State of North Carolina s107

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ROBESON 10 EHR 4059

DAVID MCMILLAN, ) MCMILLAN CONTRACTING, INC., ) Petitioner, ) ) v. ) DECISION ) THE NORTH CAROLINA DEPARTMENT OF ) ENVIRONMENT AND NATURAL ) RESOURCES, DIVISION OF AIR QUALITY, ) Respondent. )

The above entitled contested case was heard before Beecher R. Gray, Administrative Law Judge, on November 8, 2010 in Fayetteville, North Carolina. Following receipt of all the evidence a decision in favor of Respondent was issued as follows below.

APPEARANCES

Petitioner appeared pro se. Respondent, the Department of Environment and Natural Resources, Division of Air Quality (“DAQ”), was represented by Amy L. Bircher and Scott A. Conklin, Assistant Attorneys General, North Carolina Department of Justice.

Whether, based on the facts and circumstances of this case, Respondent's assessment of a civil penalty totaling $5,250.00, plus investigative costs of $301.00, for a violation of 15A NCAC 2D .1901, was proper.

WITNESSES

For PETITIONER: For RESPONDENT:

Betsy McMillan Ernest Taylor Wayne Johnson Mitchell Jacobs Cindy Grimes Heather Hawkins Debra McHargue Steven Vozzo

1 EXHIBITS

RESPONDENT'S EXHIBITS

1. Notice of Violation to Ernest Taylor (Mar. 1, 2010) 2. Ltr. Ernest Taylor to Steven Vozzo (Mar. 11, 2010) 3. Notice of Violation to Wayne Johnson (Mar. 1, 2010) 4. Ltr. Wayne Johnson to Steven Vozzo (Mar. 9, 2010) 5. Parkton Fire Department Reports (Feb. 17, 2010) 6. Complaint Investigation Report (Feb. 24, 2010) 7. Investigator's Research (Feb. 24, 2010) 8. Notice of Violation to David McMillan (Mar. 1, 2010) 9. Ltr. David McMillan, McMillan Contracting to Steven Vozzo (Mar. 15, 2010) 10. Civil Penalty Assessment to David McMillan, McMillan Contracting (Jun. 18, 2010) 11. Cost of Enforcement Action 12. Assessment Factors, Sheila Holman (Jun. 18, 2010) 13. Documents regarding February, 2006 Open Burning Violation 14. Notice of Violation to David McMillan, McMillan Contracting (Nov. 17, 2000) 15. Notice of Violation to David McMillan, McMillan Construction (Jun. 1, 1999) 16. Petition filed by David McMillan, McMillan Contracting (Jul. 15, 2010) 17. DAQ's First Set of Discovery Requests and Petitioner's Responses 18. Ltr. Regarding Deficiencies in Discovery Responses (Oct. 4, 2010) 19. Petitioner's Responses to Deficiencies, including Payment Records for Wanda McLean 20. DAQ's Second Set of Interrogatories & Document Request (Oct. 5, 2010) 21. Petitioner's Responses to DAQ's Second Discovery Request (Oct. 19, 2010) 22. Open Burning Regulations 23. Open Burning Flyer (2006)

FINDINGS OF FACT

1. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and each stipulated on the record that notice was proper.

2. On February 17, 2010, Cindy Grimes, Senior Evironmental Technician with the Division of Air Quality (“DAQ”), Fayetteville Regional Office (“FRO”), received a phone call from Assistant Chief Chris Nowak of the Parkton Fire Department in Robeson County. Chris Nowak was at the scene of a mobile home fire his department had just extinguished at 23 Birds Way Court, Scotch Pines Trailer Park, Parkton, North Carolina.

3. Mitchell Jacobs, Chief of the Parkton Fire Department also responded to the fire. This particular trailer partially had been burned in January of 2010. No one was living in the trailer at the time of the fire on February 17, 2010. Chief Jacobs told Chris Nowak to report the fire to DAQ as an illegal burn. 2 4. Ernest Taylor had seen the partially burned trailer on the lot a day or two prior to February 17, 2010. He and Wayne Johnson had been looking for metal to salvage. He asked a woman he saw near the lot if she knew who owned the property. She gave him Petitioner’s name and number. Ernest Taylor called and spoke to a woman who provided him with Petitioner’s cell phone number.

5. Ernest Taylor called Petitioner and asked Petitioner for permission to salvage the metal from the partially burned trailer. Petitioner gave Ernest Taylor permission to do so, stating that he needed the lot cleared. At no time did Petitioner tell Ernest Taylor that anyone else would have to give permission for him to salvage the metal from the trailer.

6. On February 17, 2010, Ernest Taylor and Wayne Johnson drove to 23 Birds Way Court. Petitioner came to the property, and Ernest Taylor and Wayne Johnson introduced themselves to Petitioner and thanked him for allowing them to salvage the metal.

7. It was a cold morning, and Ernest Taylor and Wayne Johnson started a small fire to warm by. When Petitioner saw the small fire, he told Ernest Taylor and Wayne Johnson that burning the trailer would be a good way to get rid of it.

8. Ernest Taylor and Wayne. Johnson then set one end of the trailer on fire. Petitioner returned and said that a backhoe would be on its way to the site to turn the trailer over.

