State of North Carolina s45

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF DURHAM 02 EHR 0630

TRAFALGAR PROPERTIES, LLC ) Petitioner, ) v. ) DECISION ) COUNTY OF DURHAM ) Respondent.

THIS MATTER WAS HEARD before Administrative Law Judge Beryl E. Wade, on February 18-21, 2003, in Raleigh, North Carolina.

BACKGROUND 1. Petitioner initiated this contested case with the Office of Administrative Hearings (OAH) on April 12, 2002, appealing the decision of Respondent Durham County to assess a civil penalty against it in the amount of $2,676.40 per day, with a total civil penalty of $109,732.40, for violations of the Durham City/County Sedimentation and Erosion Control Ordinance (Ordinance),

2. Petitioner also named as Respondents the Durham County Board of Commissioners and the Durham County Engineering Department. By an order entered on June 26, 2002, the Court dismissed those entities from this contested case and revised the caption to reflect their dismissal.

3. Petitioner also made two motions to dismiss the civil penalty assessment which gave rise to this contested case. Both of these motions were filed on July 2, 2002. Petitioner’s First Motion to Dismiss contended that it had not been properly served with the Notice of Violation issued by the Respondent. Petitioner’s Second Motion to Dismiss contended that it had not been properly served with the Notice of Civil Penalty Assessment issued by the Respondent. Both of these motions were heard by the Court on August 22, 2002, and were denied in open court that same day, with the written orders for same being entered on February 18, 2003.

APPEARANCES

Petitioner: Jeffrey P. Gray Holt, York, McDarris & High, LLP P. O. Box 17105 Raleigh, North Carolina 27619

Kenneth B. Spaulding 3100 Tower Road, Suite 300 Durham, North Carolina 27707 Respondent: Curtis Massey Assistant County Attorney County of Durham Post Office Box 3508 Durham, North Carolina 27702

ISSUES

1. Whether Respondent acted beyond its authority or jurisdiction in assessing a civil penalty against the Petitioner for violating the Ordinance?

2. Whether Respondent acted erroneously in assessing a civil penalty against the Petitioner for violating the Ordinance?

3. Whether Respondent failed to use proper procedure in assessing a civil penalty against the Petitioner for violating the Ordinance?

4. Whether Respondent acted arbitrarily or capriciously in assessing a civil penalty against the Petitioner for violating the Ordinance?

STATUTES, RULES & POLICIES IN ISSUE

N.C. GEN. STAT. § 87-1, et. seq. N.C. GEN. STAT. § 113A-50, et. seq. Durham County Ordinances § 14-51, et. seq.

WITNESSES

PETITIONER presented the following witnesses: Kirby Bell, Kevin Martin, Robert Munns, Arthur Steckler, Bill Woodall, Daniel Havener and Jeryl Murph

RESPONDENT presented the following witnesses: David Dunn, Charles Armbrust, William Noyes and Timothy Holland

PETITIONER’S EXHIBITS The following exhibits were admitted into evidence by Petitioner:

1. Not Admitted 2A. Not Admitted 2B. Not Admitted 3. Petitioner’s Contract with Percy L. Johnson, Inc., 10/5/01 4. Photograph of Stream Crossing C area taken by Bob Munns on 11/29/01 5. Photographs of Stream Crossing C taken by Bob Munns on 2/15/02 6. Photographs of Stream Crossing C taken by Bob Munns on 2/18/02 7. Photographs of Stream Crossing C taken by Bob Munns on 2/21/02 8. Not Admitted

RESPONDENT’S EXHIBITS The following exhibits were admitted into evidence by Respondent:

