NCG020343_COMPLETE FILE - HISTORICAL_20090216

PERMIT NO.
DOC TYPE
DATE OF
RESCISSION
STORMWATER DIVISION CODING SHEET
RESCISSIONS
�1��-Oao3u�
❑ COMPLETE FILE - HISTORICAL
YYYYWAIDD

RC: Spruill 'Ibwn Pit
Subject: Re: Spruill Town Pit
From: Bethany Georgoulias <Bethany.Georgoulias@ncmaiLnet>
Date: Mon, 16 Feb 2009 14:08:10 -0500
To: Al ]-lodge <Al.Hodge rr ncmail.net>, Danny Smith <Danny.Srnith a ncmail.net>
CC: Thom Edgerton <Thom.Edgerton a ncmaii.net>, Shelton Sullivan <[e-mail]>,
John Hennessy <John.liennessy a NCMaiLnet>, Bradley Bennett <Bradley. Bennett a ncmail.net>,
[e-mail]
All,
I talked with Floyd Williams downstairs in DLR and caught him up on our conversation
about Spruill Town Pit this morning. Here's a summary of what we went over:
- We still don't know whether the Corp (or EPA, since this case had been referred to
them) would even allow a site with this kind of outstanding violation to be permitted
for dewatering (or disturbed any further). The WaRO is looking into that more. - The
company proposing exploratory mining (Carolina Stone LLC) would need a permit to
dewater; however, DWQ cannot issue a Certificate of Coverage under NCG020000 to allow
dewatering without a valid Mining Permit from DLR. - Floyd explained that DLR wasn't
planning to issue any kind of mining permit for the exploratory work, which would
probably involve less than an acre. He's going to discuss options with Jim Simons
since DWQ can't cover anybody under NCG02 without some kind of mining permit. It is a
major concern for us to allow any dewatering operations/discharges that would be in
conflict with 404/401 or other water quality rules and considerations, especially
given the severe impacts by prior operations and litigation that surrounds this case.
- I explained we'd discussed some alternatives with the WaRO that the applicants might
consider in lieu dewatering within the existing mine footprint. DLR might be able to
help with ideas in this regard.
- Even if we could proceed with coverage under NCG02 for the 'exploratory phase' of
this project, we would consider the route of an individual NPDES permit for any
full-fledged mining operation that would result.
Thanks,
Bethany
Thom Edgerton wrote:
Hello,
I just received this revised information of what I left with you yesterday.
Carolina Stone is interested in being able to do some dewatering to explore prior
to fully permitting the site. Please let me know if you need more information.
Thanks,
Thom
Subject:
Spruill Town Pit
From:
Andrew Purifoy <[e-mail]>
Date.
Thu, 5 Feb 2C09 15:C0:30 -0500
To.
Torn Edgerton <[e-mail]>
To:
Tom Edgerton <[e-mail]>
Hello Thom,
1 of 2 2/16/2009 2:12 I'M

Re: Spruill Town Pit
We have revised the permit application and here are the maps to
show you how we are proposing to route the water. Let me know if this is acceptable
and then I will be able to finish the NOI and get started on the BMP
Plans. Thank You, Denise Wilson
Carolina Stone
-------------------------------------------------------------------------
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------------------------------------------------------------------------
Bethany Georgoulias
Environmental Engineer
NCDENR I DWQ I Stormwater Permitting Unit 1617 Mail Service Center, Raleigh, NC
27699-1617
512 N. Salisbury St, Raleigh, NC 27604
Phone: [phone]
Fax: [phone]
Website: hA2://h2o.enr.state.nc.us/su
E-mail correspondence to and from this address may be subject to the North Carolina
Public Records Law and may be disclosed to third parties.
2 of 2 2M &2009 2A 2 PM

Re: 11"Wd: SIMlill Town Pit - Craven Co.1
Subject: Re: [Fwd: Spruill Town Pit - Craven Co.]
From: Bethany Georgoulias <Bethany.Georgoulias a ncmailnet>
Date: Tue, 10 Feb 2009 l 5:50:45 -0500
To: Thom Edgerton <Thom.Edgertorl cr ncmaiLnet>
CC: A] I -lodge <ALFlodge a ncmaiLnet>, Danny Smith <Danny.Sliilth U iieiiiSll.ilet>, Bradley Bennett
<13radley. Bennett@ncmaiLnet>, Shelton Sullivan <She]ton.Sullivan cr ncmaiLnet>, John Hennessy
<.Jolui.l-lennessy a NCMail.net>
Gentleman,
I talked with Danny Smith about this situation this morning, and it sounds like a big
issue is whether US COE would even allow any mining because of the wetlands/stream
impacts that already occurred under the former owner... regardless of what DWQ would
favor. Al, Danny said he'd give you a call on this one, so maybe he's already spoken
to you.
I can say that where we are is this (Bradley, please correctly me if I'm wrong):
These people need a permit to discharge dewatering wastewater to surface waters, and
the only permitting mechanism we have is (a) an individual NPDES permit or (b) the
NCG02 permit, which we can't issue without a mining permit. If the discharge is not
to surface waters, there may be provision through the 2T rules for it to be permitted
by rule; however, given this location, it's probably difficult to convince anyone that
the water would not go to surface waters. '2T .0113 (16) references mine dewatering
where no chemicals are used. (See here:
http://h2o.enr.state.nc._us/admin/rules/documents/2Tbook OOO.pdf)
I'm not really sure where to take this next, but you all probably need to get in touch
with the Corp before anything else. We'll wait to hear from you, unless you talked
about a different approach with Danny.
-Bg
Thom Edgerton wrote:
Hello,
Thanks a lot for checking into this. I can get any information that you need from
Denise Wilson [phone] or feel free to contact her directly. She said that
if the site had not been previously disturbed, then the exploration would be done
with a drill rig, not requiring the permitting. The way she presented this to me
was that Carolina Stone wanted to help get the mess that has been created cleaned
up, the right way, if there is still material remaining, and it is not too
difficult to get started.
Thanks,
Thom
Thom Edgerton
North Carolina Department of Environment & Natural Resources
Division of Water Quality
Surface Water Protection Section
[phone] - Office
[phone] - Fax
E-mail correspondence to and from this address may be subject to the
North Carolina Public Records Law and may be disclosed to third parties.
Bethany Georgoulias wrote:
Thom,
I've been digging into this more today, but I'm not done yet. I didn't realize
1 of") 2/10/2009 4:01 111\9

Re: [F: vd: Spruill Town Pit - Craven Co.]
what a huge and ugly case this had been with Mr. Anderson (owner that went to
court) and the extent of the wetlands and stream damage done during his mining
operation. I have to get up with Danny Smith since he handled that case when it
came through us.
I spoke to Judy Wehner today in DLR, and she wasn't sure if what the new company
wants to do is something that requires an exploratory mining permit or not (if
it's less than an acre, it wouldn't). Apparently Floyd Williams is the one
who's handled this site (and the enforcement along with it), so I need to talk
to him next.
Bottom line is that DWQ does not have the option of issuing a COC for NCG02 to
anybody without a valid mining permit from DLR. We just can't do it; the permit
references the mining permit directly. Whether we can work with these people
who want to explore part of the mine on something like an alternative dewatering
arrangement that Al was proposing for the interim (reroute through other ponds &
disperse dewatering flow at different location), I'm not sure. If exploration
is less than an acre and a mining permit isn't required for this phase anyway,
there could be an opportunity .... however, .it's now very clear that I have to
talk to the people involved in this case more and maybe even the attorneys.
`There could be legal issues hindering that, particularly if there are
restraining orders against mining the property that are still in effect.
I may not even be the right person to coordinate all of this since a lot of this
happened with our compliance staff, but I'll do my best to get the right people
talking to you all about it.•
-Bg
Thom Edgerton wrote:
Hello,
I just received this revised information of what 1 left with you yesterday.
Carolina Stone is interested in being able to do some dewatering to explore
prior to fully permitting the site. Please let me know if you need more
information.
Thanks,
Thom
Subject:
Spruill Town Pit
From:
Andrew Purifoy <[e-mail]>
Date:
Thu, 5 Feb 2009 15:00:30 -0500
To:
Tom Edgerton <[e-mail]>
To:
Tom Edgerton <thom
Hello Thom,
[e-mail]>
We have revised the permit application and here are the maps
to show you how we are proposing to route the water. Let me know if this is
acceptable and then I will be able to finish the NO1 and get started on the
BMP
Plans. Thank You, Denise
Wilson
Carolina
Stone
-------------------------------------------------------------------------
Windows LiVeTM: Keep your life in sync. See how it works.
2 of') • 2/10/2009 4:01 1'M

