State of north carolina in the office of admininistrative hearings

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMININISTRATIVE HEARINGS

COUNTY OF CALDWELL 00 EHR 0975
GUY M. LONG III )

Petitioner, )

v. )

) RECOMMENDED DECISION

NORTH CAROLINA DEPT. )

OF ENVIRONMENT AND )

NATURAL RESOURCES, )

DIVISION OF AIR QUALITY )

Respondent )

APPEARANCES

Appearing for Petitioner was Forrest A. Ferrell (Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A.), and for Respondent was Assistant Attorney General Marc D. Bernstein.

STATEMENT OF THE ISSUE

Whether the Respondent’s ("DAQ") hearing officer "acted erroneously," "failed to use proper procedure," or "failed to act as required by law or rule" under G.S. 150B-23(a)(2), (3) & (5) when it recommended on 5 June 2000 that DAQ issue an air permit to Midstate Contractors, Inc. ("Midstate"), in that the hearing officer allegedly failed to require that the permit include a specific condition limiting the production rate of the permittee’s asphalt facility under G.S. 143-215.108(f).

FINDINGS OF FACT

The undersigned Administrative Law Judge finds the following facts:

1. Beginning at least as early as 1989, and in every year since then, an asphalt plant has been operated at the site in question. This facility operated at a maximum capacity of 127 tons of asphalt per hour ("tph"). For the period from 1989 to 1999 the facility produced up to 150,775.08 tons of asphalt per year ("tpy"), and an average of 78,088.74 tpy. (Pet. Ex. 2, at 2)

2. The facility is located entirely in Caldwell County. (Pet. Ex. 1)

3. Midstate is the current owner of the facility. (Pet. Ex. 2, at 1)

4. At the time the facility began operation, the land upon which the facility stood was not zoned by Caldwell County. Some time after the facility began operation, the area was zoned R-20. (Pet. Ex. 4, at 1)

5. An Ordinance Providing for the Zoning of Caldwell County, North Carolina (Pet. Ex. 1A) ("Zoning Ordinance") allows the continuance of uses that predate zoning designations and that do not conform to current applicable zoning designations. Such uses are deemed "permitted non-conforming uses." (Pet. Ex. 4, at 1) The Zoning Ordinance forbids non-conforming uses from being "extended or enlarged." (Pet. Ex. 1A, 70.3) The Zoning Ordinance also forbids non-conforming structures from being altered, except, inter alia, "as required by law or ordinance or as ordered by the Zoning Enforcement Officer to secure the safety of the structure ...." (Id. ' 70.31)

6. Asphalt plants are not a permitted use in areas zoned R-20. Because the facility predated the zoning designation, the facility was deemed a permitted non-conforming use. (Pet. Ex. 4, at 1)

7. Prior to October 1999, the facility experienced trouble remaining in compliance with applicable air emissions regulations. By October 1999, the facility no longer could be operated in compliance with air emission regulations and it became necessary for Midstate to upgrade the facility in order to continue to operate the facility. (Pet. Ex. 2, at 1-2)

8. In December 1999, Midstate submitted its first application to DAQ for an air emissions permit for new equipment to replace its existing equipment. Although the design capacity of the new equipment was 270 tph, Midstate requested a permit limitation of 127 tph in order to demonstrate that the new equipment would not result in an increase in production. (Pet. Ex. 2, at 1-2)

9. Shortly before submitting the application, on 29 November 1999, Midstate made its first request to Caldwell County for a "zoning consistency determination." (Pet. Ex. 1)

10. Caldwell County failed to respond to this first request within 15 days of the request. (See Pet. Ex. 4)

11. On 14 December 1999, DAQ informed Midstate that its application was incomplete because it did not indicate that the applicant had requested a zoning consistency determination from Caldwell County. (Res. Ex. 3 (J. Kelvington, Air Permit Review, at 2 (28 March 2000)); Pet. Ex. 2, at 1)

12. The first application was denied. (Pet. Ex. 2, at 1-3)

13. On 13 January 2000 Midstate submitted a revised application. (Res. Ex. 3 (Midstate Contractors, Inc., Air Permit Application (13 Jan. 2000))) By this application, Midstate elected to purchase different equipment with a design capacity of only 225 tph. (Pet. Ex. 2, at 3) Although the hourly production rate under the revised proposed permit still represented an increase from the old rate (which was 127 tph), Midstate did not intend to increase its overall production from previous years. (Pet. Ex. 4, at 2)

14. On 14 January 2000, Midstate made its second request for a zoning consistency determination from Caldwell County. (Res. Ex. 3 (Letter from J.P. Fossi & J.L. Gaines to B. Warren (14 Jan. 2000)

15. The second request was sent by certified mail to Barry Warren, Zoning Commission, Caldwell County. (Res. Ex. 3 (U.S. Postal Service Return Receipt (18 Jan. 2000)))

