N.G. Purvis Farms, Inc. v. Howard , 41 F. App'x 622 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
N.G. PURVIS FARMS, INCORPORATED; 
PURVIS FAMILY FARMS, LLC,
Plaintiffs-Appellants,
v.
A. PRESTON HOWARD, JR., Director
of the N. C. Department of
Environment & Natural Resources,
Division of Water Quality, in his
individual & official capacities;  No. 01-2268
KERR STEVENS, Director of the
Department of Environment &
Natural Resources, Division of
Water Quality, in his official
capacity; NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT,
HEALTH AND NATURAL RESOURCES,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CA-00-235-5-BR)
Argued: May 8, 2002
Decided: June 18, 2002
Before NIEMEYER and MOTZ, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
2 N.G. PURVIS FARMS v. HOWARD
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: R. Sarah Compton, HARRIS & WINFIELD, L.L.P.,
Raleigh, North Carolina, for Appellants. David Roy Blackwell, Spe-
cial Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON
BRIEF: Donald J. Harris, Margaret Winfield Harris, HARRIS &
WINFIELD, L.L.P., Raleigh, North Carolina, for Appellants. Roy
Cooper, North Carolina Attorney General, Jill B. Hickey, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Purvis Family Farms, LLC and N.G. Purvis Farms, Inc. (collec-
tively, "Purvis") brought this suit against A. Preston Howard, Jr., for-
mer director of the North Carolina Department of Environment and
Natural Resources’ ("DENR") Division of Water Quality ("DWQ");
DWQ’s current director, Kerr (Tommy) Stevens; and DENR. Purvis
asserts that the defendants are responsible for wastewater permitting
decisions that denied Purvis equal protection and deprived it of prop-
erty without due process of law. The district court granted the defen-
dants summary judgment. We affirm.
I.
Purvis Family Farms, LLC is a hog farming business located in
Robbins, North Carolina. In 1996 it formed N.G. Purvis Farms, LLC
N.G. PURVIS FARMS v. HOWARD 3
to own and operate a new facility in Moore County, "Fairway Farm
# 1," where hogs would be raised from farrow to weaning. Purvis
expected to keep a population of about 5,200 sows and their young
in the facility at any given time. Eventually, Purvis hoped to open
three more facilities at the Fairway site.
North Carolina law required Purvis to build and operate a waste
management system for the facility, and to obtain a water quality non-
discharge permit for the system from DWQ. In 1996, an animal oper-
ator such as Purvis could satisfy the permit requirement in either of
two ways. First, an operator could apply for an individual permit by
submitting a detailed application for DWQ’s approval before begin-
ning construction. Alternatively, an operator could proceed through
the "deemed permitted" process by (1) developing an animal waste
management plan meeting certain state and federal standards; (2) hav-
ing the plan certified by a technical specialist, and submitted to DWQ;
(3) building the animal waste system described in the plan; and (4)
after construction, obtaining an "on-site inspection to confirm that
animal waste storage and treatment structures . . . have been designed
and constructed to meet the appropriate minimum standards and spec-
ifications." N.C. Admin. Code tit. 15A r. 2H.0217(a)(1)(H)(i)-(v)
(Dec. 1996). If the operator successfully completed each step, it
would be "deemed permitted."*
An operator’s eligibility to use the deemed permitted process, and
its retention of deemed permitted status once achieved, were subject
to review at any time. Specifically, the North Carolina Administrative
Code provided that the Director of Water Quality could,
on a case by case basis[,] determine that a facility should not
be deemed to be permitted in accordance with this Rule and
be required to obtain individual nondischarge permits. This
determination will be made based on existing or projected
environmental impacts.
*An amendment to the statute authorizing these regulations terminated
the "deemed permitted" procedure, effective January 1, 1997. See N.C.
Gen. Stat. § 143-215.10C(a) (2002). The parties agree that Purvis sub-
mitted the application at issue in this case before the deadline.
4 N.G. PURVIS FARMS v. HOWARD
N.C. Admin. Code tit. 15A r. 2H.0217(b) (Dec. 1996).
