ALTAMAHA RIVERKEEPER, INC.
RAYONIER PERFORMANCE FIBERS, LLC et al.
ELLINGTON, P. J., RAY and BETHEL, JJ.
ELLINGTON, PRESIDING JUDGE.
dispute arises from a National Pollutant Discharge
Elimination System ("NPDES") permit issued in 2015
by the Environmental Protection Division ("EPD") of
the Georgia Department of Natural Resources renewing appellee
Rayonier Performance Fibers, LLC's ("Rayonier")
authorization to discharge effluent into the Altamaha River
from its pulp plant in Jesup. Appellant Altamaha Riverkeeper,
Inc. ("Riverkeeper") filed in the Office of State
Administrative Hearings a petition for a hearing asserting
that it and its members had been adversely affected by the
issuance of the permit. Following the hearing, the
administrative law judge (the "ALJ") reversed the
permit. Rayonier and Richard Dunn, in his capacity as the
director of EPD, sought judicial review of the ALJ's
decision. The Superior Court of Wayne County reversed the
ALJ's decision and affirmed the permit. Riverkeeper
appeals following this Court's grant of its application
for discretionary appeal and argues that the superior court
erred (i) by interpreting Ga. Comp. R. & Regs. r.
391-3-6-.03 (5) (c) to prohibit only "unreasonable"
interference with legitimate water uses and (ii) by making
factual findings about the reasonableness of the interference
instead of remanding the case to the ALJ to make factual
findings consistent with its order. For reasons that follow,
we affirm in part, vacate in part, and remand the case with
Federal Clean Water Act permits individual states to enact
and administer their own water-quality programs, subject to
certain federal minimum standards. See 33 USC §§
1251, 1313; Upper Chattahoochee Riverkeeper, Inc. v.
Forsyth County, 318 Ga.App. 499, 502 (1) (734 S.E.2d
242) (2012). Under the Georgia Water Quality Control Act,
OCGA § 12-5-20 et seq. ("WCQA"), persons
operating a facility that discharges a pollutant from a point
source into the waters of the State must obtain an NPDES
permit before any such discharge. OCGA § 12-5-30;
Upper Chattahoochee Riverkeeper, Inc. v. Forsyth
County, 318 Ga.App. at 502 (1). EPD administers the
NPDES program within the State. See OCGA § 12-5-23 (b)
(3), (c) (15); OCGA § 12-5-30.
Georgia Board of Natural Resources (the "Board") is
responsible for issuing regulations governing, among other
things, water use classifications and water quality
standards. OCGA § 12-5-23 (a) (1) (C). Many water
quality standards impose numeric limits for matters such as
chemical constituents, bacteria, dissolved oxygen, and pH
levels, among others. The rules, however, also contain
non-numerical "narrative standards" that address
aesthetic concerns. At issue here is the narrative standard
established by Ga. Comp. R. & Regs. r. 391-3-6-.03 (5)
(c), which, at the relevant time, provided: "All waters
shall be free from material related to municipal, industrial
or other discharges which produce turbidity, color, odor or
other objectionable conditions which interfere with
legitimate water uses."
interpreted the phrase "interfere with legitimate water
uses" to mean "any interference" with such
uses, and concluded that such standard applies to all
waterways and for all legitimate uses, without exception and
without consideration of the designated use of the waterway.
The ALJ further concluded that, to show interference with
legitimate water uses, the "use of the river [must be]
actually hindered or disrupted." Applying that standard,
the ALJ concluded that Rayonier's effluent has the
reasonable potential to cause a violation of the narrative
water standard for water and color. In particular, the ALJ
found that the legitimate uses of the Altamaha, such as
fishing or swimming or boating, are likely to be hindered
during low flow due to aesthetic objections of local
residents and visitors.
judicial review, the superior court found that the ALJ erred
in interpreting the narrative standard. Finding EPD's
interpretation of the standard to be reasonable and in accord
with regulatory and statutory purposes, the superior court
held that the narrative standard protected the use of waters
from unreasonable interference, rather than any interference.
The superior court further found that Rayonier's
discharge does not unreasonably interfere with legitimate
uses of the river and so reversed the ALJ's decision and
affirmed the issuance of the permit.
Appellant contends that the superior court erred in
interpreting Ga. Comp. R. & Regs. r. 391-3-6-.03 (5) (c)
to prohibit only "unreasonable" interference with
legitimate water uses. In reviewing an administrative
agency's decision, the "court shall not substitute
its judgment for that of the agency as to the weight of the
evidence on questions of fact." OCGA § 50-13-19
(h). See OCGA § 12-5-44 (a) (proceedings for judicial
review of administrative decisions under the WCQA shall be in
accordance with OCGA § 50-13-19). The superior court
may, however, reverse or modify the agency decision
if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions,
or decisions are: (1) In violation of constitutional or
statutory provisions; (2) In excess of the statutory
authority of the agency; (3) Made upon unlawful procedure;
(4) Affected by other error of law; (5) Clearly erroneous in
view of the reliable, probative, and substantial evidence on
the whole record; or (6) Arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
OCGA § 50-13-19 (h).
appeal from the superior court's decision in an
administrative appeal, this Court's "duty is not to
review whether the record supports the superior court's
decision but whether the record supports the final decision
of the administrative agency." (Citation and punctuation
omitted.) Quigg v. Ga. Professional Standards
Comm., 344 Ga.App. 142, 148 (809 S.E.2d 267) (2017).
In this case, the ALJ's final order constituted the final
agency decision for purposes of judicial review. See Ga.
Comp. R. & Regs. r. 391-1-2-.08. "[T]his Court
conducts a de novo review of claimed errors of law in the
superior court's appellate review of an ALJ's
decision. Furthermore, the interpretation of a statute or
regulation is a question of law and, thus, is also reviewed
de novo on appeal." (Citation and punctuation omitted.)
Barrow v. Dunn, 344 Ga.App. 747, 749 (812 S.E.2d 63)
issue is the correct interpretation of the narrative
standard, particularly the phrase "interferes with
legitimate water uses."
In construing agency regulations, we employ the basic rules
of statutory construction and look to the plain language of
the regulation to determine its meaning. Nevertheless, even
if words are apparently plain in meaning, they must not be
read in isolation and instead, must be read in the context of
the regulation as a whole. Furthermore, we must defer to an
agency's interpretation and enforcement of its own rules.
(Punctuation and footnotes omitted.) Upper Chattahoochee
Riverkeeper, Inc. v. Forsyth County, 318 ...