STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF FORSYTH 01 EHR 1585

Grassy Creek Neighborhood Alliance, Inc., )

Petitioner, )

)

v. )

)

Department of Environment and Natural Resources, )

Division of Waste Management, ) DECISION

Respondent, )

)

and )

)

City of Winston-Salem and )

City/County Utility Commission, )

Intervenor- Respondents. )

This contested case was heard by Julian Mann, III, Chief Administrative Law Judge, on October 28 and 29, 2002 in High Point, North Carolina. The record closed on or about January 7, 2003 with the filing of proposed decisions.

STIPULATIONS

The parties filed an Order on Final Pre-Trial Conference on October 28, 2002. The stipulations contained therein and stipulations made on the record are incorporated herein by reference and are controlling as per those stipulations.

APPEARANCES

For Petitioner: John D. Runkle

Attorney at Law

PO Box 3793

Chapel Hill, NC 27515

For Respondent: Nancy E. Scott, Assistant Attorney General

NC Department of Justice

PO Box 629

Raleigh, NC 27602-0629

For Respondent-Intervenors: Timothy P. Sullivan Ronald G. Seeber

Poyner & Spruill, LLP City of Winston-Salem

PO Box 10096 PO Box 2511

Raleigh, NC 27605-0096 Winston-Salem, NC 27102

ISSUE

Whether the Respondent exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, or acted arbitrarily and capriciously by issuing Municipal Solid Waste Landfill Facility Permit No. 34-02 to the Respondent-Intervenors in light of their operating record of environmental compliance at their present landfill. [1]

WITNESSES

PETITIONERS

Robert Joseph Johnson, Jr.

Jackie Lynn Toler

Isabel Eggers Zuber

Catherine Singer Cook

John Thurman Vanpelt

Aaron Wayne Compton

Lucy Daniels Cook

Brent Stephen Rockett

Edward Frederick Mussler, III

Edward Lawrence Gibson, III

Respondent and Respondent-Intervenors

Brent Stephen Rockett

Edward Frederick Mussler, III

EXHIBITS RECEIVED INTO EVIDENCE

JOINT EXHIBIT

1(b) Local area map

PETITIONER’S EXHIBITS

P-A Local government site study

P-C August 20, 2001 memo from Mr. Prete to Mr. Coffey regarding compliance review

P-D Facility Inspection Reports from 1996 through August 2001

P-E Notices of Violation dated April 29, 1997, February 8, 1995 and April 18, 1994

P-F Facility compliance reports dated October 10, 2001, July 2, 2002 and September 27, 2002.

P-G Summary of inspections with violations and notices of violation

P-H Response to comments from public hearing, pages 1 and 8-10.

RESPONDENT’S AND RESPONDENT-INTERVENORS’ EXHIBITS

R-A Local government site study

R-C August 20, 2001 memo from Mr. Prete to Mr. Coffey regarding compliance review

R-D Facility Inspection Reports from 1996 through August 2001

R-E Notice of Violation dated April 29, 1997

R-F Facility compliance reports dated October 10, 2001, July 2, 2002 and September 27, 2002.

R-G August 16, 2001 letter from Mr. Gibson to Mr. Rockett and methane gas remediation plan

R-H January 19, 2000 letter from Mr. Gibson to Mr. Rockett responding to April 4, 2002 inspection

R-I January 21, 1999 letter from Mr. Gibson to Mr. Rockett responding to July 13, 1999 inspection

R-J October 15, 1998 letter from Mr. Shearin to Mr. Foscue submitting 3rd quarter landfill gas monitoring report

R-K Landfill gas remediation plan

R-L March 23, 1998 letter from Mr. Shearin to Mr. Rockett regarding update on gas migration Remediation plan

R-M February 6, 1998 letter from Mr. Readling, HDR Engineering to Mr. Rockett

R-N October 13, 1997 letter from Mr. Shearin to Mr. Rockett

R-O May 23, 1997 letter from Mr. Shearin to Mr. Rockett regarding April 29, 1997 Notice of Violation

R-P May 12, 1997 letter from Mr. Bell to Mr. Rockett regarding April 29, 1997 Notice of Violation