1. Petitioner’s Application for a Land Disturbing Permit, 6/29/01 2. Not Admitted 3. Facsimile transmittal from Bob Munns to Percy Johnson, Inc., 9/24/01 4. Not Admitted 5. Respondent’s Letter of Disapproval (Plan Rejection), 7/27/01 6. Bass, Nixon & Kennedy, Inc. (BNK)’s Letter (Plan Resubmittal), 8/10/01 7. Respondent’s Letter of Disapproval (Plan Rejection), 8/31/01 8. BNK’S Letter (Plan Resubmittal), 9/5/01 9. Approved Sedimentation & Erosion Control Plan, (Sheet C3.8-C3.10 & C3.7), 9/5/01 10. Respondent’s Letter of Approval (Sedimentation & Erosion Control Plans), 9/10/01 11. Respondent’s Letter issuing Land Disturbing Permit, 11/1/01 12. Petitioner’s Contract with Royals Contracting, Inc., 12/3/01 13. Not Admitted 14. Respondent’s Inspection Report, 2/12/02 15. Respondent’s Inspection Report with Photographs, 2/13/02 16. Facsimile transmittal from BNK to Respondent (Plan amendment), 2/14/02 17. Letter from Percy L. Johnson, Inc., 2/14/02 18. Respondent’s Inspection Report, 2/18/02 19. Respondent’s Notice of Continuing Violation, 2/25/02 20. Facsimile Transmittal from BNK to Respondent, 3/7/02 21. Respondent’s Inspection Report, 3/7/02 22. Respondent’s Inspection Report, 3/8/02 (a.m.) 23. Respondent’s Inspection Report with Photographs, 3/8/02 (p.m.) 24. Facsimile Transmittal from BNK to Respondent (Plan Amendment), 3/11/02 25. Facsimile Transmittal from BNK to Respondent (Plan Amendment), 3/12/02 26. Respondent’s Letter of Approval of Revised Plan, 3/12/02 27. Facsimile Transmittal from BNK to Respondent (Plan Amendment), 3/15/02 28. Facsimile Transmittal from BNK to Respondent (Plan Amendment), 3/20/02 29. E-mail transmittal from William Noyes to BNK, 3/20/02 30. Notice of Civil Penalty Assessment, 3/14/02 31. Civil Penalty Worksheet, 3/12/02 32. Respondent’s Inspection Report with Photographs, 3/20/02 33. Respondent’s Inspection Report with Photographs, 3/26/02 34. Respondent’s Rescind Notification, 4/1/02 35. Not Admitted 36. Facsimile Transmittal from BNK to Petitioner’s Counsel, 7/12/02 37. Not Admitted 38. Not Admitted 39. Affidavit of Gary Umstead filed 4/29/02 40. Plan Showing Location of Photographs (Sheets C3.9-C3.10 & C3.7), 9/5/01 41. National Climate Data Center’s Rainfall Records, November 2001 -March 2002 42. Approved Sedimentation & Erosion Control Plan, Sheet C7.3, 9/7/01

Based upon the careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned makes the following findings of fact. In making findings of fact, the undersigned has weighed all the evidence and has assessed the credibility of witnesses by taking into account the appropriate factors for judging credibility, including, but not limited to, 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 facts 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. The parties received notice of hearing more than fifteen (15) days prior to the originally set date for the hearing of this contested case.

2. Respondent, Durham County, administers a joint City/County Sedimentation and Erosion Control Program as authorized by Article 4 of Chapter 113A of the General Statutes, the Sedimentation Pollution Control Act of 1973 (Act). This program requires land disturbing activities in excess of 12,000 square feet to obtain a permit, and for activities in excess of one acre, an approved sedimentation and erosion control plan must be in place.

3. The Ordinance, at § 14-51, states:

This article is adopted for the purposes of:

Regulating certain land-disturbing activity to control accelerated erosion and sedimentation in order to prevent the pollution of water and other damage to lakes, watercourses and other public and private property by sedimentation;

4. The Ordinance, at § 14-62, states:

During the development of a site, the person conducting the land-disturbing activity shall install and maintain all temporary and permanent erosion and sedimentation control measures as required by the approved plan or any provision of this article, the Act or any order adopted pursuant to this article or the Act...

5. North Carolina General Statute, § 113A-51 states: The sedimentation of streams, lakes and other waters of this State constitutes a major pollution problem. Sedimentation occurs from the erosion or depositing of soil and other materials into the waters, principally from construction sites and road maintenance. The continued development of this State will result in an intensification of pollution through sedimentation unless timely and appropriate action is taken.

6. North Carolina General Statute, § 113A-60 authorizes local governmental entities, such as the City and County of Durham, to establish sedimentation and erosion control programs, so long as they are at least as stringent as the one defined in the Act and its implementing regulations.

7. North Carolina General Statute, § 113A-64 authorizes the imposition of civil penalties as an enforcement tool for violations of a local sediment and erosion program. It also requires that appeals of civil penalties imposed by local programs, such as the Respondent’s, be made through the OAH.

8. Sediment in watercourses is a significant source of water pollution which impairs the quality of drinking water and kills aquatic life.

9. On or about June 29, 2001, the Petitioner submitted to Respondent an application for a land disturbing permit for a site approximately 39.5 acres in size. This application included a Financial Responsibility/Ownership Form and a Sedimentation and Erosion Control plan. This plan was prepared by a Professional Engineer, David Dunn, P.E., and it was reviewed by, and bore the professional stamp of, another Professional Engineer, Mr. K. Robert Bell, P.E., both employed by Bass, Nixon & Kennedy, Inc. During the course of the hearing it was explained that Mr. Dunn was primarily responsible for the design of work and measures at the job site and that he worked under the supervision of Mr. Bell. Consistent with that supervisory relationship Mr. Bell would review and stamp the plans prepared by Mr. Dunn.

10. The Financial Responsibility/Ownership Form lists Trafalgar Properties, LLC, (the Petitioner) as the firm which is financially responsible for this land disturbing activity and lists its address as 1101 Haddon Hall Drive, Apex, NC, 27502. It also lists its registered agent as James D. Cox of 216 East Chatham Street, Cary, NC 27511. The Financial Responsibility/ Ownership Form was executed by Arthur Steckler who is identified as Petitioner’s Managing Partner.

