Gray, on December 7, 2006, in Raleigh, North Carolina, for consideration of the following motions: (1) Petitioners’ Motion for Partial Summary Judgment; and (2) Intervenor-Respondents’ Cross-Motion for Summary Judgment. Also before me is Respondent’s contention, found in its Memorandum of Law in Response to Petitioners’ Motion For Partial Summary Judgment, that summary judgment is proper and can be rendered in Respondent’s favor pursuant to Rule 56(c) of the North Carolina Rules of Civil Procedure should I find that Respondent has established a complete defense to Petitioner’s claim. See Wilder v. Hobson, 101 N.C.App. 70, 398 S.E.2d 625 (1990).
PROCEDURAL HISTORY
On August 16, 2002, the Waterkeeper Alliance, Neuse River Foundation, New River Foundation, New Riverkeeper and the Alliance for Responsible Swine Industry (“Waterkeeper” or “organizational Petitioners”) filed contested case petitions in 02 EHR 1353, 1354 and 1355, and Intervenor-Petitioner Rick Dove (“Dove”)[1] filed contested case petitions in 02 EHR 1356, 1357 and 1358, to challenge three animal waste management system National Pollutant Discharge Elimination System (“NPDES”) general permits addressing larger swine, cattle and poultry operations located in North Carolina (“2002 CAFO NPDES General Permits”), which permits were issued and adopted on July 19, 2002, by the Director, Division of Water Quality (“DWQ”), of Respondent North Carolina Department of Environment and Natural Resources (“NC DENR”).
On September 12, 2002, the North Carolina Pork Council (“the Pork Council”) and Murphy-Brown, LLC, Brown’s of Carolina, LLC, Carroll Foods, LLC, and Murphy Farms, LLC, (“Murphy”) moved to intervene in the Swine NPDES General Permit cases (02 EHR 1353 and 1356). The Pork Council was allowed to intervene on October 25, 2002. Murphy was allowed to intervene by Order entered on November 26, 2002 and filed on December 3, 2002. On September 27, 2002, the North Carolina Poultry Federation filed a Motion to Intervene in the Poultry NPDES General Permit cases (02 EHR 1355 and 1358) and the Poultry Federation was allowed to intervene in 02 EHR 1355 by Order entered on November 26, 2002 and filed on December 3, 2002.
On October 24, 2002, ALJ Conner entered an Order dismissing Intervenor-Petitioner Rick Dove’s three cases and allowing him to intervene in Petitioners’ cases (02 EHR 1353, 1354 and 1355). In November 2002, the parties filed Prehearing Statements. ALJ Conner issued several Orders on November 26, 2002 and filed on December 3, 2002, including a Stipulation and Order by the parties concerning a limitation of the issues raised in this contested case[2]. On December 20, 2002, and on January 13, 2003, ALJ Conner entered Orders Staying the Proceedings in 02 EHR 1354 (the Cattle NPDES General Permit case) and in 02 EHR 1355 (the Poultry NPDES General Permit case), respectively, pending the outcome of the instant case regarding the NPDES General Permit for Swine Waste Management Systems (“ Swine NPDES General Permit”) [02 EHR 1353]. Respondent filed a Motion to Dismiss on November 21, 2002 and Memorandum of Law in support of the Motion on January 14, 2003. On April 8, 2004, ALJ Conner entered an Order denying Respondent’s Motion to Dismiss.
APPEARANCES
For Petitioners Waterkeeper Alliance, Jeffrey Odefey
Neuse River Foundation, New River Waterkeeper Alliance, Inc.
Foundation, New Riverkeeper and the Irvington, New York 10533
Alliance for Responsible Swine Industry:
Intervenor Petitioner: Richard J. Dove
New Bern, North Carolina
For Respondent North Carolina Kathryn Jones Cooper
Department of Environment and Special Deputy Attorney General
Natural Resources, Division of Anita LeVeaux
Water Quality: Assistant Attorney General
Raleigh, North Carolina
For Intervenor-Respondent David E. Evans
Murphy-Brown, LLC, Brown’s of McGuire Woods LLP
Carolina, LLC, Carroll’s Foods, LLC, Richmond, Virginia
and Murphy Farms, LLC: I. Clark Wright, Jr.
Ward and Davis, LLP
New Bern, North Carolina
For Intervenor-Respondent Charles D. Case
North Carolina Poultry Federation: Craig A. Bromby
Ray A. Starling
Hunton & Williams, LLP
Raleigh, North Carolina
The undersigned Administrative Law Judge, having reviewed the entire record, including the motions, briefs and accompanying affidavits, and all other documents filed by the parties, and having carefully considered the applicable statutes, rules, and case law, finds and decides that there is no genuine issue as to any material fact, and that a dispositive decision should be entered in this case. All parties agreed on the record at the summary judgment motions hearing that this case contains only questions of law and should be disposed of by summary judgment.
