STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DAVIDSON 04 EHR 0362

COUNTY OF DAVIDSON )

Petitioner, )

)

v. ) ORDER AND DECISION

)

NORTH CAROLINA DEPARTMENT )

OF ENVIRONMENT AND NATURAL )

RESOURCES, DIVISION OF AIR QUALITY, )

Respondent. )

______

Upon the Respondent’s Motion to Dismiss, the matter was heard before the Administrative Law Judge (“ALJ”) on 25 July 2006 at the North Carolina Medical Board, 1203 Front Street, Raleigh, NC. Based on the submissions of the parties and the proceedings at the hearing, the ALJ enters the following Order and Decision.

APPEARANCES OF PARTIES

Appearing for the Petitioner was Alan H. McConnell, Kilpatrick Stockton LLP, Raleigh, NC. Appearing for the Respondent was Special Deputy Attorney General Marc Bernstein and Assistant Attorney General John C. Evans, North Carolina Department of Justice, Raleigh, NC.

STATEMENT OF THE ISSUE

Whether promulgation by the United States Environmental Protection Agency (“EPA”) of a designation for a given area under section 107 of the federal Clean Air Act (“CAA”) and entry of such designation in the Code of Federal Regulations renders moot a contested case regarding the propriety of the initial designation by the Respondent for the same area.

FINDINGS OF FACT

  1. On 17 February 2004, the Secretary of the Department of Environment and Natural Resources (“DENR”), acting on behalf of the Governor, submitted a letter to EPA pursuant to section 107 of the CAA. 42 U.S.C. §§7401, 7407 (2004). The letter (hereinafter “Nonattainment Letter”) indicated Davidson County as a nonattainment area for the federal National Ambient Air Quality Standard (“NAAQS”) for fine particulate matter (“PM2.5”). Ltr. from W.G. Ross, Jr., to J.I. Palmer, Jr. (17 Feb. 2004).
  2. “PM2.5 is associated with a range of adverse health effects such as coughing; shortness of breath; aggravation of existing respiratory conditions like asthma and chronic bronchitis; increased susceptibility to respiratory infections; and heightened risk of premature death.” American Trucking Ass'ns, Inc. v. EPA, 283 F.3d 355, 359 (D.C. Cir. 2002).
  3. On 10 March 2004, the Petitioner petitioned for a contested case hearing, alleging that the Nonattainment Letter was unlawful because the data upon which the letter relied were allegedly “invalid.” E.g., Petition ¶2. The data were derived from air quality samples collected by the Respondent from an air quality monitor maintained and operated by the Respondent in the Petitioner County. See Petition ¶2.
  4. Petitioner “substantially completed” discovery by November 2004. Petr’s Resp. in Opp. to Mot. to Dismiss as Moot at 2 (11 April 2005).
  5. On 17 December 2004, the EPA Administrator signed for publication in the Federal Register the national nonattainment designations, including the nonattainment designation of Davidson County for PM2.5. The promulgations were published in the Federal Register on 5 January 2005. Air Quality Designations and Classifications for the Fine Particles (PM2.5) National Ambient Air Quality Standards (Final Rule), 70 Fed. Reg. 944, 992 (5 Jan. 2005) (hereinafter “EPA Promulgation Rule”). The promulgation stated that it did not take effect until 5 April 2005. Id. at 944. The status of Davidson County as a nonattainment area under the PM2.5 standard appears in the Code of Federal Regulations at 40 C.F.R. §81.334 (2006).
  6. The Petitioner has not petitioned for judicial review in federal court and has not petitioned for reconsideration before EPA. Mot. to Dismiss ¶8 (28 March 2005).
  7. On 28 March 2005, the Respondent moved to dismiss the petition as moot and filed a memorandum of law. The Respondent also moved that the verified motion to dismiss be accepted as an affidavit. On 11 April 2005, the Petitioner filed a brief opposing the motion. On 18 April 2005, the Respondent filed a reply and on 3 May 2005 the Respondent filed a Memorandum of Additional Authority.

