20011381 Ver 1_Draft Settlement Agreement_20010101

STA O NO CA O INA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY RSYT FILE NO. 01 EHR 1378
PTR, Inc.,
V.
Petitioner
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES, DIVISION OF WATER
QUALITY,
Respondent.
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT
The North Carolina Department of Environment and Natural Resources ( "DENR "),
Respondent, and Petitioner, PTR, Inc., ( "Petitioner "), jointly and severally, hereby enter into this
Settlement Agreement ( "Agreement ") pursuant to N. C. Gen. Stat. § 15013- 31(b), in order to
amicably resolve the above captioned matter. Pursuant to N. C. Gen. Stat. 143- 215.6A et seq.,
this matter arose out of the August 22, 2000, assessment by the Division of Water Quality
( "DWQ ") in the total amount of ten thousand five hundred, ninety -two dollars and twenty -eight
cents ($10,592.28), for alleged violations of 15A NCAC 2B .0211(2) and 15A NCAC 2H.
0501(b).
DENR and the Petitioner have reached the following settlement agreement in this matter:
1. The Petitioner will pay a total of six thousand, five hundred, and ninety -two
dollars and twenty -eight ($6,592.28), including the costs of enforcement, ( "Settlement Amount ")

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to DENR in the full and complete settlement of the case set out above The Settlement Amount
shall be made in a one lump sum payment upon execution of this agreement by the Petitioner
2 The payment shall be by check made payable to the North Carolina Department
of Environment and Natural Resources (or to "DENR ") at the following address
Ms Sharlene Moses
Attorney General's Office
Environmental Protection Division
Post Office Box 629
Raleigh, NC 27602 -0629
3 Further conditions include the following
A The Petitioner will implement to the satisfaction of the U S Army Corps
of Engineers (COE) the attached Monitoring and Mitigation Plan, Mitchell and
Associates Stream mitigation plan, (subject to DWQ's modifications [see B
below,] and any modification subsequently approved by the COE) which has been
reviewed and approved by the COE
B Mitchell and Associates Stream mitigation plan The proposed on -site
stream mitigation plan in the May 29, 2001 proposed mitigation plan, with a
monitoring supplement dated June 7, 2001) prepared by Mitchell and Associates,
Inc is acceptable to DWQ with modifications The modifications to the stream
mitigation plan must be submitted to DWQ by October 1, 2001 for written
approval These reports are available on DENR's website at
http 11h2o enr state nc us/ncwetlands The modifications are as follows
a. Modification of the riparian (stream side) restoration to
omit sycamore and sweet gum and to achieve 320 trees per acre at
maturity,
b Provide a satisfactory benthic macro invertebrate
monitoring plan as outlined in DWQ's Interim, Internal Technical
Guide - Benthic Macro invertebrate Monitoring Protocols for
Compensatory Stream Restoration Projects (May 2001),
c Plans that adequately depict the footprint of the stream
restoration efforts, detailing the location of riffle /pools, stream bed
sinuosity, stream bed profile, location of root wades, and grade
control structures as outlined in DENR's "Internal Technical Guide
for Stream Work in North Carolina (April 2001, Version 3 0)
d. Grading and planting of the stream restoration site must
begin by December 1, 2001 and be completed by April 1, 2002.

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DWQ shall be copied with an as -built plan upon completion of the
project within 30 days of completion of the stream restoration,
e Annual monitoring reports shall be sent to DWQ for five
years within 30 days of the anniversary of the completion of the
stream restoration These plans must outline any planned measures
to resolve any problems identified with the success of the stream
restoration, and
f. A conservation easement is required Accordingly, DWQ
shall be copied on the conservation easement that will be placed on
the stream restoration area for the stream mitigation and re- opening
of Leak Fork Creek
C Storm water management - the Petitioner shall provide a final, written
Storm water management plan that must be approved in writing by NC DENR by
October 1, 2001 The Storm water management plan must include plans and
specifications for Storm water management facilities (facilities), designed to
remove 85% of the total suspended solids (TSS) according to the most recent
version of DENR's Storm water Best Management Practices Manual, (Manual )
These facilities must be designed to treat the runoff from the entire project,
unless otherwise explicitly approved by DWQ Also, the facilities, as approved by
DWQ's wetlands unit, shall be constructed and operational, and the Storm water
management plan, as approved by DWQ's wetland unit, shall be implemented by
December 1, 2001
The structural Storm water practices as approved by DWQ's wetland unit
as well as drainage patterns must be maintained into perpetuity No changes to the
structural Storm water practices shall be made without written authorization from
DWQ PTR may design the proposed wetland at the bottom of the relocated
stream as an extended detention wetland as described in the above manual If the
runoff from the project cannot be added to the above wetland, bioretention areas,
consistent with the Manual designs, must be provided to treat the runoff from the
areas not draining to the wetlands
D Mitchell and Associates, Inc mitigation plan The May 29, 2001
proposed nutigation plan, with a monitoring supplement dated June 7, 2001,
prepared by Mitchell and Associates, Inc states that impacts to Leak Fork Creek
will be reduced to less than 500 feet Accordingly, approximately 350 feet of
culvert removal and stream restoration is required from Leak Fork Creek such that
the total culverted length of Leak Fork Creek is no more than 500 linear feet
This reopening of Leak Fork Creek must be completed by November 1,
2001, and the site stabilized according to the plan referenced above This area
must be replanted in woody vegetation (preferably trees) to a width of at least 30
feet from the active stream bank This stream restoration shall be designed and
maintained according to the provisions in DENR's "Internal Technical Guide for

