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Lake Norman CoveKEEPERSThis site is dedicated to the protection of
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STATE OF NORTH CAROLINA BEFORE THE ENVIRONMENTAL MANAGEMENT COUNTY OF WAKE COMMISSION 00 EHR 0363 00 EHR 1475
MICHAEL AND NANCY LINDSEY, and ) DONNA M. LISENBY, in her capacity as ) The Catawba Riverkeeper(R) ) ) Petitioners, ) ) AND ) ) BRIAN McCARTY, CYNTHIA MOORE JONES, ) MIKE GLOVER, HUBERT ROWE HASS, JR., ) PAULA G. MARTIN, LYNN TEETER, MARK E. ) SLEEPER, AND CAROL AND LARRY WEBB, ) ) Petitioners-Intervenors, ) ) v. ) FINAL AGENCY DECISION ) THE NORTH CAROLINA DEPARTMENT OF ) ENVIRONMENT AND NATURAL RESOURCES, ) DIVISION OF WATER QUALITY, ) ) Respondent, ) ) AND ) ) HYDRAULICS, LTD., ) ) Respondent-Intervenor. ) ______________________________________________________________________________
THIS MATTER came before the NPDES Committee of the North Carolina Environmental Management Commission (hereinafter the NPDES Committee) for final agency decision pursuant to N.C.G.S. '150B-36 at its regularly scheduled meeting in Raleigh, North Carolina on May 7, 2003.
The Petition for Contested Case Hearing in the above-captioned matter was filed October 12, 2000 and an administrative hearing was conducted February 4-6, 2002 in Statesville, North Carolina and March 26-27, 2002 in Concord, North Carolina before Administrative Law Judge James L. Connor, II. Petitioners and Petitioner-Intervenors were represented by Richard C. Gaskins, Jr., Esquire of Charlotte, North Carolina. The North Carolina Department of Environment and Natural Resources (hereinafter DENR) was represented by Assistant Attorney General Edwin L. Gavin II and the Respondent-Intervenor was represented by Laurence A. Cobb, Esquire of Raleigh, North Carolina. The Recommended Decision was filed November 21, 2002 and the official record was received by the NPDES Committee on February 14, 2003. Exceptions and supporting briefs were timely filed and served by all parties. The NPDES Committee of the Environmental Management Commission considered the official record, Recommended Decision and the parties' exceptions and supporting memoranda of law at the May 7, 2003 meeting. Oral arguments were presented by Assistant Attorney General Edwin L. Gavin II for DENR, Laurence A. Cobb, Esquire For Hydraulics, Ltd. and Richard C. Gaskins, Jr., Esquire for all Petitioners and Petitioners-Intervenors.
After considering the whole record, exceptions and arguments, the NPDES Committee of the Environmental Management Commission, upon duly made motion and unanimous vote, adopted, with additional conditions and modifications to the findings of fact and conclusions of law, the recommended decision to rescind the 2000 NPDES Permit without prejudice of the right of the permit holder to apply for a new permit. The NPDES Committee affirmed the rescission of the 2000 NPDES Permit No. 0074900 upon the following conditions: (1) from the date of the signing of this Final Agency Decision, the rescission is stayed and the facility may continue to operate and discharge under the 2000 permit for one year or, longer if necessary, until the decision is made on the application, pursuant to the procedures in G.S. '143-215.1, to issue or deny a new NPDES Permit; (2) the 0.10 MGD treatment capacity and effluent limits specified in the 2000 permit are applicable while the facility operates as provided under this final decision; (3) the applicant, in conjunction with an application for a new permit, shall submit an analysis of the _practicable waste treatment and disposal alternatives_ to the surface water discharge; and (4) the applicant for the new permit shall perform and coordinate with the Department's Division of Water Quality any water quality modeling and impact analyses deemed by the Division Director as necessary for a complete application for a new permit. ISSUES PRESENTED Whether the Agency (a) exceeded its authority or jurisdiction, (b) acted erroneously, (c) failed to use proper procedure, (d) acted arbitrarily or capriciously, and/or (e) failed to act as required by law or rule: 1. By failing to perform an adequate analysis of the impact of the discharge upon the receiving waters of Lake Norman near the Highway 150 Bridge; 2. By ignoring the cumulative impact of all of the discharges around the Highway 150 Bridge, especially ignoring the Duke Power discharge and assuming that the nearby Pier 16 facility would be closed; 3. By failing to require or to conduct an adequate analysis of alternatives to discharging into Lake Norman;