Central Files: APS SWP
01 /30/09
Permit Number NCG020343 Permit Tracking Slip
Program Category Status Project Type
NPDES SW Expired New Project
Permit Type
Mining Activities Stormwater Discharge COC
Primary Reviewer
tony.evans
Version Permit Classification
1.00 COC
Permit Contact Affiliation
Permitted Flow j% I p
Facility 4w'`''"
Facility Name Major/Minor Region
Anderson Sand & Gravel Minor Washington
Location Address
221 Spruill Town Rd
Vanceboro
County
Craven
NC 28586 Facility Contact Affiliation
Owner
Owner Name Owner Type
Anderson Sand & Gravel Non -Government
Owner Affiliation
Gerald Anderson
PO Box 548
Bridgeton NC 28519
Dates/Events
Scheduled
Orig Issue App Received Draft Initiated Issuance Public Notice Issue Effective Expiration
10/28/96 05/15/96 07/22/96 10/28/96 10/28/96 08/31/97
Regulated. Activities ^ RequestedlReceived Events
Mine dewatering RO staff report requested 05/31/96
Mining & material processing RO staff report received 06/28/96
Mining closed loop recycle system
Vehicle maintenance
Outfall 001
Waterbody Name Stream Index Number Current Class Subbasin
Bear Branch 27-97-7 C;Sw,NSW 03-04-09
0

Carolina Stone, LLC.
5591 NC Highway 118 Phone: [phone]
Grlfton, NC 28530 Fax: 252-524-S207
Ernall: [e-mail]
Fax Cover Sheet
Ni43 f +7
4
Attention:
Company:
Fax #: ()�/k - 9V/J-
Date:
Total pages: 6
Comments:
\� 29tog
AA
Mc_ C(a.:.-, _,., -,
-A

Division of Water Quality /Surface Water Protection
NCDENRNational Pollutant Discharge Elimination System
wc..,� C•ncv.u+. [r...rurh �.. ('1 G�j(1 j�
r.vs.wu.rr ym /IQLR4 Mas,w:m NCO20000
NOTICE OF INTENT
National Pollutant Discharge Elimination System application for coverage under General Permit
NCG020000:
STORMWATER DISCHARGES associated with activities classified as:
SIC (Standard industrial Classification) Code - 14XX Mineral Mining Industry (except as specified below)
The following activities are also included:
• Active or inactive mining operations (including borrow pits —except for NCDOT borrow pits) that discharge
stormwater contaminated with or that has come in contact with, any overburden, raw material, intermediate
products, finished products, byproducts or waste products located on the site of such operations;
• Stormwater from vehicle maintenance activities at mining operations;
Overflow from facilities that recycle process wastewater; and/or
Mine dewatering (wastewater)
The following activities are specifically excluded from coverage under this General Permit:
Stormwater discharges associated with peat mining, coal mining, and metal mining;
Stormwater discharges from mining operations which are intermixed on site with stormwater from asphalt
operations and/or concrete operations;
• Stormwater discharges associated with oil and gas extraction operations; and
• Stormwater discharges associated with tourist gem mines
• NCDOT borrow pits are covered under NCS0001 So
The following discharges are covered by NPI)ES general permit „NCG520000 Instead of NCG020000:
• Point source discharges of stormwater and wastewater from in -stream sand ruining operations (i.e., sand
dredging or dipping operations)
For new mining sites that require an authorization to construct (ATC) wastewater treatment facilities; This
NOI is also an APPLICATION FOR an ATC for new wastewater treatment facilities. ATC requests must be
submitted at least 90 days prior to construction'.
For exlsflnq mining sites that require an Authorization to Operate (A TO) wastewater treatment facilities_
This NOI Is also an APPLICATION FOR an ATO for wastewater treatment facilities In place.
Construction modest ation or Installation of anY new treatment components at an existing site requires
an ATC. (if the site is already covered by NCG020000, the ATC request may be submitted without an NOI).
Some wastewater treatment facilities used to treat or recycle process wastewater (even if commingled
with stormwater) at mining sites will require an ATC prior to construction per 15A NCAC 2l-i .0138.
Please see the NCGO20000 General Permit for details about which treatment facilities require an
ATC (summarized in Table 1 at the end of this form). For example, an ATC is required for treatment
of mine dewatering discharge from clay pits and non -closed -loop wastewater recycle systems. The
authorization to construct or continue to operate will be issued at the same time as the Certificate of
Coverage (COO for the NCG02 permit. Design of treatment facilities must comply with requirements
of 15A NCAC 2H .0138 & .0139.
Page 1 of 7
`As per 15A NCAC 2w .0106
'Unless treatment faclllllas arc designad, constructed, and put Into operation by employees internal to the company who are qualified to
perform surh work for their respective companies in accordance with General Stattates, 89C-25 (7), plans and specifications must be signed
and sealed by a P.E.
SWU•217.071408 Last revised 7/1Q08

NCG020000 N.O.I.
Construction of wastewater treatment facilities subject to the AMATO requirements in the NCG02 permit
at new or existing mining sites requires submisslon of three (3) sets of plans and specifications signed
and sealed by a Professional Engineer (P.E.) or qualified staff 2 along with this application. A copy of the
design calculations should be included. Please see questions 18 & 19.
Table 1: Wastewater Permit ATCIATO Requirements
Yes No
Quarries -- •
Sand Pits --- 16
Clay pits 6 _
Any Dewatering with Chemical Treatment 4 —
Sand/Gravel — •
Closed -Loop Recycle —
Other Recycle _
For questions, please contact the OWQ Regional Office for your area. (See page 7)
(Please print or type)
1) Mailing address of ownerloperator (address to which all permit correspondence will mailed):
Name n it PUri YrQ _
Street Address AI,'-. Alw�_
City '&n TT __ State `ZIP Code ;?gS30_
Telephone No. Fax: 5.7 _:Y
E-mail Address rd i no-s4- one- B 62In s n- C urn
2) Location of facility producing discharge:
Facility Name -
Facility Contact
Street Address
City
County
Telephone No,
Contact E-mail
3) Physlcal Location Information:
Niglio! 21M
rtar-lF-7•i �
Please provide a narrative description of how to get to the facility (use street names, state road numbers, and
distance and direction from a roadway intersection).'/ fake- 4► V- /'7 �u'i~f'1� -(torn - r�e
3 m; le s _; Ju c c, �i q ter► � DL4L��.11?S�1L1.. � n+. Q Cf'r �.-1 TA i S +1�, m i l e 1) ri j !�
4) Latitude ,3J , 1S S (Q Longitude-7% Db ,_5� (degrees, minutes, seconds)
5) This NPDES Permit NOI Application applies to which of the following:
❑ New or Proposed Facility Date operation is to begin,,,,,._._.
Existing
❑ New Permit not applicable — ATC request only. NPIDES Permit Number
Page 2 of 7
Last raMted 7lt4108
SW U-217-0714Q8

