State of North Carolina s6

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ONSLOW 00 EHR 1385

Ed Jones, Sr. ) Petitioner, ) ) v. ) RECOMMENDED DECISION ) N.C. Dept. of Environment and ) Natural Resources, ) Respondent. )

This matter came before Senior Administrative Law Judge Fred G. Morrison Jr. on Friday, January 12, 2001, in Surf City, North Carolina. The case involved the appeal of a civil penalty assessment in the amount of $13,230 for violations of the Sedimentation Pollution Control Act of 1973, N.C. Gen. Stat. §§ 113A-50 through 113A-71, and the rules promulgated thereunder, N.C. Admin. Code tit. 15A, r. 4A.0001 et seq. currently renumbered starting with 4A.0101, and N.C. Admin. Code tit. 15A, r. 4B.0001 et seq. currently renumbered starting with 4B.0101, specifically: conducting land-disturbing activity of approximately 3.6 acres for commercial purposes (Swing N' Things) near Gum Branch Road in Onslow County without a plan, without appropriate erosion and sedimentation control measures, without a buffer zone, and without providing cover on exposed slopes from December 22, 1999, through May 16, 2000.

APPEARANCES

For Petitioner: For Respondent:

Ed Jones, Sr. Mary Penny Thompson Pro Se Petitioner Assistant Attorney General 4571 Gumbranch Road N. C. Department of Justice Jacksonville, NC 28540 Post Office Box 629 Raleigh, NC 27602-0629

ISSUES

1. Whether the land disturbed by Petitioner exceeded one acre and, therefore, fell within Respondent’s authority or jurisdiction for enforcement purposes.

2. Whether Respondent acted properly in assessing a $13,230.00 civil penalty for violations of the Sedimentation Pollution Control Act. STATUTORY SECTIONS IN QUESTION

The Sedimentation Pollution Control Act of 1973, N.C. Gen. Stat. §§ 113A-50 through 113A-71 The Administrative Procedure Act, Article 3, N.C. Gen. Stat. §§ 150B-22 through 150B-37

EXHIBITS RECEIVED INTO EVIDENCE

PETITIONER :

1. Letter from David Franklin of the Wilmington Regulatory Division of the U.S. Army Corps of Engineers to Mr. Ed Jones dated December 20, 1999.

RESPONDENT :

1. Financial Responsibility/Ownership Form with check made payable to the State of N.C. by Eddie Jones in the amount of $930.00;

2. Sedimentation Inspection Report dated 2/23/98;

3. Notes dated 12/8/99;

5. Notice of Violations of the Sedimentation Pollution Control Act from Daniel Sams, P.E., Regional Engineer, to Mr. Ed Jones dated December 15, 1999 with enclosed Sedimentation Inspection Report dated 12/10/99 and certified mail receipt;

7. Notice of Continuing Violation(s) of Sedimentation Pollution Control Act from Daniel Sams, P.E., Regional Engineer, to Mr. Ed Jones dated February 7, 2000 with certified mail receipt;

8. Notice of Receipt of Erosion & Sedimentation Control Plan from Janet L. Paith, Environmental Technician, to Mr. Ed Jones dated March 3, 2000 with attached Erosion and Sedimentation Control Plan Checklist;

11. Letter of Disapproval from Daniel Sams, P.E., Regional Engineer, to Mr. Ed Jones dated March 29, 2000;

2 13. Guidelines for Assessing Civil Penalties for Violations of the Sedimentation Pollution Control Act signed by Daniel Sams, Regional Engineer, on March 31, 2000;

14. Facsimile Transmittal from M. Sugg to Janet Paith dated 3/31/00;

15. Letter from G. Wayne Wright, Chief, Regulatory Division, U.S. Army Corps of Engineers, to Mr. Ed Jones, Swing ‘n Things, dated April 3, 2000;

16. Notes dated Monday, April 17, 2000;

18. Guidelines for Assessing Civil Penalties for Violations of the Sedimentation Pollution Control Act signed by Daniel Sams, Regional Engineer, on March 31, 2000 and by David H. Ward, Asst. Sedimentation Specialist, on 8/22/00;

19. Civil Penalty Assessment for SPCA Violations worksheet initialed by the Director, Division of Land Resources, on 9/3/00;

20. Civil Penalty Assessment dated September 3, 2000 with cover letter dated September 5, 2000, Notice of Violation dated December 15, 1999, and certified mail receipt.

