State of North Carolina s89

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF WAKE 01 EHR 0339 01 EHR 1107

Thomas Tilley, Trustee, ) Petitioner, ) ) v. ) DECISION ) N.C. Dept. of Environment and ) Natural Resources, Division of ) Water Quality, ) Respondent. )

This matter came before Administrative Law Judge Augustus B. Elkins, II, on October 25, 2001 in Raleigh, North Carolina. The case involved the appeal of four civil penalty assessments arising from self-reported violations at the Riverview Mobile Home Park wastewater treatment facility.

APPEARANCES

For Petitioner : Thomas Tilley Pro Se Petitioner 4920 Farrington Road Chapel Hill, NC 27514

For Respondent : Mary Penny Thompson Assistant Attorney General N. C. Department of Justice Post Office Box 629 Raleigh, NC 27602-0629

PRELIMINARY MATTERS

On October 10, 2001, Respondent filed a Motion for Consolidation of two contested cases captioned Thomas Tilley, Trustee v. N.C. Dept. of Environment and Natural Resources, Div. of Water Quality, 01 EHR 0339, and Thomas Tilley, Trustee v. N.C. Dept. of Environment and Natural Resources, Div. of Water Quality, 01 EHR 1107. On October 22, 2001, Chief Administrative Law Judge Julian Mann, III, consolidated the two cases because they involved common questions of law and fact and because consolidating them would reduce cost and delay.

- 1 - Prior to the commencement of this hearing, Respondent made an oral motion to dismiss Petitioner’s constitutional claims regarding Respondent’s authority to require permits and Petitioner’s constitutional claims of due process and equal protection violations. (T.pp. 12-13). After hearing both sides, the undersigned Administrative Law Judge granted Respondent’s motion and dismissed the constitutional claims contained within the Petitioner’s Petition for a Contested Case Hearing because the Office of Administrative Hearings lacks jurisdiction to determine the constitutionality of statutes. (T.pp. 13-14).

STATUTORY SECTIONS AND RULES IN QUESTION

N.C. Gen. Stat. § 143-211 through 143-215.10 (Article 21, Part 1, “Organization and Powers Generally; Control of Pollution”) N.C. Gen. Stat. § 143-215.63 through 143-215.69 (Article 21, Part 7, “Water and Air Quality Reporting”) N.C. Gen. Stat. § 150B-2 (“Definitions”) N.C. Gen. Stat. § 150B-3 (“Special provisions on licensing”)

N.C. Admin. Code tit. 15A, r. 2B.0200 et seq. (“Classifications and Water Quality Standards Applicable to Surface Waters and Wetlands of North Carolina”) N.C. Admin. Code tit. 15A, r. 2B.0500 et seq. (“Surface Water Monitoring: Reporting”)

ISSUES

Did Respondent err by assessing one or more of the four civil penalties levied against Petitioner?

WITNESSES

PETITIONER : Thomas Tilley

RESPONDENT : Kenneth Schuster, Division of Water Quality

EXHIBITS RECEIVED INTO EVIDENCE

PETITIONER : None

RESPONDENT :

R-1 Permit No. NC0038784 issued May 7, 1993 R-2 Modification to Permit No. NC0038784 issued July 28, 1993 R-3 Discharge Monitoring Report - September 2000 R-4 DMR Review Record - September 2000 R-5 Assessment Factors LV 01-038 R-6 Notice of Violation and Assessment of Civil Penalty LV 01-038 R-7 Discharge Monitoring Report - October 2000

- 2 - R-8 DMR Review Record - October 2000 R-9 Assessment Factors LV 01-039 R-10 Notice of Violation and Assessment of Civil Penalty LV 01-039 R-11 Discharge Monitoring Report - January 2001 R-12 DMR Review Record - January 2001 R-13 Assessment Factors LV 01-201 R-14 Notice of Violation and Assessment of Civil Penalty LV 01-201 R-15 Discharge Monitoring Report - October 2000 R-16 DMR Review Record - October 2000 R-17 Assessment Factors LV 01-202 R-18 Notice of Violation and Assessment of Civil Penalty LV 01-202 R-19 Letter dated August 29, 1997 R-20 Press Release by Public Information Officer R-21 Revision of Delegation of Signature Authority to Regional Supervisors

BASED UPON careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits received into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed the evidence and has assessed the credibility of the witnesses by taking into account the appropriate and traditional factors for judging credibility, such as the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the factors or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

FINDINGS OF FACT

1. Petitioner is an individual residing at 4920 Farrington Road, Chapel Hill, NC, 27514, in Durham County. (Petition; Tr. 45).