NCG020000 N.O.L
6) Standard Industrial Classification:
Provide the 4 digit Standard Industrial Classification Code (SIC Code) that describes the primary Industrial
activity at this facility
SIC Code: I -
7) Provide a narrative description of the types of minerals mined at this factlity: L' Me s f�r�G
8) Discharge Points:
Number of discharge points (ditches, pipes, channels, etc. that convey discharges from the property)-,
Stormwater Mine dewatering: _V!f Process Wastewater Overflow:
Discharge points should be clearly marked on the submitted site plan -
Please provide short narrative description of dischar es: 1 Chat l n+o 2,4244r 1?>r4 t:�r
W 61 BA A S i n fn �Sa, J f- Crile.
9) Receiving waters:
What is the name of the body or bodies of water (creek, stream, river, lake, etc.) that the facility stormwater
and/or wastewater discharges end up in? �51,�_I_ i Cue- k
11 the site stormwater discharges to a separate storm sewer system, name the operator of the separate storm
sewer system (e.g. City of Raleigh municipal storm sewer).
Receiving water classification (if known):
Note: Discharge of process wastewater to receiving waters classified as WS-n to WS-V or SA must
be approved by the N.C. Dept. of Environmental Health. 11 DEH does not approve, coverage
under NCG020000 cannot be granted. No new discharges of process wastewater are
permitted In receiving waters classified as WS-1 or freshwater ORW.
10) Will mining operations require dewatering near wetlands or Impact any stream, groundwater, or wetlands?
C7 No
'*9 Yes If yes, please provide information about any 404/401 Certification permits.
Note: Wetlands must be CLEARLY DELINEATED on the site plan. Mine dewatering activities that have
the potential to drain wetlands or otherwise impact surface water or groundwater MUST develop and
Implement an operation and Monitoring (O&M) Plan that has been approved by the Division.
The O&M Plan should be submitted to the Regional Office and most be_ approved prior to operation.
The plan shall include, but is not limited to: (1) Groundwater monitoring strategies to demonstrate the
effect of pumping and to establish any pumping regime necessary to reduce impacts, and (2) Detailed
plans to maintain surrounding hydrology and reseective monitoring to demonstrate compliance.
11) Does this facility already have a valid Mining Permit from the Division of Land Resources (DLR)?
No (If not, please indicate the status of the Mining Permit application:
Il Yes
If yes, please provide the Mining Permit number and include a copy with your application:
Note: DWO cannot Issue a COG for the AfCG020000 General Permit until a Mining Permit Is Issued or
renewed by the Division of Land Resources (DLR).
Page 3 of 7
SWU-217-07140$ Last revised 7/14/08

NCO020000 N.O.I.
12) Will this mining operation precede development activities at this site?
No
❑ Yes
13) Does this facility have any other NPDES permits?
1No
Yes
It yes, list the permit numbers for all current NPDES permits for this facility: 0 3
14) Does this facility have any Non -Discharge permits (ex: recycle permits)?
No
❑ Yes
If yes, list the permit numbers for all current Non -Discharge permits for this facility:
15) Does this facility employ any best management practices for stormwater control?
❑ No
0 Yes
It yes, please briefly describe:
16) does this facility have a Stormwater Pollution Prevention Plan?
❑ No
O Yes
ff yes, when was it Implemented?
17) Will vehicle maintenance activities occur at this facility?
XNo ❑ Yes
Wastewater Treatment Facilitles:
18) Will mine dewatering discharges occur? (AMATO required for clay pits or dewatering with chem. treatment)
❑ No XYes
19) Will discharges of overflows from process wastewater treatment systems occur? (ATC or ATO required,
unless sand/gravel mining or closed -loop recycle system)
No ❑ Yes
If yes, answer the following questions on the wastewater treatment system:
a. Please describe the type of process used to treat and/or recycle the process wastewater. Give
design specifics (i.e. design volume, retention time, surface area, etc.). Existing treatment
facilities should be descr;bed in detail, and design criteria or operational data should be provided
(Including calculations) to ensure that the facility can comply with requirements of the General
Permit. ]Use separate sheet(s)]
b. Does this facility employ chemical additives to flocculate suspended solids? ❑ No © Yes
If yes, please state the name, manufacturer and the quantity of averago dally usage of the
chemical additive
Note: Please see http:/lh2o.enr.state...r_c-esLxLPAM� list htm for a list of approved pplyacrylamide (t'AMS)
products for use in North Carolina,
Page 4 of 7
SW U•217.071408 Last revised 7/14/OS

NCO020000 N.O.I.
C. Does this facility overflow only during rainfall events exceeding the 10-yr, 24-hr rainfall event?
❑ No ❑ Yes
20) Are wastewater treament facilities (including recycle systems) planned in the 100-year flood plain?
No ❑ Yes If so, Include information to demonstrate protection from flooding. (Minimum design
equirements for treatment works include protection from the 100-year flood, per 15A NCAC 2H .0219.)
21) Hazardous Waste:
of Is this facility a Hazardous Waste Treatment, Storage, or Disposal Facility?
No ❑ Yes
b) Is this facility a Small Quantity Generator (less than 1000 kg. of hazardous waste generated per month) of
hazardous waste?
XNo ❑ Yes
c) Is this facility a Large Quantity Generator (1000 kg, or more of hazardous waste generated per month) of
hazardous waste?
No ❑ Yes
d) If you answered yes to questions b. or c., please provide the following information:
Type(s) of waste:
How Is'material stored:
Where is material stored:
How many disposal shipments per year. -
Name of transport 1 disposal vendor:
Vendor address:
22) Certification: North Carolina General Statute 143-215.6 b (i) provides that:
Any person who knowingly makes any false statement, representatlon, or certification in any application, record, report, plan, or other
document filed or required to be maintained under this Article or a rule Implementing this Article; or who knowingly makes a !also
statement of a material fact In a rulemaking proceeding or contested case under this Article; or who falsifies, tampers with, or knowingly
renders Inacovrate any recording or monitoring device or method required to lb� operated or maintalned under this Artlde or rules of the
jEnvironmental Management] Commission implementing this Article shall be guilty of a Class 2 misdemeanor wh[ch may include a fine not to
exceed ten thousand dollars ($IO.Wo).
1 hereby request coverage under the referenced General Permit. I understand that coverage under this permit
will constitute the permit requirements for the discharge(s) and Is enforceable in the same manner as an
Individual permit.
I agree to abide by the following as a part of coverage under this General Permit:
1. I agree to abide by the approved Mining Permit for this mining activity. (A copy of the valid
mining permit must be attached to this request-
2. 1 agree to not discharge any sanitary wastewater from this mining activity except under the
provisions of another NPDES permit specifically issued therefore.
3. 1 agree that bulk storage of petroleum products and other chemicals shall have adequate
protection so as to contain all spills on the site.
4, 1 agree that solid wastes will be disposed of in accordance with N-C. statutes and rules
governing solid waste disposal-
5. 1 agree that maintenance activities for vehicles and heavy equipment will be performed so as to
not result in contamination of the surface or ground waters.
Page 5 of 7
5wU-217-071408 Last revised 7114/08

