20100586 Ver 2_Records Request_20110421

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STATE OF NORTH CAROLINA IN THE OFFICE OF
COUNTY OF WAKE
ADMINISTRATIVE HEARINGS
11 EHR 1254
M. A. ALEXANDER 111,
Petitioner, }
RESPONDENT'S FIRST SET OF
V. ) REQUESTS FOR ADMISSION,
} WRITTEN INTERROGATORIES,
NORTH CAROLINA DEPARTMENT OF REQUESTS FOR PRODUCTION OF
ENVIRONMENT AND NATURAL ) DOCUMENTS, and REQUEST FOR
RESOURCES, DIVISION OF WATER ) ENTRY UPON PREMISES
QUALITY, )
Respondent. )
To: M. A. Alexander III
312 Homestead Drive
Cary, NC 27513
PLEASE TAKE NOTICE that pursuant to N.C. R. Civ. P. 26, 33, 34, and 36, and 26
N.C. Admin. Code 3.0101 (General) and 3.0112 (Discovery) ("Rule .0101" and "Rule.0112"),
Respondent requests that Petitioner M. A. Alexander III ("Petitioner") admit the truth of the
matters set forth in the following request for admissions, answer the following interrogatories,
provide such information as is available to the Petitioner in writing and under oath, produce the
documents hereinafter requested, and penmit entry upon the designated land or property in the
possession of Petitioner. Pursuant to Rule .0112, Petitioner must within fifteen (15) days of
receipt of these discovery requests: (1) move for relief from the requests; (2) provide the
requested information, material or access; or (3) offer a schedule for reasonable compliance with
the requests. Respondent specifically requests pursuant to N.C. R. Civ. P. 26(c)(3) that
Petitioner supplement his responses to these discovery requests to include information acquired
after service of the responses up to the time of hearing.
DEFINITIONS
As utilized herein, the "Division," "DWQ" or "DENR" shall refer to the Division
of Water Quality of the North Carolina Department of Environment and Natural. Resources, its
officials, employees, agents and representatives.
2. As utilized herein, "Petitioner" shall refer to M. A. Alexander 111, and his present
and former employees, agents and representatives.
3. As utilized herein, "Mitchell Environmental Consulting" shall refer to Steve
Mitchell Environmental Consulting, and its present and former employees, agents and
representatives.
4. As utilized herein, "Property" shall refer to the property on Yeargan Road, Wake
County G1S PIN 1711-05-2372, that is located in the Town of Garner, to Wake County, North
Carolina, and that is the subject of this contested case.
5. As utilized herein, "Feature A" shall refer to the channel on the Property that is
the subject of this contested case, the channel being labeled as "A" on the map accompanying the
determination letter dated August 23, 2010 from the Director of DWQ.
b. As utilized herein, `Buffer Rule' shall refer to the Neuse River Basin Buffer
Rule, codified at 15A N.C. Admin. Code 2B .02' )3.
7. As utilized herein, "document" shall mean all items subject to discovery under
N.C. R. Civ. P. 34, including, but not limited to, any written or recorded material of any kind,
including the originals and all non-identical copies, whether different fi-om the originals by
reason of any notation made on such copies or otherwise; notations of any sort of conversations,
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telephone calls, meetings or other communications; all graphic or oral records or representations
of any kind; and mechanical or electronic records or representations of any kind including tapes,
cassettes, disks or records.
8. As utilized herein "person" or "persons" shall mean any individual; sole
proprietorship; partnership; foundations; trust; corporation; division; firm; business entity; joint
venture; federal; state; county or city government; federal; state; county or city agency; or any
other entity; agency; committee or commission; incorporated or unincorporated association;
organization or group.
9. As utilized herein "you" or "your" mean M. A. Alexander 111, and his present and
former employees, agents and representatives.
10. As utilized herein "identify" or its conjugates, when used in reference to a person,
means to provide the person's full name, present residence and business address, telephone
numbers, job title and description, and present employer.