CONCLUSIONS OF LAW

  1. Pursuant section 109 of the CAA, 42 U.S.C. §7409, EPA is required to establish NAAQS for “criteria” pollutants. A NAAQS generally indicates the concentration of the criteria pollutant that is permitted to be in the ambient air. See generally 40 C.F.R. Part 50.
  2. After EPA establishes a NAAQS, it must be determined which areas are more polluted than allowed by the NAAQS. 42 U.S.C. §7407(d)(1)(B). Areas that are formally recognized as more polluted than the standard allows are called “nonattainment areas.” Sierra Club v. EPA, 356 F.3d 296 (D.C. Cir. 2004).
  3. As part of the designation process, each state must collect air quality monitoring data from monitoring sites operated according to federal standards. See, e.g., 40 C.F.R. Part 58 Appx. E. Once a state collects this data, the governor submits “designations” to the EPA for each area of the state, indicating each area as “attainment,” “nonattainment,” or “unclassifiable.” 42 U.S.C. §7407(d)(1)(A).
  4. After the governors submit their “designations” (or even if a governor fails to so submit), the EPA promulgates the nonattainment areas by publication in the Federal Register. 42 U.S.C. §7407(d)(1)(B)(i); Environmental Defense v. EPA, 369 F.3d 193, 197 (2d Cir. 2004). When promulgating nonattainment areas, EPA must consider all relevant information submitted to it, and “may make such modifications as the Administrator deems necessary to the designations of the areas (or portions thereof) ... (including to the boundaries of such areas or portions thereof).” 42 U.S.C. §7407(d)(1)(B)(ii).
  5. PM2.5 is a “criteria” pollutant. 40 C.F.R. §50.7.
  6. Consistent with the above-described statutory process, on 17 February 2004 the Secretary of DENR, acting on behalf of the Governor, submitted a letter to EPA pursuant to section 107 of the CAA. The letter (hereinafter “Nonattainment Letter”) indicated Davidson County as a nonattainment area for the PM2.5 NAAQS.
  7. On 5 January 2005, EPA promulgated the nonattainment designation of Davidson County by publishing the EPA Promulgation Rule in the Federal Register. By its own terms, the rule became effective on 5 April 2005. EPA Promulgation Rule, 70 Fed. Reg. at 944.
  8. As a matter of federal law, Davidson County is a nonattainment area for PM2.5. 40 C.F.R. §81.334.
  9. All petitions for judicial review of the promulgation of any designations in the 5 January 2005 Federal Register notice were required to be filed by 7 March 2005. 42 U.S.C. §7607(b)(1); EPA Promulgation Rule, 70 Fed. Reg. at 951.
  10. “A case is ‘moot’ when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.” Roberts v. Madison County Realtors Ass’n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996). When an agency action is appealed and a second agency action supersedes the first action, such that any decision regarding the first action would have no practical effect, the appeal of the first action is moot. State ex rel. Utilities Com. v. Southern Bell Tel. & Tel. Co., 289 N.C. 286, 221 S.E.2d 322 (1976); In re CAMA Minor Development Permit, 82 N.C. App. 32, 345 S.E.2d 699 (1986); see also In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323, app. dismissed, 357 N.C. 506, 588 S.E.2d 472 (2003).
  11. Once EPA promulgates a designation of an area under section 107 of the CAA, 42 U.S.C. §7407, only EPA can change the designation; the governor cannot change the designation. See 42 U.S.C. §7407(d)(1)(B)(iv). Therefore, any decision by the Office of Administrative Hearings (“OAH”) in this matter will not change the federal nonattainment status of Davidson County.
  12. The Petitioner’s federal administrative and judicial review rights are governed by federal law. A decision in this case is not and has never been necessary for the Petitioner to exercise its federal review rights. See 42 U.S.C. §7607(b)(1).
  13. Review in the federal courts of EPA actions published in the Federal Register under the CAA is based on the record assembled before EPA, and conclusions of law are reviewed de novo. Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975). Any record that would be compiled or conclusions of law that would be issued in this contested case are not necessary to the federal review process.
  14. The Respondent cannot cease monitoring or move the monitor without EPA approval. See 40 C.F.R. Part 58, §58.25. The outcome of this case will not affect the Respondent’s obligation to continue to collect data at the monitor site that is the subject of this contested case.
  15. A case may be moot even if dismissal deprives the petitioner of a decision regarding the propriety of the questioned agency action. E.g., In re CAMA Permit, supra. Because the Nonattainment Letter has been superseded by the EPA Promulgation Rule, a decision by the ALJ on the merits of the Petition can have no practical effect on the existing controversy. This case is moot.
  16. An exception to the mootness doctrine exists for matters of public concern. N.C. State Bar v. Randolph, 325 N.C. 699, 386 S.E.2d 185 (1989). Nothing in the record demonstrates that the gravity of this case demands the application of this exception. This case is very fact specific and a decision would only apply to one of the many monitoring locations throughout the state. Moreover, sitting of and data collection from monitors is regulated by federal law. 40 C.F.R. Part 58. Assessment of the compliance of this monitor with federal law is best left to the federal process.