R-Q May 19, 1997 letter from Mr. Mussler to Mr. Bell regarding proposed relocation of gas monitoring wells

R-R August 21, 1995 letter from Mr. Mussler to Mr. Miles concurring in proposed gas extraction plan

R-S February 28, 1995 letter from Mr. Miles to Mr. Rockett enclosing letter from Patterson Exploration Services

R-T February 27, 1995 letter from Mr. Patterson of Patterson Exploration Services to Mr. Miles regarding completion of installation of landfill gas monitoring wells

R-U January 17, 1995 letter from Mr. Patterson of Patterson Exploration Services to Mr. Miles describing landfill gas migration monitoring plan

R-V April 29, 1994 letter from Mr. Miles to Mr. Matthews in response to April 18, 1994 Notice of Violation

Parties

1. The Petitioner Grassy Creek Neighborhood Association, Inc., is a neighborhood organization, incorporated under the laws of North Carolina, which supports local neighborhoods in opposing unwanted and harmful development. (Petition).

2. The Respondent Department of Environment and Natural Resources, Division of Waste Management (“DENR”) is the State agency responsible for, among other things, reviewing applications for municipal solid waste landfills, and other types of landfills, and issuing permits for such landfills upon the applicant’s demonstration of compliance with applicable permit criteria.

3. The Intervenor City of Winston-Salem (“City”) owns the land where the landfill at issue is to be constructed. The Intervenor City/County Utility Commission (“Utility Commission”) will operate the landfill.

Procedural History

1. On October 9, 2001 the Petitioner filed a Petition for a Contested Case Hearing (the “Petition”). The Petition challenges the Respondent’s issuance of Municipal Solid Waste Landfill Facility (“MSWLF”) Permit No. 34-02 on September 10, 2001 (the “Permit”) to the Respondent-Intervenors (hereinafter “Intervenors”).

2. Paragraph 5 of the Petition consists of thirteen subparagraphs (a. through m.) containing specific allegations as to why the Permit should not have been issued.

3. The Petitioner’s contentions in subparagraphs 5.k. and 5.l. of the Petition were dismissed by an Order filed January 23, 2002 which granted Respondent’s Motion to Dismiss. The Petitioner’s allegations in subparagraphs 5.b., 5.d., 5.e., 5.g., 5.h., 5.j., and 5.m. of the Petition were disposed by an Order filed October 2, 2002, which granted Partial Summary Judgment in response to the Respondent and Intervenors’ Joint Motion for Partial Summary Judgment. The Order on Partial Summary Judgment is incorporated herein by reference.

4. Subparagraph 5.i. of the Petition was withdrawn by the Petitioner in response to the Motion for Partial Summary Judgment. On or about October 23, 2002, the Petitioner dismissed its contentions in subparagraphs 5.a and 5.c. of the Petition by filing a Voluntary Dismissal with Prejudice.

5. The only remaining basis for denying the Permit alleged by the Petitioner was the contention in subparagraph 5.f. of the Petition which alleged that the Intervenors had not “sufficiently complied with environmental laws at its other facilities to be permitted to operate a regional landfill in North Carolina”. The contested case hearing accordingly addressed the issue of whether the Respondent erred in granting the Permit to the Intervenors based on their operating record of environmental compliance at their present landfill.

Based upon the pleadings, orders, stipulations and the preponderance of the admissible evidence, the undersigned make the following:

FINDINGS OF FACT

Site History

1. The Permit authorizes construction of Phase I of a new landfill facility on land owned by the City adjacent to the existing Hanes Mill Landfill, located west of NCSR 52 between Hanes Mill Rd. and Ziglar Rd. (Permit; R Ex. A – Local Government Site Study). The existing Hanes Mill Rd. landfill is owned by the City and operated by the Utility Commission.