16. The second request was delivered on 18 January 2000. The return receipt was signed by Don Smith as agent for the addressee and returned to Midstate. (Res. Ex. 3 (U.S. Postal Service Return Receipt (18 Jan. 2000)

17. The return receipt was then faxed to DAQ on 3 February 2000. (Res. Ex. 3 (Fax from J. Fossi to J. Kelvington (3 Feb. 2000)

18. Caldwell County failed to respond to this second request within 15 days of the request. (See Pet. Ex. 4)

19. By letter of 16 February 2000 ("Determination Letter"), Caldwell County, through Planning Director Barry A. Warren, found that the facility site was presently zoned R-20, which prohibits asphalt plants. However, the County also found that the use by Midstate predated the zoning designation and was therefore a permitted nonconforming use. Because the Planning Director had been assured by Midstate that overall production at the new facility would be substantially in accord with past production, the County concluded that the new facility would not violate the prohibition in the Zoning Ordinance of "an extension or enlargement of the nonconforming use ...." (Pet. Ex. 4, at 2)

20. In the Determination Letter, the County found that Midstate was installing new equipment in order to comply with state emissions standards. Because this new equipment would result in a "much safer situation for the citizens" (T.p. 39, line 7), the County concluded that the installation of new equipment under the new permit constituted "[s]tructural alterations as required by law ... to secure the safety of the structure ...." (Pet. Ex. 4, at 1; T.p. 39, lines 8-14; Pet. Ex. 1A, ' 70.31)

21. The Determination Letter was neither verified nor supported by affidavit. (T.pp. 25, 44-46; See Pet. Ex. 4)

22. The Determination Letter did not include a copy of any ordinances. (See Pet. Ex. 4)

23. The Determination Letter did not discuss any subdivision ordinance. (See Pet. Ex. 4)

24. The Determination Letter concludes that the proposed facility is "consistent" with the Zoning Ordinance and all other applicable Caldwell County ordinances. (Pet. Ex. 4)

25. DAQ interpreted the Determination Letter as a conclusion by the County that the proposed facility was consistent with the Zoning Ordinance and any other relevant ordinance. (Res. Ex. 3 (J. Kelvington, Air Permit Review, at 2 (28 March 2000).

26. On 11 May 2000, DAQ held a public hearing on the permit application. Victor Copelan, Air Quality Regional Supervisor, Washington Regional Office, acted as the hearing officer. (Res. Ex. 3 (Memorandum from V. Copelan to A. Klimek (5 June 2000).

27. In his report of 2 June 2000, the hearing officer suggested that DAQ include in the permit the following condition, which is a revision of a general condition included in all air permits:

COMPLIANCE WITH LOCAL ZONING - The Permittee shall abide by all local zoning requirements in effect at the time of the commencement of construction of the facility. Compliance with local zoning codes shall remain the purview of the applicable zoning authority.

(Res. Ex. 3 (V. Copelan, Hearing Officer's Report, at 3-4 (5 June 2000).

28. DAQ did not delegate to the hearing officer any authority to: issue the permit, require conditions on the permit, or interpret any laws that govern the permit process. (T.pp. 41, 43-44)

29. On 20 June 2000, DAQ issued the permit to Midstate with the following condition:

COMPLIANCE WITH LOCAL ZONING - The Permittee shall abide by local zoning requirements in effect at the time of the commencement of construction of the facility. The determination of compliance with the local zoning codes shall remain the purview of the applicable zoning authority.

(Pet. Ex. 10, at 10)

CONCLUSIONS OF LAW

The undersigned Administrative Law Judge makes the following conclusions of law:

1. The Petition does not allege any action by "the agency" and therefore does not state a contested case against the Respondent.

2. DAQ acted in accordance with law in issuing the permit and did not (1) act erroneously, (2) fail to use proper procedure, or (3) fail to act as required by law or rule because:

(a) Caldwell County waived its right to submit a "determination" pursuant to G.S. 143-215.108(f) by failing to respond to any request for a determination within the prescribed 15 day period;

(b) Caldwell County never submitted a document that was verified or supported by affidavit, as required by G.S. 143-215.108(f);

(c) DAQ properly interpreted the Determination Letter as a conclusion by Caldwell County that the proposed facility was consistent with all relevant ordinances applicable to the facility; and

(d) DAQ included in its permit a condition as contemplated by G.S. 143-215.108(f) for situations in which the local government determines that a facility is inconsistent with a local zoning ordinance.

RECOMMENDED DECISION

That the agency (DAQ) action be upheld.

ORDER

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 150B-36 (b).

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. 150B-36 (a).

The agency is required by G.S. 150B-36 (b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorney of record and to the Office of Administrative Hearings.
The agency that will make the final decision in this contested case is the Environmental Management Commission

This the 19th day of January, 2001.

_____________________________

Sammie Chess, Jr.

Administrative Law Judge