STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 01 EHR 0034
Tate Terrace Realty Investors, Inc.d/b/a Arland Community Development
Petitioner
vs.
N. C. Department of Environment and
Natural Resources
Respondent / )
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)
))
)
))) / DECISION
On August 27 & 28, 2001, September 7 & 28, 2001, and October 8, 9, 12, 2001, Administrative Law Judge Melissa Owens Lassiter heard this contested case in Raleigh, North Carolina. On August 15, 2001, Petitioner filed three Motions for Summary Judgment, each based upon different grounds. On August 23, 2001, Respondent filed its response to Petitioner’s Motions and also moved for Summary Judgment for Respondent. On August 24, 2001, the undersigned denied both parties’ Motions for Summary Judgment and faxed such Order to each party’s fax numbers on file at the Office of Administrative Hearings.
APPEARANCES
For Petitioner: John C. Cooke
Eric M. Braun
Womble Carlyle Sandridge & Rice, PLLC
P.O. Box 831
Raleigh, North Carolina 27601
For Respondent: David Roy Blackwell, Special Deputy Attorney General
Jill B. Hickey, Assistant Attorney General
NC Department of Justice
P. O. Box 629
Raleigh, North Carolina 27602-0629
ISSUES
1. Whether Petitioner violated NPDES General Stormwater Permit NCG010000, Part I, Section, A No. 2 by failing to comply with its approved sedimentation and erosion control plan on May 19, 1999, May 12, 2000, May 15, 2000, and May 17, 2000?
2. Whether Petitioner violated NPDES General Stormwater Permit NCG010000, Part I, Section B on 63 occasions by failing to conduct and/or record weekly inspections of the sedimentation and erosion control facilities from May 14, 1998 to August3, 2000?
3. Whether Petitioner violated N.C. Gen. Stat. § 143-215.1(a)(6) and 15A NCAC 2B .0211(3)(k) on four occasions by exceeding the surface water quality standard for turbidity on May 12, 2000, July 25, 2000, July 26, 2000, and July 27, 2000?
4. Whether Petitioner violated N.C. Gen. Stat. § 143-215.1(a)(6) and 15A NCAC 2B .0211(2) on one occasion by removing a surface water use between May 12, 2000 and August 3, 2000?
5. Whether Petitioner violated N.C. Gen. Stat. § 143-215.1(a)(6) and 15A NCAC 2B .0219 (as described in 15A NCAC 2B .0211(3)(c)) on one occasion for accumulation of settleable solids in waters of the State between May 12, 2000 and August 3, 2000?
6. Whether Respondent acted erroneously; acted arbitrarily and capriciously; abused its discretion; acted without substantial justification; failed to act as required by law or rule; failed to use proper procedure; or exceeded its authority when it assessed Petitioner the civil penalty assessment on December 8, 2000?
STATUTES AND RULES AT ISSUE
N.C. Gen. Stat. § 143, Article 21, Part 1
15A NCAC 2B .0200 et seq.
40 C.F.R. 122.21 and 122.26
33 U.S.C. § 1251 et seq.
WITNESSES
For Petitioner: James H. Spangler
Nathan Burdick
Olan Edward Fuquay
John Paul Meyers
Albert Roger Barnes
For Respondent: Robin Simpson
Joseph Williams
Robert Martin Zarzecki
Bradley Bennett
Mike Johnson
David Lenat
Kerr Thomas Stevens
Todd Tugwell
Steven Michael Rice
Brenda Lee Mickens
EXHIBITS ADMITTED INTO EVIDENCE
For Petitioner: 1-11, 17, 19-25, 28-87, 91-95, 97-108,
May 8, 2001 Videotaped Deposition of Kerr T. Stevens, excluding Stevens’ answer to the question “And do you know if he [Ernest Seneca] told them [member of the press] anything about this pending assessment at that time?” at Tape 2, 2:21 – 2:22; see also Deposition, p. 119, 1l 7-8),
July 19, 2001 Videotaped Deposition of Kerr T. Stevens, excluding
Stevens’ answers to the line of questioning regarding Respondent’s contacts with the press and Respondent’s efforts to publicize its August 4, 2000 civil penalty assessment against Petitioner.
For Respondent: 1, 2, 3A, 3A1, 3F, 3G, 4- 4a, 5-30,
3 with redactions noted on pages 2-3 of exhibit, 15 with redactions noted on page 5 of exhibit,
John Paul Meyers’ Deposition.
OFFER OF PROOF EXHIBITS
For Petitioner: 12-16, 18, 26, 27, 88-90, 96
For Respondent: 3B, 3C, 3D, 3E, 3H, 3I, 3J
FINDINGS OF FACT
Based upon careful consideration of the official record, sworn testimony of the witnesses, and other competent evidence admitted at the hearing, the undersigned finds the following facts:
Background Facts
1. Petitioner is a Virginia Corporation authorized to do business in North Carolina under the assumed of name “Arland Community Development” pursuant to a Certificate of Assumed Name filed in Book 7769, Page 944 Wake County Register of Deeds. (Pet Exh 60).