11. The Financial Responsibility/Ownership Form states that “Issuance of a Land Disturbing Permit does not relieve the permittee to obtain any other licenses, permits and approvals as may be required by Federal, State, County or Municipal governments.”

12. The Financial Responsibility/Ownership Form states: The Sedimentation and Pollution Control Act and the Durham City/County Sedimentation and Erosion Control Ordinance place the following legal obligations on the financially responsible party who is conducting a land disturbing activity, as follows:

1) A set of approved sedimentation and erosion control plans must be kept on site.

2) It is your responsibility to understand and implement the approved plan, including the construction sequence and details.

3) It is your responsibility to inspect your sedimentation and erosion control measures, especially after rainfall events, and to maintain and repair them as necessary.

4) Slopes which have not been actively graded within the past 15 days must be seeded and mulched or otherwise restabilized.

13. Arthur Steckler is the Petitioner’s Managing Partner and it has no direct employees. Petitioner is a limited liability corporation which has four (4) members, which are four corporations – each of which belong to one of his four (4) children. Petitioner is a venture Mr. Steckler started to help his “children get a start in life, to give them some nest egg to get going.” Mr. Steckler resides in Montreal, Canada and travels to North Carolina about twice a month for two days to check on his business interests, Petitioner being one of them. Mr. Steckler rarely goes out to an actual job site and does not have the technical training or ability to read plans or supervise contractors in their work. Accordingly, Petitioner contracts with other entities and individuals to obtain, and perform, all necessary services.

14. Mr. Steckler is by training an attorney who has in the past three decades been engaged in numerous developments in the United States and Canada. Over the last 19 years he has, through various corporate identities been responsible for approximately 11 developments in the State of North Carolina. Mr. Steckler has developed numerous projects in the Raleigh/Cary/Apex area including both residential real estate developments and office parks. His legal practice is devoted to complex real estate litigation.

15. Mr. Steckler did not read the Financial Responsibility/Ownership Form prior to signing it and often does not read business documents provided to him by employed agents unless they involve the allocation of funds.

16. The Haddon Hall address provided by Petitioner is one used by Mr. Steckler for several ongoing development businesses he has in North Carolina. At that business address there is only one employee. That individual is employed part-time and is shared by Petitioner and several other of Mr. Steckler’s business interests. During the times relevant to this contested case the part-time employee at this address was Cathy Cochefski.1

17. For the subject job site Petitioner contracted with the firm of Bass, Nixon & Kennedy to provide engineering services and to obtain necessary permits, such as the land disturbing permit

1 In the transcript her name has been improperly spelled as Kathy Kachevsky. issued by the Respondent. Bass, Nixon & Kennedy had full authority to make such changes to the submitted plans as were necessary in order to obtain approval from permitting entities, such as the Respondent, in order to obtain permits. This authority extended to the ability to revise plans in order to resolve deficiencies or violations detected after permits were received and land disturbing activities began.

18. In July 2001, Petitioner contracted with Robert Munns of Site Preparation Management, Inc., to provide local representation and on-scene information to Petitioner by way of Mr. Steckler. The contract required Mr. Munns to provide services for some 10-12 hours per week. Mr. Munns testified that he would provide services at this job site and also at two others where Mr. Steckler was developing properties.

19. Mr. Steckler’s normal practice in developing a project is to hire contract professional service providers who have a good reputation in the community to prepare the plans and do all the environmental work, as well as get the on-site contractors hired. He arranges his financing through local institutions and then begins developing the project. All of the people who assist his with real estate development are independent contractors. There is nothing different about how the Villages at Independence park in Durham was developed in comparison to any other development that Mr. Steckler has done in the Research Triangle area.

20. Mr. Steckler does not personally try to learn the various laws, regulations, and ordinances in an area where he is developing real estate, but instead hires professionals in that field who are familiar with the laws and regulations of that jurisdiction. The Villages at Independence Park was the first development that Mr. Steckler had developed in Durham County. Everyone involved in this project, with the exception of Kevin Martin of S&EC, was a direct contract employee with the Petitioner Trafalgar Properties, LLC.

21. Because of the business model Mr. Steckler utilized for the Petitioner he did not normally receive, review, or act on correspondence directed to Petitioner. The part-time employee was directed to forward all business correspondence to the responsible contractor/agent for action. Consistent with this business model, Mr. Steckler testified that upon receipt of the Notice of Continuing Violation, which was delivered to Petitioner on February 27, 2002, Ms. Cochefski immediately forwarded it to Mr. Munns for appropriate action.

22. In the entire time Mr. Steckler has developed in the Research Triangle area, he has never been cited for an environmental violation or required to pay a penalty. He is very strict in making sure that “my people observe the law and do what’s supposed to be done.” He has never had a violation of this nature from any local, state, or federal government agency.

23. North Carolina General Statutes, Chapter 87, Article 1, governs General Contractors. General Statute § 87-1 requires anyone who superintends or manages construction on behalf of another, including utility installation and grading having a value of $30,000.00 or more, to have a general contractors license.