9. While Ernest Taylor and Wayne Johnson were away for lunch, the fire spread to surrounding brush. Ernest Taylor called the Parkton Fire Department. The fire department extinguished the fire.

10. After the fire was extinguished, a backhoe arrived. The driver dug one large hole on the lot and another on the adjacent lot, and buried the remaining trailer debris, aside from the metal, in the two holes. The backhoe then covered the holes with dirt.

11. Ernest Taylor observed Petitioner giving instructions to the backhoe driver, while this was taking place.

12. On February 18, 2010 Technician Debra McHargue, of DAQ, Fayetteville Regional Office (FRO), drove to 23 Birds Way Court. While there, Technician McHargue spoke to Ernest Taylor and Wayne Johnson, who were salvaging the remaining metal. They told Technician McHargue that they set the trailer on fire after Petitioner suggested to them that burning the trailer would be a good way to get rid of it. They told her that Petitioner buried the remaining mobile home debris after the fire was extinguished by the Parkton Fire Department. 3 13. Senior Technician McHargue took photographs which showed the freshly graded property, scorched earth from the fire, and remaining metal frame of the trailer.

14. The last deed on record at the Robeson County Register of Deeds identifies Petitioner as the owner of the property.

15. Petitioner produced documents indicating an agreement between Petitioner and Wanda McLean for purchase of the property. Wanda McLean has not made payments under this contract since December of 2008.

16. Petitioner McMillan has the right to reclaim the property from Wanda McLean. Petitioner has not exercised that right nor has he waived that right.

17. Wanda McLean has not lived at the property since at least January, 2010.

18. DAQ assessed civil penalties against Ernest Taylor, Wayne Johnson, and Petitioner for the February 17, 2010 fire.

19. Petitioner was assessed a civil penalty in the amount of $3,000 for illegal open burning of demolition material in 2006. This penalty was upheld by the Environmental Management Commission and eventually collected through the Attorney General’s office.

20. Petitioner received a Notice of Violation in 2000 and 1999 for illegal burning of land clearing debris within less than 1000 feet of occupied structures.

21. In connection with the 2006, 2000, and 1999 incidents, DAQ provided Petitioner with information regarding the open burning regulations.

22. In this case, DAQ assessed a civil penalty of $5,250 against Petitioner.

23. DAQ incurred costs of $301 in its investigation and enforcement action in this case.

24. The EMC enacted rules at 15A NCAC 2D .1900 et seq. which govern open burning in North Carolina. Under these regulations, “[a] person shall not cause, allow, or permit open burning of combustible material except as allowed by Rule . 1903 and Rule .1904 of this Section.”

25. For purposes of the open burning rule, “person” means: a) the person in operational control over the open burning; or b) the landowner or person in possession or control of the land when he has directly or indirectly allowed the open burning or has benefitted from it. 15A NCAC 2D .1902(16).

4 26. The definition of “person” in 15A NCAC 2D .1902 makes clear that someone other than the person who started the fire may be held responsible for an illegal burn.

27. Petitioner exercised control over the property by giving Ernest Taylor and Wayne Johnson permission to salvage the metal from the trailer. Petitioner was the landowner of record and was in control of the property when the burning occurred on February 17, 2010.

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, I make the following Conclusions of Law:

1. The parties properly are before the Office of Administrative Hearings and the Office of Administrative Hearings has jurisdiction over this contested case.

2. The burden of proof is on the Petitioner in this contested case proceeding to prove that he is entitled to relief from this agency decision. See Overcash v. N.C. Dep't of Env't & Natural Res., 179 N.C. App. 697, 704-05, 635 S.E.2d 442, 447-48 (2006), disc. review denied, 361 N.C. 220, 642 S.E.2d 445 (2007). See also Peace v. Employment Sec. Comm’n, 349 N.C. 315, 328, 507 S.E.2d 272, 281 (1998) (in seeking to show a basis for reversing an agency decision, the petitioner has the burden of proof, even if that burden requires proving a negative).

3. It is the Petitioner's burden to prove the facts required by section 150B-23(a) by a preponderance of the evidence. N.C. Gen. Stat. § 150B-29(a) (2009).

4. Petitioner caused, allowed, or permitted the burning of the trailer on February 17, 2010 by telling Ernest Taylor and Wayne Johnson that burning the trailer would be a good way to get rid of it.

5. The evidence produced in this contested case hearing supports the civil penalty in the amount of $5,250 and costs in the amount of $301 assessed by DAQ against Petitioner.

DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, I find that Respondent’s decision to levy a civil penalty of $5,250 and costs of $301 against Petitioner for violation of the open burning rules is supported by the evidence and is AFFIRMED. The Department of Environment and Natural Resources should consider, within its discretion, some reduction in the penalty levied against Petitioner in view of the fact that Ernest Taylor and Wayne Johnson, both of whom have admitted setting the fire, already have been fined for

5 violating the open burning rules during the February 17, 2010 incident for which Petitioner also was fined. ORDER

It hereby is ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27611-6714, in accordance with GS §150B-36(b).

NOTICE

The agency making the final decision is 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 Department of Environment and Natural Resources.

This, the 18th day of November, 2010.

______Beecher R. Gray, Administrative Law Judge