4. By reissuing the Permit to Mid South Water Systems, Inc. (AMid-South@), which has a demonstrated record of non-compliance with similar permits; 5. By issuing a public notice for NPDES Permit No. 0074900 that failed to adequately specify the location of the proposed sewage treatment plant discharge; and 6. By treating the application for an NPDES permit for the Quiet Cove location in the Spring Acres Subdivision as an application for renewal of a permit rather than as an application for a new NPDES permit. Based upon careful consideration of the whole record, including the testimony and evidence received during the contested case hearing, and the written and oral arguments of the parties, the NPDES Committee of the Environmental Management makes the following: FINDINGS OF FACT Procedural Background 1. Petitioners and Petitioners-Intervenors are challenging the issuance by DENR of the NPDES Permit No. 0074900 allowing for the discharge of up to 300,000 gallons per day (AGPD@) of treated sewage into Lake Norman mid-channel, just south of the Highway 150 Bridge from a sewage treatment plant on Quiet Cove Road, Iredell County, North Carolina (the AHwy 150 Sewage Treatment Plant_). The specific permits being challenged are the permits issued on December 9, 1996 (the A1996 NPDES Permit@) and the permit issued on October 11, 2000 (the A2000 NPDES Permit@).
2. These proceedings were initiated by many separate petitions filed by people who live near the Hwy. 150 Sewage Treatment Plant on Lake Norman and/or use the waters of Lake Norman. Although the petitions were not identical, the petitions generally challenged the issuance of the 1996 NPDES Permit and/or the 2000 NPDES Permit. 3. As part of a plan to simplify the management of the case, in November 2001, most of the Petitioners dismissed their claims and the remaining positions were consolidated into two representative cases (00 EHR 0363 and 00 EHR 1475). Many of the petitioners that dismissed their cases intervened in the consolidated cases. 4. Mid South intervened in most of the actions, but subsequently withdrew from the actions in September 2001, after it sold the Hwy. 150 Sewage Treatment Plant to an entity that eventually became known as Hydraulics, Ltd. 5. Respondents-Intervenors Consumers North Carolina Water Company (AConsumers@), and Hydraulics, Inc. intervened in 00-EHR-1475 in January 2001. Hydraulics later amended its pleading to indicate that the correct corporate name is Hydraulics, Ltd., rather than Hydraulics, Inc. 6. Respondents and Respondent-Intervenors filed motions to dismiss in April 2000, and on August 17, 2001, the Court granted the motions in part and denied them in part. Petitioners filed a Motion for Summary Judgment on November 9, 2000, which was never heard. Parties
7. Petitioners Michael and Nancy Lindsey live on Lake Norman near the Hwy. 150 Sewage Treatment Plant. The Lindseys (and their children) use the waters where the Hwy. 150 Sewage Treatment Plant discharges for swimming, boating, fishing and other recreational uses. Their use and enjoyment of their property and the waters of Lake Norman have been affected by the operation of the Hwy. 150 Sewage Treatment Plant. 8. Petitioner Donna Marie Lisenby has served The Catawba Riverkeeper7 since January 1, 1998. As The Catawba Riverkeeper7, Ms. Lisenby serves as an advocate for the Catawba River system (including Lake Norman), maintains an on-the-river presence to investigate pollution sources, supports monitoring efforts, and provides a platform for education and for raising public awareness about the Catawba River. In addition, Ms. Lisenby uses Lake Norman for swimming, boating, fishing and other recreational uses. Ms. Lisenby also regularly drinks water that comes from a location downstream of the Hwy. 150 Sewage Treatment Plant. 9. Petitioners-Intervenors, Brian McCarty, Cynthia Moore Jones, Mike Glover, Hubert Rowe Hass, Jr., Paula G. Martin, Lynn Teeter, Mark E. Sleeper, and Carol and Larry Webb are homeowners who live in close proximity to the Hwy. 150 Sewage Treatment Plant or around Lake Norman and/or use the waters of Lake Norman for swimming, fishing, boating and other recreational purposes.