21. [demonstrative exhibit]

22. Photograph of a portion of the site dated 9/19/00; and

23. Map of the site;

Based upon careful consideration of the testimony, evidence, and legal briefs 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 individual residing and conducting business in Onslow County, North Carolina.

2. Respondent is a State agency established pursuant to N.C. Gen. Stat. §§ 143B-279.1 through 143B-344.33 and vested with the statutory authority to enforce the State’s environmental pollution laws, including laws enacted to regulate sedimentation pollution.

3. N.C. Gen. Stat. § 113A-52(6) defines “land-disturbing activity” to include any use of the land by any person in commercial development that results in a change in the natural cover or topography and that may cause or contribute to sedimentation. N.C. Gen. Stat. § 113A-57

3 prohibits land-disturbing activity unless it is undertaken in accordance with certain mandatory requirements. The mandatory requirements include (1) a buffer zone along natural watercourses, (2) an angle for graded slopes and fills sufficient to retain vegetative cover or other control devices as well as installation of a ground cover within 30 working days, (3) for disturbed areas more than one acre in size, installation of erosion and sedimentation control devices sufficient to retain the generated sediment on site as well as installation of a permanent ground cover upon completion of the activity, (4) for disturbed areas more than one acre in size, submittal of an erosion and sedimentation control plan 30 or more days prior to initiating the activity.

4. Petitioner owns property located on Gum Branch Road in Onslow County, North Carolina (the “site”).

5. Petitioner initiated a golf course project commonly known as Swing N’ Things on the site. As part of the project, Petitioner graded and removed vegetation and changed the site’s topography to create ponds and contour golf holes.

6. Petitioner was aware of the requirements of the Sedimentation Pollution Control Act (“SPCA”) since Respondent had visited his site prior to the matters at issue.

7. On December 10, 1999, an inspection by Respondent found that the disturbed area exceeded one acre in size. In particular, the disturbed area surrounding and including one of the ponds measured 475 feet by 330 feet or approximately 3.6 acres. Other areas of disturbance included other created ponds, filled areas, and wetland impacts. At the time of the inspection, sediment had left the site and caused damage to wetlands and, possibly, other natural watercourses. Also, at the time of the inspection, there was no approved plan, there were insufficient measures to retain sediment on site, there was a failure to take all reasonable measures, there was inadequate buffer zone, there were graded slopes and fills which were too steep, there were unprotected exposed slopes, and there was a failure to maintain erosion control measures.

8. On December 15, 1999, Respondent sent Petitioner a Notice of Violation by certified mail, return receipt requested, which Petitioner received on December 22, 1999. The Notice specified the violations of the SPCA and required corrective measures to be completed within thirty days of receipt of the Notice of Violation.

9. Petitioner did not complete corrective measures within thirty days of receipt of the December 15, 1999, Notice of Violation.

10. On February 3, 2000, the site continued to be in violation of the SPCA. At the time of the inspection, sediment had left the site and caused damage to wetlands as well as to a creek, canal or stream. Also, at the time of the inspection, there was no approved plan, there were insufficient measures to retain sediment on site, there was inadequate buffer zone, and there were unprotected exposed slopes. In particular, the slopes remained barren near the ponds. Although geotextile matting had been placed on the sides of the pond, wind had dislodged the matting.