2. Landfill operations began at the Hanes Mill Rd. site in approximately 1970 and have continued since then. (Tr. 239; R Ex. A) According to applicable State rules, all unlined sanitary landfills were required to cease operating by January 1, 1998. (Tr. 149)

3. In the mid-1990s the Intervenors closed the unlined portion of the landfill and received a permit from the Respondent to construct an adjacent lined disposal unit that remains in operation. (Tr. 240)

4. The new lined MSWLF authorized by the Permit is to be located adjacent to the western side of the existing facility will also be on City-owned property and be operated by the Utility Commission. The entrance to the existing facility will also serve as the entrance to the new landfill. (Tr. 121 ; P/R Ex. A – Local Government Site Study Map)

5. The additional City-owned land to the west of the existing facility consists of approximately 347 acres of land, although, in accordance with a Special Use District Permit issued by the City, only 230.23 acres of that property may be used for landfill activities. The remaining approximately 117 acres will serve as additional buffer. Of the 230.23 acres, approximately 102 will be used for actual waste disposal. (Permit; Joint Ex. 1; R Ex. A; Tr. 265-266)

Operating Record

6. Prior to its issuance of a MSWLF permit to the Intervenors in 1996 to construct the lined portion of the existing Hanes Mill Rd. landfill, the Respondent reviewed and considered the Intervenors’ environmental compliance record. (Tr. 240-241)

7. The Respondent again reviewed the Intervenors’ environmental compliance record prior to issuing the Permit in September 2001. That review primarily focused on the Intervenors’ record for the last five years (the time since Intervenors had last received a landfill permit from the Respondent). (Tr.111-112; P/R Ex. C) This review was conducted pursuant to N.C. Gen. Stat. § 130A-309.06(b). (Tr. 208-209)

8. Philip J. Prete, then head of the Compliance Branch in the Solid Waste Section of Respondent Division of Waste Management, was responsible for conducting the compliance review. As part of his review, Mr. Prete consulted with Brent Rockett, the Western District Supervisor for the Respondent Division of Waste Management’s Solid Waste Section. (Tr. 149-151)

9. Mr. Prete, who is no longer employed by the Respondent (Tr. 79), advised James Coffey, head of the Permitting Branch at the time the permit was issued, by memorandum dated August 20, 2001 that while the Intervenors had been cited by the Solid Waste Section with a number of violations over the last five years, “[o]nly one of those violations rose to the level of prompting a Notice of Violation.” Additionally, Mr. Prete stated in his memorandum that: “All violations were promptly responded to by the City, either by correcting the violation as documented in follow-up visits, or by initiating the necessary engineering work to address design issues. The City hired a full time Solid Waste Compliance Officer last year for the purpose of auditing facility operations and staying abreast of the regulations.” Mr. Prete concluded that “there is nothing from my review that warrants any negative consideration for this facility permit.” (Tr. 150; P/R Ex. C)

10. Mr. Rockett holds a Bachelor’s degree in Biology from the University of North Carolina and a M.S. in Soil and Environmental Science from North Carolina A&T University. Mr. Rockett has taken the course in landfill manager operations conducted by the Solid Waste Association of North America (SWANA), and has attended other SWANA technical courses and conferences. (Tr. 144) Mr. Rockett also teaches the class on the North Carolina rules, which is part of the SWANA landfill operators certification course offered a number of times per year. (Tr. 145-146)

11. Mr. Rockett trains and supervises the Respondent’s waste management specialists who conduct inspections at solid waste facilities located in the Western District. (Tr. 77, 142-144)

12. The Western District includes 45 or 46 counties. (Tr. 146-147) Approximately 25 MSWLFs are located in the Western District (out of approximately 42 in the State). (Tr. 79, 147) Prior to the requirement that all operating MSWLFs be constructed with composite liner and leachate collection systems, there were well over 100 landfills in the State that accepted municipal solid waste. (Tr. 148)

13. From April of 1992 until August or September of 1998, Mr. Rockett was employed as a waste management specialist for the Solid Waste Section, based in the Winston-Salem Regional Office of the Respondent (Tr. 143). He was employed as a waste management specialist for the Hazardous Waste Section between September, 1998 and January, 2000. (Tr. 76)

14. Mr. Rockett is familiar with the operation of the Intervenors’ Hanes Mill Road Landfill, as well as many other landfills in the State. As a Waste Management Specialist in the 1990s, Mr. Rocket was responsible for inspecting the Intervenors’ Hanes Mill Road Landfill. Presently, he supervises the employees who inspect that landfill.H (Tr. 85-86)

15. According to Mr. Rockett’s testimony, the Intervenors had a good operating record at their current landfill. The Intervenors’ environmental compliance record was similar to the records at other MSWLFs, and that Intervenors’ record was better than most in the last few years. (Tr. 149). Mr. Rockett was in “full agreement” with Mr. Prete’s memorandum. (Tr. 151).

