CCB0051_TerrySmith_TireMaster Resp to DWR_NOV_20201015

GjJ GRIMES YEOMAN
1 PLLC I ATTORNEYS AT LAW
October 15, 2020
Andrew H. Pitner, Assistant Regional Super.
NC DEQ (Division of Water Resources)
Water Quality Regional Operations Section
Mooresville Regional Office
610 Ease Center Avenue, Suite 301
Mooresville, NC 28115
L. Charles Grimes
[e-mail]
Direct Phone: [phone]
Direct Fax: [phone]
Submitted VIA Email and US Mail.
Re: Notice of Violation (NOV) - NOV-2020-DV-0439 dated September 29, 2020;
Christopher and Kimberly Medford and Tire Masters; Duke Energy Structural Fill
(CC130051) Located at Tire Masters 190 West Plaza Drive, Mooresville, Iredell County.
Dear Mr. Pitner,
Our law firm has been retained to represent Mr. and Mrs. Medford in the above
referenced matter, along with their Tire Masters business located at the subject property, 190
West Plaza Drive, Mooresville, Iredell County. We write today in that capacity.
As a preliminary matter, we first would like to thank you for your above referenced
letter and Notice (NOV) recently received. Please know that our clients along with our law
firm very much respect your Department's strong protective purpose of our State's waters
and environment. We very much also respect the stated background and reasoning for the
Notice.
It is with this due regard to your Department's purpose and function, that we presently
respond. Therefore, please let this correspondence serve as:
(1) Our response to that above referenced NOV and identified items requested,
(2) Our assurance to your Department that our clients the Medfords at this time are doing
all within their financial and physical ability to follow the law, including all of the many
currently intertwined layers of statutory and caselaw in North Carolina applicable to the
extremely unique factual situation presented, and
(3) Our request for additional necessary time to finalize a full response to the matters
currently presented by the State, including your department, and also the North Carolina
Department of Transportation (herein the "DOT").
Phone: [phone] Gasoline Alley www.grimesyeoman.com
Fax: [phone] Main Floor, Suite 102-A
P.O. Box 4232
Mooresville, NC 28117

NC DEQ Response to NOV
October 15, 2020
Page -2-
Initial Summary Response:
Rare convergence of physical and legal events. As explained below, a "perfect storm"
of circumstances are now presented, all based upon the failure of an original year-
round creek piping and water handling system, designed and engineered by Duke
Power. This system has completely failed in its purpose potentially over the whole
100 plus yards' length due to being too small, poorly designed and installed, and
further, due to what is clearly a great amount of hard and impervious upstream
surfaces allowing little or no other escape for millions of gallons of rushing surface
water.
2. Potential responsible parties being located. Third parties with overlapping
responsibility are also involved, and are being contacted by our law firm. Our law
firm will be placing other larger players on notice as potentially responsible parties,
but this process cannot be done instantly, takes time, and requires accuracy.
3. Additional and necessary parties. We humbly submit that any potentially full
remedial plan, and hopeful timeline for remediation, must lawfully involve various
additional parties, and this is not just as to other potentially responsible parties, but it
will also involve other governmental agencies and municipal authorities.
4. Experts now being located and retained. Highly experienced and trained experts are
being sought as this letter is being written, but due to the nature of the construction
business at this time, everyone is extremely busy and back logged with work.
5. Current lawsuit and "taking" of our clients' property. Our clients have been sued, and
the front of their acre lot including most of their parking lot, has either been earlier
"taken" by the NC DOT outright in fee simple, or else presently has several forms of
easement placed over it, all denying our clients any immediate ability to act to
"encroach" upon State real property or easement rights just to perform review and
analysis, much less engage in any actual heavy remediation work.
6. Ownership unclear. Due to the above referenced NC DOT condemnation activity, we
now believe that our clients have a strong set of claims to make in court that all of
their remaining real property rights have been so devastatingly impacted by the loss of
significant parking, circumnavigation, and in various other ways, as to have also been

