State of North Carolina s69
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF ORANGE 00 EHR 1668
Thomas Tilley, Trustee, )
Petitioner, )
)
v. ) RECOMMENDED DECISION
)
N.C. Dept. of Environment and )
Natural Resources, )
Respondent. )
THIS MATTER came before Administrative Law Judge Augustus B. Elkins II on August 23, 2001 in Raleigh, North Carolina. The case involved the appeal of permit conditions included in National Pollutant Discharge Elimination System Permit No. NC0038784 for the wastewater facility at the Riverview Mobile Home Park.
APPEARANCES
For Petitioner: Thomas Tilley
Pro Se
4920 Farrington Road
Chapel Hill, NC 27514
For Respondent: Mary Penny Thompson
Assistant Attorney General
N. C. Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
EXHIBITS
Petitioner:
P-1. Letter from Mary Penny Thompson to Thomas Tilley, Jr. dated August 7, 2001 concerning discovery requests
P-5. Cover Page to Permit NC0038784 authorizing the discharge of wastewater from the Riverview Mobile Home Park WWTP and issued to Thomas Tilley
P-6. Wake County Department of Environmental Services Bill dated February 2, 2001
Respondent:
R-1. Group Compliance Concept for Point Sources In North Carolina’s Neuse River Basin
R-2. Total Nitrogen TMDL for the Neuse River Estuary
R-3. Letter from Thomas Tilley, Tr. to David Goodrich dated October 26, 1997 requesting renewal of NPDES Permit No. NC0038784
R-4. Fact Sheet - Minor Renewal, NPDES Wastewater Permit for the Riverview Mobile Home Park facility
R-5. Letter from Wake County Department of Environmental Services to System owners, Permittees, and Utility Operators dated August 25, 2000 regarding monitoring, inspection and user fees
R-6. NPDES Staff Report and Recommendation on Permit No. NC0038784
R-7. Memorandum from Mark McIntyre to Dave Goodrich dated June 3, 1998 regarding a Response to Wake Co. Comments, NC0038784 - Riverview MHP, Wake County
R-8. Public Notice of Intent to Issue a State NPDES Permit including NPDES No. NC0038784
R-9. Report of Proceedings, Public Hearings on 15 NPDES Permits in the Neuse River Basin
R-10. Cover Letter and NPDES Permit No. NC0038784 issued on October 9, 2000
R-11. Cover Letter and NPDES Permit No. NC0038784 Modification issued March 9, 2000
WITNESSES
For Petitioner: Thomas Tilley
For Respondent: David Alan Goodrich, Division of Water Quality who was certified as an
expert witness in processing permits.
APPLICABLE STATUTORY LAWS AND RULES
The federal Clean Water Act and rules promulgated from the Act
N.C. Gen. Stat. § 143-215.1 (Control of sources of water pollution; permits required)
N.C. Gen. Stat. § 150B-3 (Special provisions on licensing)
N.C. Admin. Code tit. 15A, r. 2B.0200 et seq. (Classifications and Water Quality Standards Applicable to Surface Waters and Wetlands of North Carolina)
N.C. Admin. Code tit. 15A, r. 2B.0500 et seq. (Surface Water Monitoring: Reporting)
N.C. Admin. Code tit. 15A, r. 8G.0302 (Classification of Biological Water Pollution Control Treatment Systems)
ISSUES
1. Did Respondent err by including increased monitoring requirements in Petitioner’s renewed Permit or was the Riverview Facility not subject to increased monitoring?
2. Should Petitioner’s Permit have been renewed in 1998 and regardless of the renewal time period, should the term of Petitioner’s renewed permit have been for five years?
3. Did Respondent err by including a new wastewater management plan requirement in Petitioner’s renewed permit or does the Riverview Facility not need to submit a new wastewater management plan?
4. Whether Petitioner met its burden of proof in establishing that Respondent was responsible for the billings by Wake County Department of Environmental Services?
5. Was National Pollutant Discharge Elimination System Permit No. NC0038784 for the wastewater facility at the Riverview Mobile Home Park issued to the wrong person?
PRELIMINARY MATTERS
Prior to the commencement of this hearing, Respondent filed a Motion to Dismiss Petitioner’s constitutional challenges raised in his Petition regarding Respondent’s authority to require permits and a Motion to Dismiss Petitioner’s constitutional claims of due process and equal protection violations. After hearing both sides, the undersigned Administrative Law Judge issued a Final Decision, Order of Dismissal on August 23, 2001 granting Respondent’s Motion and ordering that the constitutional claims contained within the Petitioner’s Petition for a Contested Case Hearing be dismissed because of the Office of Administrative Hearing’s lack of jurisdiction regarding the determination of the constitutionality of statutes.
