NCC000001_Petition for a Contested Case Hearing_20050301

03/01/2005 16:29 9198574453 CITY ATTORNEY PAGE 02/02
PR
1'LE45E iNT CLEAktLY Ort TYPE
STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKEA.
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CITY OF RALEIGH7117772.9
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PETITIONER, G r .jl;
_ ',t• PETITION
v. r+ +I, It.:i.r5 FORA
CONTESTED CASE HEARING
N.C.DEPARTMENT OF ENVIORNMENT&NATVRAL )
RESOURCES,DIVISION OF WATER QUALITY
RESPONDENT. )
1 hereby ask for a contested case hearing as provided for by North Carolina General Statute§ 150E-23 because the Respondent has;
Issued the modification of Permit No.NCC000001 to the Neuse River Compliance Association on and its co-permittees on December 30,2004 in
violation of law. The Permit,as modified.increases the amount of Estuary Total Nitrogen Allocation Tor the NC Department of Health&Human
Services from 5.860 pounds by adding an additional 6,113 pounds to its Estuary Total Nitrogen Allocation due to a purchase of nitrogen allocation
assigned to the Bay River MSD in permit NC0026S24, The modification was made without notice as a major modification in violation of 40 CFR
¢§122.62 and 122.63 and ISA NCAC 2H.0114;in violation of 1SA NCAC 2B.0234;and in violation of NC General Statute 143-215.1. The
increased nitrogen loading will adversely impact Falls Lake,the drinking water supply for the Petitioner,resulting in the potential:for higher costs to
Petitioner to treat its drinking water,
(4)Because of these facts,the State agency or board has; (check at least one from each column)
deprived me of property, _x exceeded its authority or,jurisdiction;
ordered me to pay a fine or civil penalty;or _x acted erroneously;
__x otherwise substantially prejudiccd my rights; AND _x`failed to use proper procedure;
_x acted arbitrarily or capriciously;or
x�failed to act as required by law or rule.
(5)Date:March 1,2005. (6)Your phone number:[phone]
(7)Print your full address:One Exchange Plaza Suitt 1020.219 Fayetteville Street Ma11,Raleigh,NC 27601
(street adaress/p.o,box) (city) (state) (zip)
(8)Prim your name:Daniel F.McLawhorn z(4 e
(9)Your signature: b�
CERTIFICATE OF SERVICE
I certify that this Petition has been served on the State agency or board named below by depositing a copy of it with the United States Postal Service
with sufficient postage affixed OR by delivering it to the named agency or board:
(10)Daniel C.Oakley,Esq. (11) N.C.Department of Environment&Natural Resources
(name of person served) (State agency or board listed on Eric 3)
(12) 1601 Mail Service Center Raleigh,N.C.27699-1601
(street addres 1p-n.box) (city) (slate) (zip cede)
(13) This the 1
.5),'day of (M► .2005.
(14) .:� rl
(your signature)
When you have completed this form,you MUST mail or deliver the ORIGINAL AND ONE COPY to the Office of Administrative Hearings.67I4
Mail Service Center,Raleigh,NC 27699-67I4.
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PLEASE PRINT CLEARLY QR TYPE
STATE OF NORTH CAROLINA
IN THE OFFICE OF
COUNTY OF(1) Wake ADMINISTRATIVE HEARINGS
(2) Dean Naujoks,Upper Neuse Riverkccper;Larry Baldwin,Lower )
Neuse Rives-keeper,Neusc River Foundation,Inc.
) •
(your name) PETITIONER, )
) PETITION
V. ) FOR A
) CONTESTED CASE HEARING
(3) North Carolina Division of Water Quality )
)
)
RESPONDENT. )
(The State agency or board about which you arc complaining) )
I hereby ask for a contested case hearing as provided for by North Carolina General Statute§ 150B-23 because the Respondent has.
(Briefly state facts showing how you believe you have been harmed by the State agency or board.)
On December 30,2004,the North Carolina Division of Water Quality("DWQ")issued a modified NPDES Permit(Permit fINCC000001)to the
Neuse River Compliance Association("NRCA")and its Co-Permittcc Members,affective January1.2005. The Neuse River Foundation formally
objects to the issuance of this permit based upon these facts:(1)The modifications made to the Permit do not constitute"minor"changes which can
be made without publication of a draft permit for public comment. Therefore,DWQ was required to open the permit modification to public
comment. This was not done,and subsequently prevented those with concerns about the content of the Permit the opportunity to express their
objections. By issuing the modified permit without the opportunity for public comment,DWQ exceeded its authority,acted erroneously,failed to
use proper procedure and failed to act as required by law or rule,including the requirements of 40 C.F.R.§§ 122.62—122.63 sod N.C.
Administrative Code tit. ISA,r.2H 0114(2004). (2)The modification to Butner's estuary allocation violates the cap on discharges above the Falls
Lake Dam established in N.C.Administrative Code tit. 15A,r.02B.0234(SXaxiii) (2004). By modifying Butner's estuary allocation without regard
to the cap for dischargers above Falls Lake Dano DWQ exceeded its authority,acted erroneously,failed to use proper procedure,and failed to act as
required by law or rule. (3) The request to modify the permit was based on improper procedure. The NRCA permit allows for modifications of the
permit request by the NRCA. Thc request to modify Butter's estuary allocation was made by the Town of Butner. Since the NRCA did not request
this modification,DWQ exceeded its authority,acted erroneously,failed to use proper procedure,and failed to act as required by law or rule.
(If more space is needed,attach additional pages.)
(4)Because of these facts,the Stare agency or board has: (check at least one from each column)
deprived me of property; Xexceeded its authority or jurisdiction;
ordered me to pay a furs or civil penalty;or _=X__acted erroneously;
_X_othcrwisc substantially prejudiced my rights; AND _X_failed to use proper procedure;
acted arbitrarily or capriciously,or
_X_failed to act as required by law or rule.
(5)Date:Monday.February 28,2005(6)Your phone number: [phone] and/or(252)637-7972
(7)Print your full address: 112 Blown Street,Raleigh,NC 27601 and/or 220 South Front Street,New Bern,NC 28560
(street addressrp.o.box) (city) (stare) (zip)
(8)Print your name: Dean Naujoks,Upper Neuse Riverkccper;Larry Baldwin,Lower Nouse Rivcrkceper;William W.Olah,President,Neuse River
Foundation
(9)Your signature: Hard copy to follow within sever(7)days with signatures
You must mail or deliver a COPY of this Petition to the State agency or board named on lint(3)of this form. You should contact the agency or
board to determine the name of the person to be served.
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CERTIFICATE OF SERVICE
I certify that this Petition has bccn served on the State agency or board named below by depositing a copy of it with the United States Postal Service
with sufficient postage affixed OR by delivering it to the named agency or board:
(10)Dan Oakley (11) North Carolina General Council for Department of Environment and
Natural Resources(DENR)
(name ofpcnon saved)
(12) 1601 Mail Service Center,Raleigh,NC 27699-1617 (Staleag
"cY or board listed on lint 3)
(shoot addm►n/p.o box) (city) (sem)
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(zip coda)
(13)This the_28th day of February 2005.
(14) Will follow with hard copy
(your signature)
When you have completed this form,you MUST mail or deliver the ORIGINAL AND ONE COPY to the Officeof nistrative Hearings,6714
Mail Service Center,Raleigh,NC 27699-6714.
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