16. There is a certified manager of landfill operations on staff at the Hanes Mill Road Landfill and a certified landfill operator on site at all times of operation. (Tr. 145) The City-County Utilities Commission recently developed their own course of instruction for all of their landfill operators in order to teach the content of the operators certification course. (Tr. 145-146)

17. In conjunction with its review of the Intervenors’ compliance record, the Respondent prepared a document listing the inspections of Intervenors’ existing landfill during which violations were noted. This document also identified two Notices of Violations (“NOV”) (one dated February 8, 1995 – handwritten entry, and one dated April 29, 1997) arising out of such inspections. (P Ex. G; Tr. 151-152).

18. The Intervenors were issued a NOV dated April 18, 1994, for a failure to submit a landfill transition plan by April 9, 1994. (Tr. 153-55; R Ex. E). However, prior to April 9, 1994, the Intervenors contacted Jan McHargue, Respondent’s engineer in the Winston-Salem Regional Office (“WSRO”), and explained that timing problems associated with obtaining approval of financial assurance documents would preclude submitting a complete transition plan by April 9. (R Ex. V; Tr. 154-155)

19. The Intervenors received permission from the WSRO to delay submission of the transition plan for a short while. (Tr. 210- 211) The Intervenors submitted the plan on April 19, 2002), the same day Intervenors received the NOV. (R. Ex. V). The NOV was issued by Respondent’s Raleigh Central office which was not aware that the Intervenors had obtained permission from the WSRO for a short delay. (Tr. 210-211)

20. The second NOV Intervenors received was dated February 8, 1995, for failure to have established a permanent methane monitoring system before October 9, 1994. (P. Ex. E; Tr. 156). “Quite a few” other landfills in the western district failed to have their permanent systems in place by that deadline. (Tr. 156)

21. Intervenors installed the methane monitoring system in late February 1995, with the exception of four wells to be installed on property which had not been acquired by the City. (R Ex. S, T, U; Tr. 157)

22. The third NOV dated April 29, 1997, addressed the three violations identified during inspections on April 1, April 9, and April 11, 1997: (1) exceedance of the lower explosive limit for methane gas at the property boundary, (2) failure to monitor all wells according to the methane monitoring program, and (3) failure to cover all disposed solid waste with 6 inches of earthen material or alternative material at the end of each operating day. (P/R Ex. E; Tr. 168).

23. Mr. Rockett confirmed by a follow-up inspection on April 11, 1997 (prior to issuance of the NOV) that the inadequate daily cover noted during the April 9, 1997 inspection had already been corrected. (Tr. 169)

24. Correspondence from the Intervenors dated May 12 and May 23, 1997 satisfied the Respondent that the methane issues noted in the April 29, 1997 NOV were being adequately addressed. (R. Ex. P, O, Q; Tr. 166-169)

25. As of October 9, 1994, municipal solid waste landfills were required to install permanent methane gas monitoring systems and to monitor methane levels quarterly. 15A N.C.A.C. 13B .1626(4). If methane gas is detected at the lower explosive limit at the property line, the rule requires the owner or operator to implement a remediation plan within 60 days of detection and to notify the Division that the plan has been implemented.

