NCG050463_Response to Permit Requirement Notice_20221216

FENCING 11111 S U P P LY
G R O U P
By Overnight Mail and by Email to [e-mail]
Zahid Khan
Regional Engineer
North Carolina DEQ
Division of Energy, Mineral and Resources
610 East Center Avenue, Suite 301
Mooresville, NC 28115
Re: November 17, 2022 Notification of Permitting Re uirement
Dear Mr. Khan:
I write on behalf the Capital Wholesale Fence Company ("Capital") in response to your
Ietter dated November 17, 2022 (the "Permit Notice Letter"), and to follow up on the phone
conversation that Isaiah Reed had on December 14.
Capital takes its environmental compliance obligations very seriously and appreciates the
time and effort that the North Carolina Department of Environmental Quality ("DEQ") and U.S.
Environmental Protection Agency ("EPA") have spent evaluating stormwater permitting issues
at Capital's Charlotte, North Carolina wholesale fencing products facility. I also greatly
appreciate the time that Isaiah took on December 14 to talk to me about Capital's situation.
Consistent with DEQ's request in the Permit Notice Letter, Capital intends to apply for
NPDES stormwater permit coverage within the next 15 days. However, Capital would like to
take this opportunity to explain why it does not believe it is required to obtain such coverage and
to respectfully request that DEQ reconsider its position that Capital is required to have a permit.
Capital does not perform any manufacturing, processing or raw materials storage
activities at its Charlotte location. Rather, that location is simply for wholesale sales of wood,
metal and plastic fencing products —products that are intended for outdoor use and that are
routinely installed outdoors. Capital stores the wholesale fencing products on site, but does not
manufacture them on site. In addition, Capital does not conduct any painting, staining or wood
treating operations on site and does not generate any process wastewater. The Standard
Industrial Classification code for the Charlotte facility is 5039, "Construction Materials, Not
Otherwise Classified," which is within the Wholesale Trade -Durable Goods grouping. My
understanding is that DEQ and EPA inspectors also identified the facility as falling into either
SIC Code 5039 or SIC Code 5031, "Lumber, Plywood, Millwork and Wood Panels," which is
also within the Wholesale Trade -Durable Goods grouping. It is also my understanding that
DM -US 192402075-1.103804.0050

stormwater at the facility is collected in storm drains that are part of the Charlotte, North
Carolina municipal separate storm sewer system.
The Permit Notice Letter suggests that Capital is required to obtain stormwater permit
coverage pursuant to North Carolina General Statutes 143-215.1(a) and 15A North Carolina
Administrative Code § 2H.0126.
Respectfully, Section 143-215.1(a) appears to address a different situation than what is
presented at Capital's facility. For example, Capital does not discharge waste or wastewater,
does not operate any sewer system and does not appear to fall within any of the other activity
categories listed in Section 143-215.1(a).
As for North Carolina Administrative Code § 2H.0126(b), that section provides that
facilities subject to NPDES permitting requirements are required to obtain NPDES permits, and
incorporates by reference federal stormwater permitting regulations found at 40 C.F.R. § 122.26.
Those federal regulations require permits for "stormwater discharges associated with industrial
activity which discharges through a large or medium municipal separate storm sewer system."
See 40 C.F.R. § 122.26(a)(4). However, the Capital facility does not meet the regulatory
definition of "stormwater discharges associated with industrial activity." The regulations define
"storm water discharge associated with industrial activity" as "the discharge from any
conveyance that is used for collecting and conveying storm water and that is directly related to
manufacturing, processing or raw materials storage areas at an industrial plant." 40 C.F.R.
§122.26(b)(14). As noted above, Capital does not conduct any manufacturing, processing or raw
materials storage at the Charlotte location, so any stormwater runoff there does not fit the
definition of stormwater discharges associated with industrial activity.
To be sure, for certain specific "categories of industries identified" in Section 122.26, the
term "storm water discharges associated with industrial activity" includes storm water discharges
from storage areas for "final" products. See 40 C.F.R. § 122.26(b). Capital does store final
products at its Charlotte facility, but Capital's facility is not within any of the 11 specific
industrial categories identified in the regulations. The specific industrial categories are listed in
subparagraphs (i)-(xi) of Section 122.26(b)(14), and they do not include wholesale durable goods
facilities such as Capital's Charlotte facility. Furthermore, although DEQ has promulgated
several stormwater general permits for various covered industrial categories, none of those
general permits appear to apply to Capital's Charlotte facility, given that the facility does not
manufacture any products.
Capital recognizes that DEQ has inspected the facility and concluded that Capital should
apply for stormwater permit coverage. Therefore, as noted above, Capital intends to apply for
such coverage in the next 15 days. However, for the reasons given above Capital also
respectfully asks DEQ to reconsider its position that permit coverage is required.
DM US 192402075-1.103804.0050

I am available to discuss these topics by phone and would welcome the opportunity to do
so. I can be reached at: Paul Hegele, 616-600-3705, [e-mail]. Again,
Capital greatly appreciates DEQ's time and attention to this matter.
Sincerely,
7�
Paul Hege
Vice President,
Environmental Health & Safety
Cc (by email only) to:
Danny Smith Danny. smithcdenr. &ov
Ahmad DromgooIe Dromgoo] e.ahmadQena.gov
Isaiah Reed Isaiah.reed ncdenr. ov
DM US I92402075-1,103804.0050

Georgoulias, Bethany
From: Khan, Zahid
Sent: Tuesday, December 20, 2022 8:48 AM
To: Reed, Isaiah L
Cc: Georgoulias, Bethany
Subject: FW: [External] Response: Capital Wholesale Fence - Notification of Permitting
Requirement
Attachments: Capital Wholesale Fence Company -Response to 11.17.22 Notification of Permitting
Requirement.pdf
Isaiah,
Please advise if you want us to response. Thanks
From: Hegele, Paul <[e-mail]>
Sent: Friday, December 16, 2022 5:08 PM
To: Khan, Zahid <[e-mail]>
Cc: Danny Smith <[e-mail]>; Dromgoole, Ahmad <[e-mail]>; Reed, Isaiah L
<[e-mail]>
Subject: [External] Response: Capital Wholesale Fence - Notification of Permitting Requirement
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Zahid,
Please see the attached response to a letter dated November 17, 2022, sent from your office to Capital Wholesale Fence
Company.
Thanks,
PAUL HEGELE
Vice President, Environmental Health & Safety
M: [phone]
Fencing Supply Group
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