ARE 309 – Chapter 3 Administrative Law & Procedure · PDF fileExercising Three Functions of Government ... © 2003 J.M. Kuszaj Chapter 3 – Page 15 ... Chapter 3 Administrative

ARE 309 – Chapter 3Administrative Law & Procedure

© 2003 J.M. Kuszaj Chapter 3 – Page 1

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ARE 309- Environmental Law

Chapter 3

Administrative Law & Procedure

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Major Topics

1. Overview2. Administrative Agencies3. Rulemaking4. Enforcement5. Adjudication6. Agency Organization

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Topic 1. Overview

• Definition of Administrative Law

• Why it is important to Environmental Law

• Eight characteristics of Administrative Law



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Definition of Administrative Law

• The procedures governing how the executive branch carries out and enforce substantive statutes and regulations

• Administrative proceeding take place before an administrative body as distinguished from proceedings in court

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Why Administrative Law and Procedures Are Important

• 80% to 90% of disputes concerning environmental laws and regulations involve administrative law issues

• Rulemaking• Issuance of permits• Assessment of civil penalties for violations

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Eight Characteristics of Administrative Law

1. Agency rules have the force and effect of law

2. There is a right to contest any agency action

Before the Agency Court



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3. Administrative agencies have no inherent or residual authority

• Legislature must grant them specific authority

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4. Administrative agencies must act in accordance with the statute, their own rules, regulations, and procedures

• Example: permitting landfill

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Permitting Landfill Case

• Anson County Citizens Against Chemical Toxins In Underground Storage v NC-DENR– http://oahnt.oah.state.nc.us/decisions/2001/pdf/ehr/EHR000938.pd

f

• Issue: Did the Agency follow the law in reviewing the compliance history of the permit applicant ?

• Held: No

• Result: Permit was denied



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HoldingThe Division’s failed to act as required by law or rule in reviewing the history of environmental compliance of the permit applicant for the following reasons:

a. The Division failed to make any effort to look behind the data submitted by the applicant or to gather any of its own data. A citizen using the Internet, Ms. Lee, was able to rather easily come up with numerous violations committed by the applicant that were neither submitted by the applicant nor otherwise obtained by the Division.

b. Incredibly, the Division failed to contact for further information any of the State or Federal authorities that had cited the applicant or that had prosecuted the applicant for criminal violations, relying solely instead on brief, self-serving summaries of the violations compiled by the applicant.

c. The Division very nearly disregarded violations outside North Carolina, with no rational explanation for having done so, especially with regard to a large, multinational corporate applicant that does most of its business outside North Carolina. The statute does not limit the review to violations in North Carolina;

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5. Agency actions may not be arbitrary and capricious

• There must be an explanation, but it may be one of many possible explanations

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6. An agency’s interpretation of its own regulations and statutes will generally be granted deference

• Courts are reluctant to substitute their interpretation for that of the agency



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7. Agency decisions may be contested by the affected party and in some cases by third parties

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8. On appeal, courts generally uphold agency actions

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Major Topics




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Topic 2. Administrative Agencies

• What Are They

• What Do They Do

• What Are Their Limits

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Administrative AgenciesWhat Are they

• Any body created by a legislative branch to carry out specific duties authorized by statute– Examples:

• Federal Environmental Protection Agency (EPA)• NC Department of Environment and Natural

Resources (DENR)• Environmental Management Commission (EMC)

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Administrative AgenciesWhat they do

• Three Major Functions of Agencies:– Rulemaking [quasi-legislative]

• Write the regulations

– Enforcement [executive]• Enforce the regulations they write

– Adjudication [quasi-judicial]• Adjudicate disputes over application of the rules



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Administrative AgenciesExercising Three Functions of Government

• Sometimes Referred to “Fourth Branch of Government”

• Why?

• Is this accurate ?

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Administrative AgenciesWhat Are Their Limits

• Courts can review their actions– Was it arbitrary and capricious standard

• Executive Branch can review their actions– Administrative Law Judges

• Can the Legislative Branch review their actions ?

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Administrative AgenciesLegislative Review & Controls

• Federal Agencies– Rules Subject to override under

Congressional Review Act• Example: Federal Ergonomics Standard (2001)

• North Carolina– Rules Subject to legislative override under

Administrative Procedures Act



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Congressional Review Act

• Agencies must submit all new rules to Congress

• Congress has 60 session days to review and possibly reject agency rules

• Special expedited procedures limit debate in the House and ban a Senate filibuster

• If the motion to disapprove passes in both the House and Senate, and is then signed by the President, the rule essentially disappears

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Rules Sent to Congress Under the Congressional Review Act

• Fact: Between April 1, 1996 and March 13, 2001: 21,653 rules were submitted to Congress for review.