NC DEQ Response to NOV
October 15, 2020
Page -3-
fully "taken" by the State through what is known as "inverse condemnation." If so,
this very fact may strongly implicate the NC DOT as a responsible party at this time.
7. Trespass avoidance. Permission and authority has to be obtained before entry on or
under the land of others, and this is especially needed to engage in many of the
apparent NOV required activities, all of which must be carefully considered and
carried out in good faith and prudence, and also in order to avoid any liabilities,
claims, violations, or causes of action for trespass or other allegations.
8. Prohibitive cost for a small family owned business. The very preliminary "rough
estimates" to undertake the extent of the work are well over $500,000.00, and may run
a lot higher. Simply attempting to patch up things temporarily, also called the "band
aid" approach, are estimated to run over $100,000.00, or much more, if the year round
creek has to be closed to free water flow and instead pumped through an alternate
system during the expected long term remediation effort to bring full and final
resolution to the matter.
Specific Response to NOV:
Earlier and Current Remedial Efforts:
As you know, and as is partly set out in your NOV letter, our clients have for several
years engaged in various quite expensive remediation repairs. However, due to the forces of
nature and apparent flaws within the original Duke Power engineered stormwater structure
set in coal ash (CCR) running from far upstream and buried some 20-30 feet beneath our
clients relatively small parcel located on Highway 150, this remediation task has proven to
be nearly impossible.
Duke Power's designed and engineered system has failed — and corroded. Although
we are in the process of attempting to gain permission to survey, photograph, and record the
condition of the full 78-inch corrugated metal piping, this permission has not yet been
obtained. However, we expect from earlier surveys, to find further significant evidence of
the CMP failing in its original purpose, just as it has on our clients' small property.
Summary of NOV Requested Activities, and Specific Response to Each Item:
From reading the September 29, 2020 NOV, it appears that our clients are being
requested to undertake the following actions, to which we respond herein below:

NC DEQ Response to NOV
October 15, 2020
Page -4-
Action Item No. 1: "Approximately 300 feet of the unnamed tributary to Lake Norman,
beginning at the outfall of the box culvert shall be restored to its natural condition."
Initial Response: We humbly request that the reader review our detailed response below in
this response letter. Further, we are unsure if our clients are being requested to fully restore
the creek tributary to its literal "natural condition," but without waiving their rights in these
matters, our clients have already cleaned out the tributary of visible coal ash before.
However, with each new rain storms including as recently endured, and due to the nature of
the heavy volumes of storm waters from upstream piping that does not belong to our clients
which continually bring more water and potential CCRs as well, we are not able to
continually expend large resources of money and human capital in what may be an unending
endeavor, and one that should be shared with the NC DOT among others discussed in this
response.
Action Item No. 2: "The 78-inch corrugated metal pipe, which conveys an unnamed
tributary to Lake Norman beneath the site, should be inspected in its entirety using a camera
to determine the condition and structural integrity of the pipe beneath the structural fill. The
area of the sinkhole must be repaired immediately."
Initial Response: We wish to avoid committing any form of trespass. We humbly request
that the reader review our detailed response regarding needing permission to enter upon the
lands of others for such detailed inspection and camera filming to determine structural
integrity and condition. That permission, and discussion, is being requested of other owners
at this time with letters being send certified mail very soon, and we will update this response
with that information very promptly once it is known.
Action Item No. 3: "Other areas may need to be addressed based on findings from the pipe
inspection."
Initial Response: We humbly request that the reader review our detailed response below in
this response letter. Further, we agree that we may need to address future findings on various
fronts, and again request suitable time to do so.
Action Item No. 4: "NO later than October 15, 2020, the responsible party noted above
shall submit to the Division of Water Resources plans detailing proposed activities for
removal of coal ash material/sediment from the stream, addressing the sinkhole area to
eliminate the discharge from the site, and assessing integrity of the 78-inch CMP beneath the
structural fill."
Initial Response: Due to the unique nature of these matters presented, and the overlapping
legal, physical, and practical issues involved, we again humbly request that the reader review
our detailed response below in this response letter. Further, we request that this Response to
NOV act as our initial good faith effort to respond to, and update, the NC DEQ regarding the

NC DEQ Response to NOV
October 15, 2020
Page -5-
many matters discussed. As to any final plans to undertake all of these many activities in an
instant fashion, which may require the expense of well over $500,000.00, if not more than
twice that amount, while taking many weeks if not months to coordinate, and since other
significant parties are clearly involved, and they all must be coordinated and moved to take
action, and several also to potentially pay either all of the required expenses or else some
apportioned share of any such expenses, we most respectfully request further time to gather
all facts and make a further much more detailed response to this Item No. 4.
Action Item No. 5: "Proposed plans should include a plan to address the short-term need to
immediately stabilize the sinkhole area."
Initial Response: We again would point to the details offered herein below, and most humbly
request that this detailed response be taken as the most full response anyone can offer at this
time, and upon the many unknown variables involved. We do pledge to continue working on
these many issues daily and supplement these responses at our first possible time.
Action Item No. 6: "[P]Ian to address the long-term need that is necessary to repair the pipe
to stabilize the site and eliminate the discharge from the site, and [provide] an estimated
timeline for implementation of each activity listed above."
Initial Response: We would point again to the details offered in this Response to NOV, and
again very humbly request that this detailed response be taken as the most full response
anyone can offer at this time under these very unique circumstances. As explained below,
we are at this time observing a "perfect storm" of events, and there are many unknown
variables and unique legal issues involved.
We again pledge to continue working on these many issues daily and supplement these
responses at our first possible time. Further, as stated at the end of this letter and response,
we would ask for a reasonable additional amount of time to respond more fully. However, to
offer more details, we set forth the below information at this time.
Detailed Narrative and Discussion Analysis in Full Response to NOV:
This sinkhole and surrounding set of events now occurring at 190 West Plaza Drive,
Mooresville, Iredell County, is truly a rare convergence of physical and legal events. As
explained below, a "perfect storm" of circumstances are now presented, all based upon the
failure of an original year-round creek piping and water handling system, designed and
engineered by Duke Power.