NCG020000 N.O.I.
I agree to abide by the provisions as listed above and recognize that the provisions are to be considered as
enforceable requlrements of the General Permit.
I certify that I am familiar with the information contained in this application and that to the best of my
knowledge and belief such information is true, complete, and accurate.
Printed Name of Per on Signing: A 1 A n utSSe,, l
Title: r,,.)r]2r• /vlA�^ P_r I -,
_k IF?f - [�
(Signature of Applicant) (Date signed)
Notice of Intent must be accompanied by a check or money order for $100.00 made payable to NCDENR.
Final Checkllst
This application will be returned as incomplete unless all of the following Items have been included:
0 Check for $100 made payable to NCDENR
hJ This completed application and all supporting documents
Cl Copy of the valid approved mining permit (MP) for the facility or indication of MP application status
❑ Copy of a county map or other general location map that shows the mining site and nearest major roads
❑ Copy of USGS topographic map showing the mining site and surrounding areas, or other map that clearly
shows site location in relation to nearby streams, wetlands, and other waters, etc,
b Copy of mining site plan with all wetlands clearly delineated
❑ If the mine is near wetlands, or may otherwise impact surface water or groundwater, contact the regional
office about an O&M Plan (contact information on the next page). Please refer to this O&M Plan checklist:
✓ Site map with wetlands, ditches, well -placements, borrow areas, overburden storage, stormwater
controlsiBMPs, vehicle maintenance areas, settling basins, product process areas, and access roads_
✓ Well information (design, depths, maintenance)
✓ Physical monitoring for the wetlands areas
✓ Settling pond sizing information, if applicable
✓ Level spreader design, it applicable
✓ Details about dewatering method
r Description of measures to prevent erosion and flooding
0 If an ATC or ATO is required, three (3) sets of plans, specifications, and design calculations, signed,
sealed, and dated by a P.E. ATC and ATO requirements in NCG02000 are summarized in Table 1 on
Page 2 of this NOI (see the permit text for more details), Plans shall show all pertinent design features,
including the location of the outfalf(s). If stormwater is flowing off -site, the plan must show that stormwater
will not be mixed with wastewater,
Mail the entire package to:
Stormwater and General Permits Unit
Division of Water quality
1617 Mall Service Center
Raleigh, North Carolina 27699-1617
Not
The submission of this document does not guarantee the Issuance of an Nil permit.
Page 6 of 7
SWU.217.071408 Lest revised 711410s

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ROY COOPER
ATTORNEY GENERAL
Ms. Lois C. Thomas
1617 Mail Service -Center
Raleigh, -NC 27699-1617
State of North Carolina
Department of Justice
PO Box 629
Raleigh, North Carolina
27602
December 31, 2008
REPLY TO:
Brenda M enard
Environmental Division
[e-mail]
Telephone: [phone]
Fax: 919n 16-6766
RE: Anderson Sand & Gravel LLC Gerald L. Anderson LLC, and. Gerald Anderson_v.
N.C. Department of Environment and Natural Resources, Division of Water
ualit , Office of Administrative Hearings Case No. OS EHR 1787
Dear Ms. Thomas:
Enclosed please fired Respondent's Written Exceptions in the case referenced above.
Respondent is requesting oral argument on March 12, 2009. Thank you for your time and
attention to this matter.
Sincerely,
C-1R
� � 1
Brenda Menard 17r�
Assistant Attorney General Ici
Enclosure — --�-
cc: Anderson Sand & Gravel, LLC
Gerald L. Anderson, LLC
Gerald L. Anderson
tin Hennessy, DENR/DWQ
File ���

STATE OF NORTH CAROLINA
COUNTY OF CRAVEN
Anderson Sand & Gravel LLC,
Gerald L. Anderson LLC,
and Gerald Anderson,
Petitioners,
V.
N.C. Department of Environment and
Natural Resources, Division of
Water Quality,
Respondent.
1N THE OFFICE OF
ADMINISTRATWE HEARINGS
05 EHR 1787
RESPONDENT'S WRITTEN
EXCEPTIONS
NOW COMES RESPONDENT, by and through counsel, and requests that the Final
Agency Decision Maker adopt the Decision of the Administrative Law Judge ("ALF) upholding
Respondent's civil penalty assessment against Petitioners, but reject paragraph 16 of the ALJ's
Conclusions of Law. In support of this position, Respondent makes the following written
exceptions.
WRITTEN EXCEPTIONS
Respondent excepts to paragraph 16 of the ALJ's Conclusions of Law. Respondent
otherwise agrees with the ALJ's Findings of Fact, Conclusions of Law and Decision upholding
the civil penalty assessment in full.
ARGUMENT
I. PARAGRAPH 16 OF THE ALJ'S CONCLUSIONS OF LAW CONTAINS A
MISQUOTE OF A STATUTE AND SHOULD BE AMENDED TO
CORRECTLY QUOTE THE STATUTE
Paragraph 16 of the ALJ's Conclusions of Law misquotes N.C. Gen. Stat. § 55-14-22(c)

as stating "as if the administrative dissolution never had occurred," when the statute instead
states "as if the administrative dissolution had never occurred.",...
CONCLUSION
The ALJ's Conclusions of Law should be amended to reflect the correct quotation of N.C.
Gen. Stat. § 55-14-22(c). The amended Paragraph 16 of the Conclusions of Law should state:
When a dissolved corporation is reinstated, the corporation continues its activities
as if the dissolution never had occurred. N.C. Gen. Stat. § 55-14-22(c). The
reinstatement "relates back to and takes effect as of the date of the administrative
dissolution and the corporation resumes carrying on its business as if the
administrative dissolution had never occurred, subject to the rights of any person
who reasonably relied to, his prejudice upon the certificate of dissolution." Id.
Therefore, any liabilities incurred by the corporation after the date of the
administrative dissolution remain liabilities of the corporation once it has been
reinstated.
The remainder of the Decision should remain unchanged.
In addition to the exceptions and arguments contained herein, Respondent has
incorporated its written exceptions in its Proposed Final Agency Decision attached hereto.
Respondent requests oral argument.
This the 31 st day of December, 2008.
ROY COOPER
Attorney General
r
- d. E. Menard
Assistant Attorney General
NC Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699-9001
2

CERTIFICATE OF SERVICE
I do hereby certify that a copy of the foregoing Respondent's Written Exceptions and
Argument with attached Proposed Final Agency Decision has been served upon the Final Agency
Decision maker and on the Petitioners by depositing a copy in the US -Mail, postage prepaid,
addressed as follows:
Ms. Lois C. Thomas
1617 Mail Service Center
Raleigh, NC 27699-1617
Anderson Sand and Gravel LLC
Gerald L. Anderson
PO Box 568
Bridgeton, NC 28519
Gerald L. Anderson
1817 Frank Avenue
Bridgeton, NC 28519
Gerald L. Anderson, LLC
1306 Highway 17 North
Bridgeton, NC 28519
This the 31 st day of December, 2008.
Brenda E. Menard
Assistant Attorney General
K3

STATE OF NORTH CAROLINA
COUNTY OF CRAVEN
Anderson Sand & Gravel LLC,
Gerald L. Anderson LLC,
and Gerald Anderson,
Petitioner,
V.
N.C. Department of Environment and
Natural Resources, Division of
Water Quality,
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
05 ERR 1787
DECISION
This matter was heard before Administrative Law Judge Beecher R. Gray on Monday,
July 28, 2008 in New Bern, North Carolina. The case involved the appeal of a civil penalty
assessment. Respondent assessed Petitioners in the amount of $44,933.84 for violations of N.C.
Gen. Stat. § 143-215.1, 15A N.C. Admin. Code 2B.0211(2), 15A N.C. Admin. Code 2B.0233(4),
15A N.C. Admin. Code 213.0231(a)(1) and (b)(1), 15A N.C. Admin. Code 2H.0501, and 15A
N.C. Admin. Code 2H.0501. Respondent submitted a proposed decision on October 03, 2008.
Petitioner has not filed a response.
For Petitioner:
Petitioners appeared pro se
in this matter
APPEARANCES
ISSUES
For Respondent:
Brenda E. Menard
Associate Attorney General
N. C. Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699-9001
. 1. Whether Petitioners meet their burden of proof in establishing that Respondent
erred in determining that a stream existed on the Spruill Town Mine site ("Site") for purposes of
the Neuse River Basin Riparian Buffer rule, 15A N.C. Admin. Code 213.0233, and the applicable
Water Quality Standards rule, 15A N.C. Admin. Code 2B.0211.
2. Whether Petitioners met their burden of proof in establishing that Respondent
erred in assessing $44,933.84 in civil penalties on October 28, 2005 against Petitioner for
violations of N.C. Gen. Stat. § 143-215.1, 15A N.C. Admin. Code 2B.0211(2), 15A N.C. Admin.
-1-

