NC0065684_Compliance_20050711

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ivy E M O the dak of...
at,et D. Leach
Paralegal
Deparmcnttlf Justice
90 1 Mail Service.
Center
Raleigh I IC 27699.9001
Tcl: 919)716.6948
Fax: [phone]
MEMO
To: Dave Goodrich & Bob Marolina
Subject: Heater 0ilities, Inc.. v Department o%Environment and
Natural Resources
02 EHR 0009
Date- July 11, 2005
COMMENTS:
Attached please see the F' al Decision Order of Dismissal signed by Judge
Beecher Cray for the above -referenced c se. If you recall, this is the case that was in question a
few months ago concerning its status. It s a permit case and Anita feels that failure to close this
case ' was an oversight and it should have been closed when the other consolidated cases were
closed last year with the other beater Utikity cases that were closed at that time.
In the event this is not
MUST be filed within 30 days after bet
this order on July 8, 2005 which means
than August 8, 2005, August 6, 2005 w
is up to them to file one in superior eou
anything by August 8, 2005, we will co
If you have any
case and there are still issued to be resolved, a petition
; served with a copy of the attached order. We received
iat a petition must be filed in Superior Court no later
Id be even better. Since Heater filed the first petition, it
to protest the contents of the Permit. If they do not file
idei this case closed and will close our file.
please contact Anita and copy me via email.
LO'd i0:11 So, II In[ 996-91z-6I6:Xed NOIID3S ONHN 8 d31UM

FILED
OPPICE OF
^oM1NISTRA T IvE H EAIU NG9
I
Jul06 9 00 AM 1Wt
STATE OF NORTH CAROLINA '. 1N THE OFFICE OF
ADMINISTRATIVE HEARINGS
COY TWTV Or UNlON 02 ERR nnng
Heater Utilities, Inc. ! }
Petitioner }
vs. I ) FINAL DECISION
ORDER OF DISMISSAL
NCDENR
Divisiun of Water Quality
Respondent )
i
This matter comes before the unde' signed upon a review of aged cases still pending in
the active case files. In an effort to clear y aged cases which now might be moot, and
having reviewed the file and the pleadings, the undersigned finds as follows:
1. This contested case was initiated on or about January 7, 2002.
2. The case was continued by or+ dated May 15, 2002, and no pleading has been
filed by either party since that date.
3. On Apri128, 2005, the undersigned issued an order instnicting the parties to show
cause why the case should not be dismissed as moot. The deadline to respond to that order
was May 27, 2005.
4. No response has been filed.
WHEREFORE, it appears to the undersigned that this contested case should be, and
hereby is, dismissed as moot and for fail I
re to prosecute.
This is a Filial Decision under the luthority of G.S. 150B-36(c).
NOTICE
Pursuant to G.S. 150B-45, any party wishing to appeal the final decision of the
Administrative Law Judge may commenle such appeal by filing a Petition for Judicial Review
iTI the Superior Court of Wake County or: in the Superior Court of the county in which the
party resides. The party seeking review rhust file the petition within 30 days after being
served with a written copy of the Administrative Law Judge's Decision and Order. Pursuant
to G.S. 15013-47, the Office of Administrative Hearings is required to file the official record in
the contested case with the Clerk of Superior Court within 30 days of receipt of the Petition
M 'd TO= T T S0. TT in[ 99L9-9Tz-616: Xe3 NOI MS GNU-1 8 d31UM

for Judicial Review. Consequently, a copy of the Petition for Judicial Review must be seat to
the Office of Administrative Hearings mt the time the appeal is initiated in order to ensure the
timely filing of the record.
This the 6th day of July, 2005.
BRGJCF
!
etcher R. Gray
Administrative Law Judge
b0'd ZO:TT SO, TT in[ 99�9-9TL-6T6:xe3 NOI1J3S GNU-1 8 831UM

[Jerry Tweed e-mail to Joe Corporon,18Dec02)
SUBJECT: Discussion of Monitoring Requirements
Country Wood WWTP NCO065684
Joe:
Attached please find a excel spreadsheet summarizing the environmental performance of the Country Woods
wastewater treatment plant. The spreadsheet shows the average monthly results reported on the DMR's for
Flow, BOD, Ammonia Nitrogen, and Fecal Coliform.
The report shows that the effluent BOD is consistently below 2.0 mg/1 and the Ammonia Nitrogen is
consistently below 0.5 mg/1. It further shows that the Fecal Coliform is consistently nonexistent in the effluent
and there is hardly any difference in the upstream and downstream levels.
This supports the conclusion in the January 5, 2001 Goose Creek Permitting Policy and the 1998 Basin Plan
that: " elevated fecal coliform levels are likely primarily due to non -point sources"
The Plan also states that: "the cumulative effect of elevated chlorine and ammonia levels from the small
wastewater dischargers may also be affecting the aquatic community of Goose Creek."
The Country Woods plant has added virtually no chlorine to Goose Creek and would agree to install UV
lights (replacing chlorine) for disinfection during 2003 (cost about $80,000). In 2002 Heater has added UV
lights to Oxford Glen and Ashe Plantation wastewater plants which also discharge into Goose Creek. This
was done at significant cost to Heater as a proactive measure to protect the heelsplitter.
I understand that the flow in Goose Creek during the drought of 2002 was very low and without the flow from
our effluent the heelsplitter may have been dry.
As a result of my conversation with Tony Parker I have a new suggestion with regard to phasing in the
operation of the wastewater treatment plants (WWTP). As previously explained we have several older
treatment plants which have been refurbished and constitute the currently used 190,000 wastewater treatment
system. We also have three separate new 160,000 gpd (total 480,000gpd) VWVTPs that have not yet been
placed into service.
We propose to discontinue use of the older 190,000 gpd treatment system and only utilize the flow
equalization basin as a pump station to transport wastewater to the new 480,000 facility. This would result in
a class 2 facility in service (<500,000 gpd) and once per week monitoring frequency. We would not reactivate
the 190,000 gpd system until after notification to the Mooresville Regional Office, and once activated would
begin 3/week monitoring.
The attached summary supports the fact that the Country Woods WWTP is performing at consistently low
levels of BOD, Ammonia Nitrogen and Fecal Coliform. There is very little variance in the levels in the
effluent, and monitoring 3 times per week instead of one will not change that consistency. It will simply cost
a lot of money which is better utilized in other areas such as installation of UV Lights.
Your review of this data and consideration to our proposal to utilize the 480,000 gpd plant with weekly
testing will be greatly appreciated.
Thanks
Jerry