10. The Respondent is the North Carolina Department of Environment and Natural Resources, Division of Water Quality, the state agency responsible for implementing Athe policy of the State to maintain, protect, and enhance water quality within North Carolina.@ N.C. Gen. Stat. ' 143-211(b). Respondent=s responsibilities include determining whether it is appropriate to allow pollutants to be discharged into waters of the State and upholding standards of water quality Adesigned to protect human health, to prevent injury to plant and animal life, to prevent damage to public and private property, to insure the continued enjoyment of the natural attractions of the State, ... and to secure for the people of North Carolina, now and in the future, the beneficial uses of these great natural resources.@ Id. ' 143-211(c). DENR issued the 1996 NPDES Permit for a facility located on Oak Tree Road and the 2000 NPDES Permit for the Hwy. 150 Sewage Treatment Plant off Quiet Cove Road. (Petitioners Ex. 23 & 43) 11. Respondent-Intervenor Hydraulics, Ltd., is the current owner, permit holder and operator of the Hwy. 150 Sewage Treatment Plant. The Permit History 12. The Hwy. 150 Sewage Treatment Plant provides treatment of residential and commercial sewage as a public utility.
13. In 1987, B.V. Belk applied for a NPDES Permit for the construction of a sewage treatment plant serving an area that was later identified as the Knotts Landing development. The proposed facility would discharge wastewater into a tributary of the McCrary Creek arm of Lake Norman. (See Petitioners Ex. 3.) During the review process for a series of permits culminating in the 1996 NPDES Permit and the 2000 NPDES Permit, DENR staff recommended that the discharge point be moved to the center of the McCrary Creek arm of Lake Norman, and later to its current location near the Highway 150 Bridge as a result of concerns that the waters around the original discharge point did not have sufficient water flow or assimilative capacity to accommodate the waste from the plant without violating state water quality standards. (See Petitioners Ex. 5, at 3; Ex. 6, at 1; Tr. vol. 1, at 207-08.) 14. The 7Q10 flow for McCrary Creek was calculated to be about 650,000 GPD (see Petitioners Ex. 13), but there has never been a generally accepted 7Q10 flow data for the permitted discharge point near the Highway 150 Bridge. The 7Q10 flow for the McCrary Creek discharge locations may be higher than the 7Q10 flow for the current discharge location near the Highway 150 Bridge. 15. In October 2000, the Hearing Officer, recognizing the need for flow data, used the 7Q10 flow for the Catawba River as an estimate of the 7Q10 flow at the Highway 150 Bridge, but his estimate did not include the flow of up to 56 million GPD that went through the Marshall Steam Station, bypassing the discharge location near the Highway 150 Bridge, and it did not include the minimum release flow allowed through the dams. (Tr. vol. 4, at 717.) 16. The 56 million GPD that Duke Power is allowed to use to cool the Marshall Steam Station is greater than the minimum release flow through Lake Norman required by the permits for the dams above and below the discharge point (see Tr. vol. 4, at 711). At times the water near the Highway 150 Bridge has appeared to flow upstream (see Tr. vol. 1, at 39-40). 17. In 1996 Mid South applied for a new permit. It sought to relocate the discharge point to the main stem of the Catawba River in Lake Norman near the Highway 150 bridge, to increase its treatment capacity and discharge from 41,000 GPD to 300,000 GPD, and to construct the facility in another location shown on the required map. (Petitioners Ex. 17)