NC DEQ Response to NOV
October 15, 2020
Page -6-
This metal piping system has completely failed in its purpose potentially over the
whole 100 plus yards' length of the long 78 inch corrugated metal pipe (CMP) involved,
occurring now at a time when extreme storm water is gathered upstream and then driven as
high velocity into our clients' downstream lot, due to what is clearly a great amount of hard
and impervious upstream surfaces allowing little or no other escape for these millions of
gallons of surface water.
We humbly submit that any potentially full remedial plan, and hopeful timeline for
remediation, must lawfully involve various additional parties that we are in the process of
investigating and contacting. Earlier repairs as identified in the NOV were expensive for our
clients to undertake, and none of these earlier good faith attempts to resolve the true
problems being presented were able to work successfully, in large part because the
underground metal pipe has corroded due to it being in contact with coal ash (CCR), and
running through a Duke Power created coal ash fill of some 55,000 tons. This is a fill greater
than the weight of a US battleship in its enormity.
Highly experienced and trained experts are being sought right now, as this letter is
being written; however, due to the nature of the construction business at this time, everyone
is extremely busy and back logged with work. Engineering experts, and remediation
contractors are being interviewed and sought out by our clients and this law firm.
As explained earlier, these construction related persons and entities are enormously
busy and working at unprecedented levels due to the construction boom currently being seen.
Further, many are cautious to schedule and commit to intensive new projects, for multiple
reasons running from the Covid-19 world-wide pandemic that has hit our state very hard, to
the extra concentration of structural and hydrological engineering required in order to not
only enter the sinkhole for close inspection and evaluation, design a water handling system
for the giant amount of storm water generated, but also as needed to engage in planning and
structural design and engineering for shoring up or otherwise stabilizing the very close and
very heavy masonry building on our clients' property where they operate their Tire Masters
business.
Further, we again point out that our clients have been sued in a Superior Court action
entitled and captioned as: DEPARTMENT OF TRANSPORTATION u. CHRISTOPHER C.
MEDFORD and wife, KIMBERLYL. MEDFORD,19 CVS 2377. Iredell County Superior Court.
This court case in ongoing, but through it and the below referenced general statutes
involved, our clients have had the front of their acre lot, including most of their parking lot,
either earlier "taken" by the NC DOT outright in fee simple, or else presently taken through
several forms of easement placed over large portions of their lot. Such takings have all
denied our clients any immediate ability to act to "encroach" upon State real property or
easement rights just to perform review and analysis, much less engage in any actual heavy
remediation work, unless they are willing to have potentially catastrophic liability ensuing

NC DEQ Response to NOV
October 15, 2020
Page -7-
from other state or even federal agencies, running from OSHA to the DOT, and from other
potential utilities or similar underground gas, electric, cable data, or other such currently
unknown but very serious sources.
Further, under Article 9, Chapter 136 which is the "quick -take" procedure that has
been the exclusive method by which the Department of Transportation, and its predecessors,
have acquired property instantly by condemnation for the public highway system in North
Carolina for many decades, our clients have been greatly harmed and left without clarity at
this time. This Chapter 136 provision that gave the condemning authority - the N.C.
Department of Transportation - the right to take my clients' real property as soon as the DOT
files the lawsuit and deposits its estimate of compensation, which occurred in very early
2019, has also caused unknown liability now for the DOT.
With this privilege to take property, also comes many responsibilities. Essentially, the
DOT becomes an owner just like any other owner, and with that comes many legal and
equitable requirements and responsibilities, including those that we are currently researching
at this time, but which certainly deeply involve the DOT with responsibilities in this matter.
Due to the above referenced NC DOT condemnation activity, we now believe that our
clients have a strong set of claims to make in court that all of their residual real property at
the subject location addressed in the current NOV has been so devastatingly impacted by the
loss of parking, loss of building circumnavigation, and in various other harmful ways, such
that our clients' total acre lot arguably has been fully "taken" by the State, by what is known
as "inverse condemnation." The extent of this further condemnation and taking will be for
the Court and a jury to determine, but that process may eventually determine that our clients
are neither fully, nor even partly, responsible for the many issues cited within the NOV.
One reason for this: we do not know for sure that our clients are the actual only legal
and equitable owners of the lot and building being the subject real property of the NOV.
These very important issues are currently still under investigation, and certainly further
constrain our clients not only from being able to act fully and completely, even if they
wanted to and could afford to, but we would respectfully submit, also limit by law only our
clients Mr. and Mrs. Medford from being named as the sole responsible parties at this time,
including as to all of the many matters cited within the NOV.
Lastly, the estimates thus far informally being discussed are a fully prohibitive
expense and cost for a small family owned business. The very preliminary "rough estimates"
to undertake the extent of the work are well over $500,000.00, if not an amount approaching
twice that figure. Simply attempting to once again, as before, simply patch up things
temporarily, also called the "band aid" approach, are estimated to run over $100,000.00, or
much more, if the year round creek has to be closed to free water flow and instead pumped
through an alternate system during the expected long term remediation effort.

