Hughey v. Gwinnett County , 278 Ga. 740 ( 2004 )

FLETCHER, Chief Justice.

We granted a writ of certiorari in this case to determine whether the Court of Appeals correctly held that a permit to allow Gwinnett County to discharge forty million gallons of treated wastewater into Lake Lanier on a daily basis was properly issued.¹ The undisputed facts show that the discharge will degrade the water quality in Lake Lanier. Before a permit will issue to allow the degradation of water quality in Lake Lanier, the clear and unambiguous language of Georgia’s anti-degradation rules require the permittee to utilize the “highest and best [level of treatment] practicable under existing technology.”² Because the treatment plant at issue, the Hill Plant, is capable of removing more pollutants from the discharged water than the permit requires, the permit violates the anti-degradation rules. Accordingly, we affirm in part and reverse in part.

On August 4, 1999, Gwinnett County applied for a National Pollutant Discharge Elimination System permit to discharge treated wastewater into Lake Lanier. On August 8, 2000, the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources issued a draft permit for public comment. The EPD issued a final permit allowing the discharge on November 9, 2000. The permit authorized a different discharge location and depth from that which was indicated in the draft permit.

Terrence D. Hughey, a local landowner, together with the Lake Lanier Association and other entities (collectively “the challengers”), administratively appealed the EPD’s permit issuance, and Gwinnett County intervened to defend the permit. After a hearing, the Administrative Law Judge found in favor of EPD and Gwinnett County, and affirmed the issuance of the permit. The challengers appealed to the Hall County Superior Court, which reversed the ALJ. Gwinnett County and EPD in turn appealed to the Court of Appeals, which reversed the superior court’s order and re-affirmed the issuance of the permit. This Court then granted the challengers’ petition for a writ of certiorari, and we now affirm in part and reverse in part the Court of Appeals.

1. The challengers first contend that the Court of Appeals did not have jurisdiction to decide the case because the superior court’s judgment was not final, as part of the superior court’s judgment ordered the case remanded to the ALJ.

The superior court’s order states that the ALJ “committed legal error in concluding that the EPD complied with the procedural requirements . . .” and that the ALJ “erred as a matter of law by misinterpreting the federal and state anti-degradation regulations.” The superior court ordered the case remanded to the ALJ as a result of those errors. The mere use of the word “remand,” however, does not automatically render the superior court’s decision non-final and not appealable under state law.³ Whether an order is final and appealable is judged by its function and substance, rather than any “magic language.”⁴

In this case, the return of the case to the ALJ did not require any further proceedings in that forum, nor was the ALJ ordered to reconsider any issues under a different standard than previously applied.⁵ The superior court merely reversed the ALJ’s decision on legal issues. Under these circumstances, the superior court’s order was final and appealable under OCGA § 5-6-35 (a).

2. Next, the challengers assert that the Court of Appeals erred when it concluded that the burden of proof before the ALJ rested on the challengers. The applicable Georgia anti-degradation regulations state that “the State [has] the power to authorize new developments [which degrade water quality], when it has been affirmatively demonstrated to the State that a change [in water quality] is justifiable to provide necessary social or economic development.”⁶ Thus, the party seeking a permit to degrade water quality bears the burden of proof before the EPD.

Under the Georgia Administrative Code, Administrative Rules of Procedure, rule 616-1-2-.07 (1) (b), however, the administrative party bears the burden of proof in all matters except “any party challenging the issuance ... of a license who is not the licensee shall bear the burden.” As the challengers’ petition before the ALJ sought to challenge the propriety of the permit then held by Gwinnett County, the challengers had the burden of persuasion in that forum. Accordingly, the Court of Appeals was correct in holding that the burden upon the applicant to “affirmatively demonstrate” the propriety of the permit was applicable only before the EPD, and that once a permit was issued by the EPD, the burden shifted to the challenger to show that the permit was wrongfully issued.

3. Next, the challengers argue that the permit does not meet the substantive requirements under the anti-degradation rules, and that the ALJ therefore improperly affirmed the permit. The factual findings of the ALJ confirm that Gwinnett County’s permit to discharge forty million gallons of treated wastewater every day into Lake Lanier will degrade the water quality in the lake. One of the central purposes of the Clean Water Act,⁷ and the corresponding Georgia Water Quality Control Act,⁸ is to prevent the unnecessary degradation of current water quality. Under the Georgia regulations, which mirror and incorporate the federal regulations, a permit that will degrade the high quality of water in Lake Lanier cannot be granted unless the applicant meets two substantive requirements under the anti-degradation rules.⁹ First, the degradation of water quality is acceptable only when it is “justifiable to provide necessary social or economic development.”¹⁰ Second, such a permit must require the permittee to utilize the “highest and best practicable [level of treatment] under existing technology.”¹¹ As these issues involve determinations of fact, the ALJ’s decision must be affirmed where there is “any evidence” to support it.¹² We find that the ALJ’s decision was supported by some evidence with respect to the first question, but that the ALJ’s own factual conclusions show that it erred with respect to the second question.

(a) We affirm the ALJ’s determination that the degradation was “justifiable to provide necessary social or economic development.” The ALJ found that several economic and social benefits justified the issuance of the permit, including the following: the projected population growth in Gwinnett County would require additional waste-water capacity by the year 2005, and that continued growth would require the level of capacity provided by the permit sometime between 2010 and 2015; sufficient land was not available for land application of wastewater; there is a need to return water to the water system from which Gwinnett County draws its water supply; and the cycling of treated wastewater taken from the Chattahoochee River system and returned to that system would aid negotiations concerning an interstate compact regarding these waters. We conclude that there was some evidence to support these findings before the ALJ, and the superior court improperly reversed on that issue. Therefore, the Court of Appeals was correct in reversing the superior court on that issue.

