368 N.C. 92
N.C.2015Background
- Fourteen North Carolina coal-fired power plants operated unlined coal ash lagoons; monitoring showed groundwater contaminants exceeding standards near some lagoons.
- Petitioners (environmental groups) asked the NC Environmental Management Commission for a declaratory ruling applying 15A NCAC 2L .0106(c) (corrective action for unpermitted activities) to coal ash lagoons with NPDES permits first issued on or before Dec. 30, 1983, and to closed/inactive lagoons.
- Commission ruled that sites deemed "not permitted" (including pre-1983 permits) are subject to 2L .0106(c), and that "immediate action" must be interpreted in context of the full Groundwater Rules.
- Petitioners sought judicial review; the superior court reversed part of the Commission’s ruling, holding that immediate action must eliminate contamination sources promptly.
- While appeals were pending, the General Assembly enacted Chapter 122 (Coal Ash Management Act component) amending N.C.G.S. § 143-215.1(k) to require corrective action for permitted disposal systems "without regard to the date that the system was first permitted."
- The Supreme Court held the case moot because the statutory amendment superseded the regulatory dispute as to facilities with active NPDES permits; record showed no closed/inactive lagoons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 2L .0106(c) requires operators of pre-1983 permitted coal ash lagoons to take immediate action to eliminate contamination sources prior to submitting a corrective-action plan | Petitioners: pre-1983 permitted lagoons are "deemed not permitted" under 2L .0106(e)(4) and thus must take immediate elimination actions under 2L .0106(c) | Commission/Duke: Commission properly construed "immediate action" as evaluated in context of full Groundwater Rules; corrective steps can be scheduled reasonably | Moot as to permitted facilities: amended N.C.G.S. § 143-215.1(k) now requires corrective action for permitted systems regardless of permit date; case dismissed on mootness grounds |
| Whether the trial court erred in construing "immediate action" to require prompt source elimination before corrective plan submission | Petitioners: immediate means immediate elimination of contamination sources upon detection | Commission/Duke: "immediate action" depends on circumstances and the detailed procedures in the Groundwater Rules; not an absolute immediate abatement requirement | Not reached on merits; trial court order vacated and remanded for dismissal as moot |
| Whether the declaratory ruling still has practical effect after Chapter 122's enactment | Petitioners: statutory change doesn’t affect unpermitted/closed sites and broader public-interest issues justify review | Commission/Duke: amended statute supersedes rule for active permitted sites; no recorded closed/inactive sites exist | Moot; record showed all lagoons had active permits, so no practical effect; court declined to issue advisory opinion |
| Whether the Court should hear the issue despite mootness because it presents matters of public importance | Petitioners: extraordinary public interest warrants resolution | Commission/Duke: judicial restraint; statutory remedy now governs; decision would be advisory | Court declined to decide on merits; dismissed appeal as moot and refused to issue advisory ruling |
Key Cases Cited
- Messer v. Town of Chapel Hill, 346 N.C. 259, 485 S.E.2d 269 (per curiam) (mootness doctrine—courts dismiss when controversy no longer live)
- Mussa v. Palmer-Mussa, 366 N.C. 185, 731 S.E.2d 404 (unchallenged trial-court findings of fact bind appellate review)
- In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (mootness and judicial restraint principles)
- N.C. State Bar v. Randolph, 325 N.C. 699, 386 S.E.2d 185 (court may consider moot issues of public importance in rare circumstances)
- State ex rel. N.C. Milk Comm’n v. Nat’l Food Stores, Inc., 270 N.C. 323, 154 S.E.2d 548 (legislator testimony not admissible to interpret statute)