More particularly, the undersigned Administrative Law Judge finds that:
1. The “Responsible Potential Analysis” referred to in EPA rules adopted under the Federal Clean Water Act is not applicable to this general NPDES permit, which incorporates a non-discharge effluent standard and limitation and does not authorize any discharge within the meaning of the applicable provisions of North Carolina’s water quality statutes and the federal Clean Water Act. Therefore, it was not arbitrary or capricious or otherwise unlawful for Respondent not to conduct such analysis in its evaluation, consideration and issuance of the Swine NPDES General Permit.
2. The Swine NPDES General Permit does consider any exceedance of a water quality standard a violation of state law and the NPDES General Permit. Therefore Respondent’s issuance of that permit was not arbitrary or capricious.
3. Respondent acted as required by law in issuing the Swine NPDES General Permit because the Swine NPDES General Permit is, at its core, a non-discharge permit and, therefore, as a matter of law and fact swine operations that receive Certificates of Coverage under this Permit are not authorized to discharge pollutants into waters defined as impaired within the meaning of Section 303 of the Clean Water Act.
4. It is undisputed from the Record that Respondent both has the legal authority to modify, and has in fact modified the terms of several Certificates of Coverage issued to specific swine farms under the terms of the General NPDES Permit where Respondent determined that it was necessary and appropriate to impose additional regulatory requirements, including requirements that the swine farm operation monitor groundwater, and that Respondent’s declining to require such additional regulatory requirements as advocated by Petitioners, including additional monitoring requirements, neither was arbitrary, capricious, or otherwise unlawful.
5. Respondent followed proper procedure and acted as required by law in issuing the Swine NPDES General Permit because Respondent considered all of the information made available to it prior to adopting the CAFO NPDES General Permits.
CONCLUSIONS OF LAW AND DECISION
Accordingly, having reviewed the entire file, briefs of the parties and accompanying affidavits and documents, as well as applicable law and oral arguments of the parties, I CONCLUDE AS A MATTER OF LAW THAT THE FOLLOWING ORDER SHOULD BE, AND THE SAME HEREBY IS ENTERED:
1. Petitioners have standing to bring this contested case petition.
2. Respondent did not exceed its authority or jurisdiction, did not fail to use proper procedure, did not act arbitrarily or capriciously, and did act as required by law.
3. The issuance of the NPDES General Permit for Swine Waste Management Systems, by the North Carolina Department of Environment and Natural Resources on July 19, 2002, should be upheld as the final agency decision in this case.
4. Petitioners’ Motion for Partial Summary Judgment should be denied.
5. Intervenor-Respondents’ cross-motion for summary judgment should be granted, except with respect to the issue of Petitioners’ standing, because I have determined that Petitioners have standing.
6. Respondent is entitled to summary judgment under Rule 56(c) as Respondent has made a complete defense to Petitioners’ motion for summary judgment.
ORDER
It hereby is ordered that Respondent serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714, in accordance with N.C. Gen. Stat. §150B-36(b).
NOTICE
The final agency decision in this contested case will be made by the North Carolina Environmental Management Commission. The parties shall have the right to file exceptions to this decision and to present written arguments. The Commission will serve a copy of its decision on all parties, the attorneys of record, and the Office of Administrative Hearings.
This the 30th day of January, 2007.
______
Beecher R. Gray
Administrative Law Judge
[1] The organizational Petitioners and Dove are referred to collectively as “Petitioners” herein.
[2] In this Stipulation and Order, Petitioners agreed to narrow the issues from those raised in their August 16, 2002 Petition by offering argument on the following sections of that Petition: Section I; the alleged violations of North Carolina and United States law in Section II numbered as II.1, II.2, II.6, II.7, II.8, II.9, II.10, II.11, II.13, II.15 and II.17; Section III; and Section IV. Petitioners agreed not to raise any of the allegations set forth in their Petition other than the ones listed above during the pendancy of the administrative process. In its Memorandum of Law in Response to Petitioner’s Motion for Partial Summary Judgment, Respondent contended Petitioners had waived the first basis of support for their position, that Respondent failed to follow proper procedure, failed to act as required by law or acted arbitrarily or capriciously by not conducting a Reasonable Potential Analysis to determine Water Quality Based Effluent Limitations, because the December 2, 2002 Stipulation and Order, which limited the issues to be considered in this proceeding, eliminated this issue. Petitioners’ counsel contended it was an inadvertent drafting error to leave out their major issue and Respondent was not harmed by keeping this issue in the case. At the December 7, 2006 hearing, and over objection by Respondent’s counsel, I found that is was an inadvertent error for Petitioners to have eliminated this issue in the Stipulation limiting the issues and this issue remains in the case.