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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 Sedimentat
ion 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
sedime
ntation 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





A
ssistant 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 a
uthority 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.




2


STATUTORY SECTIONS IN QUESTION


The Sedimentation Pollution Control A
ct 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


P
ETITIONER
:


1.

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


R
ESPONDENT
:


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 Repo
rt dated 2/23/98;


3.

Notes dated 12/8/99;


4.

Sedimentation Inspection Report dated 12/10/99;


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 enclo
sed Sedimentation
Inspection Report dated 12/10/99 and certified mail receipt;


6.

Sedimentation Inspection Report dated 2/3/00;


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 Pl
an Checklist;


9.

Sedimentation Inspection Report dated 3/6/00;


10.

Notes dated 3/14/00;


11.

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




3

12.

Notes dated 3/30/00;


13.

Guidelines for Assessing Ci
vil 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 D
ivision, U.S. Army Corps of Engineers, to
Mr. Ed Jones, Swing ‘n Things, dated April 3, 2000;


16.

Notes dated Monday, April 17, 2000;


17.

Sedimentation Inspection Report dated 5/16/00;


18.

Guidelines for Assessing Civil Penalties for Violations of the S
edimentation 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 porti
on 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
fo
llowing:


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.




4

3.

N.C. Gen. Stat. § 113A
-
52(6) defines “land
-
disturbing activity” to include any use of
the land by any person in commercial developm
ent 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 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 init
iated 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 requiremen
ts 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 dist
urbed 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 t
he 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 measu
res, 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 Viola
tion.


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 t
he 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


5

insufficient measures to retain sediment on site, there was inadequate buffer zone, and there were
un
protected 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.


11.

On February 7, 2000, Respondent sent Petitioner a Notice of Continu
ing 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 referr
ed 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 fina
ncially 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 C
ontrol 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 locatio
ns 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 t
he 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) con
struction 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 di
sapproved 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 pl
an, there were insufficient
measures to retain sediment on site, there was a failure to take all reasonable measures, there was


6

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.


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 drai
nage 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 pe
nalties 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
no
njoinder.


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 b
e
assessed a civil penalty pursuant to N.C. Gen. Stat. § 113A
-
64(a) for the violations of the SPCA
committed on the site.




7

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 zon
e, 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 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, t
hrough 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 b
y 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 approv
al 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 slo
pe 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 distur
bed 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 oth
er 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. § 11
3A
-
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.



8


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



RECOMMENDED DECISION


The Secretary of the Department of Environment and Natural Resources (“Secretary”), who
will make the final agency decisio
n 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 Sedimen
tation
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.



ORDER


It is hereby ordered that the Secretary serve a copy of its final agency decision on th
e 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 op
portunity 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
dec
ision on all parties and to furnish a copy to the parties’ attorneys of record
and to the Office of
Administrative Hearings
.



This the 24
th

day of April, 2001.





____________________________________

Fred G. Morrison Jr.

Senior Administrative Law Judge