WQ0030088_More Information (Received)_20201231 (2)

LAW OFFICES OF
KATHLEEN G. SUMNER
Kathleen G. Sumner* ABt 0w
P.O.
Telephone: [phone]
David P. Stewart** P.O.Boxx 2550 Hampstead,NC 28443-0250 Toll Free: [phone]
P.O. Box 250 Facsimile: [phone]
Hampstead,NC 28443 [e-mail]
*Also licensed in Hawaii [e-mail]
**Of Counsel
15 December 2020 RECEIVED
Sent by email and mail: [e-mail] DEC 1 2018
Mr. Michael J. Montebello NCD Q/DWRNP®ES
NCDENR
1617 Mail Service Center
Raleigh, NC 27699-1617
RE: STEP Septic Design Specifications
Dan Owen Drive, Lots 1-14
Majestic Oaks East Subdivision
Hampstead, NC 28443
Downstream Facility: Old North State Water Company, LLC
Downstream Permit No. WQ0030088
Initial application 10 June 2019
Dear Mr. Montebello:
I have been asked by Mike Turco to help clarify issues and expedite the
massively delayed approval of the above referenced application initially filed on
or about 10 June 2019, and subsequently modified four additional times.
Based upon my review of the Flow Tracking/Acceptance for Sewer Extension
Application filed by Weston Lyall, there has been some discussion pre-COVID
19, but nothing has been approved, nor has NCDENR complied with the
timeline set forth under 15A N.C.A.C. 2T .0108.
"For sewer extensions that have been designed in accordance with all
applicable rules and design criteria, and if plans, calculations, specifications,
and other supporting documents have been sealed by a professional engineer,
application may be made according to the fast-track permitting process." 15A
N.C.A.C. 2T.0304. "Fast-track" means a permitting process whereby a
professional engineer certifies that a sewer design and associated construction
documents conform to all applicable sewer related rules and design criteria.
15A N.C.A.C. 2T.0302(5). This sewer extension application was in fact certified
by a professional engineer as required under 15A N.C.A.C. 2T.0302(5).

y
Mr. Michael J. Montebello
15 December 2020
Page two
It is clear from the communications with NCDENR with Weston Lyall, the
application for the extension is complete and properly reviewed and accepted
by NCDENR. Therefore, it is confusing, at best, as to why this application for a
sewer extension has yet to be approved.
Timeline
19 February 2016 Letter from NCDENR S. Jay Zimmerman, P.G.
Director, Division of Water Resources, approving an
adjusted daily sewage design flow rate for Majestic
Oaks that would apply to all future residential
connections tributary to the Majestic Oaks WWTF
10 June 2019 Letter from Weston Lyall, PE, PLS, PLLC with STEP
Septic Design Specifications, for the above referenced
property, submitting the application
23 August 2019 Project Narrative for Majestic Oaks East, Hampstead
NC compiled by Stroud Engineering, P.A.
23 September 2019 Application for Majestic Oaks East Lots 1-14, by email
and mail with a check attached, including a Project
Narrative dated 23 August 2019
24 December 2019 Email from Christyn L. Ferenbaugh to Weston Lyall
17 March 2020 Letter from James H. Fentress Jr., P.E., Stroud
Engineering, P.A. to Christyn L. Fertenbaugh, P.E. at
NCDENR, Water Quality Peimitting responding to a 24
December 2019 email
23 March 2020 Response by Weston Lyall to 24 December 2019 email
from Christyn L. Fertenbaugh
9 April 2020 Email from Weston Lyall to Christyn L. Fertenbaugh
regarding status

Mr. Michael J. Montebello
15 December 2020
Page three
12 June 2020 Email from Christyn L. Fertenbaugh to Weston Lyall
due to being the only full time engineer in the central
office, hope to review project on Monday
19 June 2020 Email from Christyn L. Fertenbaugh to Weston Lyall,
review completed please provide additional or revised
information
22 June 2020 Email from Weston Lyall to Christyn Fertenbaugh,
requesting two clarifications of additional information
requests
29 June 2020 Email from Christyn Fertenbaugh to Weston Lyall,
need pump station information in a complete
specification package or develop or acquire
specifications describing the pump stations and
include those under seal
23 July 2020 Email from Weston Lyall to Christyn L. Fertenbaugh,
including the third submission with the additional
information requested
21 October 2020 Email from Christyn Fertenbaugh to Weston Lyall,
stating the documentation has been reviewed and
determined that most items appear to be addressed,
however, no copy of the final, complete signed/sealed
specifications
22 October 2020 Email from Weston Lyall to Christyn L. Fertenbaugh,
including the fourth submission with the additional
information requested
As you are aware pursuant to 15A N.C.A.C. 2T.0108, the Director shall take
final action on all applications not later than 90 days following receipt of a
complete application together with all required information. 15A N.C.A.C.
2T.0108(a). Further more, all permits, renewals of penults, and decisions
denying permits or renewals shall be in writing. 15A N.C.A.C. 2T.0108.
It appears, that at the absolute latest, the Application for Sewer Extension was
reviewed and complete and certified by a professional engineer as of 22 October

Mr. Michael J. Montebello
15 December 2020
Page four
2020. Thus, under the fast-track permit application, this matter should be
immediately approved by NCDENR.
As a direct result of the extraordinary delay by NCDENR to approve the Sewer
Extension pei mit application, Mr. Turco's ability to build these homes has been
significantly delayed at great expense to his company. The financial losses that
are being incurred are directly due to NCDENR's inability to review and
approve the sewer extension application in a timely manner in accordance with
the case law, statutes, and regulations.
It is well established that NCDENR, is a state agency required to inspect a site
for suitability of wastewater treatment systems before issuing improvement
permits by N.C.G.S. § 130A-336, and therefore may avail itself of the protection
afforded by the public duty doctrine. However, the public duty doctrine is
subject to two exceptions. In Braswell the North Carolina Supreme Court
recognized two exceptions to the public duty doctrine "to prevent inevitable
inequities to certain individuals." It explained that exceptions to the doctrine
exist: (1) where there is a special relationship between the injured party and
the governmental entity; and (2) when the governmental entity creates a special
duty by promising protection to an individual, the protection is not
forthcoming, and the individual's reliance on the promise of protection is
causally related to the injury suffered. See Watts v. N.C. Dep't of Env't & Nat.
Res., 182 N.C. App. 178, 182-83, 641 S.E.2d 811, 816 (2007) (affirming the
denial of NCDENR's motion to dismiss based on the public duty doctrine and
its award of costs).
This matter needs to be finally brought to a conclusion with the filing of the
acceptance for the sewer extension. I look forward to your response at your
earliest convenience.
Sincerely,
/ aZVII.0.0)1,, 5564/1-0-r-9-4-
Kathleen G. Sumner
CC: Michael S. Regan, Secretary
The Honorable Roy Cooper, Governor
Mike Turco, Eastern NC Home Builders, LLC
Weston Lyall, PE, PLS, PLLC
Christyn L. Fertenbaugh, P.E., [e-mail]
File