11. As utilized herein "identify" or its conjugates, when used in reference to a
document, means to provide the title of the document, a summary of its contents, identify the
author, identify anyone who made a notation on the document or who signed or initialed the
document, identify the addressee and all other persons receiving copies of the document, give the
date of the document or, if it has no date, the date the document was prepared, provide the
location of the original of the document and all copies and the name, present address and
position of the person or persons having present custody, provide whether it has been destroyed,
and if so, with regard to such destruction provide the date of destruction, the reason for
destruction, and the identity of the person who destroyed the document.
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12. As utilized herein "identify" or its conjugates, when used in reference to an oral
communication, means to state the form of the communication, e.g., remark, statement,
telephone conversation, face-to-face conversation, person-to-person conversation, etc.; the date
of the communication; the identity of the parties to the communication; the substance of the
communication; and the identity of the persons in whose presence the communication was made
or who otherwise overheard the communication.
13. As utilized herein "identify" or its conjugates, when used in reference to an act or
acts means to state the date of the act, the time of day at which it occurred, the location of the act,
what was said and done, and by whom, and all persons present when the act occurred.
14. As utilized herein "describe" or "explain" or their conjugates mean to provide a
narrative statement of the matter in question, identify sources of information relating to the
matter, identify persons involved or who have knowledge of the matter, state the substance of
each person's knowledge, summarize the actions of each person who participated in the matter,
and identify documents.
15. With respect to words used in these discovery requests that are not specifically
defined above, please note that the words used in the following requests for admission numbered
19 through 37, inclusive, that also appear on DWQ's stream identification forms have been
chosen based on their meaning in DWQ's stream identification forms and their associated
manuals. All other words have been chosen for their common meaning. Please resolve any
doubt you may have about the meaning of a word in favor of an interpretation that gives
reasonable meaning to the discovery request.
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GENERAL INSTRUCTIONS
If you cannot fully answer any interrogatory or part thereof, you should answer to
the extent possible and state the reason for your inability to provide a complete answer. If you
cannot provide the exact information requested, provide your best approximation of the
information requested.
If information is being withheld in response to an interrogatory on a claim of
privilege, please identify the circumstances that you contend support such a claim.
If a document requested is being withheld on the basis of a claim of privilege or
attorney work product, please identify the document that is being withheld and describe the
circumstances that you contend support such a claim.
4. You may produce a document for inspection and copying pursuant to Rule 33(c)
of the North Carolina Rules of Civil Procedure in lieu of describing the document in the manner
described above in Definitions. If you elect to produce documents, mark each document that you
produce with the number of the interrogatory or production request to which the document
corresponds.
Whenever documents are requested, the request includes all documents in the
possession, custody or control of your present and former- trustees, directors, officers, employees,
agents, representatives, officials, and unless privileged, your attorneys.
If a document that would have been responsive to this request has been destroyed
or discarded, please provide the date of the document or, if it has no date, the date the document
was prepared; a description of the form of the document (e.g., letter, memorandum, etc.) and the
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number of pages in the document; the document's title, if any; a general description of the
document's contents; the identity of the document's author; the identities of the addressee and
all other persons receiving copies of the document; the identity of the document's last known
custodian; the document's last known location; and the date the document was destroyed or
discarded and the reason the document was destroyed or discarded.
7. Produce each document in its entirety, without abbreviation or expurgation.
8. Produce the documents in the form in which they are kept in the usual course of
your business.
9. Mark each document that you produce with the number of the interrogatory or
request for production to which the document corresponds.
10. The interrogatories are continuing in nature until the date of the hearing and you
are required to serve supplemental answers as additional information becomes available to you.
REQUESTS FOR ADMISSION
1. Admit that on or around January 25, 2008 you requested that staff of DWQ's
Raleigh Regional Office make an on-site determination regarding whether Feature A existed as
surface waters for purposes of the Buffer Rule.