4 11. On February 7, 2000, Respondent sent Petitioner a Notice of Continuing Violation which Petitioner received later that month. Again, the Notice specified the violations of the SPCA, urged corrective action immediately, and notified Petitioner that since the compliance deadline had not been met, the matter was being referred to the Director of the Division of Land Resources which could result in civil penalties of up to $5,000.00 per day.

12. On February 28, 2000, Petitioner, as owner, signed a Financial Responsibility/Ownership Form, which stated, under oath, that he was financially responsible for the land disturbance and that the total acreage disturbed or uncovered for commercial purposes equaled 46 acres.

13. Respondent received an erosion and sedimentation control plan (“Plan”) for the project from the Petitioner on March 2, 2000.

14. On March 3, 2000, Respondent sent Petitioner a Notice of Receipt of Erosion & Sedimentation Control Plan indicating that additional information would be necessary to complete the review process. Respondent included an Erosion and Sedimentation Control Plan Checklist which indicated the additional information needed such as (1) nearby roads, streets, watercourses and other major landmarks, (2) planned and existing building locations and elevations on the site, (3) planned and existing road locations and elevations on the site, (4) geologic features such as streams lakes, dams, wetlands, seeps, springs, rock outcrops, etc. on the site, (5) stockpile locations on the site, (6) borrow and/or waste areas, (7) existing and planned drainage features on the site, (8) size and location of culverts and sewers on the site, (9) soils information, name and classification of watercourse receiving storm water discharge, (10) pre- and post-construction runoff calculations, (11) sediment basins, pits, check dams, (12) methods of soil preparation, (13) location of temporary and permanent measures, (14) construction details of temporary and permanent measures, (15) maintenance requirements of all measures, (16) contact persons for maintenance of measures, and (17) construction sequence as it relates to erosion control.

15. Petitioner did not submit the required additional information within the 30 days which the SPCA requires Respondent to approve or disapprove an erosion and sedimentation control plan, so Respondent disapproved the Plan on March 29, 2000, and sent a letter to that effect resummarizing the deficiencies in the Plan. Petitioner did not submit a revised Plan until after the time period covered by the civil penalty assessment, i.e., until after May 16, 2000.

16. On March 6, 2000, the site remained in violation of the SPCA. At the time of the inspection, sediment caused damage on the site through sheetflow erosion on the downgradient slope of a pond. Also at the time of the inspection, there was no approved plan, there were insufficient measures to retain sediment on site, there was a failure to take all reasonable measures, there was inadequate buffer zone, there were graded slopes and fills which were too steep, and there were unprotected exposed slopes. In particular, mechanized land disturbance was still occurring and the use of silt fence across a flowing water channel was an inadequate measure.

5 17. The U.S. Army Corps of Engineers estimated that the unauthorized discharge of fill into wetlands because of the work associated with the construction of a 9-hole golf course resulted in adverse impacts to 1.2 acres of wetlands.

18. On May 16, 2000, the site remained in violation of the SPCA. At the time of the inspection, sediment was causing damage to the site’s drainage ways. Also, at the time of the inspection, there was no approved plan, there were graded slopes and fills which were too steep, and there were unprotected exposed slopes.

19. The Director of the Division of Land Resources reviewed an enforcement package which included the above-listed facts and which provided regional and central office staff comments on the statutory factors to be considered in the assessment of civil penalties. The Director also used a worksheet to guide his assessment of the civil penalties in accordance with the required statutory factors.

20. On September 3, 2000, the Director of the Division of Land Resources assessed a civil penalty in the amount of $90.00 per day for the 147-day period beginning December 22, 1999, the day the first Notice of Violation was received, and ending May 16, 2000, the date of the most recent inspection prior to the assessment.

21. The Director’s civil penalty assessment in this matter was consistent with other civil penalties assessed for similar violations.

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. The burden of proof rests on the Petitioner to present evidence showing that the agency acted outside of its authority or jurisdiction or that it acted erroneously.

4. Petitioner is a “person” as defined by N.C. Gen. Stat. § 113A-52(8) who may be assessed a civil penalty pursuant to N.C. Gen. Stat. § 113A-64(a) for the violations of the SPCA committed on the site.

