State of North Carolina s67

STATE OF NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS COUNTY OF ALLEGHANY 03 EHR 1260

Old Beau Golf Club, ) Petitioner, ) ) v. ) DECISION ) N.C. Dept. of Environment and ) Natural Resources, ) Respondent. )

This contested case came to be heard by Administrative Law Judge James L. Conner, II on December 2, 2003 in Newton, North Carolina. Petitioner initiated the contested case in order to challenge the assessment of civil penalties against the Old Beau Golf Club for alleged violations of turbidity, removal of best uses, and settlable solids. Respondent filed its Proposed Decision on June 17, 2004.

APPEARANCES

For Petitioner: For Respondent: Anthony William Packer, Partner Mary Penny Thompson Curt Kennington, Partner Assistant Attorney General Old Beau Golf Club N. C. Department of Justice Box 32 Post Office Box 629 Roaring Gap, NC 28668 Raleigh, NC 27602-0629

STATUTORY SECTIONS AND RULES IN QUESTION

N.C. Gen. Stat. § 143-212 (“Definitions”) N.C. Gen. Stat. § 143-214.2 (“Prohibited discharges”) N.C. Gen. Stat. § 143-215 (“Effluent standards or limitations”) N.C. Gen. Stat. § 143-215.1 (“Control of sources of water pollution; permits required”) N.C. Gen. Stat. § 143-215.3 (“General powers of Commission and Department; auxiliary powers”) N.C. Gen. Stat. § 143-215.6A (“Enforcement Procedures: civil penalties”) N.C. Gen. Stat. § 143B-282 (“Environmental Management Commission – creation; powers and duties”) N.C. Gen. Stat. § 143B-282.1 (“Environmental Management Commission - quasi-judicial powers; procedures”) N.C. Admin. Code tit. 15A, r. 2B.0211 (“Fresh Surface Water Quality Standards for Class C Waters”) ISSUES

Whether Respondent erred by assessing civil penalties for violations of turbidity, removal of best uses and settlable solids?

WITNESSES

PETITIONER :

Anthony William Packer, Old Beau Golf Club; Frank Smith, Old Beau Golf Club; and Charles Gardner, Past Director of Division of Land Resources.

RESPONDENT :

George Smith, Division of Water Quality; Tim Garrett, Division of Land Resources; Steve Mauney, Division of Water Quality; and Kent Wiggins, Division of Water Quality.

EXHIBITS RECEIVED INTO EVIDENCE

PETITIONER :

P-2 Cover of North Carolina Golf Guide P-3A Drawing P-3B Drawing P-4 Inspection Reports P-5 Memo from N.C. Wildlife Resources Commission to Army Corps of Engineers P-6 10/8/02 Notice of Violation from Division of Water Quality and Response P-7 10/28/02 Notice of Violation from Division of Land Resources P-8 Response to the Division of Land Resources’ Notice of Violation P-9 404 Permit from Corps of Engineers P-10 11/22/02 Notice of Continuing Violation from Division of Land Resources P-11 Penalty Assessment from Division of Water Quality

RESPONDENT :

R-1 9/30/02 Color Photograph of Sediment Pond at 13th Hole R-2 9/30/02 Color Photograph of Riser Pipe in Pond R-3 9/30/02 Color Photograph of Sediment R-4 10/8/02 Color Photograph of Sediment 15 Feet Below Culvert R-5 10/8/02 Color Photograph of Sediment 150 Feet Below Culvert R-6 10/8/02 Color Photograph of Sediment 800 Feet Below Culvert R-7 10/17/02 Color Photograph if Sediment R-8 Summary of Turbidity Samplings R-9 11/19/02 Color Photograph of Sediment R-10 11/19/02 Color Photograph of Upstream Conditions – Close Up R-11 11/19/02 Color Photograph of Upstream Conditions – Wide Angle R-12 11/19/02 Color Photograph of Downstream Conditions R-13 11/19/02 Color Photograph of Riser Pipe Removed R-14 2/24/03 Enforcement Package R-15 10/16/02 Complaint to Land Quality R-16 10/17/02 Sedimentation Inspection Report R-17 10/28/02 Land Quality Notice of Violations R-18 10/31/02 Land Quality Telephone Log R-19 11/21/02 Complaint to Water Quality R-20 11/22/02 Land Quality Notice of Continuing Violation R-21 2/25/03 Sedimentation Inspection Report R-22 6/19/03 Assessment of Civil Penalties R-23 Newspaper Article R-24 Newspaper Article R-25 Notes made by Steve Mauney regarding October 28 meeting