Code 2B.0233(4), 15A N.C. Admin. Code 2B.0231(a)(1) and (b)(1), 15A N.C. Admin. Code
2H.0501, and 15A N.C. Admin. Code 2H.0501.
STATUTES AND RULES
N.C. Gen. Stat §§ 143-215.1
N.C. Admin. Code, Title 15A, Chapter 2B
N.C. Admin. Code, Title 15A, Chapter 2H
EXHIBITS RECEIVED INTO EVIDENCE
PETITIONER:
RESPONDENT:
1 Corporation Information for Anderson Sand & Gravel, LLC
07-29-96 Annual Report showing date of organization 04-02-96
06-12-03 Certificate of Dissolution
2 Corporation Information for Gerald L. Anderson, LLC
02-04-98 Annual Report showing date of organization 03-25-94
04-05-05 Certificate of Dissolution
02-07-06 Application for Reinstatement
3 05-26-95 Certificate of Coverage under General Permit No: NCG020000
4 04-16-96 Site Plan - Spruill Town Mine
5 09-23-96 Letter from Division of Land Resources Approving Modification
of Mining Permit per 04-16-96 Site Plan, with enclosed Permit
for Operation of a Mining Activity
6 12-17-99 Reissue- NPDES Stormwater Permit, Gerald Anderson LLC
Certificate of Coverage No: NCG020300
7b 03-23-00 Borrow Pit Overall Site Map with Markings Showing Addition
9 07-14-04 Letter from DWQ Informing Permittee of Requirement to
Renew NPDES Stormwater Permit Coverage
10 01-21-05 Notice of Violations of Mining Permit
To: Mr. Gerald Anderson/Anderson Sand & Gravel, LLC
From: Division of Land Resources
- 2 -

12 United States Geologic Survey Quadrangle Topographic Map
of Spruill Town Mine Site and Surrounding Area
13 02-10-05 PHOTOS:
Clearing of Wetland area that plan indicates to retrain as wooded
Active discharge without NPDES Permit
Expanded mine boundary into wetland of Bear Creek
14 02-17-05 Cease & Desist Letter to Gerald Anderson/Anderson Sand &
Gravel, LLC from Army Corps of Engineers
15 03-10-05 PHOTOS:
View at point "A" GPS pt. Crossing over stream feature
View at point `B" GPS pt.
No boards in riser. Pump discharge 20 ft from riser
View at point "C" GPS pt. view of where stream should be located
View at point "D"
16 03-16-05 Letter to Mr. Gerald Anderson from Department of the Army
17 04-25-05 Notice of Violation and Notice of Enforcement Recommendation
To: James K. Spruill, Vanceboro, NC .
and Gerald Anderson, Bridgeton, NC
From: Division of Water Quality
18 08-05-05 PHOTOS:
Active excavation in wetlands
Active mining without permits
Expanded mine boundary into wetlands of Bear Creek
Dewatering without an NPDES Permit. No boards in riser
19 09-30-05 Assessment of Civil Penalties
Mr. James K. Spruill, Anderson Sand and Gravel, LLC
Gerald L. Anderson, LLC, and Mr. Gerald Anderson
Anderson Mine Site/Spruill Town Mine DV 2005-0023
09-30-05 Assessment Factors Form
20 10-28-05 Rescission and Replacement of Assessment of Civil Penalties
Mr. James K. Spruill, Anderson Sand and Gravel, LLC
Gerald L. Anderson, LLC, and Mr. Gerald Anderson
Anderson Mine Site/Spruill Town Mine DV 2005-0027
10-28-05 Assessment Factors Form
21 07-03-07 Rescission of Civil Penalties DV 2005-0027 against James K.
Spruill, Billie C. Spruill, and Pierce Landing Subdivision
- 3 -

22 12-03-07 Permanent Injunction in 05 CVS 2047
23 Resume of Danny Smith
24 Resume of Kyle Barnes
Based upon careful consideration of the testimony and evidence received during the
contested case hearing as well as the entire record of this proceeding, the undersigned makes the
following:
FINDINGS OF FACT
1. . The parties received notice of hearing by certified mail more than 15 days prior to
the hearing and each stipulated on the record that notice was proper.
2. Petitioner Gerald Anderson is a citizen of the State of North Carolina and a
resident of Craven County, North Carolina.
3. Gerald Anderson was a member/manager of Petitioner Anderson Sand & Gravel,
LLC in Craven County, North Carolina. (Respondent's Exhibit 1) Anderson Sand & Gravel,
LLC administratively was dissolved under N.C. Gen. Stat. § 57C-6-03 on June 12, 2003.
(Respondent's Exhibit 1) Mr. Anderson testified at the hearing on this matter that he was aware
of the dissolution. (T pp 17-18)
4. Gerald Anderson is a member/manager of Petitioner Gerald L. Anderson, LLC.
(Respondent's Exhibit 2) Gerald L. Anderson, LLC administratively was dissolved under N.C.
Gen. Stat. § 57C-6-03 on April 5, 2005. (Respondent's Exhibit 2) Gerald L. Anderson, LLC
later was reinstated. (Respondent's Exhibit 2)
5. Respondent Department of Environmental Resources ("DENR") is a State agency
established under the provisions of N.C. Gen. Stat. § 143B-279.1 et seq. and vested with the
authority to enforce the State's environmental pollution laws, including laws enacted to protect
the water quality of the State. The Division of Water Quality ("DWQ") is a division within
DENR and all actions taken by DWQ are actions of Respondent.
6. In 1996, DENR's Division of Land Resources ("DLR") transferred a permit to
Anderson Sand & Gravel, LLC, allowing it to conduct mining operations at the Spruill Town
Mining Site (Site). (Respondent's Exhibit 5) In 2005, Anderson Sand & Gravel, LLC was
leasing the Site and held the mining rights to that property. (T p 18) Those mining rights never
were transferred. (T p 18) The mining permit issued .by the Division of Land Resources also
was not transferred before the date of the civil penalty assessment at issue. (T p 25)
7. DWQ issued a certificate of coverage under a stormwater general permit allowing
Gerald L. Anderson, LLC to discharge stormwater, process wastewater, -and wastewater
- 4 -