2. Petitioner is the developer of the Delta Ridge Subdivision, located near the intersection of Delta Lake Drive and Poyner Road in Raleigh, North Carolina. Petitioner developed the subdivision in a number of phases, including Phase I, the area at issue in this hearing. (T pp 536-40) At all times relevant to this proceeding, Petitioner remained the developer for Phase I of the Delta Ridge Subdivision.
3. Respondent is a State Agency established pursuant to N.C. Gen. Stat. §§143B-275, et seq. vested with statutory authority to enforce the State’s environmental pollution laws, including laws enacted to protect water quality within the State. Respondent’s Division of Water Quality (“DWQ”) is the specific state agency responsible for enforcing the State’s water quality laws. DWQ’s Director Kerr T. Stevens issued the civil penalty assessment at issue in this contested case.
4. The subject of this contested case is a civil penalty assessment Respondent’s DWQ issued to Petitioner on December 8, 2000 for violations of the State water quality law at Phase I of the Delta Ridge Subdivision (hereinafter “the Site”). In the same document, Respondent’s DWQ Director withdrew a August 4, 2000 civil penalty assessment against “Arland Community Development.” The main difference between the two assessments is a change in name of the party assessed from “Arland Community Development” to “Tate Terrace Realty Investors d/b/a Arland Community Development.” The December 8, 2000 assessment also modified some of the Director’s Findings of Fact, along with removal of alleged violations of the Neuse River Buffer Rule.
5. At the beginning of this evidentiary hearing, Respondent stipulated to the withdrawal of the following penalty assessments totaling $13,500 for five alleged violations in the December 8, 2000 civil penalty assessment:
a. failure to comply with the approved sedimentation and erosion control plan as required by Part I Section A No. 2 General Permit No. NCG01000 for the dates September 9, 1999, February 17, 2000, and March 14, 2000;
b. failure to notify DWQ of activities that resulted in noncompliance with the General permit requirements (for February 17, 2000 and March 14, 2000) as required by Part II Section E No. 2 of General permit NCG010000;
c. withdraws the dates September 9, 1999, February 17, 2000, and March 14, 2000 from Finding of Fact F and Finding of Fact K;
d. withdraws the date May 15, 2000 from Finding of Fact F;
e. withdraws the dates September 9, 1999, February 17, 2000, and March 14, 2000 under Conclusion of Law D; and
f. withdraws Conclusion of Law F.
(See Stipulation of Respondent filed August 10, 2001)
6. As a result of the foregoing Stipulations/Withdrawal of Assessment, the evidentiary hearing proceeded upon Petitioner’s appeal of the Respondent’s assessment of a civil penalty against Petitioner in the amount of $63,800.00, plus $866.61 in enforcement costs.
Ownership of the Site at the time of the Alleged Violation
7. Finding of Fact B of the December 8, 2000 assessment states that Petitioner was the owner of record “of Tract E-Section 1 of Westmont Village (the site) located at Delta Lake Drive and Poyner Road in Wake County, North Carolina” at the time of the December 8, 2000 assessment.
8. On June 12, 1997, Petitioner took title to the property at issue pursuant to a deed filed and duly recorded in Wake County. (Resp Ex 16D)
9. On January 15, 1999, a true and exact copy of an instrument dated April 3, 1998, was recorded in the Wake County Registry at Book 8229 Page 1743. In such instrument, Petitioner conveyed a portion of its property including the Site at issue here to Sandler at Delta Ridge, LLC. The deed contained a corporate seal for Petitioner, drawn by hand with the words “Tate Terrace Realty Investors, Inc., A Virginia Corporation” and “corporate seal” handwritten in the middle of the seal. The initials “PAR” were also handwritten beside the corporate seal. (Pet Exh 108)
Is unnamed tributary located on the Site “waters of the State”?
10. An unnamed tributary to Turkey Creek is located in the northwest corner of the Site, and flows in a southwesterly direction through the Site. (See Pet Exh 107).
11. This unnamed tributary is portrayed as a blue line stream on the Raleigh West, NC USGS maps of the area. (Resp. Ex. 15C, ¶ 6; T pp 693, 740)
11. Turkey Creek is classified by the Environmental Management Commission as Class B NSW waters pursuant to 15A NCAC 2B .0315.