(b) But the ALJ’s own factual findings contradict its conclusion that the permit properly required Gwinnett County to utilize the “highest and best practicable [level of treatment] under existing technology.”¹³ The ALJ expressly concluded that “the actual amounts of pollutants currently being discharged by the Plant are below the levels set in the permit.” Under the anti-degradation regulations, Gwinnett County may not be allowed to discharge water that is more polluted than it reasonably needs to be by virtue of the existing technology at the Hill Plant.

Nonetheless, the ALJ sanctioned this regulatory violation by reference to an “engineering safety buffer,” ostensibly placed into the permit to protect Gwinnett County from fines associated with permit violations. But Gwinnett County has shown no evidence that it would be impracticable or unfeasible for it to utilize the full technology available at the Hill plant to clean the water before discharging it into the lake.¹⁴ Furthermore, the regulation does not cite the “convenience of the parties” or “fear of regulatory violations” as justifications for greater water degradation. Allowing wholesale water quality degradation is not justified by the concern that Gwinnett County might face an occasional fine for a permit violation. Whether Gwinnett County can feasibly and practicably discharge cleaner water is the only issue. Whether the County might be fined by the EPD for some speculative future violation of the permit is only relevant if it shows some realistic obstacle to the achievement of the higher standard.

Accordingly, the Court of Appeals erred in reversing the superior court’s determination that the permit did not require the highest and best level of treatment practicable.

4. The challengers also argue that the EPD failed to comply with the required public notice and comment rules. Agency actions, such as the issuance of the permit in this case, undergo a public notice and comment period to provide the public with the opportunity for meaningful participation in important agency decisions.¹⁵ Under the Georgia and federal regulations, the discharge point is an element of the permit that the agency must submit to the notice and comment process.¹⁶ “The public is precluded from a meaningful opportunity to participate in the comment process if an agency makes available one version of a guideline, . . . provides the opportunity to comment on that version, and then adopts a completely different approach in its final guideline, without having provided an opportunity to the public to comment on the adopted version.”¹⁷

In this case, the EPD submitted a draft permit for public notice and comment that showed the discharge point to be over 145 feet below the surface of the lake in the area of Buford Dam. After the comment period ended, however, the EPD issued a final permit containing a different discharge point, one that was only 35 feet below the surface and in a different ebayment more than a mile from Buford Dam. The final discharge point has never been subjected to public notice and comment, and the challengers argue that it should have been.

It is unclear from the record whether or not the changes in the final permit were significant enough to require a renewed public notice and comment period, because the ALJ summarily disposed of this issue and thus deprived the challengers of the opportunity to present evidence supporting their claim that the changes in the permit were significant enough to require a renewed public notice and comment period. Because those issues involve a factual determination, the ALJ should have held an evidentiary hearing on the issue. Additionally, as the superior court correctly noted, the ALJ utilized an improper legal standard when it granted summary judgment to the EPD on the basis that the draft permit “had included the name of the [receiving] body of water in the fact sheet attached with the draft permit.” Under that reasoning, the public notice and comment requirement would be satisfied even if the final permit authorized a discharge more than forty miles from the one submitted to the notice and comment process, so long as it still discharged into Lake Lanier. Plainly, more specificity is required if the public is to have any meaningful opportunity to participate in these decisions. Because the ALJ improperly granted summary judgment on this issue, the Court of Appeals erred in reversing the superior court’s determination of that issue.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Hines, J., who dissents.

1 Gwinnett County v. Lake Lanier Assn., 265 Ga. App. 214 (593 SE2d 678) (2004).

2 Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b).

3 OCGA § 5-6-35 (a); Ga. Pub. Svc. Comm. v. Campaign for a Prosperous Ga., 229 Ga. App. 28, 29 (1) (492 SE2d 916) (1997).

4 Dolinger v. Driver, 269 Ga. 141, 142 (1) (498 SE2d 252) (1998).

5 Rogers v. State, 276 Ga. 67, 69-70 (3) (575 SE2d 879) (2003); Fairfax MK, Inc. v. City of Clarkston, 274 Ga. 520, 523 (4) (555 SE2d 722) (2001).

6 Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b).

7 33 USC § 1251 (a) (Act intended to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”).

8 OCGA § 12-5-21 (a) (“the water resources of the state shall be utilized prudently for the maximum benefit of the people, in order to restore and maintain a reasonable degree of purity in the waters of the state”).

9 Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b).

10 Id.

11 Id.

12 Emory Univ. v. Levitas, 260 Ga. 894, 898 (1) (401 SE2d 691) (1991).

13 Ga. Comp. R. & Regs. r. 391-3-6-.03 (2) (b).

14 The challengers in this case also presented undisputed evidence that for the past fifteen years, the Upper Occoquan Sewer Authority has employed similar technology as that available at the Hill Plant to comply with permit limits that are much lower than that required by Gwinnett County’s permit. That the Hill Plant has the capability of achieving these lower limits is indisputable. That it is feasible to do so over an extended period of time is demonstrated by the history of the Upper Occoquan Plant.

15 See OCGA § 12-5-30 (a); Ga. Comp. R. & Regs. r. 391-3-6-.06 (7) (b); Natural Resources Defense Council v. EPA, 859 F2d 156, 175 (D.C. Cir. 1988).

16 Ga. Comp. R. & Regs. r. 391-3-6-.06 (7) (b) (1) (v) (“[t]he contents of the public notice will be in accordance with Federal Regulations, 40 CFR § 124.10 (d)”); 40 CFR § 124.10 (d) (“all public notices ... shall contain the following minimum information:... a general description of the location of each existing or proposed discharge point. . . .”).

17 American Lands Alliance v. Norton, 242 FSupp.2d 1, 14-15 (D. D.C. 2003).