24. General Statute § 87-13 provides that anyone who performs the duties enumerated in G.S. §87-1 without the appropriate licensure shall be guilty of a Class 2 misdemeanor. 25. Mr. Munns does not currently hold a general contractors license, nor any other professional license pertaining to construction or site development. Mr. Munns explained that his role was to assist Mr. Steckler with project management by providing “site observation” and letting him know what was happening at the job site. Mr. Munns testified that he spoke with Mr. Steckler on at least a weekly basis about the progress of work, but that he never submitted any written reports to Mr. Steckler. Mr. Munns denied that he ever provided oversight or direction to the contractors actually working at the job site. Mr. Munns also assisted Mr. Steckler with the development of bids and contracts for work to be done at the job site. Mr. Munns’ limited involvement was consistent with his lack of a general contractors license.

26. Petitioner expected Mr. Munns, and Bass Nixon & Kennedy to be its agents for dealing with regulatory entities such as the Respondent, resolving those matters they could and contacting Mr. Steckler if the expenditure of significant additional funds was necessary.

27. Mr. Munns did not review the approved plans in any detail. His only concern was the approximate time line for construction activities so that he could advise Petitioner/Mr. Steckler if things were proceeding in a timely manner. Mr. Munns was not familiar with the specific sedimentation and erosion control measures detailed on the approved plans, nor the construction sequence detailed on sheet C3.8 for these measures. Prior to the instant enforcement action he was completely unaware of the bypass channel designed for stream crossing C which was detailed on sheets C3.8 and C7.3 of the approved plans.

28. Mr. Munns took no action to ensure that the conditions of Petitioner’s Land Disturbing Permit were complied with. This included Petitioner’s obligation to install all required measures, and to insure that the required pre-construction conference and pre-construction inspection of installed sedimentation and erosion control measures were conducted. This also included Petitioner’s obligation to inspect and maintain all required measures.

29. Prior to initiation of the subject enforcement action Petitioner took no action to regularly inspect and maintain the sedimentation and erosion control measures installed at the job site, same being a requirement of both the Ordinance and Petitioner’s National Pollutant Discharge Elimination System (NPDES) permit issued by the State of North Carolina.

30. At the time Petitioner commenced the subject project, NPDES permits were required for all projects disturbing land in excess of five acres.

31. Petitioner’s NPDES permit also required Petitioner to install a rain gauge at its job site and to maintain records of both rainfall and its inspections of sedimentation and erosion control measures. These obligations were not fulfilled prior to initiation of the subject enforcement action.

32. Mr. Munns had not complied with the requirements of the Petitioner’s NPDES permit because he was unfamiliar with that program. 33. Petitioner’s first plan, submitted June 29, 2001, was reviewed by the Sedimentation and Erosion Control Technician who had geographic responsibility for the area where the project was located, Mr. Charles Armbrust. Mr. Armbrust has been employed by Durham County as a Sedimentation and Erosion Control Technician for four years and prior to that worked for the State of Indiana in their Surface Coal Mining Division. After Mr. Armbrust completed his review he discussed his comments with the Erosion Control Officer, Mr. William Noyes. Mr. Noyes has been employed as the Durham County Sedimentation and Erosion Control Officer for 21 months and prior to that he was employed as the State Sedimentation Specialist of the North Carolina Department of Environment and Natural Resources, Division of Land Resources, Land Quality Section. Mr. Noyes has been a licensed professional engineer since 1983.

34. The plan submitted by Petitioner on June 29, 2001, was rejected by the Respondent for multiple deficiencies. In its rejection letter dated July 27, 2001, Respondent listed 17 items which needed to be addressed. One of them, number 8, stated:

35. A design and detail must be included for the stream crossing at Public Street C and the sanitary sewer crossing at the southeast corner of the project. Sediment control measures must also be shown for the construction of these two measures.

36. The stream referenced above, and with which the subject violation is concerned, is an unnamed perennial stream which flows through Petitioner’s property and is a tributary of Cub Creek.

37. Petitioner submitted a revised sedimentation and erosion control plan on August 10, 2001. This revised plan addressed most of the deficiencies identified in Respondent’s letter of July 27, 2001.

38. Petitioner’s revised plan (8/10/01) did not address the need for detail and sedimentation control measures for the stream crossing at Public Street C. In its letter rejecting the revised plan, dated August 31, 2001, Respondent noted this continuing deficiency in bold face type. Respondent’s letter also advised Petitioner of the existence of a standard reference on this subject, the State of North Carolina, Erosion and Sediment Control Planning and Design Manual.

39. Respondent’s letter of August 31, 2001, disapproving the revised plan, like its earlier disapproval letter, informed Petitioner that it had two options, (1) submit a revised plan; or (2) appeal the decision to the Board of County Commissioners.

40. Following Respondent’s letter of August 31, 2001, several telephone conversations were held between Petitioner’s agents at Bass, Nixon & Kennedy (Mr. Dunn and Mr. Bell) and Respondent’s employees (Mr. Armbrust and Mr. Noyes).