BASED UPON careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the undersigned makes the following findings of fact. In making the findings of fact, the undersigned has weighed the evidence and has assessed the credibility of the witnesses by taking into account the appropriate and traditional factors for judging credibility, such as the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.
FINDINGS OF FACT
1. Petitioner is an individual residing at 4920 Farrington Road, Chapel Hill, NC, 27514, in Durham County. (Petition; Tr. 45). Respondent is a State agency established pursuant to N.C. Gen. Stat. §§ 143B-275 et seq. and vested with the statutory authority to enforce the State’s environmental pollution laws, including laws enacted to protect the water quality of the State. Respondent is required by the Clean Water Act to develop a total maximum daily load (“TMDL”) for impairing substances. (Tr. 255, 259).
2. All streams within the Neuse River basin have been designated Nutrient Sensitive Waters as a result of environmental problems including algal blooms in the estuary. (Ex. R-10, cover letter; Tr. 115, 254-255). The Environmental Management Commission (“EMC”) adopted rules (at N.C. Admin. Code tit. 15A, r. 2B.0200 et seq.) establishing the Neuse River Basin Nutrient-Sensitive Waters Management Strategy to reduce phosphorus and nitrogen inputs. A Total Nitrogen TMDL created by the State and sent to the federal level recommended that total nitrogen be controlled from both point and non-point sources throughout the entire watershed and to reduce 1995 levels by 30% in order to protect water quality. (Ex. R-2; Tr. 117-119, 255). The rules intend to reduce total nitrogen discharges by 30% by the year 2003. (Ex. R-10, cover letter; Tr. 116, 119, 256, 258). The Total Nitrogen TMDL and the EMC’s rules affect permitting because permits control the amounts of pollutants, including total nitrogen, coming from point sources. (Tr. 119, 256, 258). The Group Compliance Concept for Point Sources in North Carolina’s Neuse River Basin sets forth a framework for achieving a 30% reduction from point sources throughout the river basin by allowing facilities to take their individually permitted total nitrogen loads at the end of their pipes and form a compliance group which can allocate the sum load between the facilities. (Ex. R-1; Tr. 121-123).
3. Although the federal Environmental Protection Agency (“EPA”) urged immediate imposition of total nitrogen limits on all facilities, Respondent gave smaller dischargers (dischargers with less than 0.5 Million Gallons per Day or MGD) additional time to investigate whether they wanted to continue discharging to the river. (Tr. 123-124, 256). Although smaller dischargers have an additional permitting cycle to consider their options, total nitrogen limits will likely be imposed on all facilities in the Neuse River Basin during the next permitting cycle. (Tr. 124, 257). Petitioner’s facility discharges less than 0.5 MGD. (Ex. R-10) In order to reduce nitrogen discharges, facilities with permitted flows greater than 0.5 MGD received total nitrogen limits for the 1998-2003 permit cycle. (Ex. R-10, cover letter).
4. Respondent issued National Pollutant Discharge Elimination System (“NPDES”) Permit No. NC0038784 (“Permit”) to Thomas Tilley in order to discharge wastewater from a facility located at Riverview Mobile Home Park into the Neuse River, effective June 1, 1993. The Permit contained effluent limitations, monitoring requirements and other conditions set out within the Permit. Petitioner timely applied for renewal of the Permit on October 26, 1997, which was received by the Point Source Branch of the Division of Water Quality on November 3, 1997. (Ex. R-3; Tr. 132).
5. The process in considering a renewal application includes deliberation on whether to renew the permit unchanged, modify the permit, or deny the permit. (Tr. 220). As the permit is drafted, Respondent places it on public notice, receives public comments, holds a public hearing if sufficient interest, receives recommendations from the hearing officer, and makes a final decision. (Tr. 220-221).
6. Respondent issued a draft Permit in 1998. (Tr. 126, 133).
7. The Neuse River Foundation, a private non-profit organization representing over 1,000 members, initially requested public hearings for all 168 NPDES permitted facilities in the Neuse River Basin, primarily because of its concern about the total nitrogen loading going to the estuary from all sources throughout the basin. (Tr. 128). Respondent granted the request. (Tr. 128). Because the Neuse River Foundation’s concerns were partly allayed by the Total Nitrogen TMDL, it narrowed its public hearing request to 15 facilities within the Neuse River Basin, including Petitioner’s facility, focusing on those facilities which needed better planning for the future and which had compliance issues. (Tr. 129-130). Public hearings were held in Raleigh in May 2000.
