Filed Mar 19, 2019 4:38 PM Office of Administrative Hearings

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 19 EHR 00931

NORTH CAROLINA DEPARTMENT OF )

TRANSPORTATION, )
)
Petitioner, )
) PETITIONER’S
v. ) PREHEARING STATEMENT
)
NORTH CAROLINA DEPARTMENT OF ) 26 N.C.A.C. 3.0104
ENVIRONMENTAL QUALITY, )
DIVISION OF ENERGY, MINERAL, )
AND LAND RESOURCES, )
)
Respondent. )
___________________________________ )

NOW COMES the North Carolina Department of Transportation (“NCDOT” or

“Petitioner”), by and through its undersigned counsel, and files this Prehearing Statement in the

above-captioned matter pursuant to 26 N.C.A.C. 3.0104, and Orders signed by the Honorable

Julian Mann, III, Chief Administrative Law Judge, on February 19, 2019.

1. Issues to be Resolved

The issue to be resolved is whether issuance of Dam Safety Order number DS 19-002 by

the Department of Environment and Natural Resources (“DENR” or “Respondent”) “substantially

prejudiced the petitioner’s rights and that the [Respondent]: (1) Exceeded its authority or

jurisdiction; (2) Acted erroneously; (3) Failed to use proper procedure; (4) Acted arbitrarily or

capriciously; or (5) Failed to act as required by law or rule.” N.C.G.S. § 150B-23(a). A copy of

DSO 19-002 is attached as Exhibit A.

2. Brief Statement of Facts

On January 25, 2019, Respondent issued Dam Safety Order number 19-002 which purports

to require NCDOT to undertake repairs on Lady Marion Dam in McDowell County, or else face
civil penalties and injunctive action. Prior to issuance of DSO 19-002, NCDOT has repeatedly

communicated to Respondent that Petitioner is not the owner of the dam in question and thus is

not responsible for any repairs.

3. Applicable Statutes, Rules, and Legal Precedent

 Dam Safety Law of 1967, codified at N.C.G.S. 143-215.23 et seq.

 North Carolina Administrative Code, Title 15A, Subchapter 2K.

4. Proposed witnesses

Potential witnesses for NCDOT may include:

 George Eller, PE, Interim State Dam Safety Engineer

 S. Daniel Smith, Interim Director, Department of Environmental Quality, Division of

Energy, Mineral, and Land Resources

 Toby Vinson, Dam Safety

 Bob Boyette, City Manager, City of Marion, NC

 Timothy Anderson, NCDOT

 Chris Guffey, NCDOT

Additionally, NCDOT may call as a witness any person named as a witness by any other

party. NCDOT may also call members, employees, or other representatives of Respondent’s

organization or any other party’s organization. As this contested case progresses, NCDOT may

identify additional witnesses. NCDOT reserves the right to supplement the foregoing list.

5. Discovery

NCDOT anticipates that discovery will be conducted on or before the June 3, 2019

deadline set forth in the February 19, 2019 Scheduling Order.

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6. Hearing Time and Location

NCDOT does not object to a hearing the week of June 24, 2019 in Raleigh, North

Carolina as set forth in the February 19, 2019 Scheduling Order.

7. Notice of Appearance of Counsel

The undersigned attorney will appear on behalf of NCDOT.

8. Estimated Length of Hearing

NCDOT estimates that a hearing would take two days.

9. Special Considerations

NCDOT reserves the right to amend or supplement this Prehearing Statement during the

course of this contested case.

Respectfully submitted this the 19th day of March 2019.

Joshua H. Stein
ATTORNEY GENERAL

____________________________________
Colin Justice
Assistant Attorney General
N.C. State Bar 42965
cjustice@ncdoj.gov

NCDOJ, Transportation Division

1505 Mail Service Center
Raleigh, North Carolina 27699-1505
Telephone: 919-707-4480
Fax: 919-733-9329

Attorney for North Carolina

Department of Transportation

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 STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 19 EHR 00931

NORTH CAROLINA DEPARTMENT OF )

TRANSPORTATION, )
)
Petitioner, )
) PETITIONER’S
v. ) PREHEARING STATEMENT
)
NORTH CAROLINA DEPARTMENT OF ) 26 N.C.A.C. 3.0104
ENVIRONMENTAL QUALITY, )
DIVISION OF ENERGY, MINERAL, )
AND LAND RESOURCES, )
)
Respondent. )
___________________________________ )

I hereby certify that on this, the 19th day of March 2019, I served the foregoing
PREHEARING STATEMENT on counsel for Respondent in this action through the OAH
electronic filing system at the e-mail address shown below:

Amy Bircher
Special Deputy Attorney General
99 McDowell Street
Asheville, NC 28801
ATTORNEY FOR RESPONDENT

___________________________________
Colin Justice
Assistant Attorney General

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Exhibit A