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 each witness, any interest, 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 the Old Beau Golf Club located in Roaring Gap, North Carolina. (Petition, Tr. 88). Petitioner operates a golf course that includes an in-stream sediment basin and riser at the thirteenth hole. (Petition, Petitioner’s Prehearing Statement, Tr. 88) Petitioner created the sediment basin during the construction of the golf course approximately thirteen years ago. (Petition, Prehearing Statement; Tr. 20, 232-233, 238, 240)

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

3. On September 28, 2002 at about 5:00 p.m., the in-stream sediment basin on the thirteenth hole of Petitioner’s golf course catastrophically failed and discharged its contents, including sediment, into a downstream creek. (Prehearing Statement; Tr. 39-40, 60, Ex. R-1, R- 2, R-3, R-4, R-8) When the riser failed, Petitioner’s owner, Mr. Packer, heard the roar of the sediment basin emptying and testified that it took only five to eight minutes to drain the water out of the basin. (Tr. 39) 4. On September 30, 2002, Respondent received complaints from a downstream property owner that said gray water was coming down through Devotion and into the Mitchell River. (Tr. 132) That same day, Respondent responded to the complaint and, while on site, observed sediment discharging from Petitioner’s sediment basin into the downstream creek. (Tr. 60, 88, 132-133) When Respondent first arrived at the site, the sediment basin was not discharging and contained water in it. (Tr. 133, Ex. R-1) As Respondent inspected the site, the basin failed again, created a roaring sound and discharged its contents within one minute. (Tr. 133, 136, Ex. R-2) Petitioner does not deny that there was mud in the stream. (Tr. 62) That same day, Respondent collected surface water samples to check for turbidity violations. (Tr. 145, Ex. R-8) The analytical results of the samples revealed a violation of the turbidity standard. (Ex. R-8) On September 30, 2002, the turbidity below the basin measured 9,400 ntu which was 940 times the 10 ntu standard. (Ex. R-8) Above the basin, turbidity measured only 4.9 ntu. (Ex. R-8) Petitioner concedes that there was turbidity in the water on the downstream side of the basin. (Tr. 64)

5. The failure occurred because the riser structure within the sediment basin could not withstand the pressure placed upon it by retained water and sediment build-up. (Tr. 36, 39, 95- 98, 113, 226) Approximately forty-five acres of terrain drained to the one-quarter acre sediment basin. (Tr. 34, 35) It appeared to be designed as a temporary measure since it was built of more vulnerable materials such as corrugated metal instead of stronger materials such as ductile iron pipe and concrete. (Tr. 220-221, 229-230) In addition, the sediment basin had been modified from its original design by the placement of a dam and cart path at one end. (Prehearing Statement; Tr. 23, 156, 229) The dam led to more water being impounded within the basin. (Tr. 229) Yellow markers identified the basin as a water hazard. (Tr. 138, Ex. R-2, R-3) Further, the riser structure was taller than expected, reaching thirty feet high rather than eight feet high above the sediment basin’s outlet. (Tr. 23, 39, 97, 229) Since approximately ten feet of the riser was visible above the sediment after the basin drained, an estimated twenty feet of sediment accumulated around the riser pipe over time. (Tr. 138, 254, Ex. R-3) Further, Petitioner had never conducted maintenance activities on the basin such as placing filter rock around the riser or removing accumulated sediment from the basin. (Tr. 95-96, 137, 138, 230, 252, Ex. R-1, R-2, R-3) Petitioner did not even know how much sediment existed at the bottom of the basin. (Tr. 98, 107-108)

