Regulatory agencies are allowed discretion in how they interpret the laws under which they operate. Such discretion has its limits, though, and exactly that point was at issue in a case decided by the N.C. Court of Appeals on July 5.
At issue was whether state regulators could fine a repeat violator for individual fires he set too near a building when the agency had previous treated multiple fires as a single violation. The violator was clearing debris and burning it. The state’s second highest court said the agency could indeed find that separate violations existed.
On Nov. 4, 1999, Tony McManus noticed columns of white smoke rising into the sky as he drove home from his job as an inspector for the N.C. Department of Environment and Natural Resources’ Division of Air Quality. McManus stopped to investigate and found a worker from MW Clearing & Grading monitoring a number of large fires of debris from the clearing of land. Concerned that the fires might have been too close to nearby buildings, McManus returned the next day and measured the distances. He found that nine of piles were, indeed, less than the 1,000 feet, as required by state law.
MW Clearing had been fined on previous three occasions since 1992 for having fires too near occupied buildings. Because of this and the substantial savings in burning versus hauling the debris away, Keith Overcash, deputy director of the DAQ, decided to treat each of the nine fires as a separate violation. Ultimately, MW Clearing was fined $36,000 — $4,000 for each of the nine fires — plus $365 in the investigation costs. The maximum penalty for a violation is $10,000.
MW Clearing appealed, claiming among other things that the DAQ exceeded its authority when Overcash categorized each fire as a separate fire, something the agency had never done before. A majority of the three-judge Court of Appeals panel did not accept the company’s argument.
“In light of petitioner’s continued disregard for the regulations as evidenced by three previous violations, we agree with the trial court that the agency properly exercised its discretion in counting each open burning pile as a separate violation,” Chief Judge Martin wrote for the court. “Although an agency’s interpretation of a statute is not binding on the courts, it is afforded some deference, and we see no reason to fail to yield such deference here.”
The court’s newest judge, Barbara Jackson, disagreed with the majority holding.
“The majority also correctly notes the deference properly given to an agency’s interpretation of its own statutes. However, given the agency’s longstanding prior history of interpreting violations of North Carolina General Statutes section 143-215.114A and 15A North Carolina Administrative Code 2D.1900 with multiple burn piles as constituting one violation of the statute and the code, that is the proper interpretation which should receive deference, not an interpretation in which the Deputy Director essentially throws out the rule book in order to assess a civil penalty inconsistent with the agency’s previous actions.”
Because of Jackson’s dissent, the N.C. Supreme Court must hear the case if MW Clearing decides to appeal the Court of Appeal’s decision.
The case is MW Clearing & Grading, Inc. v. NC Dep’t. of Env. & Natural Res., (04-852)