41. The initial conversations were between Mr. Armbrust and Mr. Dunn. They discussed possible measures for stream crossing C. Those discussions concerned either pumping water around the crossing or building a bypass channel to permit the flow of water around the stream crossing while it was being constructed. 42. Petitioner did not wish to pump the water around stream crossing C as it felt that the attendant costs and maintenance responsibilities were excessive.

43. Mr. Bell and Mr. Noyes also discussed possible measures for the site. Mr. Noyes suggested Mr. Bell consult with the North Carolina Department of Transportation, Roadside Environmental Unit (NCDOT) as he understood that they regularly crossed streams for road construction purposes and could probably advise Mr. Bell as to other options. Mr. Noyes emphasized that the Respondent’s concern was that Petitioner “work in the dry” meaning that no water be flowing through the site of the stream crossing while earth was being disturbed as this would result in sediment entering the watercourse.

44. Mr. Bell testified that he did not recall Mr. Noyes making such a suggestion, but stated that he would have disregarded it as he holds the engineering practices of NCDOT in low regard.

45. Following his conversation with Mr. Noyes, Mr. Bell discussed the situation with Mr. Steckler and then directed Mr. Dunn to design a bypass channel which would carry the water around the site of stream crossing C while that stream crossing was being constructed and the stream banks were stabilized.

46. When Mr. Dunn prepared the plans submitted on June 29, and August 10, 2001, he had not addressed specific measures for stream crossing C as he lacked experience in that area and felt that the contractors would install whatever was required in accordance with “standard construction practices.” During the hearing of this matter, Mr. Dunn admitted he did not know what would constitute a “standard construction practice” for such a stream crossing and deferred to Mr. Bell for a better explanation of same.

47. When Mr. Bell reviewed the plans submitted on June 29, and August 10, 2001, he did not realize that installation of the stream crossing would require any widening of the stream. He attributed this to the scale used in preparing those plans.

48. At the time he had reviewed those earlier plans Mr. Bell had expected sediment control would be provided by the contractor laying one culvert in the stream channel and then diverting all water through it while the other culverts were installed at stream crossing C. Mr. Bell had also expected rock dams to be constructed at both the upstream and downstream ends of that initial culvert in order to prevent sediment generated by the culvert installation from entering the stream.

49. Mr. Bell did not explain this concept to the Respondent orally in his telephone conversation with Mr. Noyes, nor did it ever appear on a submitted set of plans. Under cross- examination Mr. Bell also admitted that the contours of the stream at stream crossing C would not have permitted the sediment prevention plan he envisioned without some excavation/widening of the stream channel.

50. Respondent did not order, or otherwise compel, Petitioner to design the specific measure of a bypass channel at stream crossing C. 51. Petitioner’s next set of revised plans were submitted on September 5, 2001. These plans, on sheets C3.8 and C3.9, indicated that a bypass channel was to be installed at street crossing C and directed the reader to sheet C7.3 for the detail on same.

52. On sheet C7.3 of the September 5, 2001, plans for the bypass channel are shown in greater detail, as is the stream crossing itself. This stream crossing required the installation of four 60 inch culverts each having a length of 68 feet. Because of spacing between the culverts and a graduated slope, the endwalls at the upstream and downstream ends of the culverts were to be 104 and 90 feet, respectively. At this point the width of the stream was 15-16 feet across. To install the culverts and grade the slopes would require widening the stream by approximately 80 feet. Additionally, the plans detailed the construction of two dams, one upstream of the crossing and the other downstream. The upstream dam was to divert water flow into the bypass channel and the downstream dam was to prevent any sediment from entering the watercourse as a result of the excavation and culvert installation. These dams were to be constructed of earthen material, covered with geotextile fabric and then secured by riprap stone. Finally the streams banks were to be tapered so that the flow from the culverts would remain within the stream bed and not cause the banks to erode.

53. On sheet C3.8 of the September 5, 2001, plans the Construction Sequence for sedimentation and erosion control measures are set forth. It noted in paragraph 6B the particular requirements for stream crossing C and referenced sheet C7.3 for the detail on same.

54. By letter dated September 10, 2001, Respondent approved Petitioner’s plans for sedimentation and erosion control at the job site which were dated September 5, 2001.

55. Petitioner’s Land Disturbing Permit states, in part, “No land disturbing activity authorized by this permit shall be commenced until all other licenses, permits, or approvals required by Federal, State, County or Municipal governments are obtained.”

56. Petitioner contracted with Percy Johnson, Inc. to act as grading contractor at the job site for a quoted price of $559,175.00. Their responsibilities generally included installation and maintenance of sedimentation and erosion control devices as well as clearing and grading of land at the job site. These parties entered into this contract on October 1, 2001. Their scope of work was defined in a section which referenced the “Quantity Take-Offs” for work detailed in the construction drawings dated 6/29/01. Mr. Steckler signed and initialed this page of the contract when it was entered into.