18. Prior to approving the 1996 Permit, the agency published notice of the proposed permit, incorrectly stating the facility's location to be in Knotts Landing but informing the public where the draft permit and application and other information could be inspected or copied. The application included a map identifying the locations of the proposed discharge point and treatment plant. No one was misled by the published public notice. Permit No. 0074900 was issued for the discharge point described as being in the Catawba River in Lake Norman and the plant as being located at Knotts Landing Development. The plant was not built at the Knotts Landing location but was instead built, as shown on the map, on Quiet Cove Road near a residential neighborhood, and it was built less than 500 feet from existing homes. (Petitioners Ex. 17, 22 & 23) 19. On December 9, 1996, DENR notified Mid South that its Permit was scheduled to expire, and its permit renewal application must be received by DENR by January 2, 2000. (Petitioners Ex. 29.) 20. Mid South=s renewal application was not received until February 7, 2000. (Petitioners Ex. 32.) 21. Although the application for renewal of the 2000 NPDES Permit was received less than 180 days prior to its expiration date, DENR accepted and processed the application as a renewal application. 22. DENR gave Mid South a non-automatic extension of the existing permit, to remain in effect until the decision was made on the renewal application. (Petitioners Ex. 32)
23. A public hearing was held on June 29, 2000 and DENR issued the new permit on October 11, 2000. 24. The 2000 NPDES Permit had an effective date of December 1, 2000. The Discharge Point: Lake Norman 25. Lake Norman is a unique body of water. The water quality classification for Lake Norman is AWS-IV, B CA,@ which means that it is used for drinking water and it is used for primary and secondary recreation with frequent bodily contact. (Tr. vol. 1, at 206; Petitioner Ex. 23.) 26. It is fed by the Catawba River from the north, with the flow into and out of the Lake controlled by dams at each end of the Lake. (Tr. vol. 1, at 101.) The dams upstream and downstream of Lake Norman are closed most of the time. (Tr. vol. 1, at 101.) The water in Lake Norman is completely impounded, with no significant flow through the lake, 80% of the time during the summer months. The water moves around a little in the lake, but the net movement downstream is limited most of the time. (Tr. vol. 1, at 190.) 27. In general lakes have less water movement than rivers and, because of the reduced water movement in lakes, there is much less dilution and dispersion of the pollution to other areas. (Tr. vol. 1, at 198; vol. 3, at 555-57.) 28. The impact on water quality of discharging sewage wastewater into lakes is less predictable than the impact of discharging to streams or rivers, and without determining the assimilative ability of the lake, it is very difficult to determine whether such a discharge will cause a violation of water quality standards or cause a significant degradation of water quality.
29. Rivers tend to have better capacity for handling waste because they are in motion, and air can be brought in through the tumbling of the water. A lake can be, and often is, more stagnant, and the discharge can more or less pile up in one spot and exert its impact in a concentrated area. The analysis of the available dilution in such a receiving water is more difficult (Tr. vol. 3, at 421-24.) 30. South Carolina has not allowed any new discharges into lakes for several years. South Carolina adopted a policy in 1991 that was incorporated into the Waste Load Allocation Agreement with EPA that said discharge into lakes would be discouraged and would generally not be approved unless there were no other alternatives. It was determined that allowing discharges to lakes generally was incompatible with protecting public health and protecting those recreational uses, and so it was generally unwise to permit those discharges. (Tr. vol. 3, at 555-56.) 31. The portion of Lake Norman near the discharge point for NPDES Permit No. 0074900 is unique. The discharge point is located just south of the Highway 150 Bridge. There is a boat landing next to the bridge where people often swim. (Tr. vol. 2, at 244.) There are also homes on lake front lots near the discharge point. Many of these homes have docks, and children commonly swim near them. (Tr. vol. 1, at 42.) Water skiers also use the area of the river near the discharge point. (Tr. vol. 1, at 42.) The area around the discharge point is thus used for numerous recreational activities, and any water quality violations that might be contributed to by the Highway 150 Sewage Treatment Plant could impact those activities, and could harm human health. (Tr. vol. at 206-07.)