2. Respondent is a State agency established pursuant to N.C. Gen. Stat. §§ 143B-275 et seq. and vested with the statutory authority to enforce the State’s environmental pollution laws, including laws enacted to protect the water quality of the State.

3. Petitioner filed a petition, which initiated case number 01 EHR 0339 on February 28, 2001. Petitioner filed a petition, which initiated case number 01 EHR 1107 on June 20, 2001. At the hearing, the parties stipulated to timely filing. (T.p. 8).

4. A Notice of Hearing was sent to the parties on October 4, 2001, giving notice of the hearing date, time and place. (T.p. 7). At the hearing, the parties stipulated to receiving notice of hearing. (T.p. 8).

5. Respondent issued National Pollutant Discharge Elimination System (“NPDES”) Permit No. NC0038784 (“Permit”) to Thomas Tilley in order to discharge wastewater from a facility located at Riverview Mobile Home Park into the Neuse River, effective June 1, 1993. The

- 3 - Permit contained effluent limitations, monitoring requirements and other conditions set out within the Permit. (Ex. R-1; T.pp. 22-29, 192).

6. Pursuant to the 1993 transmittal cover letter for the permit, Respondent notified Petitioner of his right to adjudicate any parts of the permit unacceptable to him. (Ex. R-1).

7. Part I.A of the Permit, entitled Effluent Limitations and Monitoring Requirements Final, limits effluent flow to 0.035 million gallons per day (“MGD”). It also limits biological oxygen demand (“BOD”) and total suspended residue or solids (“TSR”) each to a monthly average of 30.0 milligrams per liter (“mg/l”) and a daily max of 45.0 mg/l, which are to be monitored twice a month. (Ex. R-1; T.pp. 22-24, 174-175).

8. Part I.B, entitled Schedule of Compliance, requires compliance with the effluent limitations by the effective date of the Permit and requires the permittee to provide the operation and maintenance necessary to operate the facility at optimum efficiency. (Ex. R-1; T.p. 24, 192).

9. Part II.B, entitled General Conditions, sets out the standard conditions of an NPDES permit. Part II.B.1 of the Permit requires compliance with all permit terms and conditions and describes civil penalties, which may be assessed for noncompliance with permit requirements. (Ex. R-1; T.p. 25). Part II.B.8 outlines a duty to provide information. (Ex. R-1; T.p. 25). Part II.B.11 requires reports to be signed and certified by a responsible party. (Ex. R-1).

10. Part II.D, entitled Monitoring and Records, describes the Discharge Monitoring Report (“DMR”) and the timeline for submitting DMRs to Respondent. (Ex. R-1; T.p. 26). It also describes flow measurements. (Ex. R-1; T.p. 27).

11. Part II.E, entitled Reporting Requirements, requires the permittee to report any plant changes or anticipated noncompliance. (Ex. R-1; T.pp. 27-28). Part II.E.5 states that if the permittee monitors more frequently than required by the permit, the results of the monitoring should be included in the calculation and reporting of the data submitted in the DMR. (Ex. R-1).

12. On July 28, 1993, Respondent modified the permit to change the flow monitoring from weekly to continuous measurements. (Ex. R-2; T.pp. 28-29). Again, by cover letter, Respondent notified Petitioner of his right to adjudicate the modification. (Ex. R-2).

13. Petitioner did not appeal the 1993 permit, its conditions, or its later modification that same year.

14. The renewal of the 1993 Permit is currently under appeal in Tilley v. N.C. Department of Environment and Natural Resources, 00 EHR 1668. (T.pp. 141-142, 159, 199).

15. Respondent disseminated information about the changes in enforcement policy in 1997 and 1998. (Ex. R-19, R-20; T.pp. 88-90, 94, 110-118). Respondent’s delegation guidance standardizes civil penalty assessment amounts to ensure consistency across the regional offices. (Ex. R-21; T.pp. 58-60, 64). Kenneth Schuster, the Regional Water Quality Supervisor in the

- 4 - Raleigh Regional Office, has delegated authority to issue civil penalty assessments for violations exceeding the permit limits by certain percentages, which are reported by permittees in their DMRs. (Ex. R-21; T.pp. 21, 59, 83-84, 118-119). Mr. Schuster may also refer violations to the Central Office for enforcement if he feels the factors justify either a lower or higher penalty than the standard penalty. (T.pp. 57, 60-61, 63, 70, 92, 121-123).