6. The discharged sediment entered a downstream creek that is a direct tributary to the Mitchell River. (Tr. 30, 34-35) The creek narrows as it leaves the Old Beau property and travels down a steep slope to the Mitchell River. (Tr. 30, 34-36; Ex. P-3A and P-3B as demonstrative evidence only)

7. Freshwaters in North Carolina are assigned, pursuant to rule, to one of eight classifications. In addition, there are seven supplemental classifications, including “Trout Waters (Tr)” and “Outstanding Resource Waters (ORW).” 15A NCAC 2B .0101(c)G(e). The classifications determine the uses for which each water will be protected. For example, there are five classifications of freshwaters that are protected for use as water supplies for human consumption. Class C, on the other hand, is the most basic classification: these waters are protected for “secondary recreation, fishing, aquatic life including propagation and survival, and wildlife. All freshwaters shall be classified to protect these uses at a minimum.” 15A NCAC 2B .0101(c).

8. The unnamed tributary and the Mitchell River have been classified by the Environmental Management Commission (“EMC”) as Class B Trout Outstanding Resource Waters. Petitioner conceded this point. (Tr. 89) As Respondent explained, unnamed tributaries, also known as feeder streams, connecting to the Mitchell River bear the classification of Trout stream. (Tr. 259) Protection of the feeder streams protects a greater surface area as well as protects the main river. (Tr. 260, 287) Alternatively, if a feeder stream is affected, especially by sediment, there is a continuing effect on the main river. (Tr. 260, 287)

9. Class B waters are protected for all Class C uses, plus “primary recreation which includes swimming on a frequent or organized basis.” 15A NCAC 2B .0101(c)(2). “Trout Waters” are “protected for natural trout propagation and survival of stocked trout.” 15A NCAC 2B .0101(e)(1). “Outstanding Resource Waters (OEW)” are “unique and special waters of exceptional state or natural recreational or ecological significance which require special protection to maintain existing uses.” 15A NCAC 2B .0101.

10. By rule, the EMC has set the turbidity standard for Trout waters at 10 ntu. See N.C. Admin. Code tit. 15A, r. 2B.0211(3)(k). As Respondent explained, the turbidity standard is a measure of the transparency of the water. (Tr. 152, 258) It reflects how many floating or suspended particles exist in the water. (Tr. 152, 258)

11. By rule, sources of water pollution which preclude any of these uses on either a short- term or long-term basis shall be considered to be violating a water quality standard. See N.C. Admin. Code tit. 15A, r. 2B.0211(2). As Respondent explained, best usage is a term that relates to classifications of waters. (Tr. 166) Since these waters are designated as Class B, Trout and Outstanding Resource Waters, any conditions which would remove the character of the water as Class B, Trout or Outstanding Resource would constitute violations of best usage. (Tr. 167)

12. By rule, the EMC restricts the amount of settlable solids to only such amounts attributable to sewage, industrial wastes or other wastes as shall not make the water unsafe or unsuitable for aquatic life and wildlife or impair the waters for any designated uses. See N.C. Admin. Code tit. 15A, r. 2B.0211(3)(c). As Respondent explained, a violation of the settlable solids standard occurs when solids cover rocks and little places in the creek, thereby covering the benthic macroinvertebrates that live in the stream. (Tr. 153) Benthic macroinvertebrates include bugs such as larvae, stone flies and caddis flies. (Tr. 153)

13. On October 8, 2002, settlable solids in the form of sediment deposition measured five to six inches deep along approximately 1,000 linear feet of the unnamed tributary to the Mitchell River. (Tr. 139, 141-142, Ex. R-4, R-5, R-6) The sediment had a grayish cast indicating it had oxidized from being submerged under water for a long time. (Tr. 142, Ex. R-6) The sediment’s type, color and consistency matched the sediment at the bottom of Petitioner’s basin. (Tr. 142, Ex. R-3, R-4, R-6) 14. A turbidity sample taken by Respondent on October 8, 2002 revealed that the turbidity in the stream below the sediment basin measured 600 ntu which was 60 times over the 10 ntu standard. (Tr. 140, 145, Ex. R-8) Above the basin, where the stream had not been affected by the failure, turbidity measured only 1 ntu. (Ex. R-8) Petitioner conceded that the water was turbid. (Tr. 89)