RESPONSE:
2. Admit that on or around February 20, 2008, Ms. Lauren Witherspoon (maiden
name Cobb) of DWQ's Raleigh Regional Office made an on-site determination at the Property
regarding whether Feature A existed as surface waters for purposes of the Buffer- Rule.
RESPONSE:
3. Admit that you received a copy of DWQ's determination letter dated February 22,
2008.
RESPONSE:
4. Admit that DWQ's determination as described in the letter dated February 22,
2008 was correct.
RESPONSE:
5. Admit that you hired Mitchell Environmental Consulting, among other things, to
evaluate whether Feature A existed as surface waters for purposes of the Buffer Rule.
RESPONSE:
6. Admit that Mitchell Environmental Consulting informed you that Feature A
existed as a stream for purposes of the Buffer Rule.
RESPONSE:
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7. Admit that via letter dated May 19, 2005 and received by DWQ on or around July
21, 2010, you referred your dispute over DWQ's on-site determination on or around February
20, 2008 to the Director of DWQ.
RESPONSE:
8. Admit that on or around August 18, 2010, Ms. Amy Chapman of DWQ's Central
Office visited the Property.
RESPONSE:
9. Admit that you received a copy of the DWQ Director's determination letter dated
August 23, 2010.
RESPONSE:
10. Admit that the DWQ Director's determination as described in the letter dated
August 23, 2010 was correct.
RESPONSE:
11. Admit that via letter dated January 31, 2011, you referred your dispute over
DWQ's determinations to the Director of DWQ.
RESPONSE:
12. Admit that on or around February 11, 2011, Mr. ]an McMillan and Ms. Periann
Russell of DWQ's Central Office visited the Property.
RESPONSE:
13. Admit that you received a copy of the DWQ Director's determination letter dated
February 15, 2011.
RESPONSE:
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14. Admit that the DWQ Director's determination as described in the letter dated
February 15, 2011 was Correct.
RESPONSE:
15. Admit that Feature A conveys water for at least part of the year.
RESPONSE:
16. Admit that Feature A conveys water in the winter and spring.
RESPONSE:
17. Admit that Feature A conveyed water for at least part of the year before the mid-
1960s.
RESPONSE:
18. Admit that Feature A is a well-defined channel.
RESPONSE:
19. Admit that Feature A shows at least some evidence of a continuous bed and bank.
RESPONSE:
20. Admit that Feature A shows strong evidence of a continuous bed and bank.
RESPONSE:
21. Admit that Feature A shows at least some evidence of sinuousity.
RESPONSE:
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22. Admit that Feature A shows at least some evidence of in-channel structure.
RESPONSE:
23. Admit that Feature A shows at least some evidence of a difference in particle size
between the stream substrate and surrounding upland soils.
RESPONSE:
24. Admit that there is at least some evidence that a relic floodplain exists adjacent to
Feature A.
RESPONSE:
25. Admit that Feature A shows at least some evidence of depositional bars or
benches in the streambed.
RESPONSE:
26. Admit that Feature A shows at least moderate evidence of depositional bars or
benches in the streambed.
RESPONSE:
27. Admit that Feature A shows at least some evidence of recent alluvial deposits.
RESPONSE:
28. Admit that there is at least some evidence that Feature A exists in a natural valley.
RESPONSE:
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29. Admit that Feature A shows at least some evidence of groundwater flow or
discharge.
RESPONSE:
30. Admit that Feature A shows at least some evidence of flowing water in the
channel in mid-summer through early fall.
RESPONSE.,:
31. Admit that Feature A shows only weak evidence of leaf litter in the channel.
RESPONSE:
32. Admit that Feature A shows at least some evidence of sediment on plants or
debris in the channel.
RESPONSE:
33. Admit that Feature A shows at least some evidence of organic debris lines or piles
in or near the channel.
