WQCSD0757_NOV-2022-DV-0235_20221011

WSHB
421 Fayetteville Street • Suite 1100 • Raleigh, NC • 27601-9995
tel [phone] • fax [phone] • wshblaw.com
October 11, 2022
Via Electronic Mail
Mr. Scott Vinson
Division of Water Resources, NCDEQ
Regional Supervisor— Water Quality Regional Operations Section
3800 Barrett Drive
Raleigh, NC 27609
Re:
Dear Mr. Vinson:
William W. Silverman
direct dial 919-987-2206
email [e-mail]
Notice of Violation/Notice of Intent to Enforce
Tracking Number: NOV-2022-DV-0235
Collection System Permit No. WQCSD0757
Overlooke at Simms Creek Apartments
Wake County
My name is William Silverman, and my firm is counsel for Highmark Residential, LLC
(herein, "Highmark"). Highmark is the property management company for The Overlooke at
Simms Creek, an apartment complex located within the City of Raleigh (herein, the "Property").
We write in response to the September 19, 2022, Notice of Violation & Intent to Issue Civil
Penalty ("NOV"), with tracking # NOV-2022-DV-0235, issued to Highmark by the Division of
Water Resources ("DWR"). Per the NOV, a pipe failure at the Property violated certain conditions
of Collection System Permit No. WQCSD0757.
The pipe failure occurred due to blockage caused by deliberate actions of unknown
individuals and without Highmark's knowledge. Immediately upon discovery, Highmark reported
the issue to DWR and took extensive action to repair the failure and restore the affected areas at
significant financial cost. Highmark prioritized swift and effective remediation over cost and
convenience as soon as it became aware of the issue. Today, the affected area has been fully
restored and does not suffer from permanent damage. Highmark has also implemented measures
to prevent recurrence of similar incidents in the future.
Accordingly, we write to request that no penalties be assessed against Highmark by DWR
as described in detail below.
A. Factual Background
On Sunday, July 24, 2022, Highmark's emergency maintenance staff was contacted by a
resident of the Property about an unexplained sewage smell. The next day, on Monday, July 25,
WOOD • SMITH • HENNING • BERMAN

RE: Highmark Residential, LLC - NOV-2022-DV-0235
October 11, 2022
Page 2
2022, Highmark contacted Mandolin Plumbing ("Mandolin") to investigate the cause of the smell
and remedy any issues discovered. Although we do not have the precise date, we also note to
DWR that Highmark self -reported the potential SSO through a 5-day Report to DWR which we
understand led to this NOV.
On July 27, 2022, Mandolin investigated the Property and discovered discharge caused by
blockage to a pipe on the property ("Subject Pipe"). Mandolin determined that the blockage was
caused by approximately twenty rocks that were lodged into the pipe through a sewer line cleanout.
The rocks were inserted by unknown individuals and without Highmark's knowledge.
The same day, on July 27, 2022, Mandolin began repairs of the Subject Pipe. The repairs
took two days of intensive labor and required Mandolin to dig thirteen (13) feet into the ground!
Repairs were complete, and the discharge was resolved, on July 28, 2022. Highmark paid
$7,595.95 for Mandolin's services. See Exhibit "A."
On July 29, 2022, Highmark advised the City of Raleigh that repairs to the affected pipe
were complete. Thereafter, Highmark hired Ajet Plumbing & Services ("Ajet"), a specialist, to
perform lime treatment and solid materials removal to the impacted area. Ajet promised to
complete these remedial services by August 5, 2022 but failed to perform by that date.
Accordingly, on August 5, 2022, Highmark began seeking other specialists to perform the
necessary remediation.
On August 9, Ajet advised Highmark that it would send a proposal from a subcontractor
for performance of the restoration by the close of day that day. Ajet sent the proposal three days
later, on August 12, 2022. Highmark promptly reviewed and approved the proposal on August 13,
2022. Remediation work commenced on August 17, 2022, and was completed on August 18, 2022.
Highmark paid $12,619.20 for Ajet's services. See Exhibit "B."
The City inspected the affected area on the week of August 22, 2022 and determined that
minor additional remedies were required. Highmark thereafter contacted Ajet to complete the
additional services and Ajet did complete such services. On August 26, 2022, the City again
inspected the Property and confirmed that remediation was satisfactory.
After completion of remediation, Highmark hired a contractor to install inverted caps on
its sewage cleanouts. The inverted caps block objects from entering the pipes and thus prevent
recurrence of similar incidents.
On August 30, 2022, the City of Raleigh issued a Notice of Final Assessment against
Highmark assessing $115,100.00 of penalties for the alleged Illicit Discharge. Highmark
responded to explain the circumstances, and the City of Raleigh accepted a proposal from
Highmark to settle the penalties assessed against it for a sum of $15,000.00.
1 Mandolin coordinated the City of Raleigh to avoid interference with auxiliary lines and City utilities.
WOOD • SMITH • HENNING • BERMAN