16. Petitioner signed and submitted the September 2000 DMR as the permittee. Petitioner designated himself as a trustee and included the phrase “All Rights Reserved” after his signature and name. The September 2000 DMR reflected noncompliance due to high flow. A hand- written note indicated there was excessive flow through the plant. (Ex. R-3; T.pp. 30-31, 151).

17. Respondent issued Petitioner a Notice of Violation and Assessment of Civil Penalty dated February 2, 2001, Case No. LV 01-038, based on a review of the September 2000 DMR that showed the subject facility to be in violation of the discharge limitations and/or monitoring requirements found in the Permit. (Ex. R-4, R-6; T.pp. 32, 35-38). The monthly average reported value equaled 0.042 MGD, which was 20% over the permit limit of 0.035 MGD. (Ex. R-3, R-4, R-6).

18. Respondent reviewed the eight statutory factors necessary to assess an appropriate penalty. (Ex. R-5; T.p. 33-34).

19. Respondent assessed Petitioner $1,000.00 for the flow violation reflected in the September 2000 DMR, which was only 4% of the maximum penalty authorized by statute, plus $68.46 in enforcement costs. (Ex. R-6; T.pp. 36-37).

20. Petitioner signed and submitted the October 2000 DMR as the permittee. Petitioner designated himself as a trustee and included the phrase “All Rights Reserved” after his signature and name. The October 2000 DMR reflected noncompliance due to high flow. A notation on the DMR stated that “Plant exceeded monthly flow limit. Will recommend system evaluation.” (Ex. R-7, R-8; T.pp. 39-40).

21. Respondent issued Petitioner a Notice of Violation and Assessment of Civil Penalty dated February 2, 2001, Case No. LV 01-039, based on a review of the October 2000 DMR. The review showed the subject facility to be in violation of the discharge limitations and/or monitoring requirements found in NPDES Permit No. NC0038784. The limit for the parameter of flow equaled .035 MGD. The monthly average reported value equaled .0398 MGD. (Ex. R-7, R-8, R-10; T.pp. 40, 77)

22. Respondent reviewed the eight statutory factors necessary to assess an appropriate penalty. (Ex. R-9; T.p. 41). To determine the significance of each factor, Respondent uses the information on the DMRs, familiarity with upgrades necessary to achieve compliance, and general knowledge about the facility obtained from inspections or complaints. (T.pp. 41-56, 70). Typical remedial measures to reduce flow to a compliant level include visually inspecting the collection system, using a camera to inspect the interior of the system, reducing the number of connections to the system and utilizing spray irrigation instead of discharging the flow into the

- 5 - river. (T.pp. 65-67). The level of cost of taking these measures reflects a moderate significance. (T.p. 67). The Riverview Mobile Home Park could implement these typical remedial measures. (T.pp. 67-68).

23. Respondent assessed Petitioner $1,000.00 for the flow violation reflected in the October 2000 DMR, which was only 4% of the maximum penalty authorized by statute, plus $68.46 in enforcement costs. (Ex. R-10; T.p. 77).

24. Petitioner signed and submitted the January 2001 DMR as the permittee. Petitioner designated himself as a trustee and included the phrase “All Rights Reserved” after his signature and name. The January 2001 DMR reflected noncompliance due to high flow, high biological oxygen demand, and high total suspended residue. A typed note indicated a plant upset because of inability to waste activated sludge. (Ex. R-11, T.pp. 152-153).

25. Respondent issued Petitioner a Notice of Violation and Assessment of Civil Penalty dated June 1, 2001, Case No. LV 01-201, based on a review of the January 2001 DMR. The review showed the subject facility to be in violation of the discharge limitations and/or monitoring requirements found in NPDES Permit No. NC0038784. The limit for the parameter of flow equaled .035 million gallons per day (“MGD”). The monthly average reported value equaled . 040 MGD. The monthly average limit for BOD equaled 30.0 mg/l. The monthly average reported value equaled 58.1 mg/l. The monthly average limit for TSS equaled 30.0 mg/l. The monthly average reported value equaled 57.9 mg/l. The daily maximum limit for BOD equaled 45 mg/l. The noncompliant reported values equaled 82 mg/l, 320 mg/l, 47 mg/l. The daily maximum limit for TSS equaled 45 mg/l. The noncompliant reported values equaled 468 mg/l and 49 mg/l. (Ex. R-11, R-12, R-14; T.pp. 78-80, 96).