57. When Percy Johnson, Inc., began work at the job site in October 2001, the plans which had been provided to it by Petitioner, and upon which it performed its work, were the plans submitted on June 29, 2001, and which had been disapproved by Respondent.

58. Work to excavate the streambanks at stream crossing C began on or before December 6, 2001. The only sediment and erosion control measure installed, and when and by whom it was installed is unknown, was an earthen dam on the upstream end of the crossing. This was not an effective sedimentation and erosion control measure for the following reasons: (1) As it was purely earthen, not covered by either the designated geotextile fabric and riprap, the dam was susceptible to eroding and contributing to sediment in the stream.

(2) This upstream earthen dam did nothing to prevent sediment entering the stream from the earth being excavated to widen the stream and from the exposed banks.

59. Petitioner contracted with Royals Contracting Inc. on December 3, 2001, to construct concrete endwalls for culverts at stream crossing C, including excavation of the footings for these endwalls. This contract specifically referenced sheet C7.3 and excluded from Royals’ scope of work any sedimentation and erosion control measures which may be required at stream crossing C.

60. On February 12, 2002, Mr. Armbrust checked on Petitioner’s job site. He discovered that work had commenced and mass clearing and grading of the job site had occurred. During that initial inspection he found that Percy Johnson’s personnel were not working from the approved set of plans and work to construct stream crossing C was ongoing without the benefit of either the approved, or any effective, sediment and erosion control measures. On that date all four of the 60" culverts had been placed in the stream and earthen fill placed on top of them to create a roadbed.

61. Mr. Armbrust discussed this situation with Mr. Troy Parks of Percy Johnson Inc., who was the only individual present at the job site.

62. Mr. Armbrust returned on February 13, 2002 to conduct a further inspection of the job site and to take photographs of the violations. On that day no representative of the Petitioner was present, but Mr. Armbrust did meet with the following employees of Percy Johnson, Inc., Mr. Parks and Mr. William Woodall. On that date the stream crossing had not been completed, nor the banks of the stream stabilized. Nor had the concrete endwalls been installed and earth covering the 60" pipes was capable of entering the stream. The streambanks had not been tapered and the two exterior culverts discharged directly into the excavated/exposed streambanks. There were other violations noted on the inspection report.

63. Following their meeting, Mr. Armbrust prepared a Notice of Violation detailing the violations discovered and mailed it via certified mail to Petitioner at its listed business address on February 13, 2002. For unknown reasons the Petitioner did not collect this mail and it was subsequently returned to the Respondent.

64. Also following the meeting on February 13, 2002, Mr. Woodall both called and sent a letter to Mr. Munns concerning the inspection and detailing Respondent’s concerns over the lack of measures at stream crossing C. Mr. Woodall contacted Mr. Munns as he properly understood Mr. Munns to be Petitioner’s agent at this job site.

65. Following his conversation with Mr. Woodall, Mr. Munns contacted Mr. Dunn, who, on February 14, 2002, forwarded to Respondent a proposed plan modification to install additional silt fence along the stream banks at stream crossing C. This modification did not address stabilization of the streambanks or dewatering the site as work at the stream crossing continued.

66. Mr. Armbrust believed this February 14, 2002, proposal was an initial measure to prevent further sediment from entering the stream until Petitioner presented a revised proposal to fully prevent sediment from the ongoing work and exposed stream banks from entering the stream, and to clean up sediment already deposited in the stream. Mr. Armbrust approved the proposal.

67. Mr. Armbrust reinspected the site on February 18, 2002. At that time all violations previously noted had been corrected with the exception of stream crossing C. After reinspecting the site on February 21, 2002, Mr. Armbrust found the additional silt fence had been installed, but he still had not yet received any proposal to address the larger concerns at stream crossing C.

68. On February 25, 2002, Mr. Armbrust sent a Notice of Continuing Violation to Petitioner noting that the additional silt fence was not adequate to resolve the situation at stream crossing C and reminding Petitioner that the earlier Notice of Violation was still outstanding. This Notice of Continuing Violation was received by Petitioner on February 27, 2002. Mr. Steckler testified that this letter was faxed to Mr. Munns for appropriate action.

69. Neither Petitioner, nor its agents in this matter, contacted Respondent regarding the Continuing Notice of Violation.

70. On March 7, 2002, Mr. Armbrust again inspected the site along with Mr. William Noyes. They found the violations previously noted at stream crossing C were still present and called Mr. Dunn and Mr. Munns to request an on-site meeting to review the matter. During those conversations Mr. Noyes emphasized the need for prompt remedial action and the intent to assess a civil penalty for the ongoing violation.

71. At this time Respondent’s employees were dealing with Mr. Munns and Mr. Dunn as they properly understood them to be Petitioner’s agents for resolving this matter.