MEMORANDUM

  1. “A case is ‘moot’ when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.” Roberts v. Madison County Realtors Ass’n, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996). When an agency action is appealed and a second agency action supersedes the first action, such that any decision regarding the first action would have no practical effect, the appeal of the first action is moot. State ex rel. Utilities Com. v. Southern Bell Tel. & Tel. Co., 289 N.C. 286, 221 S.E.2d 322 (1976) (dismissing as moot appeal of Utility Commission rate order because subsequent order superseded order being appealed); see also In re Stratton, 159 N.C. App. 461, 583 S.E.2d 323 (dismissing as moot appeal of “neglect and dependence” order when subsequent order terminated parent’s parental rights), app. dismissed, 357 N.C. 506, 588 S.E.2d 472 (2003). This holds true even if the appellant has not sought review of the superseding action, Southern Bell, supra, or if the initial and superseding actions were taken by separate governmental entities. In re CAMA Minor Development Permit, 82 N.C. App. 32, 345 S.E.2d 699 (1986) (dismissing as moot appeal of N.C. Coastal Resources Commission order after local zoning change outlawed land use that was the subject of the Commission’s order). Because EPA’s promulgation of the nonattainment designation, such that the designation is now a matter of federal law, supersedes the Respondent’s Nonattainment Letter, a decision in this matter can have no practical effect, and this case is moot.
  2. The Petitioner contends that a decision by the ALJ is critical for the Petitioner to gain review by EPA or the United States Courts of Appeal of the nonattainment designation. Petr. Br. at 9-10. Even if this were true, it does not render the case justifiable under the principles discussed above. Moreover, a decision in this case would not be necessary to the federal process. For example, the availability of review before EPA or the U.S. Courts of Appeal is governed by federal law. Specifically, section 307 of the CAA, 42 U.S.C. §7607, allows a party to seek judicial review in the U.S. Courts of Appeal by filing a petition for review within sixty days of publication in the Federal Register of a final agency action. In the event that review is based solely on grounds that arise after the sixty-day period, a party may still seek review, but must file a petition within sixty days of when the new grounds for review arose. 42 U.S.C. §7607(b)(1). Nothing in section 307 provides or suggests that as a prerequisite to federal judicial review (or review by EPA), the petitioning party must first secure a decision by a state administrative or judicial officer. Even assuming arguendo that a decision by the ALJ on the merits is necessary to the Petitioner’s access to the federal process and that this alleged gatekeeping-type function is material to whether the case is moot, the Petitioner never asserts that a decision on the merits in this matter would be “new grounds” within the meaning of section 307. Indeed, it appears that any decision in this matter would itself be based entirely on grounds that existed well before the initial sixty-day judicial review deadline expired.
  3. The Petitioner alleges that a decision by the ALJ would provide a basis for review before the U.S. Courts of Appeal because the OAH process would provide a record and conclusions of law for a federal court to review. Petr. Br. at 10. The Petitioner suggests that the procedures established in Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654 (D.C. Cir. 1975), apply here. The CAA requires EPA to promulgate nonattainment designations. In order to petition for review of those designations in federal court, Oljato specifically would require the Petitioner to present its data, information, and arguments regarding those designations to EPA, not to a State tribunal. Under Oljato, the federal courts then review EPA’s decision based on the record compiled by EPA. Id. at 665-67. Therefore, a decision by the ALJ is not necessary to create a record for review in federal court. Also, a decision here is not necessary to produce conclusions of law for review by the federal courts, as the federal courts would review any legal conclusions de novo.