associated with mine dewatering to an unnamed tributary of Swift Creek in the Neuse River
Basin. (Respondent's Exhibit 3) On December 17, 1999, DWQ issued a renewed certificate of
coverage to Gerald L. Anderson, LLC. (Respondent's Exhibit 6)
8. By letter dated July 14, 2004, DWQ notified Petitioner Gerald L. Anderson, LLC
that its coverage under the stormwater general pen -nit would expire on November 30, 2004.
(Respondent's Exhibit 9) Petitioner did not renew the certificate of coverage. (T p 60)
9. The Site is located in the Neuse River Basin. (T p 96)
10. Kyle Barnes, an Environmental Senior Specialist with DENR's Washington
Regional Office staff, conducted a stream determination in 2006. (T p 84) This stream
determination. was conducted in order to evaluate" whether a stream existed for purposes of
DENR's statutes and regulations upstream of the Site. (T p 84) Mr. Barnes verified the
existence of a perennial stream upstream of the Site, ending at the point where a "ditch" is shown
on Petitioner Anderson Sand & Gravel, LLC's mining map submitted in March 2000.
(Respondent's Exhibit 7b; T p 84) Mr. Barnes testified at the hearing on this matter that if a
perennial stream' exists upstream, a perennial stream naturally would exist downstream as- well.
(T p 85)
11. A stream is shown running through the Site on the most recent version of the
1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States
Geologic Survey ("USGS"), in approximately the same location as the feature labeled "ditch" on
the miring map provided by Anderson Sand & Gravel, LLC in March of 2000. (Respondent's
Exhibit 7b; T pp 98-99)
12. In 1996, Petitioner Anderson Sand & Gravel, LLC submitted a mining map in its
application for modification and transfer of the mining. permit for. the Site. (Respondent's
Exhibit 5; T pp 20-21) This mining map showed a buffer surrounding the line labeled as a
"ditch" running along the edge of the permitted mining area. (Respondent's Exhibit 5)
13. According to Mr. Barnes' estimation, approximately 1800 linear feet of stream
had been excavated at the time of his site visits in 2005. (T p 95) Excavation of a stream
destroys the natural aquatic habitat of that stream. (T p 96)
14. Mr. Barnes testified at the hearing on this matter that when he visited the Site in
2005, there was no vegetation in the fifty -foot area on both sides of the location where the stream
would have been according to the USGS map. (T p 99)
15. During his inspections of the. Site in 2005, Mr. Barnes witnessed discharges of
mine pit water. (Respondent's Exhibits 13 and 18; T p 88-89, 108-109) No permit for such
discharges was held by Petitioners at the time of those discharges. (T p 89, 109)
16. Anderson Sand & Gravel, LLC submitted a mining map entitled "Borrow Pit
Overall Site" to the Division of Land Resources in March of 2000 showing wetlands surrounding
the permitted mining area at the Site. (Respondent's Exhibit 7b; T pp 27-28)
- 5 -

17. The Army Corps of Engineers issued cease and desist letters to Petitioners on
February 17, 2005 and March 16, 2005 indicating that wetlands existed at the' Site.
(Respondent's Exhibits 14 and 16)
18. Mr. Barnes witnessed fill of wetlands during his site visits in 2005 (Respondent's
Exhibits 13 and 18; T pp 90, 108) Mr. Barnes testified at the hearing on this matter that the fill
of wetlands would have required a 401 Water Quality Certification. (T p 90) No 401 Water
Quality Certification was issued for this Site. (T p 90) Mr. Barnes also testified that this fill also
constituted a wetland standards violation under 15A N.C. Admin. Code 2B.0231. (T p 108)
19. Tom Reeder, the former Deputy Director of DWQ, was delegated authority to.
assess the civil penalty at issue. (T p 116) Before assessing the civil penalty at issue, Mr.
Reeder considered all the factors listed in N.C. Gen. Stat. § 143-282.1(b). (Respondent's Exhibit
20; T p 119)
20. In his position as Deputy Director of DWQ, Mr. Reeder assessed approximately
one hundred fifty (150) to two hundred (200) non -point source cases, including wetlands
violations, buffer violations, and violations for impacts to streams without 401 Certification. (T
p 121-123) .In Mr. Reeder's evaluation of the civil penalty at issue in this contested case, the
underlying .violations were among the most egregious violations for which he had assessed
penalties during his time with DWQ, and the civil penalty assessed was consistent with other
assessments made by Mr. Reeder during his time with DWQ. (T pp 121-122)
21. Under 15A N.C. Admin. Code 2B.0211, fresh surface waters in the State "shall
be suitable for aquatic, life propagation and maintenance of biological integrity, wildlife,
secondary recreation, and agriculture. Sources of water pollution which preclude any of these
uses on either a short-term or long-term basis shall be considered to be violating a water quality
standard."
22. A vegetated buffer spanning 50 feet must be maintained adjacent to surface
waters in the Neuse River Basin underl5A N.C. Admin. Code 2B.0233. For purposes of this
buffer rule, a surface water is "present if the feature is approximately shown on either the most
recent version of the soil survey map prepared by the Natural Resources Conservation Service of
the United States Department of Agriculture or the most recent version of the 1:24,000 scale (7.5
minute) quadrangle topographic maps prepared by the United States Geologic Suivey."
23. . Under 15A N.C. Admin. Code 2B.0231(a), wetlands in the State shall be suitable
for uses such as "[s]torm and flood water storage and retention and the moderation of extreme
water level fluctuations." In order to ensure that wetlands in the State are suitable for such uses,
"[1]iquids, fill or other solids or dissolved gases may not be present in amounts which may cause
adverse impacts on existing wetland uses," under 15A N.C. Admin. Code 2B.0231(b).
- 6 -

CONCLUSIONS OF LAW
1. All parties properly are before the Office of Administrative Hearings, and the
Office of Administrative Hearings has jurisdiction over both the parties and the subject matter.
2. All parties correctly have been designated, and there is no question as to
misjoinder or nonjoinder of parties.
3. Petitioners are "persons" within the meaning of N.C. Gen. Stat. § 143-215.6A
pursuant to N.C. Gen. Stat. § 143-212(4).
4. A permit is required to discharge waste or stormwater to waters of the State
pursuant to N.C. Gen. Stat. § 143-215.1(a).
5. Waters of the State existed on the Site. Petitioners violated N.C. Gen. Stat. § .143-
215.1 by discharging wastewater and stormwater to those waters without a permit in 2005.
6. Fresh surface waters existed at the Site. Petitioners violated 15A N.C. Admin.
Code 2B.0211 by excavating 1850 linear feet of stream, thereby removing the use of those
waters.
7. Surface waters existed at this site for the purposes of 15A N.C. Admin. Code
2B.0233, since the Site is located within the Neuse River Basin and a stream feature was shown
at the Site on the most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic
maps prepared by the United States Geologic Survey.
8. Petitioners violated 15A N.C. Admin_ Code 2B.0233 by removing the vegetated
buffer beside the surface waters present on the Site.
9. Wetlands existed on the Site as shown on Petitioner Anderson Sand & Gravel's
map entitled `Borrow Pit Overall Site," submitted in March of 2000. These wetlands constitute
waters of the State pursuant to N.C. Gen. Stat. § 143-212(6).
10.. Petitioners violated 15A NCAC 2B.0231 by causing "fills and other solids" to be
present in amounts that would "cause adverse impacts on existing wetland uses."
11. A 401 Water Quality Certification is required to discharge dredged or fill material
to wetlands in the State under 15A N.C. Admin. Code 2H.0501 and 2H.0502.
12. Petitioners violated 15A N.C. Admin. Code 2H.0501 and 2H.0502 by causing
discharges of dredged or fill material to wetlands without first obtaining a 401 Water Quality
Certification.
13. Respondent properly assessed Petitioners for $44,933.84. The assessment was
appropriate in amount because of the violations at the Site.
- 7 -