After purchasina the Country Woods East system from Mid South,
Heater made the following upgrades. Heater is continuing to make uparades to the system.
Proiect
Rebuild and Upgrades to WWTP
Rebuild and Upgrades to Pump Stations
Smoke testing & Inflow/Infiltration Repairs
TOTAL
Per our discussion, here's a quick explanation of our position:
CLASS III MONITORING: 3 TIMES PER WEEK
APPLIES TO 500,000-2,500,000 GPD
CLASS II MONITORING: 1 TIME PER WEEK
APPLIES TO 500,000 GPD OR LESS
Cost
$118,890.00
$ 89,869.00
$ 31,309.00
$ 240,068.00
IN SERVICE NOW AT COUNTRY WOODS EAST PLANT: 190,000 GPD
POTENTIAL FOR 3 MORE TRAINS TO GO ON LINE AT 160,000 GPD EACH:
NOW: 190,000 GPD
1 ST TRAIN ADDED: 190,000 + 160,000 = 350,000 GPD (CLASS II)
2ND TRAIN ADDED: 190,000 + 160,000 + 160,000 = 510,000 GPD (CLASS III)
3RD TRAIN ADDED: 190,000 + 160,000 + 160,000 + 160,000 = 670,000 GPD (CLASS III)
As you can see, the plant would not be a CLASS III FACILITY until after the 2nd train
is placed into service. Hence, we are requesting that the current testing frequencies
remain in effect until we have actual capacity of 500,000 GPD or MORE (and become
an actual CLASS III FACILITY), and at that time have CLASS III monitoring
frequencies of three times per week.
PREPARED BY: HEATER UTILITIES, INC.

• 1 • l • l riPIT • • • _ 1 • l! 11 ! • _ l
- • - 1 • • 1 • • • - • l I • • ll . - • - • l -
Project
Rebuild and Upgrades to WWTP
Rebuild and Upgrades to Pump Stations
Smoke testing & Inflow/Infiltration Repairs
TOTAL
Per our discussion, here's a quick explanation of our position:
CLASS III MONITORING: 3 TIMES PER WEEK
APPLIES TO 500,000-2,500,000 GPD
CLASS 11 MONITORING: 1 TIME PER WEEK
APPLIES TO 500,000 GPD OR LESS
W
$118,89
$ 89,869.00
$ 31,309.00
$ 240,068.00
IN SERVICE NOW AT COUNTRY WOODS EAST PLANT: 190,000 GPD
POTENTIAL FOR 3 MORE TRAINS TO GO ON LINE AT 160,000 GPD EACH:
NOW: 190,000 GPD
1ST TRAIN ADDED: 190,000 + 160,000 = 350,000 GPD (CLASS II)
2ND TRAIN ADDED: 190,000 + 160,000 + 160,000 = 510,000 GPD (CLASS III)
3RD TRAIN ADDED: 190,000 + 160,000 + 160,000 + 160,000 = 670,000 GPD (CLASS III)
As you can see, the plant would not be a CLASS III FACILITY until after the 2nd train
is placed into service. Hence, we are requesting that the current testing frequencies
remain in effect until we have actual capacity of 500,000 GPD or MORE (and become
an actual CLASS III FACILITY), and at that time have CLASS III monitoring
frequencies of three times per week.
PREPARED BY: HEATER UTILITIES, INC.

After purchasing the Country Woods East system from Mid South.
Heater made the following upgrades Heater is continuing to make upgrades to the system:
Project Cost .
Rebuild and Upgrades to WWTP $118,890.00
Rebuild and Upgrades to Pump Stations $ 89,869.00 I
Smoke testing & Inflow/Infiltration Repairs $ 31,309.00
c
TOTAL $ 240,068.00
Per our discussion, here's a quick explanation of our position:
CLASS III MONITORING: 3 TIMES PER WEEK
APPLIES TO 500,000-2,500,000 GPD
CLASS II MONITORING: 1 TIME PER WEEK
APPLIES TO 500,000 GPD OR LESS
IN SERVICE NOW AT COUNTRY WOODS EAST PLANT: 190,000 GPD
POTENTIAL FOR 3 MORE TRAINS TO GO ON LINE AT 160,000 GPD EACH:
NOW: 190,000 GPD
1 ST TRAIN ADDED: 190,000 + 160,000 = 350,000 GPD (CLASS 11)
2ND TRAIN ADDED: 190,000 + 160,000 + 160,000 = 510,000 GPD (CLASS 111)
3RD TRAIN ADDED: 190,000 + 160,000 + 160,000 + 160,000 = 670,000 GPD (CLASS Ill)
As you can see, the plant would not be a CLASS III FACILITY until after the 2nd train
is placed into service. Hence, we are requesting that the current testing frequencies
remain in effect until we have actual capacity of 500,000 GPD or MORE (and become
an actual CLASS III FACILITY), and at that time have CLASS 111 monitoring
frequencies of three times per week.
PREPARED BY: HEATER UTILITIES, INC.

