STATE OF NORTH CAROLINA
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
03 EHR 1718
COUNTY OF ONSLOW
Federal Land and Timber Corp.,
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Petitioner,
v.
NC Department of Environment and
Natural Resources,
Respondent.
DECISION
This matter came before Administrative Law Judge Beecher R. Gray on Monday, June
13, 2005, in Carolina Beach, North Carolina. The case involved the appeal of a civil penalty
assessment. Respondent assessed Petitioner in the amount of $52,290 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., numbered
starting with 4A.0101, N.C. Admin. Code tit. 15A, r. 4B.0001 et seq. numbered starting with
4B.0101, and N.C. Admin. Code tit. 15A, r. 4C.0001 et seq. numbered starting with 4C.0101,
specifically conducting land-disturbing activity of approx 3.4 acres for residential purposes on
Longwood Drive in Onslow County without appropriate erosion and sedimentation control
measures, without providing ground cover on exposed slopes, and without maintaining erosion
and sedimentation control measures from February 26, 2003 through May 20, 2003.
APPEARANCES
For Petitioner:
Robert W. Detwiler
Robert W. Detwiler, Attorney at Law
P.O. Box 353
Jacksonville, NC 28541
For Respondent:
Nancy Reed Dunn
Associate Attorney General
N. C. Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001
ISSUES
1.
Whether Petitioner violated N.C. Gen. Stat. § 113A-57(2) while conducting land
disturbing activity by failing 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 is shorter, of completion of any phase of grading.
2.
Whether Petitioner violated N.C. Gen. Stat. § 113A-57(3) while conducting land
disturbing activity by failing, on a tract of more than one acre where more than one acre of land
was being disturbed, to install sufficient sedimentation and erosion control devices and practices
to retain the sediment generated by the land-disturbing activity within the boundaries of the tract
during construction and development of the tract.
3.
Whether Petitioner violated 15A NCAC 04B .0113 while conducting land
disturbing activity by failing to maintain all temporary and permanent erosion and sedimentation
control measures and facilities during development of the site.
4.
Whether Respondent acted properly in assessing a $52,920 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:
Petitioner’s 1
RESPONDENT:
Respondent’s 1 ...........10/17/89 Deed, Onslow County Register of Deeds, Book 938, Page 552.
Respondent’s 2 ...........6/7/02 Financial Responsibility/Ownership Form; Sedimentation
Pollution Control Act signed by Mike Little and notarized
Respondent’s 3 ...........6/18/02 Letter of Receipt signed by Janet L. Paith
Respondent’s 4 ..........7/3/02 Letter of Approval signed by Daniel Sams, P.E., M.E.
Respondent’s 5 ...........10/28/02 Sedimentation Inspection Report signed by Janet Paith
Respondent’s 6 ..........1/21/03 Sedimentation Inspection Report signed by Laurie Munn
Respondent’s 7 ........... 2/26/03 Sedimentation Inspection Report documenting site violations
signed by Laurie Munn with photographs
Respondent’s 8 ..........2/27/03 Notice of Violations signed by Daniel Sams, P.E., M.E. with
certified mail receipt
Respondent’s 9 ........... 3/13/03 Sedimentation Inspection Report documenting site violations
signed by Laurie Munn with photographs
Respondent’s 10 ........3/17/03 Notice of Continuing Violations signed by Daniel Sams, P.E.,
M.E.
Respondent’s 11 .........5/20/03 Sedimentation Inspection Report documenting site violations
signed by Daniel Sams
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Respondent’s 12 ......... 9/8/03 Guidelines for Assessing Civil Penalties for Violations of the
Sedimentation Pollution Control Act signed by Daniel Sams on May
23, 2003 and by T. Gray Hauser on September 8, 2003
Respondent’s 13 .........9/11/03 Civil Penalty Assessment for SPCA Violations Worksheet signed
by Francis M. Nevils, Jr. for violations cited in the Notice of Violation
which assessed a daily penalty of $630.00 for 84 days
Respondent’s 14 .........9/11/03 Civil Penalty Assessment signed by Francis M. Nevils, Jr. with
attachments, letter of transmittal signed by Sonya L. Avant for T. Gray
Hauser with certified receipt
Respondent’s 26 .........Resume of Daniel Sams
Respondent’s 27 .........Resume of Francis M. Nevils, Jr.
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 a corporation registered in North Carolina and conducting business in
Onslow County, North Carolina.
2.
Respondent is a State agency established pursuant to N.C. Gen. Stat. §§ 143B279.1 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 residential, industrial, educational, institutional or commercial
development, highway and road construction and maintenance 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 ground cover or other adequate erosion-control devices
or structures within 15 working days or 30 calendar days, whichever is shorter, of completion of
any phase of grading (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.
From August 30, 1989 until at least May 20, 2003, Petitioner owned property
located on Longwood Drive in Onslow County, North Carolina (the “site”).
5.
