State of North Carolina s74

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS BLADEN COUNTY 00 EHR 0881 ______Turnbull Company, LLC ) Petitioner, ) ) v. ) RECOMMENDED DECISION ) North Carolina Department of Environment and ) Natural Resources ) Respondent. ) ______

This matter was heard before Administrative Law Judge Beryl Wade, on November 14 2000, in Fayetteville, North Carolina, on a petition for a contested case hearing appealing the Division of Water Quality’s (hereinafter Respondent) assessment of a civil penalty in the amount of $500.00 plus $153.04 in investigative costs against Turnbull Company, LLC (hereinafter, Petitioner) for failing to maintain the liquid level in the lagoons at the level specified in Petitioner’s Certified Animal Waste Management Plan under the North Carolina Division of Water Quality General Permit for Swine Operations.

APPEARANCES

For Petitioner: Chris Livingston Parker & Livingston P.O. Box 1089 Clinton, NC 28329-1089

For Respondent: Mary Dee Carraway Assistant Attorney General N.C. Department of Justice P. O. Box 629 Raleigh, NC 27602-0629

ISSUES

1. Whether Turnbull Company, LLC (hereinafter, Petitioner) violated the water quality laws of the State of North Carolina, specifically N.C. Gen. Stat. § 143-215.1 and 15A NCAC 2H.0217 by discharging animal wastewater into waters of the State?

2. Whether Respondent correctly assessed an appropriate penalty for the violation? TESTIFYING WITNESSES

Petitioner: W. Robert Livingston, Jr. EXHIBITS RECEIVED INTO EVIDENCE

Petitioner:

1. General Permit 2. Nutrient Management Plan 3. Answer to Letter from NCDENR 4. Letter Responding to Notice of Violation 5. Notice of Violation

Respondent: Lagoon freeboard level log

Based upon careful consideration of the testimony and evidence received during the contested case hearing as well as the entire record of this proceeding, the undersigned makes the following:

FINDINGS OF FACT

1. Petitioner is an limited liability corporation doing business as a swine farm in Bladen County, North Carolina. W. Robert Livingston, Jr. is the registered agent for Petitioner.

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 owns and operates a swine operation located in Bladen County, North Carolina. The facility received a certificate of coverage under the North Carolina Division of Water Quality General Permit for Swine Operations on June 26, 1998.

4. On January 28, 2000, Petitioner notified the Division of Water Quality, as required by condition no. III. 6(e) of the General Permit, that the freeboard level was less than the minimum required by the General Permit. The freeboard levels in the two lagoons were 7 inches and 18 inches. These levels are less than the minimum required by the General Permit and the Certified Animal Waste Management Plan.

5. Notice of Violation/Notice of Recommendation of Enforcement was sent to Petitioner by Respondent on March 20, 2000 informing Petitioner that its failure to maintain proper freeboard in the waste lagoons at the facility constituted a violation of General Permit Condition no. V.3. This condition states that “the maximum waste level in the lagoons/storage ponds shall not exceed that specified in the CAWMP. At a minimum, maximum waste level for lagoons/storage ponds must not exceed the level that provides adequate storage to contain the 25-year, 24-hour storm event plus an additional 1 foot of structural freeboard.”

6. On May 23, 2000 the Director of the Division of Water Quality assessed a $653.04 civil penalty (a $500.00 civil penalty and $153.04 in enforcement costs) against Petitioner for a violation of a permit condition and N.C. Gen. Stat. § 143-215.1. 7. In assessing the civil penalty against Petitioner, Respondent considered each of the factors listed in N.C. Gen. Stat. § 143-282.1(b) as required by N.C. Gen. Stat. § 143-215.6A(c).

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. All parties are properly before the Office of Administrative Hearings, and the Office has jurisdiction over the parties and the subject matter.

2. All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder.

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

4. Pursuant to N.C. Gen. Stat. § 143-215.1 and General Permit condition no. V. 3, the maximum waste level in the lagoons/storage ponds shall not exceed that specified in the Certified Animal Waste Management Plan. At a minimum, maximum waste level for lagoons/storage ponds must not exceed the level that provides adequate storage to contain the 25- year, 24-hour storm event plus an additional 1 foot of structural freeboard.”

5. On March 15, 1999, Petitioner violated condition no. V. 3 of the General Permit N.C. Gen. Stat. § 143-215.1 by failing to maintain the liquid level in the lagoon at the level specified by the Certified Animal Waste Management Plan.

6. Respondent had authority to assess a civil penalty against Petitioner in this matter pursuant to N.C. Gen. Stat. § 143-215.6A.

7. Pursuant to N.C. Gen. Stat. § 143-215.6A(h), the Director of the Division of Water Quality has the authority to issue civil penalties in this matter.

8. The Director of the Division of Water Quality has the authority to assess enforcement costs against Petitioner pursuant to N.C. Gen. Stat. § 143-215.3(a)(9) and N.C. Gen. Stat. § 143B-282.1(b)(8).

9. In determining the amount of the penalty, Respondent properly considered the factors set forth in N.C. Gen. Stat. § 143B-282.1, as required by N.C. Gen. Stat. § 143-215.6A.

10. In assessing a civil penalty of $500.00 and $153.04 in enforcement costs against Petitioner for failure to maintain the level in the lagoons at the level specified by the Certified Animal Waste Management Plan and General Permit, Respondent did not deprive Petitioner of property, act erroneously, fail to use proper procedure, exceed its authority or jurisdiction, act arbitrarily or capriciously, fail to act as required by law or rule, or otherwise substantially prejudice Petitioner’s rights.

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:

RECOMMENDED DECISION

The Environmental Management Commission should uphold the Director of the Division of Water Quality’s decision to assess a civil penalty in the amount of $500.00 plus $153.04 in enforcement costs against Petitioner.

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, North Carolina 27699-6714, 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. N.C. Gen. Stat. § 150B-36(a).

The agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to the Office of Administrative Hearings.

The agency that will make the final decision in this contested case is the North Carolina Environmental Management Commission.

This the 2nd day of February, 2001.

______Beryl E. Wade Administrative Law Judge