14. Under North Carolina law, dissolved corporations are prohibited from conducting
any business other than that appropriate to winding up their affairs and liquidating their assets.
N.C. Gen. Stat. § 55-14-05(a). In Guilford Builders Supply Co. v. Reynolds, 249 N.C. 612, 61,
107 S.E.2d 80, 83. (1959), the North Carolina Supreme Court stated:
Under certain circumstances, stockholders, officers and directors may be held
liable as individuals or partners when such stockholders, officers and directors
permit the charter of the corporation to expire, and continue to obtain credit for
and on behalf of a purported but non-existent corporation.
In the similar context of a corporation with a suspended charter due to non-payment of taxes, the
North Carolina Court of Appeals.stated:
The general rule is that the shareholders of a corporation whose charter has been
suspended "are not made individually liable for its debts incurred during the
suspension" .... On the other hand, directors and officers are personally liable
for corporate obligations incurred by them on behalf of the corporation, or by
others with their acquiescence, if at that time they were aware that the corporate
charter was suspended.
Charles A. Torrence Co. v. Clary, 121 N.C. App. 211, 213, 464 S.E.2d 502, 504 (N.C. Ct.. App.
1995) (citations omitted).
15. Mr. Anderson continued to carry on business in the name of Anderson Sand &
Gravel, LLC, by continuing to conduct mining operations at the Site .under a mining permit
issued by the Division of Land Resources and using mining rights held by Anderson Sand &
Gravel, LLC. Mr. Anderson was aware of the dissolution of Anderson Sand & Gravel, LLC, but
failed to wind up the affairs of the business. Instead, Mr. Anderson continued to benefit from
activities undertaken on behalf of the dissolved corporation. Therefore, Mr. Anderson assumed
personal responsibility for the liabilities incurred in the name of Anderson Sand & Gravel, LLC
after its dissolution on June 12, 2003. Anderson Sand & Gravel, LLC also may be liable for
violations that occurred before the date of its dissolution.
16. When a dissolved corporation is reinstated, the corporation continues its activities
as if the dissolution never had occurred. N.C. Gen. Stat. § 55-14-22(c). The reinstatement
"relates back to and takes' effect as of the date of the administrative dissolution and the
corporation resumes carrying on its business as if the administrative dissolution had never
occurred, subject to the rights of any person who reasonably relied to his prejudice upon the
certificate of dissolution." Id. Therefore, any liabilities incurred by the corporation after the date
of the administrative dissolution remain liabilities of the corporation once it has been reinstated.
17. Gerald L. Anderson, LLC administratively was dissolved, but later was reinstated.
Under N.C. Gen. Stat. § 55714-22, a reinstated corporation continues its activities as if it never
were dissolved. Therefore, Gerald L. Anderson, LLC retains any liabilities that it incurred,
regardless of the date on which they were incurred.

1
Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned
makes the following:
PROPOSED DECISION
The Environmental Management Commission should uphold the decision to assess a civil
penalty against Petitioners for violations of the State's water pollution laws in the amount of
$44,933.84.
NOTICE
The Environmental Management Commission, the agency making the final decision in
this contested case, is required to give each party an opportunity to file exceptions to this
recommended decision and to present written arguments to those in the agency who will make
the final decision. N.C. Gen. Stat. § 150B-36(a).
The Environmental Management Commission is required by N.C. Gen. Stat. § 150B-
36(b3) to serve a copy of the final decision on all parties and to the Office of Administrative
Hearings.
This the day of , 2009.
David H. Moreau, Chairman
Environmental Management Commission
- 9 -

2.
State of NOYH-1 Carolina ti
Depart mellt. of Justice
IMY ctx�I��t_f�
fORXI:1' P0 BC)S 629 Reply to: ,
Raleigh, No"ill Carolina Brenda E. Mcnard
Environmental Division
27602 Water & Land Section
Tel: [phone]
Fax:[phone]
October 1, 2008
Honorable Beecher R. Gray
Administrative Law Judge .
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-'6714
Re: Anderson Suitd Lit Gravel,-LLC, Gerald L. Anderson, LLC, raid Gerald
Anderson v. NCDepari»tettt of Envirotttttent and Natural Resources, Division
of Water Quality, 05 EIIR 1787
Dear Judge Gray:
PIease find enclosed Respondent's Proposed Decision for the case referenced above.
Respondent's Proposed Decision has also been sent to you by electronic mail. Please do not
hesitate to contact me with any questions.
Sincerely,
Brenda E. Menard
Associate Attorney General
x o
Cn
Enclosure '"'
cc.w/enclosure: Anderson Sand & Gravel, LLC
Gerald L. Anderson, LLC
G ald Anderson
ohn Hennessy, DENR, DWQ. �
File

STATE OF NORTH CAROLINA
COUNTY OF CRAVEN
Anderson Sand & Gravel LLC,
Gerald L. Anderson LLC,
and Gerald Anderson,
Petitioner,
u
N.C. Department of Enviromnent and
Natural Resources, Division of
Water Quality,
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
05 EHR 1787
PROPOSED DECISION
This matter was heard before Administrative Law Judge Beecher R. Gray on Monday,
July 28, 2008 in New Bern, North Carolina.. The case involved the appeal of a civil penalty
assessment. Respondent assessed Petitioners in the amount of$44,933.84 for violations of N.C.
Gen. Stat. § 143-215.1, 15A N.C. Admin. Code 213.021 1(2), 15A N.C. Admin. Code 2B.0233(4),
I5A N.C. Admin. Code 28.023l(a)(1) and (b)(1)', 15A N.C. Admin. Code 2H.050t, and 15A
N.C. Admin. Code 2H.0501.
For Petitioner:
Petitioners appeared pro se
in this matter
APPEARANCES
ISSUES
For Respondent
Brenda E. Menard
Associate Attorney General
.N. C. Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699-9001
1. Did Petitioners meet their burden of proof in establishing that Respondent erred in
determining That a stream existed on the Spruill Town Mine site {"Site") for purposes of the
r
Neese River Basin Riparian Buffer rule, 15A N _C. Admin. Code 213.0233, and the applicable
Water Quality Standards rule, 15A N.C. Admin. Code 2B.021 I?
2. Did Petitioners meet their burden of proof in establishing that Respondent erred in
assessing $44,933.84 in civil penalties on October 28, 2005 against Petitioner for violations of
N.C. Gen. Stat. § 143-215.1, 15A N.C. Admin. Code 2B.0211(2), 15A N.C. Admin. Code
2B.0233(4), 15A N.C. Admin. Code 213.0231(a)(1) and (b)(1), 15A N.C. Admin. Code 21-1.0501,
and 15A N.C. Admin, Code 2H.0501?
-I-

STATUTES AND RULES'.
N.C. Gen. Stat §§ 143-215.1
N.C. Admin. Code, Title 15A, Chapter 2B
N.C. Admin. Code, Title 15A, Chapter 2H
EXHIBITS RECEIVED INTO EVIDENCE
PETITIONER:
RESPONDENT:
1 Corporation Infonnation for Anderson Sand & Gravel, LLC
07-29-96 Annual Report showing date of organization 04-02-96
06-12-03 Certificate of Dissolution
2, Corporation Information for Gerald L. Anderson, LLC
02-04-98 Annual Report showing date of organization 03-25-94
04-05-05 Certificate of Dissolution
02-07-06 Application for Reinstatement
3 05-26-95 Certificate of Coverage under General Permit No: NCG020000
4 04-16-96 Site Plan - Spruill Town 1line
5 09-23-96 Letter from Division of Land Resources Approving Modi fication
of Mining Permit per 04-16-96 Site Plan, with enclosed Permit
for Operation of a Mining Activity
6 '12-17-99 Reissue - NPDES Stormwater Permit, Gerald Anderson LLC
Certificate of Coverage No: NCG020300
7b 03-23-00 Borrow Pit Overall Site Map with Markings Showing Addition
9 07-14-04 Letter From DWQ Infonning Permittee of Requirement to
Renew NPDES Stormwater Permit Coverage
10 01-21-05 Notice of Violations of Mining Permit
To: Mr. Gerald Anderson/Anderson Sand & Gravel, LLC
From: Division of Land Resources
12 United States Geologic Survey Quadrangle Topographic Map
- 2 -