26. Respondent reviewed the eight statutory factors necessary to assess an appropriate penalty. (Ex. R-13; T.pp. 90-91).

27. Respondent assessed Petitioner $1,000.00 for the flow violation, $1,000.00 for BOD monthly average limit violation, $1,000 for TSS monthly average limit violation, $500 for two of the three BOD daily limit violations, $250 for one of the two TSS daily limit violations reflected in the January 2001 DMR, plus $68.46 in enforcement costs. (Ex. R-14; T.p. 96).

28. Petitioner signed and submitted the February 2001 DMR as the permittee. Petitioner designated himself as a trustee and included the phrase “All Rights Reserved” after his signature and name. The February 2001 DMR reflected noncompliance due to high flow. A typed note indicated that the “plant is in bypass causing meter to read incorrectly.” (Ex. R-15; T.p. 98).

29. Respondent issued Petitioner a Notice of Violation and Assessment of Civil Penalty dated June 1, 2001, Case No. LV 01-202, based on a review of the February 2001 DMR. The review showed the subject facility to be in violation of the discharge limitations and/or monitoring requirements found in NPDES Permit No. NC0038784. The limit for the parameter of flow equaled .035 MGD. The monthly average reported value equaled .0688 MGD. The BOD daily

- 6 - maximum limit equaled 45 mg/l. The noncompliant reported value equaled 82 mg/l. (Ex. R-15, R-16, R-18; T.pp. 98, 109).

30. Respondent reviewed the eight statutory factors necessary to assess an appropriate penalty. (Ex. R-17; T.p. 99).

31. Respondent assessed Petitioner $1,000.00 for the flow violation reflected in the February 2001 DMR, $250.00 for the BOD daily maximum limit violation, plus $68.46 in enforcement costs. (Ex. R-18; T.pp. 108-109).

32. The civil penalty assessments for each of Petitioner’s monthly DMR violations are consistent with other assessments based on self-reported violations of permit limitations. (T.p. 124-125).

33. Petitioner’s January 2001 and February 2001 DMRs reflected sampling frequencies greater than those required by the Permit issued in 1993. (Ex. R-11, R-15; T.pp. 153-157, 163- 164). The additional data could lower or increase the monthly averages. (T.p. 166). The additional data could also inform the permittee that there may be a compliance problem so that corrective actions could be taken sooner. (T.p. 167). The additional data does not reduce flexibility in sampling since the representative sampling listed in the permit requires the permittee to report all data once it is taken, i.e., a permittee may not discard a sample that appears bad and resample on a better day to improve compliance rates. (T.pp. 167-169).

34. Petitioner testified that the high flows in September and October 2000 occurred as a result of broken pipes, running commodes and running or dripping sinks. (T.pp. 193-194, 201).

STANDARDS OF REVIEW

In the absence of state constitutional or statutory direction, the appropriate burden of proof must be “judicially allocated on considerations of policy, fairness and common sense.” 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence Sec 37 (4th ed. 1993). Two general rules guide the allocation of the burden of proof outside the criminal context: (1) the burden rests on the party who asserts the affirmative, in substance rather than form; and (2) the burden rests on the party with peculiar knowledge of the facts and circumstances. Id. The North Carolina courts have generally allocated the burden of proof in any dispute on the party attempting to show the existence of a claim or cause of action, and if proof of his claim includes proof of negative allegations, it is incumbent on him to do so. Peace v. Empl. Sec. Com’n of N.C., 349 N.C. 315, 507 S.E.2d 272 (1998), citing Johnson v. Johnson, 229 N.C. 541, 50 S.E.2d 569 (1948).

Generally, a Petitioner bears the burden of proof on the issues. Britthaven v. N.C. Dept. of Human Resources, 118 N.C. App. 379, 382, 455 S.E.2d 455, 461, rev. denied., 341 N.C. 418, 461 S.E.2d 754 (1995). To meet this burden, Petitioner must show that Respondent substantially prejudiced its rights and exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law or rule in

- 7 - determining that Petitioner’s Permit required additional conditions. The applicable version of the Administrative Procedure Act, prior to its amendment, which became effective in 2001, directs that the decision in pre-2001 contested cases must be supported by substantial evidence admissible under N.C. Gen. Stat. 150B-29(a) (“Rules of Evidence”), 150B-30 (“Official Notice”) or 150B-31 (“Stipulations”). N.C. Gen. Stat. § 150B-36(b) (2000).

“ Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Rusher v. Tomlinson, 119 N.C. App. 458, 465, 459 S.E.2d 285, 289 (1995), aff’d, 343 N.C. 119, 468 S.E.2d 57 (1996); Comm’r of Insurance v. Fire Insurance Rating Bureau, 292 N.C. 70, 80, 231 S.E.2d 882, 888 (1977). “It is more than a scintilla or a permissible inference.” Lackey v. Dept. of Human Resources, 306 N.C. 231, 238, 293 S.E.2d 171, 177 (1982). In weighing evidence which detracts from the agency decision, “[i]f, after all of the record has been reviewed, substantial competent evidence is found which would support the agency ruling, the ruling must stand” Little v. Bd. of Dental Examiners, 64 N.C. App. 67, 69, 306 S.E.2d 534, 536 (1983)(citations omitted).

In accord with Painter v. Wake County Bd. of Ed., 288 N.C. 165, 217 S.E.2d 650 (1975), absent evidence to the contrary, it will always be presumed that “public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. Every reasonable intendment will be make in support of the presumption.” See also Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961). The burden is upon the party asserting the contrary to overcome the presumption by competent and substantial evidence. See Styers v. Phillips, 277 N.C. 460, 178 S.E.2d 583 (1971). Further in accord with N.C. Gen. Stat. § 150B- 34, “the administrative law judge shall decide the case based upon the preponderance of the evidence, giving due regard to the demonstrated knowledge and expertise of the agency with respect to facts and inferences within the specialized knowledge of the agency.” The agency should be afforded deference if its factual findings are made pursuant to delegated authority from the legislature with adequate guiding standards and based on agency expertise in administering its program. “It is enough if general policies and standards have been articulated which are sufficient to provide direction to an administrative body possessing the expertise to adapt the legislative goals to varying circumstances.” Adams v. N.C. Dep’t of Natural and Economic Resources, 295 N.C. 683, 698, 249 S.E.2d 402, 411 (1978). The North Carolina Court of Appeals directs that, “an administrative agency’s interpretation of its own regulation should be accorded due deference unless it is plainly erroneous or inconsistent with the regulation.” Simonel v. N.C. School of the Arts, 119 N.C. App. 772, 775, 460 S.E.2d 194, 196 (1995). It is a tenet of statutory construction that a reviewing court should defer to the agency’s interpretation of a statute it administers, so long as the agency’s interpretation is reasonable and based on a permissible construction of the statute. If the statute is silent or ambiguous with respect to a specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute. County of Durham v. N.C. Dept. of Env’t and Natural Resources, 131 N.C. App. 395, 396-397, 507 S.E.2d 310, 311 (1998), rev. denied, 350 N.C. 92, 528 S.E.2d 361 (1999) (citations omitted).

North Carolina is one of a minority of states that has never adopted the Seventh Section of the English Statute of Frauds, which requires all trusts in land to be manifested in writing.

- 8 - Bryant v. Kelly, 279 N.C. 123, 181 S.E.2d 438 (1971). Indeed, the courts have “always upheld parol trusts in land in the ‘A to B to hold in trust for C’ situation” even when there is no consideration to support the transfer. Ferguson v. Ferguson, 55 N.C. App. 341, 285 S.E.2d 288 (1982) citing Bryant v. Kelly, 279 N.C. 123, 181 S.E.2d 438 (1971) . In this context an express trust is created, for an express trust arises by agreement of the parties. An express trust thus created may be proved by “parol evidence, which is clear, strong and convincing.” Electric Co. v. Construction Co., 267 N.C. 714, 148 S.E.2d 856 (1956). A constructive trust “exists purely by construction of the law, without reference to any actual or supposed intention to create a trust, for the purpose of asserting rights of parties . . .” Avery v. Stewart, 136 N.C. 426, 48 S.E. 775 (1904). And the equitable power of the court allows it to impose constructive trust on land even though the conveyance may appear to fall under the doctrine of unclean hands, for such doctrine is not one of absolutes to every unconscionable act of a party. A constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the grounds that he would be unjustly enriched if he were permitted to retain it. Lee, North Carolina Law of Trusts, § 11a.

BASED UPON the foregoing Findings of Fact and upon the preponderance or greater weight of the evidence in the whole record, the undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction to hear this case pursuant to N.C. Gen. Stat. §§ 150B-23 and 143-215.1(e).