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12.2 Status and Recommendations for Previously Impaired Waters
This section reviews use support and recommendations detailed in the 1998 basinwide plan,
reports status of progress, gives recommendations for the next five-year cycle, and outlines
current projects aimed at improving water quality for each water. The 1998 Yadkin -Pee Dee
River basin plan identified four Impaired streams in this subbasin. Goose Creek, Crooked Creek,
and the North and South Forks of Crooked Creek are discussed below.
12.2.1 Goose Creek (17.0 miles from source to Rocky River)
1998 Recommendations
Growth pressures, problems with wastewater discharges and infrastructure, and impacts from
agricultural activities are discussed in the 1998 basin for the Goose Creek watershed.
Recommendations are for DWQ to conducting modeling to evaluate the assimilative capacity of
Goose Creek. DWQ planned to pursue enforcement action with some NPDES permit holders for
past violations of discharge permits, and chlorine limits are recommended for existing
discharges. In addition, the plan recommends local actions to reduce the effects of nonpoint
source pollution, particularly from stormwater runoff, and to restore riparian habitat throughout
the watershed.
Status of Progress
In 1998, the benthic macroinvertebrate community was sampled by DWQ at 11 sites in the
watershed: 1 site on Duck Creek; 2 sites on Stevens Creek; and 8 sites on Goose Creek
including the regular basinwide monitoring site at US Highway 601. Five sites (63 percent)
received Fair or Poor bioclassifications, indicating impairment. Three sites (37 percent) received
Good -Fair or Good bioclassifications, indicating the community is not Impaired. Stevens Creek
received one Good bioclassification near the mouth and the other site was too small to assign a
bioclassification to, but it was found to be not Impaired. Duck Creek received a Fair
bioclassification near US Highway 601 in the lower portion of the watershed, indicating
impairment.
In 2001, only the US Highway 601 site was sampled by DWQ. This site is at the lower end of
the watershed, but above the confluence with Duck Creek. The site contained fairly good
instream habitat and riparian vegetation overall, but the streambanks were extremely unstable in
places and there were few deep pools. The benthic macroinvertebrate community received a
Poor bioclassification, as it had in 1998 and 1996. The specific conductance was high and there
were many indicators of organic enrichment. No fish community samples were conducted.
The Goose Creek watershed contains one ambient monitoring station at SR 1524 near Mint Hill
(fairly high up in the watershed). A summary of water chemistry monitoring over a five-year
period ending in 2001 revealed that all nutrient levels are elevated. Phosphorus, in particular,
exceeded the evaluation level (0.05 mg/1) 93 percent of the time, reaching a maximum of 3.70
mg/l. Dissolved oxygen data commonly showed supersaturated conditions, indicating algae
blooms.
There are six permitted wastewater discharges in the watershed: Oxford Glen WWTP on
Stevens Creek; Ashe Plantation WWTP on Duck Creek; and Fairview Elementary WWTP,
Section B: Chapter 12 - Yadkin -Pee Dee River Subbasin 03-07-12 222

v
Fairfield Plantation WWTP, Country Woods WWTP and Hunley Creek WWTP on Goose Creek.
Each of these facilities received chlorine limits (which became effective by October of 2002)
during the last cycle of NPDES permit renewals as is recommended by the 1998 basin plan.
However, owner/operators of the Oxford Glen and Ashe Plantation WWTPs decided to install
ultraviolet disinfection systems. Compliance reports from the most recent review period (2000-
2001) show problems with excess flow at the Fairfield Plantation and Country Woods WWTPs.
No other NPDES permit violations were observed in the Goose Creek watershed.
The Hunley Creek WWTP is a member of the Yadkin -Pee Dee River Basin Association, and
water chemistry samples are collected through the monitoring program at two locations on Goose
Creek (upstream and downstream of the facility). Dissolved oxygen was less than 5.0 mg/1 in 8.6
percent of downstream samples compared with only 1.1 percent of upstream samples. Fecal
coliform concentrations were reduced by half from 988 colonies/100m1 upstream to 412
colonies/100ml downstream. (The evaluation level is 200 colonies/100ml.)
The geometric means of fecal coliform samples collected from one station between 1996 and
2001 and two stations between 1998 and 2001 from Goose Creek (241, 988 and 412
colonies/100ml) indicate that the stream may not be suitable for primary recreation. In addition,
fecal coliform concentrations were greater than 400 colonies/100ml in more than 1jpgrQentof
samples from each site. Goose Creek is not currently classified for primary recreation (Class B).
However, the stream was historically placed on the 303(d) list for fecal coliform and a TMDL
has already been developed by DWQ. GQozQ r L bA&k -ma4y-ph%ced op th 3O3(d
Stevens Creek and Goose Creek from its source to SR 1524 just inside Union County are
currently Supporting aquatic life and secondary recreation, although impacts were evident in
1998, particularly in the headwaters of Goose Creek. Duck Creek and Goose Creek from SR
1524 to the confluence with the Rocky River are Impaired. Currently problems with point
50nrces are limited to inflow and infiltration problems at the Fairfield Plantation and County
Woods W WTPs. Nonpoint source pollution problems are associated with stormwater runoff
from construction sites and developed areas, as well as agricultural activities.
2002 Recommendations
DWQ, in coordination with other natural resource agencies, will develop a site -specific
management strategy for the Goose Creek watershed which provides for the maintenance and
recovery of water quality conditions necessary to sustain the Carolina heelsplitter. The strategy
will likely contain recommendations for point and nonpoint sources of pollution (refer to page 32
for details).
Mecklenburg and Union counties, as well as Mint Hill, Indian Trail and Lake Park, are required
to obtain a NPDES permit for municipal stormwater systems under the Phase II stormwater rules
(refer to page 35 of Section A, Chapter 2 for details). The City of Charlotte received a NPDES
permit under the federal Phase I stormwater rules. DWQ applauds Charlotte-Mecklenburg's
Surface Water Improvement and Management Program (page 292 contains details) and
recommends that all local governments in the Goose Creek watershed implement programs to
reduce the impacts of stormwater runoff, including local riparian buffer ordinances.
Section B: Chapter 12 - Yadkin -Pee Dee River Subbasin 03-07-12 223