• Fact: Number of rules disapproved by Congress = 1.

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Congressional Review Act• The Senate voted to repeal the OSHA Ergonomics

rule on March 6, 2001, by a vote of 56 to 44. A day later on March 7, 2001, the House of Representatives voted to repeal the final rule by a vote of 223 to 206.

• President Bush signed the Resolution for Disapproval on March 20, 2001 effectively repealing the OSHA Ergonomics program Final Rule.



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Major Topics


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Topic 3. Rulemaking

• What is a rule• Economic impact of rules• Types of rules• How a rule is adopted

– Federal procedure– NC procedure

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RulemakingWhat is a rule

• Any agency regulation, standard or statement of general applicability that implements or interprets a statute or that describes the procedure or practice requirements of an agency

• Rule = Regulation



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The Number of Federal Regulations Is Increasing at A Record Rate

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Major Federal Rule

• Defined: Rules that will have an annual effect on the economy of more than $100 million.

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Major Rules



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The Growth Of Federal Regulations• The Code of Federal Regulations (CFR), an

annual listing of executive agency regulations published in the Federal Register, includes all regulations now in effect

• In 1970, the CFR filled 114 volumes with a total of 54,834 pages

• In 1998, the CFR filled 201 volumes with a total of 134,723 pages; it occupies 19 feet of shelf space.

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Lots of Regulations =Big Regulatory Bureaucracy

• In fiscal year (FY) 2000• 54 federal departments and agencies• Over 130,000 federal employees• Will spend over $18.7 billion• Writing and enforcing federal

regulations.

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Environmental Regulations Account For 1/3 of All Federal Regulatory Costs



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The Cost of Federal Regulations

• Estimates of how much federal regulation will cost in FY 2000 range from $200 billion to more than $700 billion

• About $6,800 per year for each American family

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RulemakingThree Basic Types of Rulemaking

• Permanent Rules– “Notice & Comment”

• Temporary Rules (North Carolina)

• Exempt– General policy statements– Interpretations

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RulemakingHow a rule is adopted (generic process)

• Publish notice of proposed rule• Solicit public comment

– written– public hearings

• Publish text of final rule• Establish effective date• Establish way to challenge the rule



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RulemakingAdopting a Federal rule

See Course Material

“Federal Rulemaking Process

A Clean Air Act Example”

Eight Step Process

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RulemakingAdopting a Federal rule

• How long does this all take?

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RulemakingAdopting a North Carolina rule

• A bit more complicated than Federal



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• A 10 step process for permanent rules

• As specified in: – North Carolina Administrative Procedure Act

(APA)– N.C.G.S. Chapter 150B

• See Class Material

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RulemakingAdopting a North Carolina rule-(Steps 1-3)

• Step 1: Publish notice of rule making proceedings in North Carolina Register– Published 1st and 15th of each month

• Step 2: Allow at least 60 days for public comment

• Step 3: Agency prepares fiscal note– if state $ or local gov’t $ involved– if “substantial economic impact” ($5M)

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RulemakingAdopting a North Carolina rule -(Steps 4-6)

• Step 4: Publish text of proposed rule in North Carolina Register

• Step 5: Mail notice of proposed rule to official “mailing list”

• Step 6: Holding a public hearing– if requested– if Agency wants to



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RulemakingAdopting a North Carolina rule -(Steps 7-8)

• Step 7: Accept written comments on proposed rule

• Step 8: Adopt final rule w/i 12 months– if same as proposed rule

• text is NOT published in NCR– if “substantially different”

• republish text and accept written comment for 30 days

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RulemakingAdopting a North Carolina rule -(Step 9)

• Step 9: Submit rule to Rules Review Commission (“RRC”)– Approve the rule– Reject the rule

• no statutory authority• unclear or ambiguous• not reasonably necessary• adopted by improper procedure

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RulemakingAdopting a North Carolina rule -(Step 10)

• Step 10: Establish the effective date of the rule.– If RRC objects to the rule

• Rule does not go into effect/; send back to Agency

– If RRC approves the rule• Rule goes to the NC General Assembly



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RulemakingAdopting a North Carolina rule -(Step 10+)

• At the NCGS the rule does not go into effect until the earlier of:

– the 31st legislative day or the day of adjournment of the next regular session of the General Assembly that begins at least 25 days after the RRC approves a rule

– Unless, prior to that date, a bill is introduced disapproving the rule

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• So how long does it take to adopt a permanent rule in North Carolina??

• What do you do it you need a rule sooner?