32. The flow of Lake Norman at the discharge point is also unique. (See Transcript, vol. 4, at 726.) The Marshall Steam Station has its intake for cooling water in a cove just to the north of the Highway 150 Bridge, while the outlet for the cooling water is a little south of the discharge point. (Tr. vol. 1, at 38.) The Marshall Steam Station draws up to 56 million GPD from Lake Norman just upstream of the discharge point for the Hwy. 150 Sewage Treatment Plant. (See Tr. vol. 4, at 710-11.) The minimum required release through the dams at each end of Lake Norman is 80 cubic feet per second (cfs), which converts to a flow of approximately 50 million gallons per day. (See Tr. vol. 4, at 670-71.) At times (e.g., when flow through the dams is limited), the Marshall Steam Station may draw more water from Lake Norman than is flowing through the lake. This has the potential to create a unique flow pattern, including zero flow, minimal flow, or a reverse flow from the discharge point northward. These unusual flow patterns are confirmed by the dispersion of the thermal discharge from the Marshall Steam Station, which travels upstream past the Highway 150 Bridge (Respondent Ex. 52A) and the experiences of boaters who sometimes observe a northward current in the vicinity of the Highway 150 Bridge. (See Tr. vol. 1, at 39.) The natural current in the Catawba River, and therefore in Lake Norman, is north to south.
33. In reviewing Mid South=s application for the 2000 NPDES Permit, DENR did not do measurements or modeling to determine the flow pattern at the discharge point. (See Tr. vol. 5, 877-78.) DENR assumed that the full flow of the Catawba River, at least 50 million GPD, would flow by the discharge point, diluting the effluent from the Hwy. 150 Sewage Treatment Plant. (Tr. vol. 4, at 717.) Under conditions when the dams are closed, there is little or no flow observed at the discharge point, and thus minimal dilution of the discharge. (See Tr. vol. 1, at 39-40.) DENR's analysis of discharge impact 34. DENR did not determine the flow of the water around the proposed discharge point prior to issuing the 2000 Permit. 35. DENR made no analysis of the existing water quality at the proposed discharge point. (Tr. vol. 3 at 422-23) 36. DENR did no modeling to determine either the flow characteristics around the discharge point or the dispersion and effect of the pollutants emanating from the discharge point. (Id.) 37. DENR included no requirement in the permit it issued that the lake water be periodically monitored for deleterious effects caused by the newly permitted discharge. (Petitioners Ex.23,43)
38. Petitioner Donna Lisenby took samples of the lake water at the discharge point and up-and down-stream of the discharge point on September 19, 2001 using sophisticated electronic sampling equipment on loan from an area university. Sampling results showed depressed oxygen levels at the discharge point, as compared with the up- and down- stream samples. (Petitioners Ex. 48, 49, 50) The dissolved oxygen levels were in violation of state standards, unless the levels were found to be caused by natural conditions. Though there was evidence that lakes may sometimes have naturally depressed oxygen levels at depth at the time of year of the samples, the fact that the up-and down-stream samples did not show similarly depressed levels suggests strongly that the depleted oxygen was not due to natural conditions. 39. The pollutant content of the discharges of similarly sized activated sludge package sewage treatment plants has been more tightly limited than the limits placed on this permit by DENR. Tr. vol 3 at 435-36. DENR's review of Mid-South compliance with permitting program 40. The DENR may require and applicant for a permit for a new or expanded discharge to demonstrate that it is in compliance with the permit program requirements. See Conclusions of Law. 41. There is no evidence that the DENR required the applicant for the 2000 Permit to make any such demonstration. 42. DENR staff did not indicate any information about Mid-South's compliance history in any of the reports or recommendations they prepared regarding the Mid-South permit application. Tr. vol. 4 at 798. 43. Among all permit holders on the Catawba River in fourteen counties in North and South Carolina, Mid-South was the most notorious violator of permit limits and conditions and exceeded its allowable pollution limits over and over again. Tr. vol. 2 at 243-44; see also Tr. vol. 1 at 24. In 1998, Mid-South received 43 notices of violation for one sewage treatment plant. During a 29-month period, Mid-South received 99 notices of violation or deficiency. During the past few years, Mid-South received 166 violations for its Lake
