Oct. 1, 2012: Effective Date for Direct Court Review of OAH Decisions in Cases Under the Clean Water Act, Clean Air Act, and Resources Conservation & Recovery Act
The State of North Carolina, through the Department of Environment and Natural Resources (“DENR”), administers and enforces certain federal environmental laws, including the Clean Water Act (“CWA”), the Clean Air Act (“CAA”), and the Resource Conservation and Recovery Act (“RCRA”) pursuant to agreements with the United States Environmental Protection Agency (“EPA”). Historically, review of DENR decisions (e.g., issuance of permits or penalties) under these programs was first reviewable by the North Carolina Office of Administrative Hearings (“OAH”), where the matter (called a “contested case”) was heard by an Administrative Law Judge (“ALJ”) pursuant to the North Carolina Administrative Procedure Act (“APA”). The ALJ made a decision which was then reviewed by the North Carolina Environmental Management Commission (“EMC”). The EMC’s decision was the “final agency decision.” The EMC decision could be appealed by an aggrieved party allegedly injured by the decision to the North Carolina Superior Court.
In 2011, the North Carolina General Assembly changed the process for nearly all OAH contested case decisions, making the ALJ’s decision the “final agency decision” which could then be appealed directly to Superior Court, eliminating the EMC review and decision. That process became effective January 1, 2012 for all DENR contested cases except those under the CWA, the CAA, and RCRA, for which the effective date was initially June15, 2012, but was subsequently extended to October 1, 2012, by Session Law 2012-187. The additional time for contested cases under these acts anticipated that the new review procedures might require amending the existing agreements between DENR and EPA referenced above. On July 19, 2012, DENR and OAH jointly submitted to EPA a letter outlining their view of the new process and suggesting that the existing DENR-EPA agreements would not have to be amended. That letter is available here. On August 9, 2012, the EPA concurred that, in view of the July 19 letter, no amendments to the existing agreements would be necessary. That letter is available here.
Accordingly, pursuant to Session Law 2012-187, for contested cases challenging DENR action under the CWA, the CAA, or RCRA filed on or after October 1, 2012, the ALJ’s decision will not be subject to review by EMC but instead will be reviewable in Superior Court, in accordance with the other provisions of the APA.