72. Before the meeting on March 8, 2003. Mr. Dunn wrote Mr. Armbrust a letter detailing his understanding of the violation and a possible remedial action. In his letter, Mr. Dunn asserted that the required measures at stream crossing C had not been installed because “[t]he contractor installed the (4)60" CMP culverts during a period of low flow in the stream...”

73. In correspondence to the Division of Water Quality, State Department of Environment and Natural Resources, dated April 5, 2002, Mr. Dunn, acting on behalf of the Petitioner explained the failure to install the required measures this way. “Because of low flow in the stream at the time of the culvert installation, and in an effort to minimize impacts to the riparian buffer and stream channel, the contractor installed a dam on the upstream side of the culverts and pumped to the downstream side of the culverts during the culvert installation work.”

74. Petitioner presented no evidence that a pump had actually been in place and utilized during construction of stream crossing C. No evidence of a pump was detected during the inspections conducted by Mr. Armbrust in February and March 2002. Petitioner had chosen not to utilize a pump in the plans submitted in September 2001, and March 2002, because of concerns over the attendant maintenance and expense.

75. On March 8, 2002, Mr. Armbrust, Mr. Noyes, Mr. Munns, Mr. Dunn, Mr. Joe Albiston and Mr. Charles Brown met at the job site. Mr. Albiston and Mr. Brown were employees of the State of North Carolina, Department of the Environment and Natural Resources, Division of Water Quality (DWQ).

76. The personnel from DWQ were present to investigate the possible violation of Petitioner’s NPDES permit which is a concurrent responsibility of the Petitioner.

77. When Mr. Dunn observed conditions at the site on March 8, 2002, it was obvious to him that the additional silt fence was not sufficient to control sediment from entering the watercourse at stream crossing C and that additional sedimentation and erosion control measures were needed.

78. On March 11, 2002, Mr. Dunn submitted a proposal to install rock dams both above and below stream crossing C and to pump water from the stream through a pipe which would reenter the stream below the downstream dam. On that same day, Respondent approved the concept but requested some changes to provide greater detail of the work to be done.

79. On March 12, 2002, Mr. Dunn submitted a revised proposal incorporating Respondent’s edits which was approved that same day.

80. On March 15, 2002, Mr. Dunn submitted a revised proposal which would not utilize a pump but instead depended on gravity to pull water from the stream into and through the flexible pipe. Mr. Noyes requested submission of calculations showing that this would in fact work. The revised proposal, with calculations was submitted by Mr. Dunn on March 20, 2002. Mr. Noyes granted approval for the revised proposal that same day, March 20, 2002.

81. On March 11, 202, Mr. Armbrust prepared a Civil Penalty Worksheet for the violations at Petitioner’s job site. The form used by Respondent was adapted from the one used by the State of North Carolina, Department of Environment and Natural Resources, Division of Land Quality, (DLQ) in assessing civil penalties in its enforcement of Article 4 of Chapter 113A. This worksheet incorporates multiple factors required to be considered by N.C.G.S. § 113A-64 and Section 14-69 of the Ordinance in assessing a civil penalty.

82. Mr. Armbrust submitted the worksheet to Mr. Noyes for his review and final calculation of an appropriate civil penalty. Upon consideration of all factors, and the dollar amounts which would be assigned to each of them, Mr. Noyes determined that an appropriate civil penalty in this matter was $2,676.40 per day. Mr. Noyes also determined that the penalty began to accrue on February 12, 2002, the day the violation was detected, and a date over two months after the violation had actually commenced.

83. On March 14, 2002, Respondent issued a Notice of Civil Penalty Assessment to the Petitioner which was sent via certified mail. Included as an enclosure was a copy of the Notice of Violation sent to Petitioner on February 13, 2002. The Notice of Civil Penalty Assessment was sent to both Petitioner at its mailing address and to its registered agent, Mr. Cox. Petitioner’s registered agent received the Notice of Civil Penalty Assessment on March 19, 2002.

84. Petitioner completed work to resolve the violation at stream crossing C on March 24, 2002, and Respondent terminated accrual of the penalty on that same day. Respondent notified Petitioner that the civil penalty had accrued for 41 days and the total due was $109,732.40.

85. During the month of November 2001, there was very little rainfall in this area.

86. Sediment entering the stream at stream crossing C was transported to Cub Creek. How much sediment entered that watercourse and either settled out or was transported downstream is unknown, but it was visually present as being suspended in Cub Creek during the inspection on March 8, 2002.

87. Construction of stream crossing C was begun on or before December 6, 2001, without either the approved, or any effective, sedimentation and erosion control measures in place.

88. Petitioner presented evidence that it had obtained a permit from the Army Corps of Engineers (Corps), which has concurrent jurisdiction with Respondent, and the State of North Carolina for work done at stream crossing C. The Corps, and DWQ, had jurisdiction over work at stream crossing C because it is a wetlands area. The permit it obtained from the Corps only allowed Petitioner to disturb a limited number of linear feet of streambank and associated riparian area.

89. Petitioner presented evidence that the Corps may not have agreed to the construction of a bypass channel at stream crossing C.