RESPONSE:
34. Admit that Feature A shows soil-based evidence of a seasonal high water table.
RESPONSE:
35. Admit that Feature A shows at least some evidence of redoxinorphic features.
RESPONSE:
36. Admit that Feature A shows no evidence of fibrous roots in the streambed.
RESPONSE:
37. Admit that Feature A shows no evidence of rooted upland plants in the streambed.
RESPONSE:
38. Admit that Feature A is not an entirely man-made channel.
RESPONSE:
39. Admit that Feature A has at least some of the hydrological characteristics
commonly associated with the conveyance of water.
RESPONSE:
40. Admit that Feature A has at least some of the biological characteristics commonly
associated with the conveyance of water.
RESPONSE:
41. Admit that Feature A has at least some of the physical characteristics commonly
associated with the conveyance of water.
RESPONSE:
42. Admit that Feature A is an on-site channelization or relocation of a stream
channel.
RESPONSE:
43. Admit that Feature A is at least an intermittent stream.
RESPONSE:
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44. Admit that the 1970 Soil Conservation Service map of Wake County is the most
recent version of the Wake County soil survey map prepared by the Natural Resources
Conservation Service of the United States Department of Agriculture for purposes of the Buffer
Rule.
RESPONSE:
45. Admit that Feature A is approximately shown on the most recent version of the
Wake County soil survey map prepared by the Natural Resources Conservation Service of the
United States Department of Agriculture.
RESPONSE:
46. Admit that the 1998 version is the most recent version of the Lake Wheeler
1:24,000 scale (7.5 minute) quadrangle topographic map prepared by the United States Geologic
Survey for purposes of the Buffer Rule.
RESPONSE:
47. Admit that Feature A is approximately shown on the most recent version of the
Lake Wheeler 1:24,000 scale (7.5 minute) quadrangle topographic map prepared by the United
States Geologic Survey.
RESPONSE:
48. Admit that immediately downstream of the Property there is a stream that is at
least intermittent for purposes of the Buffer Rule.
RESPONSE:
49. Admit that the contents of the DWQ stream form filled out by Mr. Steve Mitchell
on or around 7/8/2010 are correct.
RESPONSE.
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INTERROGATORIES
Identify the person or persons answering or assisting with answering these
discovery requests and identify the request that each person answered or assisted in answering.
2. If you cannot answer any of the requested admissions, then as to each such
requested admission, set forth in detail the reasons why you cannot truthfully admit or deny the
matter- (identifying facts, persons and documents as required by the Definitions and Instructions
preceding this request).
3. For each request for admission that you have denied, in whole or in part, state the
following:
(a) The basis for your denial;
(b) All facts supporting your denial;
(c) The identity of all persons known to have knowledge of such facts; and
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(d) The identity of all documents that contain information pertaining to such facts.
4. Identify each person who has knowledge of this case that you or your attorneys
expect to call as a witness at the contested case hearing. As to each person, describe:
(a) the substance of the expected testimony of the witness;
(b) the person's relation to Petitioner;
(c) a summary of the witness' qualifications that make him or her competent to
testify on the matters outlined in subpart (a) above.
5. With respect to each person you or your attorneys expect to call as an expert
witness at the hearing to be held on this matter, please provide the following information:
(a) Identify each such person;
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(b) For each person identified, describe the subject matter about which the expert is
expected to testify;
(c) For each person identified, describe the substance of the facts and opinions about
which the expert is expected to testify;
(d) For each person identified, describe the grounds for each opinion identified in
response to subsection (c) of this interrogatory.
(e) Identify any and all documents that contain information pertaining to such expert
testimony.
6. Provide the date on which you terminated business with Spangler Environmental,
Inc.
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7. Provide the date on which you hired Steve Mitchell Environmental Consulting.