V
Although much work is currently being conducted in the Goose Creek watershed by DWQ, other
natural resource agencies and local governments, local actions by citizens are still needed to
reduce nonpoint source pollution. Many parts of the Goose Creek watershed could benefit
greatly from riparian area restoration and protection. Section A, Chapter 4 outlines general best
management practices for protecting and improving water quality. In addition, an organized
group of dedicated citizens can be one of the most effective tools for affecting watershed
protection and preservation of quality of life in communities.
Water Quality Improvement Initiatives
In 1999, the NC Wildlife Resources Commission initiated a project in the Stevens Creek
watershed (tributary to Goose Creek in the headwaters of Mecklenburg County) to reduce the
peak flows and pollutant load carried by stormwater from residential areas, improve streambanks
through stabilization and buffering, conduct community education about use of household and
lawn chemicals, increase community involvement in the protection and restoration of Stevens
Creek, and implement livestock exclusion to prevent direct access to the creek or its tributaries.
This project was funded in part through the Clean Water Act — Section 319 Program (page 267).
The Goose Creek Watershed Advisory Committee was convened in December 2000 to make
recommendations to local governments, state agencies and other appropriate organizations that
would protect and improve water quality and wildlife habitat in the Goose Creek watershed. The
committee is comprised of stakeholders representing: diverse interests in the watershed. Refer to
page 284 in Section C for details about the committee and its sources of funding. Appendix V
contains a summary of the recommendations.
The Goose Creek watershed (03040105 030020) is one of 43 watersheds in the Yadkin -Pee Dee
River basin that has been identified by the NC Wetlands Restoration Program (NCWRP) as an
area with the greatest need and opportunity for stream and wetland restoration efforts. This
watershed will be given higher priority than a nontargeted watershed for the implementation of
NCWRP restoration projects. Refer to page 272 in Section C for details.
12.2.2 Crooked Creek (13.1 miles from source to Rocky River)
1998 Recommendations
The 1998 basin plan suggests that Crooked Creek is Impaired primarily by low dissolved oxygen
problems and nonpoint source pollution in the upstream watersheds of the North and South
Forks. The plan recommends that DWQ collect additional data and assess assimilative capacity
for oxygen -consuming wastes before any additional discharges are permitted into the watershed.
Status of Progress
In 2001, sampling of the benthic macroinvertebrate community resulted in a Good -Fair
bioclassification below the Union County Grassy Branch WWTP in the lower third of the
watershed. Water chemistry data revealed elevated turbidity concentrations at two locations.
DWQ biologists noted good habitat in Crooked Creek; however, indicators of organic
enrichment were numerous. Crooked Creek is currently rated Supporting; however, the increase
in bioclassification (from Fair in 1996) could be partly due to reduced nonpoint source pollution
impacts as a result of the extended drought.
Section B: Chapter 12 - Yadkin -Pee Dee River Subbasin 03-07-12 224

COUNTRY WOODS WWTP (NPDES Permit No. NC0065684)
Summary of Compliance Under Heater Utilities Inc.'s Ownership
Effluent
Effluent
Effluent
Upstream
Downstream
Average Average
Average
GeoMean
GeoMean
GeoMean
Flow
BOD
Ammonia Ntrogen
Fecal Coliform
Fecal Coliform
Fecal Coliform
Month/Year
(MGD)
(MG/L)
(MG/L)
(#/100ML)
(#/100ML)
(#/100ML)
10/02
0.120
1.1
0.3
1
156
206
9/02
0.102
1.8
0.0
1
153
161
8/02
0.090
0.8
0.1
1
179
93
7/02
0.084
0.6
0.3
1
42
44
6/02
0.082
3.8
1.3
1
47
85
5102
0.087
1.3
0.8
1
112
149
4/02
0.097
4.6
1.6
1
164
118
3/02
0.126
0.9
0.7
1
131
142
2/02
0.101
0.5
0.3
1
134
113
1/02
0.124
1.5
0.1
1
205
160
AVERAGE
0.101
1.7
0.6
1
132
127
12/01
0.087
2.7
0.6
1
214
240
11/01
0.075
3.0
0.4
1
52
134
10/01
0.078
1.0
0.6
1
80
60
9/01
0.087
0.0
0.0
1
128
157
8/01
0.072
4.3
0.8
1
60
105
7/01
0.075
1.7
0.0
1
65
102
6/01
0.088
1.0
0.0
1
171
151
5/01
0.074
0.4
0.0
1
80
223
4/01
0.080
0.0
0.0
1
208
254
3/01
0.112
0.5
0.0
1
208
214
2/01
0.083
3.1
0.0
1
203
167
1/01
0.079
3.0
0.0
1
71
44
AVERAGE
0.082
1.7
0.2
1
128
154
12/00
0.069
0.0
0.0
1
212
112
11 /00
0.067
2.9
0.0
1
69
132
10/00
0.062
1.8
0.0
1
166
112
9/00
0.080
1.4
0.0
1
510
275
8/00
0.076
1.9
0.0
1
57
121
7/00
0.086
0.9
0.0
1
167
114
6100
0.088
3.0
0.0
1
56
77
5100
0.084
4.0
0.0
3
73
102
4/00
0.099
2.0
0.0
1
158
217
3/00
0.095
1.6
0.0
1
208
213
2/00
0.134
0.0
0.0
1
246
276
1/00
0.187
0.0
0.0
1
198
199
AVERAGE
0.094
1.6
0.0
1
177
163
12/99
0.178
0.0
0.0
1
174
153
11/99
0.5
1.3
1
129
88
10/99
0.2
0.211
0.5
0.0
1
129
180
s/ss
y�D 1
1.2
0.0
1
209
84
8/99
0.156
2.7
0.8
3
105
149
7/99
?
4.1
0.7
1
49
150
AVERAGE
0.173
1.6
0.5
1.3
138
134
Note: A "0.0" for BOD means ail samples for month were reported as <2.0.
Note: A "0.0" for Ammonia Nitrogen means all samples for month were reported as <0.50.