12. During their respective visits to the Site, DWQ employee Robin Simpson, Petitioner’s witness James Spangler, and various other witnesses at the administrative hearing, acknowledged observing the water in the unnamed tributary flowing through the Site. (T pp 88-90, 205, 231, 237, 239; Resp Exs Photos 1S, 1V, 1W, 1X, 1LL, 1JJ) At the administrative hearing, Mr. Spangler specifically described and characterized the unnamed tributary at issue as a “pretty typical picture of a piedmont stream in North Carolina.” (Pet Ex 62; T p 88)
13. In 1997, prior to Petitioner’s land disturbing activity at the Delta Ridge Subdivision, Petitioner sought to construct a temporary road across the unnamed tributary at a location known as the rock spoil site. Petitioner hired Soil & Environmental Consultants (“S & EC”) to evaluate the water features on Phases 1 and 2 to determine whether it was necessary to obtain a permit issued by the United States Army Corps of Engineers (hereinafter “the Corps”), pursuant to section 404 of the Clean Water Act, or to obtain an authorization from DWQ to impact Neuse River Riparian Buffers. (Resp Ex 15, ¶¶ 11,12; T pp 667-94)
14. Bob Zarzecki was employed by S & EC in 1997 and 1998. (T pp 659-84) Zarzecki flagged and mapped the waters that he believed would be considered jurisdictional under the Clean Water Act by the Corps. (Resp. Ex. 17; T p 713) Zarzecki sent the map to the Corps, and met with Corps’ employee Todd Tugwell at the Site to make an on-site determination of the presence of jurisdictional waters. (T pp 715-17; 1097-1101)
15. As a Corps employee, Todd Tugwell was authorized to make jurisdictional determinations under the Clean Water Act, and to identify streams and wetlands. (Tpp 1094-96) On October 8, 1997, Tugwell visited the Site. Using Zarzecki’s preliminary site plans of the Site, Tugwell walked portions of the Site to determine what were jurisdictional waters under the Clean Water Act, including along a portion of the unnamed tributary to Turkey Creek.
Specifically, Tugwell determined that the unnamed tributary to Turkey Creek was a stream subject to the Clean Water Act’s jurisdiction. (Resp Ex 1D; T pp 1098-1100) In making such determination, Tugwell used the Corps’ criteria to determine whether that area was a stream channel. These criteria included examining the subject water channel for a “define[d] bed and bank, substrate that’s different from that of the surrounding soils, meander, undercut banks, flow, and any kind of structures in the channel.” Mr. Tugwell depicted his jurisdictional determinations on Petitioner’s Exhibit 107.
While the metes and bounds for the unnamed tributary to Turkey Creek are not depicted on Petitioner’s Exhibit 107, Roger Barnes, the licensed surveyor who surveyed the Site, had surveyed the unnamed tributary located in the northwest corner of Petitioner’s Exhibit 107. He provided the data points of the unnamed tributary’s location to the Corps in the form of an electronic CAD file (Resp Ex 30; T p 1223).
The broken lines on Petitioner’s Exhibit 107 represent property boundaries. (T p 1205) The line segments separated by dots in the northwest corner of Petitioner’s Exhibit 107 are a “symbol” line, which symbolize the “thread” of a creek. (T p 1204) The symbol line representing the creek in the northwest corner of Petitioner’s Exhibit 107 was drawn from Mr. Barnes’ survey. (T p 1224) The creek in the northwest corner of Petitioner’s Exhibit 107 is the subject unnamed tributary to Turkey Creek flowing through the Site. (T pp 1100-03, 1114-15)
16. Petitioner submitted an application to the Corps of Engineers to request the use of Nationwide Permit No. 26 to impact the waters of the unnamed tributary to Turkey Creek. (Resp Ex 26 (item 10A, Sheet 3 of 3); T pp 1105-09)
17. As a S & EC employee, Zarzecki also evaluated and determined that the unnamed tributary to Turkey Creek flowing through the rock spoil site on the Site was a water of the State of North Carolina, subject to the Neuse River Buffer Rules. (Resp Ex 15C; T pp 683-94)
18. On August 25, 1998, Mr. Zarzecki submitted a request for an exemption from the Neuse Buffer rule to DWQ for the unnamed tributary to Turkey Creek located on the Site (Phase 1 of the Delta Ridge Subdivision).
19. On August 17, 2001, Mr. Zarzecki was a DWQ employee who conducted an on-site evaluation of the unnamed tributary to Turkey Creek located on the Site. (T pp 704-05) From the location of the temporary road crossing, upstream for a length of 200 feet, Mr. Zarzecki evaluated the unnamed tributary using a DWQ Stream Classification Form. (Resp Ex 15A; T pp 705-10) He determined that the unnamed tributary had a continuous bed and bank, flowing water, exposed bedrock (indicating the stream intercepts groundwater flow), cobble substrate, fish, salamanders and caddis fly casings. (Resp. Ex. 15, ¶¶ 7-9; T pp 706-09) Zarzecki also determined that the unnamed tributary to Turkey Creek was most likely a perennial stream, but that at the least it was an intermittent stream. (Resp Ex 15, ¶ ¶ 7, 8; T pp 704-12) As an qualified expert in stream identification, Zarzecki opined that the unnamed tributary to Turkey Creek located on Phase 1 of the Delta Ridge Subdivision is a water of the State of North Carolina. (T pp 711-12)