15. On October 8, 2002, Respondent issued a Notice of Violation and Recommendation of Enforcement to Petitioner for violations of stream standards. (Tr. 88, 153, Ex. P-6, R-14) Respondent requested that Petitioner respond in writing to explain the sediment release. (Tr. 155, Ex. P-6, R-14)

16. On October 16, 2002, the Division of Land Resources (“DLR”) received a complaint from Will Reynolds, a downstream property owner, that a riser had failed at the thirteenth hole of the golf course resulting in severe off-site sedimentation into the Mitchell River. (Tr. 206, Ex. R-15)

17. On October 17, 2002, Petitioner responded to Respondent’s Notice of Violation. (Tr. 155, Ex. R-14)

18. Also on October 17, 2002, Respondent met with employees of the Wildlife Resources Commission to discuss the situation and possible solutions. (Tr. 142) At that time the basin was continuing to fill with water and discharge both the water and additional sediment from the basin’s interior. (Tr. 144, Ex. R-7)

19. Also on October 17, 2002, DLR conducted a site inspection and documented that sediment discharged into the watercourse below the riser basin. (Tr. 207, Ex. P-4, R-16). Petitioner conceded that sedimentation occurred. (Tr. 111-112) DLR noted violations for failure to take all reasonable measures to protect public and private property from damage and failure to maintain erosion control measures. (Tr. 41, 207, Ex. P-4, R-16). DLR required Petitioner to immediately install measures sufficient to prevent downstream sedimentation and stabilize all bare areas and areas subject to accelerated erosion, specifically the riser basin bed. (Tr. 42, 207- 208, Ex. P-4, R-16). A suggestion, but not a directive, was made by DLR to place stone around the failed riser to filter material from water leaving the basin. (Tr. 43, 209, Ex. P-4, R-16)

20. On October 28, 2002, the Division of Land Resources issued a Notice of Violation for failure to maintain erosion and sedimentation control measures at the site. (Tr. 69-70, 88-89, 210-211, Ex. P-7, R-17, R-22) Petitioner responded to the Division of Land Resources’ Notice of Violation by describing the hydroseeding, silt fences and other measures that had been taken on the site. (Tr. 73, Ex. P-8)

21. On October 28, 2002, Respondent took a turbidity sample that revealed that the stream’s turbidity measured 330 ntu which was 33 times over the 10 ntu standard. (Tr. 144, 145, 257, 258. Ex. R-8) Above the pond, turbidity measured 11 ntu. (Ex. R-8) From September 28, 2002 through October 28, 2002, the pond continued to discharge sediment that resulted in turbidity. (Tr. 279) On October 28, 2002, Respondent met with Petitioner’s owner and employees on site and told Petitioner to install sediment controls such as a filter structure to control the sediment during repairs. (Tr. 283)

22. On October 31, 2002, DLR received a call from Petitioner. (Tr. 213, Ex. R-18) Petitioner stated that they were hydroseeding, but couldn’t get any equipment to the site. (Tr. 213, Ex. R-18) Petitioner also stated that they would call again with thoughts about a possible fix. (Tr. 215, Ex. R-18)

23. As DLR explained, heavy equipment could have been brought in, but Petitioner would have sustained damage to fairways, cart paths and other features of the golf course. (Tr. 213) Petitioner could have installed inlet protection to keep sediment out of the riser. (Tr. 214) Sediment basins could have been maintained on a regular schedule and cleaned out when they reached half capacity. (Tr. 215)

24. On November 18, 2002, Respondent received a complaint that the basin had filled with water again and discharged sediment downstream at about 5:30 a.m. that day. (Tr. 216, Ex. R-20) The complainant stated that the Mitchell River was muddy. (Tr. 216, Ex. R-20) The complainant also reported that Petitioner had removed the riser, but had not installed measures to stop the sediment. (Tr. 216, Ex. R-20) The complainant said that the trout in the Mitchell River were swimming erratically and he felt that there was a willful release of sediment by Petitioner. (Tr. 165)