STATE OF NORTH CAROLINA
COI.INTY QF WAKE
Homer L hilitics, Tnc.,
Petitionero.
M
NCDENR '
Division of*ater Quality,
Respondent.
IN THE OFFICE OF
ADMINSTRATIVE HEARINGS
02 EHR 0009
PETITIONER'S RFSPONSE TO
RESPONDENT'S DISCOVERY
REQUEST
TO; Respondent, NCDENR Division of Water Quality
c/o Mary Penny Thompson, Assistant Attorney General
Attorney for Respondent
N.C. Department of Justice
Post Office Box 629
Raleiih, NC 27602-0629
i
i
REQUEST FOR ADMISSIONS
1. Ane t Pdmit t at "cater Utilities owns and operates the County Wood Wastewater
Treattlant (WWTP) at the Country Woods Subdivision in Union County,
I
NC
the WWTP discharges directly into Goose Creek.
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3. Admit tPat Goose Creek is considered environmentally sensitive due to the
of a federally endangered species, the Carolina heelsplitter mussel.
'I he Yadkin -Pee Dee River Basinwide Water Quality Plan dated May 1998 indicates
that Goose Creek is inhabited by the federally endangered Carolina Iicelsplitter. The
plan alsd indicates elevated fecal coliform bacteria levels and sedimentation are
problem Parameters for this stream and indicates that fecal coliforni levels are likely
primarily due to nonpoint sources such as animal operations. 'rho report further
alleges the cumulative effect of elevated clilorine and ammonia levels .from small
dischargers may also be affecting the acquatic community of Goose Creek.
i
i
i
4. Admit that improper drainage from your WWTP could cause adverse impact to
stream organisms.
Denied, lrhere is no improper drainage from the Country Woods WWTP.
5. .Admit teat 15A NCAC 2B.0508(b)(2) provides that additional tests and
may be performed with such frequency as determined by the
Directorlto be necessary to adequately monitor waste discharge and their effect
upon thcireceiving waters.
However, 15A NCAC 28.0508(b)(1) provides that modification from the
standard l required testing frequency (weekly at Country Woods) requires a
facility.
to the satisfaction of the Director that these standard testing
are not applicable to the discharge of a particular water pollution control
such showing has been made by Respondent. The increased monitoring
2
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requirement at Country Woods is arbitrary and capricious and does nothing to
improve the environment or water quality of Goose Creek, but does significantly
inoreasc he operating costs of a relatively small facility.
6. Admit that you are subject to the permit conditions contained to NPDES Permit
No. NCO065587.
Admitted. Heater is subject to the conditions ofNPDES Permit No. NC 0065684 for
Country Gods WWTP except for the provisions which are being contested. Reater
has not elxceeded any of the water quality limits in this permit since taking over the
operation from Mid South Water Systems, Inc. in mid 1999. Heater has consistently
met all limits including fecal coliform, chlorine, and ammonia as shown in the DWQ
Water Quality plan as being parameters of concern.
3
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INTERROGATORIES
For each request for admission which you have denied, in whole or in part,
state the following;:
(a) The basis for your denial;
P' titioner denies that there is any improper drainage from its County Woods
'TP.
(b) All facts supporting your denial;
There are no indications of any improper drainage from the Country Woods
W WTP.
(c) Tate identity of all persons known to have knowledge of such facts; and
Jdrry Tweed
Vice President
Hbatcr Utilities, fnc.
2 2 MacKenan Court
C, , NC 27511
(d) Toe identity of all documents which contain information pertaining to
sdch facts.
'A
4
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2. With regard to your contention that Respondent has acted arbitrarily and
eapri ciously in its testing requirements please provide the following:
(a) Stale the legal and factual basis for your contention;
Rcspondont has rcquircd phased -in monitoring frequencies in many other
phased-iu wastewater treatment plants. A review of the infonnation in
Respondent's central files indicates there are three (3) pennittees, other than
I'Illaitioner, that use Duck Creek as their discharge point. None of the other
permittees that use Duck Creek as their discharge point are required to
perform monitoring three times per week. Those permittees are Fairview t/
(Ferroit No. NCO030538), Hurley Creek Subdivision— !/
County Public Works (Penmit No. NC0072508), and Goose Creek
NCO034762). Petitioner's compliance record is
ificantly better than the other three permittees that discharge into Duck
The above -sited evidenec indicates a lack of fair and thorough
and a lack of impartial, reasoned decision- makineg as is required
Respondent to justify modified testing frequencies for Petitioner. See
v. Dept. of Health and Human ,Services, 143 N.C. App. 470, 546
S.P.2d 177, 2001 (stating that "administrative agency decisions may be
as arbitrary or capricious if they are whimsical in the sense that they
a lack of fair and careful consideration or fail to indicate any course
reasoning and the exercise of judgment.").
E
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(b) I euiify by name and address all persons known to you to have
k owledge of such facts;
76ny Tweed, Vice President
Heater Utilities, Inc.
202 MacKcnan Court
Cm y, NC 27511
David Goodrich
Director, NPDES Unit
NC DEN12-DWQ
1617 Mail Service Center
Raleigh, NC 27699-1617
] e Corporon
DES Unit
N C DENR-DWQ
1 17 Mail Service Center
R Oeigh, NC 27699-1617
(c) Identify any and all such documents which contain information
pgrtaining to such facts.
i
Permit Nos. NCO030538, NCO072508, and NCO034762, located In
s central files in Archdale Building, Raleigh, NC.
0
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3. Witt regard to your contention that Respondent has substantially prejudiced
Petit oner's rights please provide the following:
(a) a description of the rights substantially prejudiced;
Petitioner will be deprived of the funds associated with paying for additional
tgsting which would otherwise be used for operating the WWTP.
(b) Sate the legal and factual basis for your contention;
S�e 15A NCAC 2B.0508(b).
(c) Identify by name and address all persons known to you to have
knowledge of such facts;
J try Tweed, Vice President
H 3alcr Utilities, Inc.
202 MacKenan Court
Cary. NC 27511
(d) I�entify any and all documents which contain Information pertaining to
facts.
yet available.
7
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4. Witt regard to your contention that Respondent has exceeded its authority
or jurisdiction please provide the following. -
(a) AIu identification of the authority or jurisdiction which you contend was
I
acceded;
As previously stated, according to 15A NCAC 213.0508(b), Respondent must
follow certain procedures before modifying the testing frequencies set forth in
15A NCAC 2B.0508(d). The law does not allow Respondent unbridled
discretion to require testing at any fiequency, For example, hourly stream
testing would be considered unreasonable. 15A NCAC 2B.0508(b)(1) sets
forth guidelines that Respondent must follow, and those guidelines require
in order to modify the standard testing frequency, there must be a
that the standard testing frequencies are not applicable to a
facility or a demonstration that the objectives of 15A NCAC
can be achieved by other acceptable means. 15A NCAC
gives Respondent discretion to make a detennination that
tests are necessary to adequately monitor Country Woods WWTP
its effect on the receiving waters. However, Respondent is not given
discretion, in that the agency must use fair and thorough
and impartial, reasoned decision -making. See Blalock v. Dept.
Health and Human Services, 143 N.C. App. 470, 546 S.E.2d 177, 2001
ng that "administrative agency decisions may be reversed as arbitrary or
if they are whimsical in the sense that they indicate a lack of fair
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aid carefiil consideration or fail to indicate any course of reasoning and the
c <crcise ofjudgment.").
(b) S tate the legal and factual basis for your eoYnteation;
See 15A NCAC 213.0508 and PreHearing Statement of Petitioner.
(c) Identify by name and address all persons known to you to have
kl owledge of such facts;
J4iry, Tweed, Vice President
Neater Utilities, Tnc.
262 MacKenan Court
Cary, NC 27511
(d) Identify any and all docutneots which contain information pertaining to
sgch facts.
N�A
0
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5. Witt regard to your contention that Respondent has failed to use proper
proc adure please provide the following:
(a) 1)esertbe the procedure at Issue',
As stated above, Respondent has failed to deinoustrate that the standard
testing frequencies aro not applicable to the Country Woods WWTP.
Furdienuore, Respondent generally allows phased -in permit limits and testing
1i gtiencies as plant size increases, Phased -in testing frequencies allow
I
operating funds to be utilized for proper operation of the facilities and
peotection of the environment, instead of operating funds being spent on
excessive testing of small volume discharges.
(b) S(ate the legal and factual basis for your contention;
i
S e PreHearing Statement of Petitioner.
(c) 1 entify by name and address all persons known to you to have
of such facts;
Tweed, Vice President
er Utilities, Inc.
MacKcnan Court
�. NC 27511
(d) Identify any and all documents which contain information pertaining to
facts.
yet available.
10
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6. Witt regard to your contention that Respondent bas failed to act as required
by law or rule provide the following:
(a) Identify the law or rule which you contend was not followed;
As eviously stated, the decisions made by Respondent were arbitrary and
cap r ions and not in accordance with the obvious intent of 15A NCAC 2B4O508.
(b) State' the legal and factual basis for your contentions, including a description
of the property of which your were deprived.
See PreHearing Statement of Petitioner.
(c) Identify by name and address all persons known to you to have knowledge of
suet)
, Tweed, Vice President
Cr Utilities, Inc.
MacKenan Court
NC 275'11
((t) Iden 'fy any and all documents which contain information pertaining to such
£acts.
N/A
11
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7. With respect to each person which you or your attorneys expect to call as an
expert Nitness at the hearing to be held on this matter, please provide the
followiF g information:
(a) Identify each such person;
J.brry Tweed, Vice President
4cater US lities, Inc.
20 Mac[Cenan Court
Crary, NC 27511
(b) or each person identified, state. the subject matter of whicit the expert is
expected to testify;
identified in PreHearing Statement of Petitioner and Petitioner's
to Respondent's Discovery Request.
(c) Fpr each person identified, state the substance of the facts and opinions to
the expert is expected to testify;
PreHearing Statement of Petitioner and Petitioner's Response to
Discovery Requests.
(d) F¢r each person identified, state a summary of the grounds for the
identified in response to subsection (c) of this Interrogatory.
PreHearing Statement of Petitioner and Petitioner's Response to
Discovery Requests.
C. Blythe Cli rd
Attorney for Heater Utilities, lne. - Petitioner
State Bar No. 27751
P.O. Drawer4889
Cary, NC 27519
Telephone: [phone], Ext, 15
IV,
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CERTIFICATE OF SERVICE
I certify that the foregoin.v PETfTIONER'S RESPONSE TO RESPONDENT'S
DISCOVERY REQUEST has been served on the Respondent, through its attorney, by
depositing alcopy oC it in the United States Postal Service, first class mail, with sufficient
postage.
Saved on: ; Mary Penny Thompson
Assistant Attorney General
Attorney for Respondent
NC Department of .Justice
Post Office Box 629
Raleigh, NC 27602-0629
This iiie 2"" day of May 2002.
C. Blythe Clif&id
Attorney Heater Utilities, Inc. - Petitioner
State.BarNo. 27751
P.O. Drawer 4889
Cary, NC 27519
Telephone: [phone], Ext. 15
13
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NPDES pepnit NCO065684 Country Woods WWTI
Subject: NPDES permit NCO065684 Country Woods WWTP
Date: Tue, 16 Apr 2002 08:32:17 -0500
From: "Jerry Tweed (HUI-Cary)" <JTweedC huinc.com>
To: "'Dave Goodrich"' <Dave.Goodrich @ ncmail.net:4-
"'Joe Corporon"' <Joe. Corporon @ ncmail.net>
CC: "Blythe Clifford (HUI-Cary)" <BCliffordC huinc.com>
Dave & Joe:
As you may recall the above referenced contested case involves the testing
frequency on the Country Woods WWTP. The permit requires 3/week testing and
Heater wants to phase in the expanded system such that we test weekly until
the system reaches 500,000 gpd capacity. Heater will not contest other
issues in the permit.
Speaking with Dave last month you indicated that we may be able to settle
this case without administrative hearing.
The Office of Administrative Hearings has now scheduled the case for Hearing
the week of May 27, 2002. If we can settle this case please advise so that
Heater can take a voluntary dismissal of the contested case.
Thanks
Jerry
1 of 1 5/2/02 6:59 AM

