990012_Civil Penalty Assessment_20230406

DocuSign Envelope ID: 13070256-A73E-4249-8DC1-1FOBOD7C681E
STATE OF NORTH CAROLINA NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY
COUNTY OF YADKIN
FILE NO. PC-2023-0009
IN THE MATTER OF )
TIM A. SMITHERMAN )
FINDINGS AND DECISION
FOR VIOLATIONS OF CATTLE WASTE ) AND ASSESSMENT OF
MANAGEMENT SYSTEM ) CIVIL PENALTIES
GENERAL PERMIT AWG200000 )
Acting pursuant to delegation provided by the Secretary of the Department of Environmental
Quality and the Director of the Division of Water Resources, 1, Michael Pjetraj, Deputy Director of the
Division of Water Resources (DWR),make the following:
I. FINDINGS OF FACT:
A. Tim A. Smitherman owned and operated Shady Grove Dairy, a permitted cattle operation
in Yadkin County.
B. Tim A. Smitherman was issued Certificate of Coverage AWC990012 under General Permit
AWG200000 for Shady Grove Dairy on October 31, 2019 effective from the date of
issuance,with an expiration date of September 30,2024.
C. Condition 11.4. of General Permit AWG200000 states that"Land application rates shall be
in accordance with the CAWMP. In no case shall the total land application rates from all
nutrient sources exceed the agronomic rate of the nutrient of concern for the receiving
crop."— [G.S. §143-215.1OC, and 15A NCAC 02T .1304(b)]
D. On March 8, 2022, DWR Winston-Salem Regional Office (WSRO) became aware of an
agreement between Shady Grove Dairy and Winston Weaver Co., Inc (Winston Weaver
Fertilizer). The agreement stated that Shady Grove Dairy would be the recipient of off-
spec liquid fertilizer. Off-spec product is product that does not meet quality specifications
or standards.
E. On March 18,2022 DWR WSRO staff communicated with Sterling Smitherman via email
that relayed the nutrient analysis of the off-spec liquid fertilizer, and concerns for over
application of Nitrogen.
F. On March 28,2022,DWR WSRO staff conducted an unannounced site inspection of Tract
4339, Field 10 as listed in the CAWMP. Tract 4339,Field 10 is located on Thomas Rd in
East Bend, NC and is listed as Parcel 585900740708 in the Yadkin County Tax records.
The frac tanks containing the off-spec liquid fertilizer were stored on Tract 4339,Field 10.
DWR WSRO staff documented white discoloration on the ground and vegetation and noted
that the vegetation was brittle to the touch.
G. The off-spec fertilizer was an additional nutrient source to waste application fields. It was
applied in exceedance of agronomic rates for the intended crop of corn silage. The

DocuSign Envelope ID: 13070256-A73E-4249-8DC1-1FOBOD7C681E
inspection reflected that waste application records did not include the off-spec fertilizer as
a nutrient source to waste application fields.
H. Condition III.5.of General Permit AWG200000 states that"An analysis of a representative
sample of the animal waste to be applied shall be conducted in accordance with
recommended laboratory sampling procedures as close to the time of application as
practical and at least within sixty (60) days (before or after) of the date of application.
Every reasonable effort shall be made to have the waste analyzed prior to the date of
application and as close to the time of waste application as possible. "— [G.S. §143-
215.1 OC(e)(6)]
1. The DWR staff did not find any records of waste analysis in conjunction with Spring 2022
corn silage crop waste applications.
J. On September 29, 2022 the Division issued a Notice of Violation(NOV/NOI)with intent
to enforce through the civil penalty assessment process to Tim A. Smitherman identifying
the violation of conditions of Permit No. AWG200000.
K. The NOV was sent by certified mail, return receipt requested and received on October 5,
2022.
L. DWR did not receive a response from the permittee on the NOV/NOI
M. The cost to the State of the enforcement procedures in this matter totaled$410.45.
Based upon the above Findings of Fact,I make the following:
II. CONCLUSIONS OF LAW:
A. Tim A. Smitherman is a"person"within the meaning of G.S. 143-215.6A pursuant to G.S.
143-212(4).
B. The above cited exceeding the land application rate listed in the CAWMP as described in
Findings of Fact 1. D-G violates Condition 1I.4 of General Permit AWG200000.
C. The above cited failure to conduct an animal waste analysis within 60-days of the date of
waste application as described in Findings of Fact I.I violates Condition 111. 5 of General
Permit AWG200000.
D. Tim A. Smitherman may be assessed civil penalties in this matter pursuant to G.S. 143-
215.6A(a)(2), which provides that a civil penalty of not more than twenty-five thousand
dollars ($25,000.00) per violation may be assessed against a person who is required but
fails to apply for or to secure a permit required by G.S. 143-215.1.
E. The State's enforcement costs in this matter may be assessed against Tim A. Smitherman
pursuant to G.S. 143-215.3(a)(9) and G.S. 143B-282.1(b)(8).
F. The Deputy Director 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.

DocuSign Envelope ID: 13070256-A73E-4249-8DC1-1FOBOD7C681E
Based upon the above Findings of Fact and Conclusions of Law,I make the following:
III. DECISION:
Accordingly, Tim A. Smitherman, owner of Shady Grove Dairy at the time of the noncompliance
is hereby assessed a civil penalty of:
$1500.00 for violation of permit condition No.11.4 by exceeding the land application
rate listed in the CAWMP,including exceeding the agronomic rate for the
intended crop.
$500.)0 _ for violation of permit condition No. III.5 by failing to conduct an animal
waste analysis within 60-days of the date of waste application.
$2000.00 TOTAL CIVIL PENALTY
$410.45 Enforcement costs
$2410.45 TOTAL AMOUNT DUE
Pursuant to 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 G.S. 14313-282.1(b),which are:
(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;
(2) The duration and gravity of the violation;
(3) The effect on ground or surface water quantity or quality or on air quality;
(4) The cost of rectifying the damage;
(5) The amount of money saved by noncompliance;
(6) Whether the violation was committed willfully or intentionally;
(7) The prior record of the violator in complying or failing to comply with programs over
which the Environmental Management Commission has regulatory authority;
(8) 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.
V. TRANSMITTAL:
These Findings of Fact, Conclusions of Law and Decision shall be transmitted to Tim A.
Smitherman in accordance with N.C.G.S. 143-215.6(A)(d).
DocuSigned by:
4/6/2023
(Date) Michael
Deputy Director
Division of Water Resources