Petitioner initiated a residential development project containing approximately
3.4 acres commonly known as Riverside Plantation, Section II on the site. As part of the project,
Petitioner graded and removed vegetation and changed the site’s topography.
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6.
Petitioner was aware of the requirements of the Sedimentation Pollution Control
Act (“SPCA”) since, prior to commencing land-disturbing activity at the site, Petitioner filed a
Sedimentation and Erosion Control Plan that was approved by Respondent in a Letter of
Approval sent to Petitioner on July 3, 2002.
7.
The Letter of Approval sent to Petitioner on July 3, 2002 specified that approval
of the plan was conditional and included a list entitled Approval Comments and Conditions,
which Petitioner was instructed to copy and attach to the sedimentation and erosion control plan
that was to be maintained at the site. Condition number 2 on that list stated that “The developer
is responsible for the control of sediment on-site. If the approved erosion measures prove
insufficient, the developer must take those additional steps necessary to stop erosion from
leaving this site. Each sediment storage device must be inspected after each storm event.
Maintenance and/or clean out is necessary anytime the device is at 50% capacity.” Condition
number 8 on that list stated that “Because the sediment retention traps are shown on the plan as
the primary sedimentation and erosion control devices on this project, it is necessary that the
traps and their collection system be installed before any other grading takes place on site. If that
proves impractical, a revised plan must be submitted and approved that addresses erosion and
sediment control needs during the interim period until the traps are fully functioning.”
8.
On January 21, 2003, an inspection by Respondent found that the disturbance
had begun at the site. The inspector noted on a Sedimentation Inspection Report, which was sent
to Petitioner, that swales installed at the site required vegetation or some form of stabilization as
soon as possible.
9.
On February 26, 2003, Respondent conducted another inspection of the site and
found that the site was not in compliance with the SPCA and rules. In particular, the inspection
found that the approved sedimentation and erosion control plan was not being followed at the
site, that sedimentation and erosion control measures at the site were insufficient to retain
sediment on site, that slopes at the site were unprotected, that erosion control measures at the site
had not been maintained, and that as a result, sedimentation was occurring into wetlands on the
site. A Sedimentation Inspection Report, which was sent to Petitioner, noted that no check dams
or sediment traps were installed, all graded swales were bare and no efforts had been made to
establish groundcover, and silt fence had been installed incorrectly. The Report instructed
Petitioner to install all of the sedimentation and erosion control measures that were shown on the
approved plan, establish groundcover on all swales, and to remove the existing fence and
reinstall it as indicated on the approved plan.
10.
On February 27, 2003, Respondent sent Petitioner a Notice of Violation by
certified mail, return receipt requested, which Petitioner received on March 5, 2003. The Notice
specified the violations of the SPCA and required corrective measures to be completed within
seven days of receipt of the Notice of Violation.
11.
On March 13, 2003 the site continued to be in violation of the SPCA according to
a visit made by Respondent’s inspector. At the time of the inspection, sediment had migrated
into wetlands located on the site. Petitioner had not installed the sedimentation and erosion
control measures shown in the approved plan, there were insufficient measures to retain sediment
on site, there were unprotected exposed slopes, and the sedimentation and erosion control
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measure that had been installed had not been maintained properly. The Sedimentation Inspection
Report, which was sent to Petitioner, informed Petitioner that as none of the violations had been
corrected, penalties might be assessed.
12.
On March 17, 2003, 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 the assessment of civil penalties of up to $5,000.00 per day.
13.
On May 20, 2003, Daniel Sams, Regional Engineer of the Wilmington Regional
Office of the Land Quality Section of the Division of Land Resources (Division) of DENR,
conducted an inspection of the site which confirmed that the violations at the site had not been
corrected. The sedimentation and erosion control measures in the approved plan still had not
been installed properly, sedimentation and erosion control measures at the site remained
insufficient to retain sediment on site, slopes remained unprotected by adequate ground cover,
and the sedimentation and erosion control measures that had been installed at the site had not
been maintained. At the time of this inspection, sediment still was migrating into wetlands
located on the site.
14.
As a result of that inspection, Daniel Sams estimated that between one hundred
(100) and nine hundred ninety-nine (999) cubic yards of off-site sedimentation had occurred onto
neighboring property and into wetlands at the site. Neither Daniel Sams nor any other official of
Respondent followed the sediment off site or made measurements of any off-site migration.
Petitioner hired Registered Land Surveyor Johnny A. Williams for the purpose of surveying and
calculating the amount of sediment migrated off site from Petitioner’s project. From his January
14, 2004 survey, surveyor Williams calculated that sixteen (16) cubic yards of material had
migrated from Petitioner’s site onto neighboring property. Although Respondent treated
migration of sediment into the wetlands portion of the site as off-site migration, Respondent
offered no evidence from any agency with jurisdiction over wetlands, such as the Division of
Water Quality or the U.S. Army Corps of Engineers, that an enforcement action could or would
be taken.