90. Petitioner also presented evidence that it might have incurred significant mitigation costs if the Corps had permitted it to construct a bypass channel at stream crossing C.

91. Because wetlands permits are a very technical area outside of the scope of Bass, Nixon and Kennedy’s regular expertise, the Petitioner, acting through Bass, Nixon & Kennedy, hired the firm of Soil and Environmental Consultants, Inc. to obtain the Corps permit. The individual from that firm who worked on this project was Mr. Kevin Martin.

92. Mr. Martin had been regularly engaged by Mr. Bell to provide these services to clients of Bass, Nixon & Kennedy.

93. Neither Petitioner, nor Bass, Nixon & Kennedy, consulted with Mr. Martin regarding the bypass channel designed for stream crossing C, or how this might affect, or be in conflict with, Petitioner’s Corps permit.

94. Petitioner did not submit to the Corps for its review the by-pass channel detailed on sheet C7.3 for stream crossing C. Nor did Petitioner present a witness from the Army Corps of Engineers as to either its willingness to approve a bypass channel or whether the Corps would have fined Petitioner for constructing the bypass channel.

95. The Financial Responsibility Ownership Form and Land Disturbing Permit both noted to Petitioner that it bore the responsibility for obtaining permits from other regulatory agencies which might have overlapping jurisdiction.

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

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has subject matter jurisdiction over this contested case and personal jurisdiction over the parties.

2. The actions of the Respondent in assessing a civil penalty are presumed to be correct and Petitioner bears the burden of establishing otherwise.

3. The purpose of the Act and the Ordinance is to reduce water pollution caused by sediment entering watercourses such as the instant unnamed tributary to Cub Creek.

4. The Ordinance accomplishes its goal by imposing an affirmative obligation on property owners, and persons holding a land disturbing permit, to design, install and maintain, measures which will retain all sediment on their property before, and while, engaging in land disturbing activity.

5. Petitioner’s obligation to comply with the Ordinance, and its permit, arose not only as a matter of law under the ordinance but also because of the contractual agreement formed by its application for, and receipt of, a Land Disturbing Permit from the Respondent.

6. While Petitioner may contract for the provision of services it may not contract away or otherwise absolve itself of its obligations to comply with the Ordinance.

7. To the extent any violation of the Ordinance is attributable to the acts or omissions of its agents, Petitioner is bound by, and liable for, the acts and omissions of its agents, Mr. Munns and Bass, Nixon & Kennedy.

8. Petitioner was responsible for ensuring it had all necessary permits and approvals and for resolving any conflicts between the permits issued by different agencies.

9. From at least December 6, 2001, Petitioner was in an ongoing violation of the Ordinance, and its permit, for the work being done at stream crossing C without having first installed the required, or any other effective, sedimentation and erosion control measures.

10. Petitioner’s violation was not willful. An act is done willfully when it is done purposefully and deliberately in violation of law, or when it is done knowingly and of set purpose . . . Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 35, 37 (1929). McDevitt v. Stacy, 148 N.C. App. 448, 559 S.E.2d 201.

11. The daily penalty of $2,6776.40 which was assessed by Respondent was the result of a careful and deliberate analysis of the facts present in this matter and of those factors which it was required to consider per the Act and the Ordinance. Reducing the daily penalty by $250 per day, the daily assessment for a willful violation, for 41 days, results in a $10,250 reduction in the assessed penalty.

12. The duration of time for which the civil penalty was assessed, from February 12, 2002, the date the violation was discovered by Respondent, through March 24, 2002, the date the site was brought into compliance.

13. Respondent has wide discretion in assessing civil penalties for violations of the Ordinance and it acted within that discretion in assessing the instant civil penalty.

14. Petitioner was served with both the Notice of Violation and the Notice of Civil Penalty Assessment in the manner prescribed by the Act and the Ordinance.

15. The assessment of this civil penalty was not an act beyond the authority or jurisdiction of the Respondent.

16. The assessment of this civil penalty was not an erroneous act of the Respondent.

17. In assessing this civil penalty the Respondent did not fail to use proper procedure.

18. In assessing this civil penalty the Respondent did not act arbitrarily or capriciously.

Based upon the foregoing Conclusions of Law, the undersigned makes the following:

DECISION

That the Board of County Commissioners reduce the assessed civil penalty of $109,732.40 by $10,250, the assessed penalty for willfulness.

It is hereby ordered that the Board of County Commissioners 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 N.C. GEN. STAT. § 150B-36(b).

NOTICE

The decision of the Administrative Law Judge in this contested case will be reviewed by the agency making the final decision according to the standards found in G.S. 150B036(b)(b1) and (b2). The agency making the final decision is required to give each party an opportunity to file exceptions to the decision of the Administrative Law Judge and to present written argument to those in the agency who will make the final decision. G.S. 150B-36(a).

The agency that will make the final decision in this contested case is the Durham County Board of Commissioners.

This the 21st day of July, 2003.

______Beryl E. Wade Administrative Law Judge