26. Some inspection reports noted violations of a permit requirement that methane monitoring reports be submitted to Respondent’s WSRO on a quarterly basis. Failure to mail the reports to Respondent is a “paperwork” violation. This failure does not indicate a failure to perform the monitoring. (Tr. 211-212) There had been confusion between Intervenors and their contractor as to who would submit such reports to the Respondent. (Tr. 162) There is no longer a permit requirement to submit such reports to Respondent. Such reports remain at the facility and are reviewed by Respondent during inspections, as required by the rules since October 9, 1994. (Tr. 167)

27. The January 29, 1997 inspection report erroneously identified as a permit violation, a failure to submit quarterly methane monitoring reports to Respondent. By the time of that inspection, a new permit had been issued which did not contain that condition. (Tr. 164-165)

28. Edward F. Mussler, an environmental engineer in the Permitting Branch of the Solid Waste Section, was in charge of reviewing the permit application for the Hanes Mill Road Landfill; he was also the permitting engineer in charge of reviewing the application for the permit issued to Intervenors in 1996 for the lined portion of the existing landfill. As a Registered Professional Engineer, Mr. Mussler holds a B.S. in Environmental Engineering from Rensselaer Polytechnic Institute in Troy, N.Y. In addition, he has attended landfill design courses on liner systems, drainage systems, landfill cap systems and landfill gas control systems. (Tr. 229) He has been employed by the Solid Waste Section since 1993. During this time, he was the primary permitting engineer for fifteen to twenty new municipal solid waste landfill facilities, and another twenty to thirty modifications and amendments to municipal solid waste landfill permits. (Tr. 109)

29. All landfills generate methane gas. The generation of methane gas cannot be prevented. The objective is to detect it and minimize its potential effects. (Tr. 115-116, 224-225)

30. A methane exceedance was detected at monitoring probes at the Intervenors’ landfill in June of 2001, and a remediation plan for that exceedance was submitted in a timely fashion. (Tr. 202-203) Mr. Mussler reviewed the plan as submitted in August 2001. He found this plan to be a reasonable approach to controlling the exceedances of methane gas detected at the landfill. (Tr. 230-239) Mr. Mussler did not believe that the detected methane exceedances were dangerous because the levels of methane detected in the wells were not the levels moving through the ground. (Tr. 236) Methane can be dangerous when it accumulates in the crawl spaces of buildings. There were no buildings on the property line where the exceedances were detected in the monitoring wells. (Tr. 237)

31. The remediation plan has proven effective. The last few quarterly monitoring events have not detected any methane in the areas where the exceedances had previously been identified. (Tr. 206-207; 234).

32. The methane probes to the west side of the facility, that previously showed exceedances, were bordered by an additional large tract of undeveloped land owned by the City where the new landfill is to be constructed. (Tr. 243-243). The methane probes to the south of the existing landfill, where exceedances were noted, were also adjacent to City-owned undeveloped property. That adjacent property is now the location of a new YMCA, which opened in May or June of 2001 (Tr. 63). However, the landfill remediation system implemented to address the presence of methane in this area has been demonstrated to be effective. (Tr. 244-245) A continuous methane detection system with an alarm system has been installed in the YMCA; methane has never been detected inside the YMCA. (Tr. 238-239) On June 16, 2001, Methane concentrations in two probes, “AA” and “New V” exceeded 5% by volume. These probes are located adjacent to the YMCA property. Remedial measures have been undertaken but exceedances from time to time continued and required additional remediation. Monitoring at the YMCA building reveals no detection, although there is some testimonial evidence from Petitioner's witnesses in the record that there are contra indicators.* Monitoring at the YMCA continues. (R Ex.G, Tr. 47-50, 61-62)

33. The violations for inadequate daily cover identified in inspection reports did not mean that areas of waste were not being covered initially. Areas of waste were not being daily covered initially. The violations for inadequate daily cover identified in inspection reports indicated that some waste may have been poking up or caused by an area that had been previously covered was starting to become exposed due to erosion or landfill traffic. (Tr. 165, 207-208) Mr. Rockett did not recall seeing a large amount of waste uncovered at Intervenors’ landfill. (Tr. 207) A major reason for the daily cover requirement is to control disease vectors. Populations of flies or rodents at a landfill would be an indication that uncovered waste was a problem at the landfill. Mr. Rocket did not observe an excessive fly population at the Hanes Mill Road landfill; Mr. Rockett did not have knowledge of a rodent problem at the landfill. (Tr. 208)