Purvis decided to build Fairway #1 under the deemed permitted
process, and forwarded a waste management plan and expert certifica-
tion to DWQ on December 30, 1996. Purvis then began to prepare the
site, purchase equipment, and begin construction. Purvis also entered
into a contract for the sale of animals to be raised at the farm.
On March 13, 1997, however, Howard notified Purvis by letter that
although Purvis had satisfied the design requirements, Howard had,
[i]n accordance with 15A NCAC 2H.0217(b), . . . deter-
mined that this facility should not be covered by the deemed
permitted process, due to the projected environmental
impacts, and that construction should not continue. If you
wish to secure permit coverage from the Division for the
facility, you must first apply for and obtain an individual
non-discharge permit. Please be advised that I intend to con-
sider your past operating record at the other animal waste
operations as a part of my review of your individual permit
application pursuant to G.S. 132-215.1(b)(1)b.
...
[In sum], Purvis Family Farms, LLC is not authorized to
construct the 5200 animal facility as the Fairway Farm #1
site until an individual permit is issued. If you proceed with
construction prior to issuance of an individual permit, the
Division of Water Quality will pursue appropriate enforce-
ment remedies, including injunctive relief, to assure compli-
ance with the environmental laws of this State.
On April 2, 1997, Purvis met with Howard to discuss the Fairway
Farm, and shortly thereafter Purvis furnished Howard with a copy of
its compliance record for review. After reviewing the record, Howard
sent Purvis a letter dated July 24, 1997, which stated, in pertinent
part:
I have determined that your company has not substantially
complied with waste management practices as required by
N.G. PURVIS FARMS v. HOWARD 5
state laws, regulations, and rules for the protection of the
environment. In view of Purvis Family Farms, LLC’s com-
pliance history, I would deny issuance of a permit for any
animal waste management system for the subject site. This
decision also applies to any new farm proposed by Purvis
Family Farms, LLC. I recognize that a formal application is
not currently under review by the Division for the Fairway
Farm site, however, it is my desire to save both you and the
state valuable expense associated with the preparation and
review of such an application.
...
If this explanation of my intentions to deny a permit for
the Fairway Farms Site is unacceptable, you have the right
to request an adjudicatory hearing upon written request
within thirty (30) days following receipt of this letter. This
request must be in the form of a written petition, conforming
to Chapter 150B of the North Carolina General Statutes, and
filed with the Office of Administrative Hearings . . . . Unless
such demands are made this decision shall be final and bind-
ing.
On August 22, 1997, Purvis filed a petition with the Office of
Administrative Hearings (OAH), contesting DWQ’s "refusal to issue
. . . a nondischarge permit" and DWQ’s "finding of substantial non-
compliance . . . which will prejudice [Purvis] in future permitting
efforts." While the petition was pending, Purvis attempted to purchase
an operating farm with an animal waste permit. Howard learned of the
negotiations, and in a letter dated April 7, 1998, informed Purvis that
he would not issue a permit to any existing animal waste management
system purchased or acquired by Purvis. On or about April 27, 1998,
Purvis filed a second petition with the OAH challenging this decision.
On July 14, 1998, however, Purvis moved to withdraw its appeals,
and an ALJ granted the motion. Purvis was never able to complete
construction of the Fairway #1 site, and sold the property in May
1999.
On March 13, 2000, Purvis filed suit in Wake County Superior
Court, alleging due process and equal protection claims against How-
6 N.G. PURVIS FARMS v. HOWARD
ard under both the federal and state constitutions; Purvis also asserted
that DENR and Stevens were liable under the state constitution for
Howard’s actions. The defendants removed the suit to federal court,
and on March 16, 2001, Purvis and the defendants filed cross-motions
for summary judgment. After hearing argument, the district court
granted summary judgment to the defendants. Purvis appeals, and we
affirm for substantially the reasons on which the district court relied.
II.
A.
Purvis argues, first, that it was denied equal protection of the laws.
Because Purvis does not assert that any inherently suspect classifica-
tion or fundamental right is at issue, Purvis must prove that it was
treated differently than other similarly situated companies, and that
this unequal treatment was both intended and not rationally related to
a legitimate governmental interest. See Tri-County Paving, Inc. v.
