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N.C. Department of Environment and Natural Resources

NC Department of Environment and Natural Resources
Office of General Counsel - Litigation

Office of General Counsel

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 Administrative Litigation Process

Office of Administrative Hearings - Contested Cases

DENR witnesses most often testify in the Office of Administrative Hearings when a civil penalty or a permit has been challenged by a citizen. The Office of Administrative Hearings (OAH) is an independent quasi-judicial agency that was established to provide a source of independent Administrative Law Judges (ALJs) to preside in administrative law contested cases. It was created to ensure that the functions of rulemaking, investigation, advocacy and adjudication are not combined in the administrative process.

Law governing contested cases in OAH:

 

Representation:

DENR will be represented by an attorney from the Attorney General's staff. A petitioner may be represented by an attorney or may appear on his or her own behalf.

Fees:

The filing fee, dependent upon the cause of action, may be as much as one hundred twenty-five dollars ($125.00), or as little as twenty dollars ($20.00). However, the filing fee may be waived if filed in forma pauperis, and shall be waived in a case involving a mandated federal cause of action. Once your hearing is scheduled, there is a cancellation fee if you cancel the hearing less than 24 hours before its scheduled time.There is also a fee to obtain a copy of the hearing's transcript or cassette tape.

Typical Timeline:

Petitionwithin 30 or 60 days of agency action
Initial Orderswithin 1 week of Petition
Mediator Selectionwithin 21 days of Initial Orders
Prehearing Statements Duewithin 30 days of Initial Orders
Mediation Completedwithin 3 months of Initial Orders
Discovery Sent Outwithin 3 months of Initial Orders
Discovery Completedwithin 3 ½ months of Initial Orders
Hearingwithin 4 months of Initial Orders
ALJ's Decisionwithin 45 days of hearing
Judicial Review Deadlinewithin 30 days of ALJ Decision
  

A contested case begins when a Petition is filed with the OAH. Once the petition has been filed, it is given a docket number and assigned to an administrative law judge (ALJ). The docket number will appear in the upper right-hand corner of all documents received from OAH. OAH then issues "Initial Orders" that include:

  1. a Notice of Contested Case and Assignment which notifies the parties of the date the Petition was filed, assigns an ALJ to the case, and requires that the agency submit the Document Constituting Agency Action;
  2. an Order for Prehearing Statements which requires the parties to provide preliminary information about their case within 30 days; and
  3. a Scheduling Order which notifies the parties of the discovery deadline and week of hearing.

There may also be an Order for Mediated Settlement Conference which requires the parties to participate in a settlement discussion with a neutral person, known as a mediator, who acts to encourage and facilitate settlement of the case. If the case is sent to a mediated settlement conference, the parties must agree on a mediator. OAH maintains a directory of mediators to assist with this decision. If the parties are unable to agree, the presiding ALJ will choose a mediator for the case. In either circumstance, the petitioner's attorney shall file a Designation of Mediator form with the presiding ALJ. The parties are required to pay the cost of the mediated settlement conference. At the close of the mediated settlement conference, the mediator will file a written report with the presiding ALJ as to whether or not an agreement was reached by the parties. (As an alternative to mediation, you may be notified that an Administrative Law Judge will conduct a settlement conference.) A prehearing request to the ALJ for any action in a contested case must be made by filing a written motion. If a party files a motion, the other party has ten (10) days to respond. The ALJ will rule on all motions.

Before the contested case hearing, the ALJ may require the parties to file a Final Prehearing Order. This document sets out the issues which are agreed upon by the parties and identifies the witnesses and exhibits which each party will offer at the hearing.

Each party is responsible for arranging for the appearance of their witnesses. The Attorney General's Office may issue subpoenas to ensure the presence of witnesses and to keep the hearing open if the witness is unavoidably delayed (for example, a car wreck while in route to the hearing).

Not less than 15 days before the hearing, the parties will receive a Notice of Hearing. This Notice will be sent by certified mail to all parties and establishes among other things, the specific time, date and location of the hearing.

A hearing may be continued or postponed but only for good cause. A request for a continuance of a hearing must be made before the hearing by written motion to the ALJ and must be served on all parties.

The hearing is open to the public except in limited instances. At the hearing, each party has the right to testify on his or her own behalf. Each party may also offer documents in evidence; have witnesses testify; question an opposing party's witnesses; and explain or rebut evidence.

In advance of the hearing the parties must prepare at least two copies of each exhibit which they intend to offer into evidence. Those exhibits admitted into evidence will be retained in the official record.

The hearing is recorded by either a hearing assistant using a 4-track tape recorder (There is noappearance fee for a hearing assistant.), or a court reporter, but the party requesting a court reporter must pay the reporter's appearance fees. Depending on the length of the hearing, some transcripts may be expensive (approximately $1,000/day), but transcripts become part of the official OAH record on appeal. Copies of the cassette tapes from which the transcripts are made are also available from OAH at a much lower cost, but these tapes are not considered part of the official record. If your hearing is recorded by a court reporter, requests and payment for copies of the transcript must be made directly with the court reporter.

The ALJ's decision is made in writing, usually in the form of a Decision with findings of fact and conclusions of law. 

A party may appeal a  Decision within 30 days after being served with a written copy of the decision by filing a Petition for judicial review in the Superior Court of Wake County or in the Superior Court of the county where the person appealing resides.

Certain Federal Programs

Until October 1, 2012, cases filed involving the federal Clean Water Act, Clean Air Act, or Resource Conservation and Recovery Act are reviewed by the Environmental Management Commission. In those cases filed on or after October 1, 2012, OAH decisions will no longer be subject to EMC review before being appealable to Superior Court. For a fuller discussion of these changes, and of the roles of OAH, DENR and EPA under the programs, see this page.

The Superior Court - Injunctions

DENR witnesses may also testify in Superior Court during injunction cases. The regular court calendar for Superior Court includes all felony criminal cases, civil cases involving more than $10,000 and misdemeanor and infraction appeals from District Court are tried in Superior Court. A jury of 12 hears the criminal cases. In the civil cases, trials are often waived. When appearing in Superior Court it is often necessary to wait until the Court finishes with its regular calendar before hearing the injunction cases.

Superior Court is divided into eight divisions and 46 districts across the state. Every six months, Superior Court judges rotate among the districts within their division. The rotation system helps avoid favoritism that might result from having a permanent judge in one district.

Injunctions are heard in Superior Court by virtue of statutory language.

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