S H E E T
To:
Rex Gleason (C)
Dave Goodrich (R)
Joe Corporon (R)
Fax #:
Programmed
Subject:
Heater Utilities
Date:
January 23, 2002
Pages;
2, including this cover sheet.
COMMENTS:
FAX
JDIG���
Please note that Heater Utilities have filed a petition protesting the language used in the NPDES
Permit No. N00065684. You have been listed as witnesses in this case. If for any reason, you
should not be listed, please inform me immediately. Lfthere are other witnesses that should be
listed, inform me of that also.
Thank you very much for your cooperation in this matter.
From the desk nl...
Janet D. Leach
Paralegal
Department of Justice
P. O. Box 629
Raleigh, NC 27602-0629
[phone]
Fax: [phone]
[e-mail]
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ROY cool-hK
ATTOnNrY G NfRAL
TO:
FROM:
DATE:
RE:
3
f
State of North Carolina
Delz)artmcnt of Justice
RAMIGH
27602-0629
MEMORANDUM
Rctply ta:
Mary R:nny ThomlMn
Environmental Division
Tel: [phone]
Fax: [phone]%
mthcmp@mafljus.s=.nc.us
Rex Gleason Rater Quality Mooresville Regional Supen isor
Dave Goodrich, DWQ Central Office
Joe Coporon, DWQ Central Office
Mary Penny Thompson, Assistant Attorney GeneraIAI .P %"I
January 23; 2002
NPDES Permit Renewal (NCQ0065684) Appeal by Heater UtWties
Union County - 02-EHR.-0009
Please note tlhaat I have been assigned to handle the above referenced permit appeal by
Heater Utilities. I will need to- begin preparing our case as soon as possible. Please review the
import nt dates listed below and provide me with the requested information by fax (if feasible)
as well as a clean copy by mail.
February 6, 2002 Prehearing Statements and Document Constituting Agency
Action due to be filed with OAR I have received 7 pages of the
permit from the Central Office. I wiIJ need the complete permit
rile, including but not limited to a copy of the entire ,wit
(including the boilerplate language), the factors considered in
reissuing the permit, any correspondence regarding the permit, and
any worksheets drafted prior to reissuing the permit. Please send
these materials, a list of everyone who participated in the
reissuance of the permit, and any other materials you feel will be
relevant at hearing by February 6, 2002.
March 18j 2002 Discovery must be sent to Petitioner to give us enough time to
receive answers prior to hearing.
week Begs 90ing
May 6, 2002 Hearing set in Charlotte, NC with Julian Mann, III, Administrative
Law Judge presiding. Please forward a list of potential witnessess
ASAP. Please foCyvard this information to Janet at _(919)7I6-6948.
If you have any questions or comments regarding this case, please do not hesitate to call
me at my direct line number: [phone].
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Page 1 of 2
16Jan02
Joe's PERMIT RENEWAL NOTES — NOTICE OF ADJUDICATION
01Jun01 -- Received DRAFT comments from Jerry Tweed (permittee) requesting "phased
monitoring" because the as built/permitted systems (0.190 MGD plus three each @ 0.160
MGD) are not all currently in use -- only the 0.190 MGD. Considering discharge into
impaired Goose Creek, Dave said that this would be granted only if they have a pristine
compliance record (they do not). Therefore, request denied.
From Fact Sheet:
Notices of Violation (NOVs). The Division issued NOVs to this facility (June, July, and August
1998) for exceeding limits for fecal coliform (daily max), BOD (daily max and monthly average),
TSR (daily max), TRC (monthly average), and ammonia nitrogen (monthly average). Penalties were
also assessed in March of 1999 for fecal coliform (monthly average and daily max), among others.
Assessment penalties to date, during this permit cycle, total approximately $6,583.
06Jun01 -- Received comments on DRAFT permit from NCWRC (Wildlife): recommend
"UV / backup power/ connect to regional facility ASAP."
26Jun01 -- Submitted Final to Dave for signature.
28Nov01 -- Received files back from Dave Goodrich; changed dates and made minor
changes; submitted files to Charles Weaver to be issued 30Nov01.
12Dec01 -- Received Final from Charles. DONE.
10Jan02 -- Received letter from permittee stating that he has filed for adjudication with the
Office of Admin. Hearings [therefore monitoring frequency remains once per week], but
would like to discuss permit with the NPDES Unit.