RE: Highmark Residential, LLC - NOV-2022-DV-0235
October 11, 2022
Page 3
In addition to penalties paid to the City of Raleigh, Highmark spent a total of $20,215.15
to repair the failed pipe and restore the affected area. It will pay further costs to outfit the Property's
sewage cleanouts with inverted pipes.
Despite the extensive labor required for repair, Highmark resolved the pipe failure within
days after receiving notice of a possible issue, remedied the affected area, and hired a contractor
to outfit the Property's pipes with protective caps to prevent recurrence. All of this work was
completed in approximately 30-days from Highmark's first notice of the issue.
B. Civil Penalties Should Not Be Assessed Against Highmark
In considering whether to levy fines for violations of G.S. 143-215.1, the NOV asks
Highmark to address the cause of the non-compliance, the remedial actions taken, and all other
actions taken to prevent the recurrence of similar situations. As detailed below, each of these
considerations significantly disfavor levying fines against Highmark: Highmark did not cause
the pipe failure; it took prompt and extensive remedial action to resolve the failure and restore the
affected area; and it implemented effective preventative measures to avoid recurrent situations.
1. Highmark did not cause the pipe failure and corresponding leakage
Highmark was alerted to a sewage smell on the Property on Sunday, July 24, 2022. The
next day, it contacted Mandolin to investigate the smell and conduct all necessary repairs. On July
27, Mandolin determined that leakage was caused by blockage to a pipe, and that the blockage
was caused by fifteen to twenty rocks that were intentionally lodged into the sewage blowout.
The rocks were lodged into the blowout without Highmark's knowledge. That day, Mandolin
began extensive and labor-intensive repairs. The repairs involved digging thirteen feet into the
ground to reach the affected area. Repairs to the pipe were complete by July 28, 2022.
Throughout its ownership of the Property and until this incident, Highmark had never
violated environmental law or been fined for violations. Highmark bore no benefit from non-
compliance given the impact on its residents and the hefty costs of repair.
Far from causing the pipe failure, Highmark investigated and rectified the matter as soon
as was possible and at great cost.
2. Highmark took extensive remedial and preventative action
In total, Highmark spent $20,215.15 to promptly investigate and repair the failed pipe
and restore the area affected by leakage. On Monday, July 26, 2022 — one day after being alerted
to sewage smell by a resident — Highmark contracted with Mandolin to inspect the property and
perform repairs. Indeed, Highmark undertook repairs before the City or State inspected the
property or issued any notices of violation. Importantly, Highmark did not quibble with potential
contractors on the price of repairs, nor price -shop for cheaper companies or services. To the
contrary, it took every reasonable effort to secure prompt and effective restoration.
WOOD • SMITH • HENNING • BERMAN

RE: Highmark Residential, LLC - NOV-2022-DV-0235
October 11, 2022
Page 4
The Subject Pipe was repaired to normal operations within days after Highmark was
notified of a sewage smell, and the affected area was restored as soon as possible thereafter.
Despite delays by Aj et, Highmark managed to quickly and fully restore the affected area, which
can now be utilized safely by residents and suffers no long-term damage.
3. Highmark took steps to prevent recurrence of the issue
Highmark has engaged a contractor to professionally install inverted caps on the line
cleanout pipes located on the Property. The inverted caps block individuals from inserting foreign
objects into the pipes, such that similar incidents simply cannot recur.
4. Other Factors
Highmark has no information about purported volume spilled or duration and is unaware
of any impacts on public health, wildlife, or recreational areas. Highmark has no history of prior
incidents of non-compliance, the spill was clearly not intentional, and Highmark certainly did not
save any money by the alleged "non-compliance."
C. Conclusion
Although blockage to the Subject Pipe was caused by the actions of third parties, Highmark
promptly secured repairs and restored the area affected during the busy summer season.2 Without
any hesitation, Highmark placed quality and speed of repair over cost and convenience.
Highmark is deeply committed to the safety of its residents, the community, and the
environment writ large. Highmark handled the blockage issue with utmost urgency and
importance. Highmark spent over twenty thousand dollars on repairs and restorative work. It also
spent fifteen thousand dollars to settle penalties assessed against it by the City of Raleigh for the
exact same incident at issue here. Finally, it expects further costs for the installation of protective
caps to the overflow pipes for which it has contracted. At a time and in an economic environment
when contractors are in high demand, Highmark's diligence in solving this problem is even more
laudable.
Highmark acted in the same manner DWR should expect from all permit holders — diligent
and collaborative action to stop adverse environmental impacts. The problem here was caused by
actions beyond Highmark's reasonable control — unknown third parties throwing rocks in a
drainpipe. In this instance, any penalties assessed by the Division against Highmark would
serve only as punishment for violations which Highmark did not cause and which it could
not have controlled and would fail to encourage the self -reporting and immediate response
from Highmark. No one wants environmental issues, but they sometimes happen despite best
efforts. The purported failure of Permit compliance here does not warrant any penalties to drive
compliance; Highmark is already ready and willing to comply as displayed by its conscientious
actions here.
2 Contractors are typically busier during the summer months, making it more difficult to secure prompt services.
WOOD • SMITH • HENNING • BERMAN