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• For one of six reasons

• Agency can by-pass permanent ruling making process

• Adopt Temporary Rules



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RulemakingAdopting a North Carolina Temporary Rule

• Allowed in six situations– serious & unforeseen threat to public health,

safety, or welfare– effective date of new state or federal law– recent change in federal or state budgetary policy– federal regulation– court order– State Medical Facilities Plan

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RulemakingAdopting a North Carolina Temporary Rule

• Step1: Agency prepares a finding of need– citing one of the 6 statutory factors

• Step 2: Agency submits finding to “Codifier of Rules”

• Step 3: Codifier has one business day to review finding of need

• Step 4: Publishes the rule in North Carolina Register with immediate effective date

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• How, When and Where you can challenge a rule differ:– Federal rules– State rules

• Many federal rules are litigated• Most state rules are not litigated

RulemakingJudicial Review of Rules



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RulemakingChallenging Federal Rules

• Which Court:– Varies with the individual law [Examples]

• Time for Appeal– Varies with the individual law– Generally 60-90 days after publication in FR

• Standard of Review– Deference to Agency– Unless rule is “arbitrary and capricious”

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RulemakingChallenging North Carolina Rules

• No direct route to court for permanent rules

• Two options – Wait until the DENR enforces the rule

• Raise the validity of the rule as a defense

– Ask for Declaratory Ruling from the Agency

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RulemakingChallenging North Carolina Rules

• Declaratory Ruling– Petition to Agency– Asking the Agency to declare its rule

invalid• Agency’s Decision on Declaratory

Ruling may be appealed – To Superior Court

• Wake County or• County of residency



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RulemakingJudicial Standard of Review

• Review of the written record of rulemaking

• To determine if there is “some evidence” for Agency’s actions

• “Arbitrary & Capricious”

• Court will not substitute its judgment for the agency

• Agency’s generally win!

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Major Topics


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Agency EnforcementAgency Powers

• Power to enter you facility• Power to investigate violations• Power to assess civil penalties of up to

$25,000/day/violation• Power to issue orders



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Agency EnforcementAgency Powers

Civil Penalties Are On Line

http://www.enr.state.nc.us/novs/dwq.htm

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Major Topics


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Agency AdjudicationAppealing Agency Actions Against You

• Civil penalties– $25,000 per day per violation

• Permits– new– renewals



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Agency AdjudicationAppealing Agency Actions Against You

• Federal and State procedures differ• Federal--Governed by Federal APA

– 5 USC Section 500 et al• State--Governed by State APA

– NCGS Chapter 150B

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Agency AdjudicationAppealing North Carolina Actions

• Notice of Violation (“NOV”)• Complaint/Order/Permit Issued• 30-60 day later you must:

– pay or accept permit– ask for remission– contest the action at Office of

Administrative Hearings (“OAH”)

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Basic Steps In NC Administrative Appeals

Step 3: Settlement of Case With AgencyLegal & Technical Types Work Out Mutually Acceptable Solution

Step 2: File Notice To Contest Agency Action:****Time Limited *****Usually within 30 days

Step 1: Agency ActionPermit Issuance

orCivil Penalty Assessment



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Step 8: Appeal to Court SystemReview of written record only

Step 7: Final Order of Agency

Step 6: Appeal to Agency Administrator or BoardReview of written record created by ALJ

Step 5: Initial Decision of Administrative Law Judge

Step 4: Hearing Before Administrative Law JudgeTrial type proceeding

Basic Steps In NC Administrative Appeals

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The Truth About Administrative Appeals

• NC Contested Case Statistics [1989-1998]

• ALJ rules for the Agency---75%– Agency reverses ALJ in 1 % of these

cases

• ALJ rules for the petitioner ---25 %– Agency reveres ALJ in 90% of these

cases

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The Truth

Petitioner has about a 3% chance of winning its appeal at the administrative level



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Agency AdjudicationPermitting

• Complete Application• Draft Permit• Public Comment/Hearing• Final Permit Decision• Administrative Appeal• Hearing• Final Agency Action

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Who Can Appeal A Permit ?

OperatingPermit

The Facility Third Parties

Citizens

Other Agencies

Competitors

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Major Topics




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Agency OrganizationMajor Environmental Agencies

• Federal– Environmental Protection Agency

• Headquarters• Regional Offices

• North Carolina– Department of Environment and Natural

Resources (“DENR”)• Central Office• Regional Offices

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Agency OrganizationGenerally By Program Area

Air

WaterWaste

Toxics

CERCLA

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Agency OrganizationFederal EPA Regions

North Carolina is in Region 4



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Agency OrganizationNorth Carolina DENR Regional Offices

Documents

ARE 309 – Chapter 3 Administrative Law & Procedure · PDF fileExercising Three Functions of Government ... © 2003 J.M. Kuszaj Chapter 3 – Page 15 ... Chapter 3 Administrative