Norman facilities alone. (Petitioners Ex. 51) Alternatives analysis 44. Two alternatives analyses were performed for Mid-South in connection with the permits at issue. Triangle Environmental, Inc. performed an alternatives analysis for the 1996 permit application. (Petitioners Ex. 21) Hughes Consulting prepared an alternatives analysis for the 2000 permit application. (Respondent Ex. 39) 43. The analysis of practicable alternatives to the surface water discharge submitted for the 2000 Permit application was based upon incomplete and insufficient data. Based on the foregoing Findings of Fact, the NPDES Committee of the Environmental Management Commission makes the following: CONCLUSIONS OF LAW 1. All parties are properly before the NPDES Committee of the Environmental Management Commission which has jurisdiction of the subject matter and the parties. 2. The Petitioners and Petitioners-Intervenors have standing to contest the issuance of the permits. 3. The issues relating to the validity and date of expiration of the 1996 NPDES Permit affect the standard of review applicable to the application for the 2000 NPDES Permit and are not moot. DENR's Analysis of Discharge Impact
4. In determining whether to issue an NPDES Permit, among other requirements, DENR is required to gather sufficient information to establish effluent limitations that will not cause a violation of water quality standards. N.C. Gen. Stat. ' 143-215.1(b)(2). DENR did not comply with this requirement when it issued the 2000 NPDES Permit to Mid South. 5. In determining whether to issue an NPDES Permit, among other requirements, DENR is required to determine that the cumulative effects of permitted discharges will not cause a violation of water quality standards. Id. DENR did not comply with this requirement when it issued the 2000 NPDES Permit to Mid South. 6. DENR was following the policy of the Environmental Management Commission as set forth in the Catawba River Basin Wide Water Quality Plan in applying _Best Professional Judgment_ in setting permit effluent limits for discharges to the lake. Permittee's Substantial Compliance 7. In determining whether to issue an NPDES permit, among other requirements, DENR is authorized to require that a permit applicant satisfy the Department that the applicant has substantially complied with the effluent standards and limitations and waste management practices applicable to other activities previously conducted and has been in substantial compliance with state and federal environmental protection laws and regulations. '' 143-215.1(b)(4)(b)(2), (b)(5). The DENR may decide not to issue an NPDES permit to an applicant that has record of substantial noncompliance at other similar facilities.
8. Though the statutory and regulatory language is permissive rather than mandatory on this point, DENR is required to act in a way that is neither arbitrary nor capricious. Failing to require any showing from Mid-South regarding substantial compliance, or to do its own analysis of substantial compliance, during the 2000 review of the application, was arbitrary and capricious. Procedural Issues 9. As part of the permit review process, DENR is required to provide public notice of the proposed discharge and an opportunity for public comment. See 15A NCAC 2H.0109. Although the public notice for the 1996 Permit incorrectly stated the location of the treatment facility, DENR provided sufficient public notice for the 1996 Permit and the requested modifications where the notice informed the public where to inspect and copy the application and draft permit which correctly mapped the locations of the facility and point of discharge. 10. An application for renewal of a permit must be filed at least 180 days prior to the expiration of the permit in order for the permit to automatically renew. 11. Mid South failed to apply for renewal of its 1996 Permit at least 180 days before the June 30, 2000 expiration date in the permit. The permit did not expire on June 30, 2000 because DENR received the application before the expiration date and extended the 1996 Permit until a decision on the application was made. The 2000 NPDES Permit become effective December 1, 2000. 12. Mid South's 2000 application for renewal of the 1996 Permit was properly processed since the 1996 Permit had been extended and the facility was the same one that was identified in the 1996 Permit and application.