25. Petitioner conceded that about ten days after the riser failed, heavy rains caused more sediment to enter the basin and clog the riser. (Tr. 81) Once the riser became clogged, water began to fill the basin again. (Tr. 81) Petitioner removed the riser with a backhoe on November 19, 2002. (Tr. 82) The removal created more turbidity downstream. (Tr. 82)

26. On November 19, 2002, Respondent inspected the site and observed that the riser pipe had been removed from the sediment basin. (Tr. 147, 151, Ex. R-9, R-13) Respondent observed that the water above the sediment basin was crystal clear. (Tr. 148, 149, Ex. R-10, R- 11) The water below the sediment basin was brown with solids. (Tr. 149, Ex. R-12)

27. On November 22, 2002, DLR inspected the site, took pictures and sent a Notice of Continuing Violation. (Tr. 44-47, 78, 216, Ex. P-10, R-20) The Notice indicated that slight sedimentation damage continued to occur. (Tr. 83, 216-217, Ex. P-10, R-20)

28. On February 24, 2003, Respondent referred the matter for enforcement and recommended that civil penalties be assessed. (Ex. R-14)

29. On February 25, 2003, DLR inspected the site and found it in compliance with the Sedimentation Pollution Control Act. (Tr. 47-48, 222-224, Ex. P-4, R-21). DLR required Petitioner to maintain inlet protection at the riser pipe during stabilization of the basin bed. (Ex. P-4, R-21) DLR also noted that a trout waiver and other permits would be needed for the proposed stabilization. (Tr. 48, Ex. P-4, R-21) 30. Petitioner obtained a federal 404 permit to install a pipe in order to lessen the steep grade of the watercourse below the basin. (Tr. 49-51, Ex. P-5, P-9) However, Petitioner never installed the pipe. (Tr. 53) Instead, the Petitioner conducted hydroseeding and plant restoration. (Tr. 53)

31. Petitioner claimed that neither the best usage violation nor the settlable solids violation should be considered because there were no trout living in the stretch of stream immediately below the basin. (Tr. 90-91) However, the Wildlife Resources Commission, in responding to the Corps of Engineers about Petitioner’s request for a 404 permit, indicated that the waters downstream from Petitioner’s basin contain brown and rainbow trout. (Tr. 94-95, Ex. P-5) The memo also stated that land disturbance was not to be done, in order to protect the egg and fry stages of trout, and that heavy equipment was not to be used, in order to minimize sediment impacts to aquatic habitats. (Tr. 95, Ex. P-5)

32. Respondent explained that aquatic life includes small bugs such as the larvae of caddis flies, stone flies, and mayflies. (Tr. 167) They are indicators of biological integrity and are also food for fish. (Tr. 167) Small amphibians such as tadpoles could also be covered by sediment, removing another food source. (Tr. 168) The sediment deposition resulted in burial of this aquatic life and thus removal of best usage along the 1,000 linear feet of the unnamed tributary. (Tr. 259, 271, 278, 290-291, 296-297, 305-307, Ex. R-4, R-5, R-6, R-14)

33. In the past, DLR obtained an injunction against Petitioner’s previous owner, Mr. Satterfield, for violations of the SPCA. (Tr. 115, 117) Petitioner’s current owner, Mr. Packer, assisted Mr. Satterfield with resolving those violations. (Tr. 101, 262-263, Ex. R-23, R-24) The resolution to these previous violations included discussions of trout, water controls and land controls. (Tr. 104)

34. Charles Gardner, a past Director of DLR, testified that trout waters are highly sensitive to sedimentation. (Tr. 118) When sediment enters waters, it moves downstream and creates damage. (Tr. 118) The sediment covers gravel beds in streams and fills in the spaces between gravel particles in trout streams. (Tr. 118) It’s in those gravel beds that aquatic life on which the trout survive exists. (Tr. 118, 126) Also, trout cannot spawn if the gravel beds become contaminated with sediment. (Tr. 118)