2. The Petitioner is a "person aggrieved" by the civil penalty assessment within the meaning of the Administrative Procedure Act, N.C. Gen. Stat. §§ 150B-1 et seq.

3. All parties have been correctly designated and are properly before the Office of Administrative Hearings. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter.

4. The Petitioner bears the burden of proof on the issues.

5. Pursuant to N.C. Gen. Stat. § 143-215.1, a permit is required for the Riverview Mobile Home Park to cause or permit any waste, directly or indirectly, to be discharged to waters of the State. It is proper for Respondent to require the Permit to be held in an individual’s name and Petitioner is that individual.

6. The Permit issued in 1993 remains in effect as an administrative extension of the permit pending administrative appeal pursuant to N.C. Gen. Stat. § 150B-3.

7. Petitioner is a “person” within the meaning of N.C. Gen. Stat. § 143-215.6A, pursuant to N.C. Gen. Stat. § 143-212(4).

- 9 - 8. As the permittee of NPDES Permit No. NC0038784, Petitioner was responsible for the operation of the wastewater facility at Riverview Mobile Home Park.

10. Pursuant to N.C. Gen. Stat. § 143-215.1(a)(6), Petitioner was prohibited from causing or permitting any waste, directly or indirectly, to be discharged to waters of the State in violation of any effluent standard or limitation established for a point source.

11. Pursuant to NPDES Permit No. NC0038784, Petitioner was required to limit flow.

12. Pursuant to NPDES Permit No. NC0038784, Petitioner was required to report monthly averages on the parameter of flow.

13. Pursuant to NPDES Permit No. NC0038784, Petitioner was required to maintain the flow measurement devices to ensure the accuracy of the equipment.

14. Petitioner violated N.C. Gen. Stat. § 143-215.1(a)(6) and the terms of NPDES Permit No. NC0038784 by having average monthly flow, BOD and TSS measurements, as well as daily maximum BOD and TSS measurements which exceeded the permit’s limit for each parameter.

15. Respondent had authority to assess civil penalties against Petitioner in this matter pursuant to N.C. Gen. Stat. § 143-215.6A, which provides that a civil penalty of not more than $25,000.00 per violation may be assessed against a person who is required but fails to secure a permit required by N.C. Gen. Stat. § 143-215.1 or fails to act in accordance with such permit.

16. Respondent had authority to assess enforcement costs against Petitioner in this matter pursuant to N.C. Gen. Stat. § 143-215.3(a)(9) and N.C. Gen. Stat. § 143-282.1(b)(8).

17. The civil penalties and enforcement costs for each self-reported violation are reasonable and appropriate under the circumstances and are in accordance with the water quality statutes and the rules promulgated thereunder.

18. In assessing the civil penalties, Respondent did not exceed its authority or jurisdiction, did not act erroneously, used proper procedure, did not act arbitrarily or capriciously, and acted as required by law or rule.

19. The Petitioner has failed to overcome by substantial evidence (or even preponderance of the evidence) the presumption set forth by law that the Respondent’s decision to assess civil penalties was lawful and correct. As such, the presumption granted by law remains, that, Respondent did not exceed its statutory authority or jurisdiction, did not act erroneously, did not act arbitrarily or capriciously, and acted as required by law or rule.

- 10 - 20. The Undersigned gave attention and consideration to Petitioner’s Constitutional and due process assertions as well as the federal jurisdictional issues and again finds that the Undersigned and the Office of Administrative Hearings are without jurisdiction to hear or act on those issues.

BASED UPON the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

DECISION

The undersigned Administrative Law Judge finds that the Respondent did not err in assessing any of the four civil penalties levied against Petitioner.

NOTICE REGARDING DECISION

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision issued by the Undersigned, and to present written arguments to those in the agency who will make the final decision. N. C. Gen. Stat. § 150B-36(a).

In accordance with N.C. Gen. Stat. § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.

The agency shall adopt the decision of the Administrative Law Judge unless the agency demonstrates that the decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. The agency that will make the final decision in this case is the North Carolina Environmental Management Commission.

It is hereby ordered that the agency making the final decision in this matter serve a copy of the final decision to the Office of Administrative Hearings, P. O Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with N.C. Gen. Stat. § 150B-36.

IT IS SO ORDERED.

This the 26th day of March, 2002.

- 11 - ______Augustus B. Elkins II Administrative Law Judge

- 12 -