With regard to your Petition's contention that DWQ's determination that Feature
A is subject to the Buffer Rule deprived Petitioner of property, provide the following
information:
(a) State the legal and factual basis for your contention;
(b) Identify by name and address all persons known to you to have knowledge of
these facts;
(c) Identify any and all documents that contain information pertaining to such facts;
10. With regard to your Petition's contention that DWQ acted erroneously in
determining that Feature A is subject to the Buffer Rule, provide the following information:
(a) State the legal and factual basis for your contentions, including a specific
description of the erroneous action.
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(b) Identify by name and address all persons known to you to have knowledge of
such facts;
(c) Identify any and all documents that contain information pertaining to such facts.
11. With regard to your Petition's contention that DWQ acted arbitrarily or
capriciously in determining that Feature A is subject to the Buffer Rule, provide the following
information:
(a) State the legal and factual basis for your contentions, including a specific
description of the arbitrary and capricious action;
(b) Identify by name and address all persons known to you to have knowledge of
such facts;
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(c) Identify any and all documents that contain information pertaining to such facts.
11. What are your plans for the Property?
12. Who has approached you about purchasing the Property since 2007, and what
have they required regarding Feature A?
13. Identify all documents relied upon or consulted by you in preparing your
responses to the above requests for admissions or interrogatories.
PRODUCTION OF DOCUMENTS
Produce all documents identified in the above interrogatories or consulted in
preparing your responses to the above requests for admissions and interrogatories.
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2. Produce the resume of each expert witness identified in your response to the
foregoing interrogatories.
3. Produce any and all reports prepared by expert witnesses that you intend to.,u.5_..,?
trial.
4. Produce all data and reports not already submitted to Respondent relating to
whether Feature A is subject to the Buffer Rule_
5. Produce any and all photographs, drawings, maps, plans or other graphical
representations of the Property between January 1, 2008 and today's date.
6. Produce any and all data and reports prepared by your past or present consultants,
engineers, or contractors relating to Feature A.
7. Produce all aerial photographs of the Property in your possession, custody or
control.
8. Produce the 2007 version of the Wake County soil survey map prepared by the
Natural Resources Conservation Service of the United States Department of Agriculture.
9. Produce the 2002 version of the Lake Wheeler 1:24,000 scale (7.5 minute)
quadrangle topographic map prepared by the United States Geologic Survey.
10. Produce any documentation evidencing that you have an ownership interest in the
Property.
11. Produce all exhibits you intend to introduce into evidence or use at hearing.
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REQUEST FOR ENTRY UPON PREMISES
You are requested to permit DWQ staff, its representatives and experts, to enter
upon the Property for the purpose of inspection and measuring, surveying, photographing,
testing, and sampling the Property.
DWQ requests that the entry on the Property take place on May 10, 2011
beginning at 1:30 p.m., or at some other mutually agreeable date and time within thirty (30) days
of this request.
This the 20th day of April, 2011.
ROY COOPER
ATTORNEY GENERAL
By:
Wr'enda E. Menard
Assistant Attorney General
State Bar No. 35445
North Carolina Department of Justice
Environmental Division
Post Office Box 629
Raleigh, North Carolina 27602-0629
[phone]
ATTORNEY FOR RESPONDENT
Keith Karlsson
Certified Legal Intern under the Supervision of
Brenda E. Menard, Assistant Attorney General
pursuant to 27 N.C. Admin. Code 1 C.0200
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CERTIFICATE OF SERVICE
This is to certify the foregoing RESPONDENT'S FIRST SET OF DISCOVERY
REQUESTS was served on the Petitioner electronic mail and by United States Mail, First Class
and addressed as follows:
Cathy Cralle Jones, Esq.
Law Offices of F. Bryan Brice, Jr.
5 W. Hargett St., Suite 200
Raleigh, NC 27601
cathy@attybryanbrice. coin
ATTORNEYS FOR PETITIONER
This the 20th day of April, 2011.
ROY COOPER
ATTORNEY GENERAL
By: 6ut'.!a . A?
Brenda E. Menard
Assistant Attorney General