35. Mr. Gardner also testified that an in-stream sediment basin should be maintained and cleaned out when half full of sediment. (Tr. 119) Temporary in-stream sediment basins are usually removed after the construction phase of development ends. (Tr. 119) DLR would not have designed a plan for an individual. (Tr. 127) Instead, the applicant’s engineer would design and submit a plan on behalf of the individual. (Tr. 121)

36. Respondent assessed a civil penalty against Petitioner in June 2003 based on the September and October 2002 circumstances. (Ex. P-11, R-22) Respondent indicated that those circumstances resulted in violations of turbidity, settlable solids standards and removal of best usage. (Ex. P-11, R-22). 37. Respondent considered the eight statutory factors in determining amounts for the civil penalties. (Tr. 158-164, Ex. P-11, R-14, R-22) Facts supporting the degree and extent of harm were the results of the release of sediment on the stream: turbid water, sediment deposition and destruction of aquatic life. (Tr. 161, Ex. R-14) Facts supporting the duration and gravity of the violation included a documented violation time span from September 30th until October 28th as well as the 5-6 inch depth of sediment along 1,000 linear feet of stream. (Tr. 161, 288, Ex. R-14) Facts supporting the effect on ground and surface water quality included the hydraulic velocity of water that may have scoured the channel, the turbidity that can restrict light from life forms, sediment which can clog gills, and sediment that increases the cost to treat drinking water, degrades wildlife habitat, decreases water storage, increases culvert and bridge maintenance, and results in an increased frequency of dredging or flooding in downstream areas. (Tr. 162, Ex. R- 14). Facts supporting the cost of rectifying the damage include the costs of sediment removal by hand, maintaining the basin and abating the impacts to the stream. (Tr. 162, Ex. R-14) Facts supporting the amount of money saved by noncompliance included the cost of labor, heavy equipment, fuel, and the loss of cart and green fees during maintenance. Although the willfulness of the violation is a statutory factor to be considered, the Respondent stated that the discharge of sediment did not appear to be willful or intentional. (Tr. 162, Ex. R-14) Facts supporting a prior record included a wastewater treatment violation and sediment discharges during the construction of the golf course. (Tr. 163, Ex. R-14) Facts supporting the cost to the State for enforcement procedures included the number of hours spent investigating the case by various staff members and an administrative cost. (Tr. 164, Ex. R-14)

38. Respondent assessed two thousand dollars ($2,000.00) for each of the three documented turbidity violations which totaled six thousand dollars ($6,000.00). (Tr. 289-290, Ex. P-11, R-22) Respondent also assessed five thousand dollars ($5,000.00) for the removal of best usage. (Tr. 290, Ex. P-11, R-22) Respondent further assessed two thousand dollars ($2,000.00) for the settlable solids violation. (Tr. 291, Ex. P-11, R-22) Respondent also assessed its enforcement costs of one thousand and twenty dollars ($1,020.00). (Ex. P-11, R-22) The assessments totaled fourteen thousand and twenty dollars ($14,020.00). (Ex. P-11, R-22)

39. The assessment was consistent with other similar cases assessed by Respondent. (Tr. 286) Stream standard violations are important violations because the Respondent’s program from research to permitting is centered on stream protection. (Tr. 286-287)

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. All parties have been correctly designated and are properly before the Office of Administrative Hearings. The Petitioner is a "person aggrieved," as defined by the Administrative Procedure Act (“APA”), because it is affected in its property by an administrative decision, namely, the assessment of civil penalties. N.C. Gen. Stat. § 150B-2(6). Petitioner is also a “person” within the meaning of the water quality statutes definitions and enforcement procedures. N.C. Gen. Stat. §§ 143-215.6A and 143-212(4). Respondent is an “agency” as defined by the APA because it is a subdivision of a department within the executive branch of State government. N.C. Gen. Stat. § 150B-2(1a).

2. The Office of Administrative Hearings has subject matter jurisdiction to hear this case pursuant to the APA because it is a dispute over an agency action, specifically the assessment of civil penalties. N.C. Gen. Stat. § 150B-23.

3. The unnamed tributary to the Mitchell River located at and below the golf course constitutes waters of the State as defined by the water quality statutes. N.C. Gen. Stat. § 143- 212(6).