Ashe County, 281 F.3d 430, 436 (4th Cir. 2002) (federal standard);
S.S. Kresge Co. v. Davis, 178 S.E.2d 382, 386 (N.C. 1971) (stating
that N.C. Const. art. I. § 19 incorporates federal equal protection prin-
ciples).
Purvis cannot meet this standard. The undisputed record evidence
demonstrates that Purvis was the only company that sought permis-
sion to expand or open a new facility after pleading guilty to a crimi-
nal violation of North Carolina water quality law. Specifically, Purvis
falsified a facility application in 1995 in an attempt to fraudulently
obtain a permit for one of its hog farms. Plainly, Howard could ratio-
nally decide to prevent such a company from expanding.
On appeal, Purvis contends that another company (Brown’s of Car-
olina) was allowed to expand though it too had a history of criminal
violations. At oral argument, Purvis contended (through counsel) that
portions of the record evidenced this but mistakenly were not
included in the joint appendix. We have carefully examined the entire
record. In fact, the record contains no evidence that Howard issued
any permits to Brown’s for new or expanded operations. It appears
that Howard did allow Brown’s to renew several permits on existing
facilities; but Howard also allowed Purvis to renew several of its per-
N.G. PURVIS FARMS v. HOWARD 7
mits on existing facilities. Neither company was allowed to expand.
Hence, Purvis’ equal protection claim fails.
B.
Purvis next asserts that the state deprived it of a constitutionally
protected property or liberty interest without adequate procedural due
process. Specifically, Purvis contends that both the state and federal
constitutions required the state to afford notice and an opportunity to
respond before removing it from the deemed permitted process. Even
assuming that a protected property or liberty interest was at stake in
this decision, however, North Carolina clearly afforded the company
constitutionally adequate procedure.
The essence of due process is notice and the opportunity to be
heard. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950). Because the appropriate level of constitutional
protection depends on context, "there are situations where some form
of pre-deprivation hearing is required and others where a pre-
deprivation hearing is unnecessary." McClelland v. Massinga, 786
F.2d 1205, 1211 (4th Cir. 1986). To determine the "specific dictates
of due process" in a given situation, we must consider three factors:
[f]irst, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute safeguards; and finally, the
Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
In this case, the post-deprivation process that the state provided
was plainly adequate. Howard informed Purvis of his decision and
reasons in writing, and then met with Purvis’ representatives to dis-
cuss the case. He personally reviewed the company’s file. When Pur-
vis was dissatisfied with Howard’s decision, state law afforded the
company a right to appeal to the state Office of Administrative Hear-
8 N.G. PURVIS FARMS v. HOWARD
ings — a right that Purvis, in fact, exercised. Additional process, in
the form of prior notice, would not have significantly reduced the
likelihood of error, but would have significantly impeded the state’s
interest in preventing the construction of hog farms likely to pollute.
Accordingly, even assuming that Purvis had some limited interest in
proceeding through the deemed permitted process, the process
afforded by the state adequately protected that right.
C.
Finally, Purvis asserts that Howard’s actions deprived it of substan-
tive due process. To succeed on this claim, Purvis must demonstrate
(1) that it had a property interest; (2) that the state deprived it of this
interest; and (3) "that the state’s action falls so far beyond the outer
limits of legitimate governmental action that no process could cure
the deficiency." Sylvia Development Corp. v. Calvert County, Mary-
land, 48 F.3d 810, 827 (4th Cir. 1995) (citation omitted, emphasis in
original). See also Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.
1995) ("Substantive due process is a far narrower concept than proce-
dural; it is an absolute check on certain governmental actions notwith-
standing the fairness of the procedures used to implement them.").
As the district court noted, Howard’s actions of "1) removing Pur-
vis from the ‘deemed permitted’ process; and 2) issuing a preliminary
permit denial, all in light of Purvis’ past failure to comply with envi-
ronmental regulations, do not approach ‘egregious’ or ‘outrageous’
conduct that ‘shocks the conscience.’" Purvis Farms, Inc. v. Howard,
No. 00-CV-235, slip op. at 12-13 (E.D.N.C. Sept. 4, 2001) (quoting
Hawkins v. Freeman, 195 F.3d 732, 728 (4th Cir. 1999)). Thus, this
claim also fails.
III.
Accordingly, the district court’s judgment is
AFFIRMED.