Page 2 of 2
A. (1.) EFFLUENT LIMITATIONS AND MONITORING REQUIREMENTS
Beginning with the permit effective date and lasting until expiration, the Permittee is authorized to
discharge treated domestic wastewater from Outfall 001. Such discharges shall be limited and
monitored by the Permittee as specified below:
EFFLUENT CHARACTERXSTICS
`. LI MTS
M4NTI.4RIl�TG'REQUIRE N S
1Vionthly
Aerage
Weekty
:Average
; Daily
Maximum
Measurement R
: Frequenu
'Sample.Type
Sanaple
Locatioal
Flow
0.670 MGD
Continuous
Recording
I or E
BOD5, 5-day, 200C (Summer Apr. 01 to Oct.31)
10.0 mg/L
15.0 mg/L
3/Week
Composite
E
BOD5i 5-day, 200C (Winter Nov.01 to Mar.31)
18.0 mg/L
27.0 mg/L
3/Week
Composite
E
Total Suspended Residue
30.0 m
45.0 mg/L
3/Week
Composite
E
NH3 as N (Summer Apr. 01 to Oct.31)
2.0 m
3/Week
Composite
E
NH3 as N (Winter Nov.01 to Mar.31)
4.0 m
3/Week
Composite
E
Dissolved oxygen 2
3/Week
Grab
E
Temperature
3/Week
Grab
E
Fecal Coliform geometric mean)
200/100 nil
400/100 nil
3/Week
Grab
E
Total Residual Chlorine
19 3
3/Week
Grab
E
H °
3/Week
Grab
E
Total Nitrogen (NO,. + NO, + WN)
Quarterly
Composite
E
Total Phosphorous
Quarterly
Composite
E
Total Residual Chlorine
Weekly315
Grab
U,D
NH3 as N
Weekly
Grab
U,D
Temperature
3/Week
Grab
U,D
Dissolved oxygen
3/Week
Grab
U,D
Fecal Coliform
3/Week
Grab
U,D
Footnotes:
1. Sample Locations: E — effluent; I — Influent; U — upstream approximately 100 feet above the
discharge point. D — downstream about 0.4 miles below the discharge point.
2. Dissolved Oxygen: effluent (E) daily average shall not fall below 5.0 mg/L.
3. Effluent Total Residual Chlorine (TRC) shall be monitored only if chlorine is used to disinfect.
4. pH shall not fall below 6.0 nor exceed 9.0 standard units.
5. Weekly: the Permittee shall monitor this parameter beginning April 01 through October 31 only.
Units: MGD = million gallons per day;
BOD = biochemical oxygen demand
mg/L = milligrams per liter
µg/L = micrograms per liter
ml = milliliter
Facility discharge shall contain no floating solids or foam visible in other than trace amounts.

