DV-2022-0061_DV-2022-0061_20220628

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ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
RICHARD E. ROGERS, JR.
Director
STATE OF NORTH CAROLINA
COUNTY OF RUTHERFORD
NORTH CAROLINA
Environmental Quality
IN THE MATTER OF )
FAIRFIELD MOUNTAINS POA
FOR DISCHARGE WITHOUT A PERMIT )
AND VIOLATIONS OF WATER QUALITY )
STANDARDS )
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENTAL QUALITY
CASE NO. DV-2022-0061
FINDINGS AND DECISION
AND ASSESSMENT OF
CIVIL PENALTIES
Acting pursuant to North Carolina General Statute (hereby known as G.S.) 143-215.6A, I, John
Hennessy, of the Division of Water Resources (hereby known as DWR), make the following:
I. FINDINGS OF FACT:
A. Fairfield Mountains POA Inc. (Fairfield) is a non-profit corporation organized and
existing under the laws of the State of North Carolina.
B. Fairfield is the owner of record of parcel #1618031. Fairfield DBA Rumbling Bald on
Lake Lure operates and maintains a community amenity referred to as the Trout Stream
Pool Complex located at 172 Quail Ridge Blvd., Lake Lure, NC.
C. On the night of May 24, 2022, DWR Water Quality Regional Operations Section
(WQROS) Asheville Regional Office (ARO) staff were emailed a report by the Broad
River Keeper that indicated approximately 16 dead fish were observed in an unnamed
tributary (UT) to Lake Lure within the Rumbling Bald community. On May 25, 2022,
staff from the ARO mobilized to the site to investigate.
D. DWR staff observed approximately six (6) dead fish of varying sizes and species
remaining in the UT to Lake Lure (stream index 9-(17)), a Class B-Trout water of the
state. These observations were made on May 25, 2022, approximately 15 hours after the
initial report was received. The fish were only observed downstream of the Trout Stream
Pool as DWR staff surveyed approximately 2250' of the stream from the pedestrian
bridge to the golf course near West Villa Drive.
E. At approximately 550 feet from the pedestrian bridge, a land surface depression with a
visible flow path to the UT was observed by inspectors adjacent to Trout Stream Pool
D_E
NORTH CAROLINA
DopnNnenl of EIronnenlal quasi\
North Carolina Department of Environmental Quality I Division of Water Resources
Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500

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Complex near the bank of the UT. The depression contained a white PVC pipe and was
filled with water that had a strong chlorine odor. The water within the depression was
tested for chlorine and exceeded the available 0.5, 5 and 10 mg/L methods. Fairfield staff
were immediately notified of the findings.
F. On May 27, 2022, the ARO received correspondence via email from Fairfield confirming
the source of the water was pool filter backwash and a temporary set up had been
installed to abate further discharges to the UT until a permanent connection to the sewer
system could be made.
G. On June 10, 2022, Fairfield received the Notice of Violation & Intent to Assess Civil
Penalty (NOV-2022-DV-0158) dated June 7, 2022, for discharge without a permit and
removal of best use.
H. On June 14, 2022, Fairfield sent a response to the Notice stating short-term measures
were immediately implemented to contain and dispose of the backwash water until the
new connection to the collection system was made and put into service on June 14, 2022.
I. Fairfield was previously issued a Notice of Violation (NOV-2021-DV-0335) dated
August 9, 2021, for two separate documented unpermitted discharges from the Rumbling
Bald Wellness Center pool.
J. The costs to the State of the enforcement procedures in this matter totaled $520.27
Based upon the above Findings of Fact, I make the following:
II. CONCLUSIONS OF LAW:
A. Fairfield is a "person" within the meaning of N.C.G.S. 143-215.6A pursuant to N.C.G.S.
143-212(4).
B. Lake Lure and the UT to Lake Lure constitutes a water of the State within the meaning of
G.S. 143-215.1 pursuant to G.S. 143-212 (6).
C. As documented on May 25, 2022, Fairfield violated North Carolina General Statute 143-
215.1 by making an outlet to waters of the State without a valid permit and 15A NCAC
02B.0211(2) through the removal of best use of the surface water for aquatic life
propagation, and survival.
D. N.C.G.S. 143-215.6A(a)(2) provides that a civil penalty of not more than $25,000.00 may
be assessed against a person who violates any classification, standard, limitation, or
management practice pursuant to G.S. 143-214.1, 143-214.2, or 143-215.
E. N.C.G.S. 143-215.6A(b) provides that if any failure to act as required by the rules is
continuous, a civil penalty of not more than $25,000.00 per violation may be assessed for
each day the violation continues.