34. The violations for impounded water noted in the inspection reports typically relate to settlement of closed areas of the old, unlined landfill. Settlement of closed areas is common. Inspectors typically note that settlement issues need to be addressed. (Tr. 165-166)

35. There are over 30 separate violations of applicable rules under 15A N.C. Administrative Code 13 B .1626 that could be cited during any municipal solid waste landfill inspection, and there is also the potential to cite violations of permit conditions. (Tr. 222)

36. Certain inspection reports for the Intervenors’ facility which noted one or more violations also contained favorable comments such as: "Operations looked good (great improvement)" and "Operation looks good." (P/R Ex. D- insp. reports dated 4/18/96, 9/20/96 and 6/23/98; Tr. 161-162)

37. Wet weather can make it difficult to achieve compliance with certain requirements, and such extenuating circumstances were noted in some inspection reports. (See, e.g., P./R. Ex. D- insp. reports dated 1/29/98 and 2/4/00; Tr. 171-72)

38. There are no records in Respondent's WSRO of any specific complaints from members of the general public about the Hanes Mill Road landfill. A record would exist had the WSRO received any such complaint. (Tr. 104-106)

39. Lucy Cook, the Petitioner’s President, opposed the new landfill, because of its location. (Tr. 73-74) Ms. Cook‘s primary complaint was the location that the Intervenors selected. (Id.)

40. Petitioner’s witnesses who lived in the vicinity of the proposed landfill opposed the landfill based on its proposed location because of its proximity to their residences and these witnesses cumulatively testified to the deleterious characteristics of the existing site that caused disruptions and hardships in their daily lives, but these witnesses did not appear to be opposed to the Intervenors operating a MSWLF at another location. (Tr. 34, 37-38, 42-43, 51, 73-74)

41. A compliance order is a more significant enforcement action than an NOV. Landfill facilities in the western district received compliance orders from the Respondent, but the Intervenors have not received a compliance order. (Tr. 84-85)

42. The Respondent has not denied issuance of an MSWLF permit to an applicant based on that applicant's operating history. (Tr. 209, 241)

Based upon the foregoing Stipulations and Findings of Fact, the undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction to hear this contested case pursuant to Chapters 130A and 150B of the North Carolina General Statutes and Chapter 15A of the North Carolina Administrative Code.

2. The burden of proof in this contested case rests with Petitioner. Petitioner by stipulation agreed that the issue for trial in this contested case concerned the Intervenors’ compliance record. * A substantial portion of Petitioner's testimonial evidence appeared to address an issue that was not otherwise subject to be determined in this contested case; i.e. “[T]he proposed landfill will cause odors, noise, litter, dust, the increase in truck traffic, and other nuisance factors.” (Petition, page 2, paragraph 5a) This issue, by stipulation, was waived as a result of Petitioner's voluntary dismissal.

3. N.C. Gen. Stat. § 130A-294(b2) and N.C. Gen. Stat. § 130A-309.06(b) provides the statutory authority for Respondent to deny an application for a MSWLF Permit based on the applicant’s prior non-compliance with environmental laws.

4. N.C. Gen. Stat. § 130A-294(b2) provides in pertinent part:

The Department may require an applicant for a permit under this Article to Satisfy the Department that the applicant, and any parent, subsidiary, or other affiliate of the applicant or parent:… (2) Has substantially complied with the requirements applicable to any solid waste management activity in which the applicant has previously engaged and has been in substantial compliance with federal and state laws, regulation, and rules for the protection of the environment.

Petitioner has not carried its burden of proof by the preponderance of evidence that Respondent has failed to comply with G.S. 130A-284(b2)

N.C. Gen. Stat. § 130A-309.06(b) provides in pertinent part:

The Department may refuse to issue a permit to an applicant who by past conduct in this State has repeatedly violated related statutes, rules, orders or permit terms or conditions relating to any solid waste management facility and who is deemed by the Department to be responsible for the violations.

Petitioner has not carried its burden of proof by the preponderance of evidence that Respondent has failed to comply with G.S. 130A-309.06(b).