RE: Highmark Residential, LLC - NOV-2022-DV-0235
October 11, 2022
Page 5
For these reasons, we respectfully request the Division assess no penalties against
Highmark. Should you have any questions or need anything further, please do not hesitate to
contact me at [phone] or via email at [e-mail].
Sincerely,
Wood, Smith, Henning & Berman, LLP
/s/ William Silverman
William W. Silverman
Enclosures
cc: Highmark Legal Department
WOOD • SMITH • HENNING • BERMAN

Exhibit A

MANDOLIN
HVAC 1 PLUMBING I ELECTRICAL
3125 Gresham Lake Road #107
Raleigh, NC 27615
[phone]
[e-mail]
HlghMark: Overlecke at Simms Creek
4730 Archean Way
Raleigh, NC 27616
[phone]
F�.
•
Invoice
votcE`# G ; 0825699� ....
TRMS'.,;, ,! NET30
DUf,DATE,'..? 09/08/2022
�SCdIPt'10
.n19R410$ LbCAtio
4730 Archean Way Raleigh, NC27616
[phone]
33800 07/28/2022 Mandolin HVAC and construction proposes to:
We w II dig down to pipe in a stepping motion to piping using
barrie to protect workers from ground caving In. We will then
cut out section of piping and replace stand pipe and re pipe
stand pipe to drain to building.
Permit / Inspection Jurisdiction: N/A
Job'Charges
Assorted plumbing supplies
Equipment Rental
Plumbing 2 man crew Normal Hours
Plumbing 2 man crew after hours
Expendable
Expendable goods
Job Subtotal
Wake NC
Job Total
TOvjEI2 MESSAGE....,-..._.
Past -due penalty on late payments
30-60 days - 5% of Invoice amount
60-90 days - 8% of Invoice amount
90-120 days - 12% of Invoice amount
Any unseen work and time will affect this price of this estimate.
Completion Notes: We arrived on site checked in with office
by phone and began digging. We went down 13 foot to find a
combination in grown . We contacted the waist department to
insure it was not there drain before cutting. Held until waist rep
had arrived and he checked and stated it was a private line. We
then contacted the office to ask if maintenance could come by
and they did and okayed additional work to be performed. Then
we cut pipe pumped out hole so we could continue. Cut main
drain to remove rocks total between 15 to 20 out of stand pipe
and main. We then camera the main and remaining a total of 4
rocks out 16 foot 19 foot 20 foot and 23 foot. Informed office
we would half to remove 20 plus foot and itwould not be
Finnish. Office stated we could schedule a few calls to jet and
camera line then asked if we could seed and straw area . Drain
is operating as it should .
Permit Number BLDRE-004013-2022: N/A
Qty Rate
1.00 $1,667.97
1.00 $2,522.00
8.00 $185.00
5.00 $277.50
1.00 $25.00
Invoice Total:
Deposits (-);
Payments (-):
Total Due:
7.25%
Total
$1,657.97
$2,522.00
$1,480.00
$1,387.50
$25.00
$7,082.47
$513.48
$7,595.95
$7,595.95
$0.00
$0.110
$7,595.95

Exhibit B

PLUMBING & SERVICES
ET
AJET Plumbing & Services
Highmark Residential, LLC
Highmark Residential, LLC
5429 Lyndon B Johnson Fwy
Dallas, TX 75240
[e-mail]
INVOICE
Buildings 4740 & 4750 - Sewage Remediation
Arrived on site and checked in with Property Staff.
- Employed Vactor Truck to pump out and properly dispose of
sewage spill.
- Cleaned up all job related debris.
- Put down lime in the affected area.
- Provided update on job's completion.
Subtotal
Tax
Wake County NC Sales Tax (7.25%)
Total
INVOICE
SERVICE DATE
INVOICE DATE
DUE
AMOUNT DUE
SERVICE ADDRESS
Overlooke at Simms Creek
4730 Archean Way
Raleigh, NC 27616
CONTACT US
1050 Classic Road, Suite 102
Apex, NC 27539
[phone]
[e-mail]
#10797
Aug 18, 2022
Aug 19, 2022
Upon receipt
$12,619.20
Service completed by: Hunter Sampson
$11,766.15
$11,766.15
$853.05
$853.05
$12,619.20
AJET Plumbing & Services 35614 https://www.ajetplumbing.com
1 of 2

NC License # 35614
Thank you for your business! We really appreciate to opportunity to serve you.
AJET Plumbing & Services i 35614
https://www.ajetplurnbing.corn 2 of 2