NC DEQ Response to NOV
October 15, 2020
Page -8-
Placing other larger players on notice as potentially responsible parties.
We most assuredly believe that any potentially full remedial plan, and hopeful
timeline for remediation, must lawfully involve various additional parties that we are in the
process of investigating and contacting. These include upstream ownership entities, the
origination utility source of the coal ash (CCR) materials, the earlier owners/developers of
the commercial subdivision who worked with Duke Power to install the corrosive CCR
materials around corrugated metal pipe (CMP), other NC governmental agencies with
concurrent jurisdiction and or potential responsibilities in these intertwined matters, and
various persons and entities in possession of factual knowledge, historical documentary
evidence, and surveying and mapping data that will be required for our law firm to be able to
finalize any true, full and complete remediation of the actual subsidence problem being
presented at this time.
Further, we are undertaking the retainment of appropriate engineering and
construction remediation experts to review, advise, and provide an appropriate remedial plan
and associated cost estimates, along with certain detailed analysis of what has caused or else
strongly contributed to the identified subsidence, including the clearly exhibited sinkhole at
the property.
We believe at this time that the design flaws not only include wrong CMP product
usage, but also wrong sizing of CMP for the storm water from such a large drainage plane.
This has been made much worse due to the impervious or "hard" surfacing by immediate
upstream owners who have used asphalt as well as other hard packed surfaces which cause
sudden rushes of unrestrained rainwater from relatively giant surfaces to violently flow down
to our clients' property by way of corrugated metal pipe (CMP) installed in approximately
1994.
Concluding Matters and Request for Additional Time.
We submit that our clients earlier diligence has been clear, and they certainly care
about these very important matters. In fact, the retaining of our law firm itself clearly shows
the deep interest of the Medfords to do all possible to remedy the situation and be able to
remain in business and avoid enormous and devasting financial hardship due to the potential
size of the many overlying and entangled problems presented.
Due to the unclear position of the NC DOT, including its apparent historical PDE
(permanent drainage easement) over most or all of the entire run of the 78 inch corrugated
metal, and due to the fact that it is currently difficult if not impossible to precisely decipher

NC DEQ Response to NOV
October 15, 2020
Page -9-
the overlapping TDE (temporary drainage easements) now in place, we assure you that all of
these issues are part of our on -going investigation.
However, for the foregoing many reasons, addition time to respond more fully is
needed. Simply put, no precise plan with exact deadlines can be made in good faith at this
time. Further, in keeping with our law firm's general practice before the State, and its
various State agencies, we hereby on behalf of our clients, reserve the right to amend the
contents of this response as more facts are uncovered, including as to additional known or
discovered responsible parties, as to further legal or expert opinions are rendered, as to new
or evolving physical circumstances are discovered or occur, including as to Mother Nature
and her plans for us all, and in any other matters which may necessarily impact upon any of
the facts and matters involved either with the original NOV or with this our initial response
thereto.
Additional Time Needed to Retain Experts and For Full and Complete Resolution:
We hereby request an additional thirty (30) days to provide a more full, complete,
and detailed response to each of the above NOV "Action Items" that we have offered
specific response to by the letter and analysis. Further, as always, should you have any
questions please do not hesitate to contact our law firm at your convenience. In fact, as the
responding attorney, I will make myself available to fully discuss these matters on my direct
line at [phone] at any business hour due that can be arranged, all due to the
importance of these matters.
In closing, I sincerely hope this letter and Response to NOV has been helpful. I hope
that it has provided an update as to matters handled by me and our law firm in the above
described matters. I shortly will provide more important information for your kind review, and
I look forward to again communicating and perhaps speaking with you soon.
With kind regards,
Very truly yours,
GRIMES YEOMAN, PLLC.
L. Charles Grimes
cc: Mr. and Mrs. Christopher Medford.