5. N.C. Gen. Stat. § 130A-294(b2) provides the Respondent with the discretion to determine whether to review the environmental compliance history of an applicant for a solid waste permit as part of the permit application process, and, if such review is conducted, the discretion to determine whether the Respondent is satisfied that the applicant has substantially complied with environmental laws at its facilities.

6. N.C. Gen. Stat. § 130A-309.06(b) provides the Respondent with the discretion to refuse to issue a permit to an applicant for a solid waste permit who, by conduct in this State, has repeatedly violated requirements pertaining to any solid waste facility. N.C. Gen. Stat. § 130A-309.06(b) does not mandate that the Respondent must refuse to issue a permit to an applicant who has a poor environmental compliance record. Petitioner has failed to carry its burden of proof by the preponderance of the evidence that Respondent violated G.S. 13A-309.06(b) in issuing MSWLF No. 34-02 in light of the environmental compliance record at their present landfill.

7. Respondent's denial of an MSWLF permit based on a determination under either statute that the applicant's prior non-compliance with environmental laws would mean that the applicant would be precluded from operating a landfill not only at the proposed location but at any location in North Carolina.

8. The Petitioner has not met its burden of demonstrating that the Respondent exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure or acted arbitrarily or capriciously or otherwise abused its discretion by issuing the Permit to the Intervenors after review and consideration of the Intervenors' operating record with regard to the operation of its existing landfill.

9. Giving due regard to the demonstrated knowledge and expertise of the Respondent agency with respect to facts and inferences within the specialized knowledge of the agency, the greater weight of the evidence failed to establish that the Respondent abused its discretion by issuing the permit to the Intervenors. However, there is some countervailing evidence raised as to Intervenors’ compliance record but this evidence did not rise to the level necessary to carry Petitioner's burden of proof to deny granting the subject permit to Intervenors. Besides the concerns raised by Petitioner's witnesses as to the past operations, the record also contains evidence of methane exceedances near the property and operations of the YMCA. These exceedances and odors are serious factors that the Respondent and Intervenors have addressed but must still continue to address for future compliance and for public safety. Evidence of such exceedance in the record did not rise to the level sufficient to carry Petitioner's burden of proof to deny the facility permit.

DECISION

IN ACCORDANCE WITH THE ABOVE FINDINGS OF FACT AND CONCLUSIONS OF LAW, RESPONDENT’S DECISION TO ISSUE MUNICIPAL SOLID WASTE LANDFILL PERMIT NUMBER 34-02 TO INTERVENORS IS AFFIRMED. THE PETITIONER HAS NOT DEMONSTRATED BY THE PREPONDERANCE OF THE EVIDENCE THAT PETITIONER IS ENTITLED TO ANY RELIEF BASED UPON THE STIPULATED ISSUE IN THIS CONTESTED CASE.

NOTICE

The North Carolina Department of Environment and Natural Resources, Division of Waste Management will make the Final Decision in this contested case. N.C. Gen. Stat. § 150B-36(b), (b1), (b2), and (b3) enumerate the standard of review and procedures the agency must follow in making its Final Decision, and adopting and/or not adopting the Findings of Fact and Decision of the Administrative Law Judge.

Pursuant to N.C. Gen. Stat. § 150B-36(a), before the agency makes a Final Decision in this case, it is required to give each party an opportunity to file exceptions to this decision, and to present written arguments to those in the agency who will make the Final Decision.

ORDER

N.C. Gen. Stat. 150B-36(b)(3) requires the agency to serve a copy of its Final Decision on each party, and furnish a copy of its Final Decision to each party’s attorney of record and to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714.

This the 7th day of February, 2003.

____________________________________Julian Mann, III

Chief Administrative Law Judge

-----------------------

[1] All parties stipulated in the Order on Final Pretrial Conference that substantively the only issue to be determined in this contested case hearing pertained to “whether the Respondent (improperly issued) the permit to the Respondent-Intervenor in light of their record of environmental compliance at their present landfill.” (see SUPRA p. 5, paragraph #5.)

* No YMCA officials or representatives were called or testified.

* Petitioner's witnesses testified to a number of asserted nuisance factors that caused disruptions in their daily lives.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download