7RHeaters
utilitiWATER AND eRs ES
January 8, 2002
Mr. Joe Corporon
NCDENR/DWQ
1601 Mail Service Center
Raleigh, NC 27699-1601
Re: NPDES Permit Renewal (NC0065684)
Country Woods East Subdivision, Union County
Dear Joe:
202 MacKenan Court
Cary, North Carolina 27511
phone l919.4677854
lax: 9i9AS01788
P.O. bmwer PMXary NC 27519
I
0
O
rLrLn
C� z
Q
The above -referenced draft permit was issued on May 2, 2001. The draft
permit required Class III (three times per week) monitoring frequency. It is
Heater Utilities, Inc.'s (Heater) understanding that facilities less than
500,000 gallons per day (gpd) in size are Class II facilities, requiring
weekly monitoring.
Heater filed comments requesting to phase in the start up of this
facility such that it will perform Class II (one time per week) monitoring
until the wastewater treatment plant (WWTP) being used exceeds 500,000 gpd.
The WWTP currently in service is a 190,000 gpd facility with three additional
trains having been constructed (but not in service), which will treat an
additional 160,000 gpd each. These trains will be phased into service such
that after the next train is added the total treatment capacity will be
350,000 gpd (190,000 gpd + 160.000 gpd = 350,000 gpd). When needed, based
upon growth, the last two trains will be placed into service expanding the
treatment capacity to 510,000 gpd and ultimately 670,000 gpd.
The final permit was issued on November 30, 2001, denying Heater's
request for Class II monitoring frequency based upon "this facility's
compliance history and the Division's charge to restore an impaired receiving
stream."
Due to time constraints, Heater had to file a contested case with the
Office of Administrative Hearings regarding this permit. Heater will continue
to monitor under the old permit frequency (one time per week) pending the
outcome of this case. However, Heater would prefer to meet with you and
Regional Office personnel to attempt to settle this issue and withdraw our
Petition for Contested Case Hearing.

e
Page Two
Mr. Joe Corporon
January 8, 2002
If you are willing to schedule a meeting, please contact me at 919-467-
8712, Ext. 37 or e-mail at .itweedCahuinc.com.
Your favorable consideration will be greatly appreciated.
JHT/rt
cc: Rex Gleason
Dan Oakley
Sincerely,
?je H. Tweed
ce President