8. Respondent renewed the Permit on October 9, 2000 to Thomas Tilley, Jr. (Ex. R-10). The final Permit incorporates some of the comments and concerns raised during the above-cited hearing(s) as well as the recommendations of the Hearing Officer and the NPDES Unit Staff. (Ex. R-9; R-10, cover letter). Respondent issued a modification of the Permit on March 9, 2001 to reflect the name, Thomas Tilley. (Ex. R-11; Tr. 218-219). It is not unusual for Respondent to make changes in name or ownership. (Tr. 219).
9. By cover letter sent with the Permit, Respondent notified Petitioner of his right to adjudicate any parts of the Permit unacceptable to him. (Ex. R-10, R-11). By letter referencing “Petition for Administrative Hearing” and dated November 6, 2000, Petitioner timely filed a request for a contested case hearing on the matter. (Petition).
10. The parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper and that the parties received proper Notice of Hearing as required.
Issue No. 1: Increased Monitoring
11. In preparing to issue the Permit, Respondent circulated a Fact Sheet, which noted that Petitioner’s compliance record indicated “inconsistent treatment and a poor history of maintenance.” (Ex. R-4; Tr. 134-135). The Fact Sheet also noted that “[a]ll documentation suggests that the facility is currently rated as a class I facility. It is more likely, however, that this facility is indeed a class II. Class I monitoring frequencies will be installed until such time as the system is adequately rated.” (Ex. R-4; Tr. 224-225).
12. Wake County staff performs site inspections independently and on behalf of the Division of Water Quality for compliance and provide information as part of the NPDES permit renewal. (Tr. 154). In regards to Petitioner’s Permit renewal, Wake County provided responses to the circulated Fact Sheet and prepared a NPDES Staff Report and Recommendation. (Ex. R-4, R-6; Tr. 138-142, 154-157). Comments from Wake County in response to the Fact Sheet indicated that the facility contained an activated sludge system and should be classified as a Class II system, which requires weekly monitoring. (Ex. R-4; Tr. 138, 225). Wake County also suggested adding stringent limits in an effort to try and get a better treatment system at Petitioner’s facility and to improve compliance. (Ex. R-4; Tr. 140-142).
13. The difference between the classifications reflects different technologies associated with different treatment systems. (Tr. 228). The rules addressing classifications set forth minimum monitoring requirements for each class. (Tr. 228). A typical Class I facility would be a rudimentary system such as a school’s passive treatment system containing a septic tank, sand filter and chlorination. (Tr. 228). Larger systems such as those operated by the City of Durham and the City of Raleigh are Class IV facilities. (Tr. 246, 249). A smaller facility may have a higher rating if it discharges into a smaller stream that needs more protection. (Tr. 248).
14. The classification of Petitioner’s wastewater treatment system was definitively determined to be a Class II wastewater treatment plant because it contains an activated sludge system. (Tr. 222-223, 232, 234). In this regard, the draft Permit included minimum requirements for a Class II facility. (Tr. 225, 232).
15. The NPDES Staff Report and Recommendation prepared by Wake County and adopted by Respondent’s Raleigh Regional Office recommended possible denial of the Permit on grounds of poor compliance history, frequent flooding and the failure of the current facility to meet more stringent limits. In addition, it was noted that a sewer line existed across the river, but connecting to it may be cost prohibitive. (Ex. R-Tr. 157). Respondent’s Mark McIntire, the Permit writer, summarized Wake County’s comments and forwarded them to David Goodrich, his supervisor. (Ex. R-7). Mr. Goodrich reviewed the comments and discussed permit denial, but felt that they needed to keep working with petitioner on evaluating alternatives to the discharge and a better compliance rate in anticipation of the probability of total nitrogen limits on smaller discharges and in consideration of a more aggressive enforcement policy. (Ex. R-7; Tr. 196-197). Also, Mr. Goodrich believed that increased monitoring requirements were reasonable measures in Petitioner’s case based on the information available. (Tr. 214).
16. The Report of Proceedings from the public hearings held on May 1, 2001 and May 4, 2001 address Petitioner’s Permit. (Ex. R-9). As part of the Report of Proceedings, Petitioner’s facility is included in the original and the revised requests for public hearing; the announcement of public hearings, pictures from pre-hearing site visits, handouts from the public hearings, written comments, and summary and recommendation sheets. (Ex. R-9). The hearing officer for the public hearings recommended adding several requirements in Petitioner’s Permit including increased monitoring frequencies of three times per week for Biological Oxygen Demand (“BOD”), Total Suspended Residue (“TSR” or “TSS”), Ammonia as Nitrogen (“NH3 as N”), temperature and pH because of Petitioner’s inconsistencies in facility performance over the years. (Ex. R-9, Section F; Tr. 207, 212, 238, 247).