5. From December 22, 1999, through May 16, 2000, Petitioner violated N.C. Gen. Stat. § 113A-57(1) when he failed to provide a buffer zone, as defined in N.C. Admin. Code tit. 15A, r. 4A.0005(4) which is currently renumbered as 4A.0105(4), along a lake or natural watercourse.

6. From December 22, 1999, through May 16, 2000, Petitioner also violated N.C. Gen. Stat. § 113A-57(2) when he failed to plant or otherwise provide ground cover, devices, or

6 structures sufficient to restrain erosion on exposed slopes within 15 working days or 30 calendar days, whichever period was shorter, of completion of any phase of grading.

7. From December 22, 1999, through May 16, 2000, Petitioner also violated N.C. Gen. Stat. § 113A-57(3) when he conducted land-disturbing activity greater than one acre without installing erosion and sedimentation control devices and practices sufficient to retain sediment generated by the land-disturbing activity within the boundaries of the tract during construction.

8. From December 22, 1999, through May 16, 2000, Petitioner also violated N.C. Gen. Stat. §§ 113A-54(d)(4) and 113A-57(4) as well as N.C. Admin. Code tit. 15A, r. 4B.0007(c), which is currently renumbered as 4B.0107(c), when he conducted land-disturbing activity greater than one acre without filing an erosion and sedimentation control plan at least 30 days prior to initiating the land-disturbing activity or receiving approval of such plan prior to initiating the land-disturbing activity.

9. The Director of the Division of Land Resources acted within his authority and jurisdiction when he assessed a civil penalty because the SPCA’s mandatory standards concerning buffers and slope angles address activities regardless of size; and the size requirement of one acre or greater for the SPCA’s mandatory standards concerning measures to restrain sediment and submittal of an erosion and sedimentation control plan applied since the disturbed area equaled 3.6 acres or greater.

10. The Director of the Division of Land Resources did not act erroneously in assessing the amount of the fine since the amount was based on his consideration of the required statutory factors and was consistent with other civil penalties assessed for similar violations. In addition, the $90.00 daily penalty did not exceed the maximum civil penalty of $5,000.00 per violation as each day of a continuing violation constituted a separate violation under N.C. Gen. Stat. § 113A-64(a)(1). Further, the time period was not calculated erroneously as it was calculated in accordance with the SPCA from the date the Notice of Violation was received, according to N.C. Gen. Stat. § 113A-64(a)(1), until the date of the last Sedimentation Inspection Report showing violations that the Director received prior to assessing the civil penalty.

11. Petitioner failed to present sufficient evidence to meet its burden of proof in this matter since Petitioner’s only exhibit confirmed at least 1.2 acres of wetland impacts from construction of the 9-hole golf course. Petitioner did not present any evidence on alternative measurements of the disturbed area, and Petitioner did not present any evidence explaining why the penalty should be reduced or by what amount.

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

RECOMMENDED DECISION

7 The Secretary of the Department of Environment and Natural Resources (“Secretary”), who will make the final agency decision pursuant to N.C. Gen. Stat. § 113A-55 because it is a contested case which arises from a civil penalty assessment pursuant to N.C. Gen. Stat. § 113A- 64, should uphold the decision to assess a civil penalty against Petitioner for violations of the Sedimentation Pollution Control Act in the amount of $90.00 per day for the 147-day period beginning December 22, 1999, through May 16, 2000, which totals $13,230.00.

It is hereby ordered that the Secretary serve a copy of its final agency decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6417, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The Secretary, as the final agency decision maker in this contested case, is required to give each party an opportunity to file exceptions to this Recommended Decision and to present written arguments prior to making the final agency decision. N.C. Gen. Stat. § 150B-36(a).

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

This the 24th day of April, 2001.

______Fred G. Morrison Jr. Senior Administrative Law Judge