4. Petitioner violated the water quality statutes by allowing the discharge of sediment to occur without a permit and in violation of stream standards. N.C. Gen. Stat. § 143- 215.1(a)(6).

5. The stream standards included best usage, settlable solids, and turbidity. N.C. Admin. Code tit. 15A, r. 2B.0211(2), (3)(c), and (3)(k). The best usage was removed by the burial of life forms and destruction of the biological integrity along a thousand feet of stream below the sediment basin. Settlable solids occurred when sediment was deposited up to six inches deep along a thousand feet of stream below the sediment basin. Turbidity occurred on at least three occasions from the continuing discharge of the basin as evidenced by Respondent’s water samples taken on September 28, October 8, and October 28, 2002.

6. Civil penalties based on turbidity violations documented on three separate occasions were appropriate even if they resulted from a single failure as long as the water quality standard continued to be violated. Murphy Family Farms v. NC DENR, 160 N.C. App. 338, 585 S.E.2d 446 (2003), disc. review allowed, 2004 LEXIS 43 (N.C. Feb. 5, 2004). In this case, however, the sediment basin continued to fill and discharge until the riser was removed so that it was appropriate to assess civil penalties for three separate turbidity violations based on separate discharge incidents. N.C. Gen. Stat. 143-215.6A.

7. Petitioner was responsible for the discharges because it failed to maintain the sediment basin and riser properly. Petitioner’s argument that the State should have told Petitioner how to maintain its sediment basin in order to prevent this sort of occurrence is completely without merit. It is the citizen’s responsibility to properly maintain the contrivances he creates in order to avoid harm to others. Few would want a government so intrusive that it constantly monitored our every activity and dictated in every detail how those activities are to be

- 10 - carried out. Even fewer would want to pay the taxes necessary to pay the number of inspectors that would be required to do such ongoing monitoring of every sediment basin in North Carolina. In short, Petitioner must stand up and take responsibility for its own action and failures, rather than blaming government for not telling it what to do.

8. The Respondent, as a delegate of the Environmental Management Commission, properly assessed civil penalties pursuant to N.C. Gen. Stat. § 143-215.6A since the penalties did not exceed ten thousand dollars ($10,000.00), were based on violations of water quality stream standards, and were consistent with other penalties assessed for similar violations. Further, the Respondent, as a delegate of the Environmental Management Commission, properly assessed civil penalties pursuant to N.C. Gen. Stat. § 143B-282 by considering the eight (8) statutory factors in determining the amount of the penalty.

9. Petitioner failed to present any evidence that it maintained the sediment basin and riser properly. Petitioner also failed to show any error in Respondent’s actions that documented the violations. Further, Petitioner failed to present any evidence that the amounts of the civil penalties were improper for the types of violations or that they were inconsistent with other assessments for similar violations. Petitioner further failed to show any agency error, any failure to follow proper procedure, any arbitrary or capricious action or any failure to act as required by law or rule in assessing the civil penalties.

10. 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, supported the agency action of assessing the civil penalties. N.C. Gen. Stat. § 150B-34.

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

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

DECISION

The assessment of civil penalties, identified by DWQ No. SS 03-001, in the amount of fourteen thousand and twenty dollars ($14,020.00) against the Old Beau Golf Club is hereby UPHELD.

NOTICE

The Environmental Management Commission will make the final decision in this contested case.

- 11 - The Commission is required to give each party an opportunity to file exceptions to the recommended decision and to present written arguments to those in the Agency who will make the final decision. N.C. Gen. Stat. § 150-36(a). The Commission 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’ attorney of record and to the Office of Administrative Hearings.

In accordance with N.C. Gen. Stat. § 150B-36 the Commission 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 Commission, the Commission 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 Commission in not adopting the finding of fact. For each new finding of fact made by the Commission that is not contained in the Administrative Law Judge’s decision, the Commission shall set forth separately and in detail the evidence in the record relied upon by the Commission in making the finding of fact.

This the 28th day of July 2004.

______James L. Conner, II Administrative Law Judge

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