El
Stream Work in North Carolina (April 2001, Version 3 0) If the stream
restoration outlined in the reports by Mitchell and Associates, Inc , are
inconsistent with the Manual, they must be modified and submitted to DWQ for
written approval
E At least 1160 linear feet of stream restoration shall be
done on site At least 90% of this restoration must be successful
within five (5) years. Successful restoration is defined as
a A channel with positive baseflow at least 90% of the time in a
normal year or mirrors the baseflow of the approved reference stream
(for instance, the remaining undisturbed portion of the stream between
US 52 and the restoration site),
b Tree plantings of at least 320 trees per acre,
c A minimum of 90% of the stream bank and bed is stable and
not eroding, and
d) Naturally maintains the referenced pattern, dimension and
profile
If the Petitioner fails to meet any of the above criteria, the Petitioner
shall purchase stream nutigation credits from the N C Wetlands
Restoration Program by payment of no more than $125 00 a linear
foot for each matching foot of unsuccessful restoration
F Modifications to Petitioner's Erosion and Sedimentation Control Plan
The Petitioner shall immediately revise and or amend his Erosion and
Sedimentation Control Plan (Plan)
Notwithstanding any other statutes, rules and/ or regulations, a Plan must be
secured prior to the beginning of construction of the on -site stream restoration
and Storm water management efforts
G One of the remaining culverts under Leak Fork Creek shall be partially
plugged at the uppermost end by November 1, 2001 to force stream base flow to
enter only one pipe rather than both pipes Higher storm flows may enter both
pipes
H DWQ shall issue a 401 Water Quality Certification for Nationwide Permit 32,
Completed Enforcement Action, for this project incorporating the conditions of
this agreement assuming that the Corps of Engineers intends to permit the
remaining stream fill on the site through this Permit. This Certification shall be
issued by October 1, 2001 The applicant must submit a written request to modify
the existing Individual Permit application by September 15, 2001

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4. The breach of any condition enumerated above, in paragraphs numbered one, two,
or three above by Petitioner, will render due and payable the balance of the Civil Penalty
Assessment
5 Petitioner and DENR expressly stipulate and acknowledge that, by entering into
this Agreement, Petitioners neither admit or deny the allegations contained in the Findings and
Decisions and Assessment of Civil Penalties, however, upon Petitioners's breach of any
condition or term of this Agreement, the sole issue in any action by DENR is to collect the Entire
amount of the civil penalty assessments, i e , ten thousand five hundred, ninety -two dollars and
twenty -eight cents ($10,592 28), in accordance with the terms of Paragraph three above and the
action will be linuted to the Petitioners's compliance with the terms of this Agreement.
6 DENR agrees to accept the payment of six thousand five hundred and ninety -two
dollars and twenty -eight ($6,592 28), in full and complete satisfaction of the civil penalty
assessments subject to the terms of this Agreement
7 Nothing in this Agreement shall restrict any right of DENR to take any
enforcement action against the Petitioner, for any future violations
8 This Agreement shall be binding upon the parties and is entered into knowingly,
intelligently, and voluntarily
This the day of , 2001
PTR, Inc. DENR, Division of Water Quality
By By

Kenny Horne, President
Poyner & Spruill, L L P
2
Timothy P Sullivan
N C. State Bar No. 11105
P O Box 10096
Raleigh, NC 27605 -0096
(919) 783 -6400
EP/49650
R
Greg Thorpe, Acting Director, DWQ
Roy Cooper
Attorney General
By
Anita LeVeaux
Assistant Attorney General
• C State Bar No. 13667
• C Department of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602 -0629
(919) 716 -6600