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F. The State's enforcement cost in this matter may be assessed against Fairfield pursuant to
G.S. 143-215.3(a)(9) and G.S. 143B-282.1(b)(8).
G. John Hennessy of the Division of Water Resources, pursuant to delegation provided by
the Secretary of the Department of Environmental Quality and the Director of the
Division of Water Resources, has the authority to assess civil penalties in this matter.
Based upon the above Findings of Fact and Conclusions of Law, I make the following:
III. DECISION:
Fairfield is hereby assessed a civil penalty of:
$ 3,000 for one violation of 15A NCAC 02B. 0211(2) by having a
discharge that resulted in the removal of best use of the surface
water for aquatic life.
$ 2,000 for one violation of North Carolina General Statute (G.S.) 143-
215.1 (a) (1) by making an outlet into waters of the State without a
valid permit.
$ 520.27 Enforcement costs
$ 5,520.27
TOTAL AMOUNT DUE
Pursuant to N.C.G.S. 143-215.6A(c), in determining the amount of the penalty I have taken into account
the Findings of Fact and Conclusions of Law and the factors set forth at N.C.G.S. 143B-282.1(b), which
are:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
The degree and extent of harm to the natural resources of the State, to the public health,
or to private property resulting from the violation;
The duration and gravity of the violation;
The effect on ground or surface water quantity or quality or air quality;
The cost of rectifying the damage;
The amount of money saved by noncompliance;
Whether the violation was committed willfully or intentionally;
The prior record of the violator in complying or failing to comply with programs over
which the Environmental Management Commission has regulatory authority; and
The cost to the State of the enforcement procedures.
IV. NOTICE:
I reserve the right to assess civil penalties and investigative costs for any continuing violations occurring
after the assessment period indicated above. Each day of a continuing violation may be considered a
separate violation subject to a maximum $25,000.00 per day penalty. Civil penalties and investigative
cost may be assessed for any other rules and statutes for which penalties have not yet been assessed.

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V. TRANSMITTAL:
These Findings of Fact, Conclusions of Law and Decision shall be transmitted to Fairfield in accordance
with N.C.G.S. 143-215.6(A)(d).
6/28/2022
(Date)
DocuSigned by:
8328B44CE9EB4A1...
John Hennessy, Supervisor
Compliance and Expedited Permitting Unit
Division of Water Resources

DocuSign Envelope ID: 2FA2F7BB-4147-4CAF-8C07-F4F47A9BEC1D
NORTH CAROLINA DIVISION OF WATER RESOURCES
Violator: Fairfield Mountain POA
County: Rutherford
Case Number: DV-2022-0061
Permit Number: Not Applicable
ASSESSMENT FACTORS
1. The degree and extent of harm to the natural resources of the State, to the public health,
or to private property resulting from the violation;
The unpermitted discharge of chlorinated pool filter backwash to a UT of Lake Lure (stream
index 9-17, Class B-Trout) from Fairfield DBA Rumbling Bald on Lake Laure's Trout Stream
Pool Complex resulted in a fish kill downstream. Class B waters are protected for aquatic life
propagation, survival, and maintenance of biological integrity. Trout designated waters have
the additional protection that allows for natural trout propagation and survival and year-round
maintenance of stocked trout. Additional effects of unpermitted discharges may detrimental but
not immediately quantifiable.
2. The duration and gravity of the violation;
Based on staff observation of the violation, the known duration of the violation is from the
initial report of the fish kill on May 24 at 1814 through May 25, 2022, when a temporary
mobile holding tank was installed to capture the filter backwash water. DWR staff observed
dead fish downstream of the Trout Pool Complex to the pedestrian bridge on May 25, 2022.
At approximately 550' upstream from the pedestrian bridge, a land surface depression with a
visible flow path to the UT was observed by DWR staff adjacent to Trout Stream Pool
Complex near the bank of the UT. The depression contained a white PVC pipe and was filled
with water that had a strong chlorine odor. The water within the depression was tested for
chlorine and exceeded the available 0.5, 5 and 10 mg/L methods. Correspondence from
Fairfield indicated the daily discharge volume from the backwash filters was approximately
1,000 to 1,500 gallons per day when the pool is in operation.
3. The effect on ground or surface water quantity or quality or air quality;
The discharge without a valid permit resulted in the short-term removal of best use of the
surface water for aquatic life propagation and survival.
4. The cost of rectifying the damage;
The cost of rectifying the damage is unknown but would include replacement of the fish killed.

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5. The amount of money saved by noncompliance;
The amount saved by noncompliance is unknown but could include costs associated with a
sewer tap fee, installation of any collection system pipe, pumps, road and landscaping repair,
any associated permits and any service fees associated with increased flow into the collection
system.
6. Whether the violation was committed willfully or intentionally;
The presence of the pipe from the backwash filter to the edge of the UT indicates an intentional
placement; however, it is unknown when this pipe was installed and who was aware of the
installation.
7. The prior record of the violator in complying or failing to comply with programs over
which the Environmental Management Commission has regulatory authority; and
The facility has one previous Notice of Violation (NOV-2021-DV-0335) for documented
discharges of chlorinated water to waters of the State without a valid permit from their
Wellness Center pool.
8. The cost to the State of the enforcement procedures.
The total costs incurred by the State totaled $520.27.
,—DocuSigned by:
6/28/2022
Date
`— 8328B44CE9EB4A1...
John Hennessy
Supervisor, Compliance and Expedited Permitting Unit
Division of Water Resources