15.
Wayne Ragland is a licensed soil scientist in North Carolina and was tendered by
Petitioner and qualified as an expert in sedimentation control in this hearing. Soil scientist
Ragland produced evidence that, although the greatest amount of rainfall received at the site on
any one day during the penalty period was 2.60 inches, 2003 was the wettest year on record
since 1894 according to meteorological data. Petitioner’s approved sedimentation control plan
required that Petitioner provide protection from runoff of a 10 year 1 day storm event. Wayne
Ragland’s research into meteorological data for the area of the site showed that, because of
frequent rainfall, only 27 days of the 84 day penalty period, February 26, 2003 to May 20, 2003,
were suitable as working days under the statutory definition which defines working days as:
“[w]orking days” means days exclusive of Saturday and Sunday during which
weather conditions or soil conditions permit land-disturbing activity to be
undertaken. G.S. 113A-52(11).
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16.
Francis M. Nevils, Land Quality Chief of the Division of Land Resources, acting
pursuant to a delegation of authority from the Director of the Division of Land Resources
reviewed an enforcement package which included most of the above stated facts and which
provided regional and central office staff comments on the statutory factors to be considered in
the assessment of civil penalties. Mr. Nevils also used a worksheet to guide his assessment of
the civil penalties in accordance with the required statutory factors.
17.
In his calculations as to an appropriate penalty amount, Director Nevils
considered that Petitioner had saved $22,000 by not complying with his Division’s orders and
the Approved Plan. Petitioner produced evidence that it had installed 1,500 linear feet of silt
fence, even though the Plan only called for 400 feet; Petitioner used $5,900 worth of riprap,
even though the Plan only specified $1,000 worth; and Petitioner expended $4,000 in vegetating
swales, even though the Plan provided for only $1,000 for swale vegetation.
18.
On September 11, 2003, Mr. Nevils, acting under a delegation of authority from
the Director of the Division of Land Resources assessed a civil penalty in the amount of $630 per
day for the 84-day period beginning February 26, 2003, the date of the inspection that first
revealed the violations, and ending May 20, 2003, the date of the most recent inspection prior to
the assessment.
CONCLUSIONS OF LAW
1.
All parties properly are before the Office of Administrative Hearings, and the
Office has jurisdiction over the parties and the subject matter.
2.
All parties correctly have been designated, and there is no question as to
misjoinder or nonjoinder.
3.
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.
4.
From February 26, 2003 through May 20, 2003, Petitioner violated N.C. Gen.
Stat. § 113A-57(2) when it 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. Petitioner’s
argument that this requirement never applied because it never completed any phase of grading
during the penalty period does not relieve it of the requirement to retain sedimentation within the
boundaries of the site.
5.
From February 26, 2003 through May 20, 2003, Petitioner violated N.C. Gen.
Stat. § 113A-57(3) when it failed, on a tract of more than one acre where more than one acre was
uncovered, to install sufficient sedimentation and erosion control devices to retain sediment
generated by land-disturbing activity within the boundaries of the tract during construction and
development of the tract.
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6.
From February 26, 2003 through May 20, 2003, Petitioner also violated 15A
NCAC 04B .0113 when it failed to perform ongoing maintenance on all temporary and
permanent erosion and sedimentation control measures and facilities during development of a
site.
7.
Francis M. Nevils, Chief of the Land Quality Section of the Division of Land
Resources of the Department of Environment and Natural Resources has been delegated the
authority to assess civil penalties under N.C. Gen. Stat. 113A-64(a) by the Director of the
Division of Land Resources.
8.
Mr. Nevils, acting under his delegation of authority from 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 3.4 acres or greater.
9.
Mr. Nevils, acting under his delegation of authority from the Director of the
Division of Land Resources, acted properly in assessing a civil penalty but erred in setting the
amount of the penalty in view of the evidence produced in this contested case. Evidence
mitigating for a reduced civil penalty includes the amount of off-site sedimentation, which was
determined to be significantly less than Respondent’s estimate used as one basis for the amount
of the civil penalty, uncontradicted expert evidence on the rainy weather and wet soil conditions,
and Petitioner’s notably larger expenditures for sedimentation control, as directed by the
Division, than contained in the Approved Plan. Although the $630.00 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), the evidence
produced mitigates for a reduction in the daily amount of the fine. The time period was not
calculated erroneously as it was calculated in accordance with the SPCA from the date the
violation was first noted, 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.
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned makes
the following:
DECISION
The evidence produced in this contested case hearing is sufficient to support a civil
penalty, using Respondent’s agency decision as a template, and, based upon Petitioner’s
violations of sedimentation laws and rules but allowing some mitigation in the penalty amount
for circumstances shown, and in the interest of justice, of $300 per day for 84 days for a total
penalty of $25,200.
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ORDER
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 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 28th day of July 2005.
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Beecher R. Gray
Administrative Law Judge
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