13. When reviewing the application for renewal of the 1996 Permit, DENR did not investigate the flow characteristics at the discharge point and failed to take into account the Marshall Steam Station's impact, if any, on water flow. Alternatives Analysis 14. North Carolina Gen. Stat. ' 143-215. 1 (b)(2), states in part: All permit decisions shall require that the practicable waste treatment and disposal alternative with the least adverse impact on the environment be utilized. 15. The alternatives analysis submitted by the applicant for renewal of the 1996 Permit was insufficient for DENR to determine the _practicable waste treatment and disposal alternative with the least adverse impact on the environment_ and DENR=s failure to do so in issuing the 2000 NPDES Permit was arbitrary and capricious and an error of law. 16. DENR (a) acted erroneously, (b) failed to use proper procedure, and (c) failed to act as required by law or rule in issuing NPDES Permit No. 0074900 to Mid South on October 11, 2000. Based upon the foregoing Findings of Fact and Conclusions of Law, the NPDES Committee of the Environmental Management Commission makes the following: FINAL AGENCY DECISION
Having considered the whole record, exceptions, and arguments by the parties, the NPDES Committee of the Environmental Management Commission, upon duly made motion and unanimous vote, adopts as the Final Agency Decision the recommended decision that NPDES Permit No. 0074900 is rescinded, without prejudice to the right of the permit holder to reapply for a new permit for the Highway 150 Sewage Treatment Plant, and imposes the following conditions: 1. from the date of the signing of this Final Agency Decision, the rescission is stayed and the facility may continue to operate and discharge under the 2000 NPDES Permit for one year or, longer if necessary, until the decision is made on the application, pursuant to the procedures in G.S. '143-215.1, to issue or deny a new NPDES Permit; (2) the 0.10 MGD treatment capacity and effluent limits specified in the 2000 NPDES Permit are applicable while the facility operates as provided under this final decision; (3) the applicant, in conjunction with an application for a new permit, shall submit an analysis of the _practicable waste treatment and disposal alternatives_ to the surface water discharge; and (4) the applicant for the new permit shall perform and coordinate with the Department's Division of Water Quality any water quality modeling and impact analyses deemed by the Division Director as necessary for a complete application for a new permit. REASONS WHY WHOLE RECOMMENDED DECISION IS NOT ADOPTED
The whole record and evidence therein support the NPDES Committee's conclusion that the NPDES Permit issued to Mid South in 1996 was not issued contrary to law or rule and, upon the timely and sufficient application for renewal, was properly extended prior to its stated expiration date so that under G.S. '150B-3, it remained in effect until a decision on the application was finally made by DENR. The public notice for the draft 1996 Permit, although incorrectly giving the facility's location as Knotts Landing, was published in a newspaper with circulation in Iredell County and informed the public where the draft permit and the application and supporting documents, which accurately located both the facility and the discharge point, could be reviewed and copied. There is no record evidence that any one was misled by the published notice. In addition to the automatic acceptance of an application for permit renewal submitted at least 180 days prior to the stated expiration date, the permitting statute does not prohibit an application for permit renewal from being accepted prior to the permit expiration date and the permit continuing in effect until a decision on the application is made. The record evidence demonstrates that the alternatives analysis for the 2000 renewal application was incomplete and insufficient for the agency to make a meaningful determination to comply with the statutory directive. The findings of fact in the recommended decision that purported to support finding an alternative to the discharge and the conclusions of law based upon those findings have been deleted because they are not supported by substantial evidence.
Additionally, individual findings of fact were modified to adhere to the record evidence and those not supported by substantial evidence were deleted. From the changes in the facts found by the NPDES Committee, the conclusions of law were modified so that they are supported by the findings of fact and in turn support the decision to rescind the 2000 NPDES Permit issued upon the application for renewal of the 1996 Permit. There being no claim or evidence that the transfer of the 2000 Permit to Hydraulics, Ltd. was unlawful or improper, the recommended nullification of any transfer after October 11, 2000 was not adopted since it was not supported by substantial evidence. THEREFORE IT IS ORDERED: 1. NPDES Permit No. 0074900 issued October 11, 2000 is rescinded upon the following conditions, without prejudice to the right of the permit holder to reapply for a new permit for the Highway 150 Sewage Treatment Plant: a. from the date of the signing of this Final Agency Decision, the rescission is stayed and the facility may continue to operate and discharge under the 2000 Permit for one year or, longer if necessary, until the decision is made on the application, pursuant to the procedures in G.S. '143-215.1, to issue or deny a new NPDES Permit; b. the 0.10 MGD treatment capacity and effluent limits specified in the 2000 Permit are applicable while the facility operates as provided under this final decision; c. the applicant, in conjunction with an application for a new permit, shall submit an analysis of the _practicable waste treatment and disposal alternatives_ to the surface water discharge; and d. the applicant for the new permit shall perform and coordinate with the Department's Division of Water Quality any water quality modeling and impact analyses deemed by the Division Director as necessary for a complete application for a new permit; 2. that this Order be served upon the parties personally or by certified mail.
This the 30th day of May, 2003.
NPDES COMMITTEE ENVIRONMENTAL MANAGEMENT COMMISSION
______________/S/_________________ Robert G. Ray, Chairman
CERTIFICATE OF SERVICE
This is to certify that this day I have served the foregoing FINAL AGENCY DECISION
upon the parties and their attorneys at the addresses and in the manner indicated below:
Michael Lindsey CERTIFIED MAIL Nancy Lindsey RETURN RECEIPT REQUESTED 173 Trollingwood Lane Morresville, North Carolina 28117
Donna M. Lisenby CERTIFIED MAIL The Catawba River Foundation RETURN RECEIPT REQUESTED 2295 Starnes Road Edgemore, South Carolina 29712
Brian McCarty CERTIFIED MAIL 149 Castleton Drive RETURN RECEIPT REQUESTED Mooresville, North Carolina 28117
Cynthia More Jones CERTIFIED MAIL 3244 Lakeshore Road South RETURN RECEIPT REQUESTED Denver, North Carolina 28037
Mike Glover CERTIFIED MAIL 122 McNarin Lane RETURN RECEIPT REQUESTED Mooresville, North Carolina 28117
Hubert Rowe Hass, Jr. CERTIFIED MAIL 454 Normandy Road RETURN RECEIPT REQUESTED Mooresville, North Carolina 28117
Paula G. Martin CERTIFIED MAIL 20125 Riverchase Drive RETURN RECEIPT REQUESTED Cornelius, North Carolina 28031
Lynn Teeter CERTIFIED MAIL 161 Ridge Top Road RETURN RECEIPT REQUESTED Mooresville, North Carolina 20117
Mark E. Sleeper CERTIFIED MAIL
3872 Concord Road RETURN RECEIPT REQUESTED York, South Carolina 29745
Larry G Webb CERTIFIED MAIL Carol Webb RETURN RECEIPT REQUESTED 161 Quiet Cove Road Mooresville, North Carolina 28117
Richard C. Gaskins, Jr., Esq. US MAIL 2020 Charlotte Plaza 201 South College Street Charlotte, North Carolina 28244-2020
Edwin L. Gavin II, Esq. HAND DELIVERY Assistant Attorney General 114 West Edenton Street Raleigh, North Carolina 27602
Laurence A. Cobb, Esq. HAND DELIVERY Hydraulics, Ltd. One Exchange Plaza, Suite 100 219 Fayetteville Street P.O. Box 2447 Raleigh, North Carolina 27602
James L. Connor, II, Esq. INTEROFFICE MAIL Administrative Law Judge 6714 Mail service Center Raleigh, North Carolina 27699-6714
This the 6th day of June, 2003.
ROY COOPER Attorney General
/S/
Francis W. Crawley Special Deputy Attorney General N.C. Department of Justice P.O. Box 629
Raleigh, North Carolina 27602-0629 (919) 716-6600 CRF Press Release | Article in The Charlotte Observer
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