of Spruill Town Mine Site and Surrounding Area
13 02-10-OS PHOTOS:
Clearing of Wetland area that plan indicates to remain as wooded
Active discharge without NPDES Permit
Expanded mine boundary into wetland of Bear Creek
14 02-17-05 Cease & Desist Letter to Gerald Anderson/Anderson Sand &
Gravel, LLC from Army Corps of Engineers
15 03-10-05 PHOTOS:
View at point "A" GPS pt. Crossing over stream feature
View at point "B" GPS pt.
No boards in riser. Pump discharge 20 ft from riser
View at point "C" GPS pt. view of where stream should be located
View at point "D"
16 03-16-05 Letter to Mr. Gerald Anderson from Department of the Army
r
17 04-25-05 Notice of Violation and Notice of Enforcement Recommendation
To: James K. Spruill, Vanceboro, NC
and Gerald Anderson, Bridgeton, NC
From:. Division of Water Quality
18 08-05-05 PHOTOS,
Active excavation in wetlands
Active mining without permits .
Expanded mine boundary into wetlands of Bear Creek
Dewatering without an NPDES Permit. No boards in riser
19 09-30-05 Assessment of Civil Penalties
Mr. James K. Spruill, Anderson Sand and Gravel, LLC
Gerald L. Anderson, LLC, and Mr. Gerald Anderson
Anderson Mine Site/Spruill Town Mine DV 2005-0023
09-30-05 Assessment Factors Form
20 10-28-05 Rescission and Replacement of Assessment of Civil Penalties
Mr. lames K. Spruill, Anderson Sand and Gravel, LLC
Gerald L. Anderson, LLC, and Mr. Gerald Anderson
Anderson Mine Site/Spruill Town Minc DV 2005-0027
10-28-05 Assessment Factors Form
21 07-03-07 Rescission of Civil Penalties DV 2005-0027 against James K.
Spruill, Billie C. Spruill, and Pierce Landing Subdivision
22 12-03-07 Permanent Injunction in 05 CVS 2047
- 3 -

23 Resume of Danny Smith
24 Resume of Kyle Barnes
Based upon careful consideration of the testimony and evidence received during the
contested case hearing as well as the entire record of this proceeding, the undersigned makes the
following:
FINDINGS OF FACT
Petitioner Gerald Anderson is a citizen of the State of North Carolina and a
resident of Craven County, North Carolina.
2. - Gerald Anderson was a member/manager of Petitioner Anderson Sand & Gravel,
LLC in Craven County, North Carolina. (Respondent's Exhibit 1) Anderson Sand & Gravel,
LLC was administratively dissolved pursuant to N.C.'Gen. Stat. § 57C-6-03 Oil June 12, 2003.
(Respondent's Exhibit 1) Mr. Anderson testified at the hearing on this matter that lie was aware
of the dissolution. (T pp 17-18) 1 1.
3. Gerald Anderson is a member/manager of Petitioner Gerald L. Anderson, LLC.
(Respondent's Exhibit 2) Gerald.L. Anderson, LLC was administratively dissolved pursuant to
N.C. Gen. Stat. § 57C-6-03 on April 5, 2005. (Respondent's Exhibit 2) Gerald L. Anderson,
LLC was later reinstated. (Respondent's Exhibit 2)
4. Respondent Department of Environmental Resources ("DENR") is a State agency
established pursuant to the provisions of N.C. Gen. Stat. § 14313-279.1 et seq. and vested with
the authority to enforce the State's environmental pollution laws, including.laws enacted to
protect the water quality of the State. The Division of Water Quality ("DWQ") is a division
within DE✓NR and all actions taken by DWQ are necessarily actions of the Respondent.
5. In 1996, DENR's Division of Land Resources ("DLR") transferred a permit to
Anderson Sand & Gravel, LLC, allowing it to conduct mining operations at the Site.
(Respondent's Exhibit 5) hi 2005, Anderson Sand & Gravel, LLC was leasing the Site and held
the mining rights to that property. (T p 18) Those mining rights were never transferred. (T p
18) The mining permit issued by the Division of Land Resources also was not transferred before
the date of the civil penalty assessment at issue. (T p 25)
6. DWQ issued a certificate of coverage under a stormwater general permit allowing
Gerald L. Anderson, LLC to discharge stormwater, process wastewater, and wastewater
associated with mine dewatering to an unnamed tributary of Swift Creek in the Neilse River
Basin_ (Respondent's Exhibit 3) On December 17, 1999, DWQ issued a renewed certificate of
coverage to Gerald L. Anderson, LLC. (Respondent's Exhibit 6)
- 4 -

7. By letter dated July 14, 2004, DWQ notified Petitioner Gerald L_ Anderson, LLC
that its coverage under the stormwater general permit would expire on November 30, 2004.
(Respondent's Exhibit 9) Petitioner did not renew the certificate of coverage. (T p 60)
S. The Site is located in the Neuse River Basin. (T p 96)
9. Kyle Barnes, an Environmental Senior Specialist with DENR's Washington
Regional Office staff, conducted a stream determination in 2006. (T p 84) This stream
determination was conducted in order to evaluate whether a stream existed for purposes of
DENR's statutes and regulations upstream of the Site. (T p 84) Mr. Barnes verified the
existence of a perennial stream upstream of the Site, ending at the point where a "ditch" is shown
on the Petitioner Anderson Sand & Gravel, LLC's mining map submitted in March 2000.
(Respondent's Exhibit 7b; T p 84) Mr. Barnes testified at the hearing on this matter that if a
perennial stream exists upstream, a perennial stream would naturally exist downstream as well.
(T p 85)
10. A stream is shown running through the Site on the most recent version of the
1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States
Geologic Survey ("USGS"), in approximately the same location as the feature labeled "ditch" on
the mining map provided.by Anderson Said'& Gravel, LLC in March of 2000. (Respondent's
Exhibit 7b; T pp 98-99)
11. In 1996, Petitioner Anderson Sand & Gravel, LLC submitted a mining map in its
application for modification and transfer of the mining permit for the Site. (Respondent's
Exhibit 5; T pp 20-21) This mining map showed a buffer surrounding the line labeled as a
"ditch" running along the edge of the permitted mining area. (Respondent's Exhibit 5)
12. According to Mr. Barnes'.'estimation, approximately 1800 linear feet of stream
had been excavated -at the time of his site visits in 2005. (T p 95) Excavation of a stream
destroys the natural aquatic habitat of that stream. (T p 96)
13. Mr. Barnes testified at the hearing on this matter that when he visited the Site in
2005, there was no vegetation in the Fifty -foot area on both sides of the location where the stream
would have been according to the USGS map. (T p 99)
14. During his inspections of the Site in 2005, Mr. Barnes witnessed discharges of
mine pit water. (Respondent's Exhibits 13 and 18; T p 88-89, 108-109) No permit for such
discharges was held by Petitioners at the time of those discharges. (T p 89, 109)
15. Anderson Sand & Gravel, LLC submitted a mining map entitled "Borrow Pit
Overall Site" to the Division of Land Resources in March of 2000 showing wetlands surrounding
the permitted mining area at the Site. (Respondent's Exhibit 7b; T pp 27-28)
16. The Army Corps of Engineers issued cease and desist letters to Petitioners on
February 17, 2005 and March 16, 2005 Indicating that wetlands existed at the Site.
(Respondent's Exhibits 14 and 16)
- 5 -

17. Mr. Barnes witnessed fill of wetlands during his site visits in 2005 (Respondent's
Exhibits 13 and 18; T pp 90, 108) Mr. Barnes testified at the hearing on this matter that the fill
of wetlands would have required a 401 Water Quality Certification. (T p 90) No 401 Water
Quality Certification was issued for this Site..(T p 90) Mr. Barnes also testified that this fill also
constituted a wetland standards violation pursuant to 15A N.C. Admin. Code 2B.0231. (T p 108)
18. Tom Reeder, the former Deputy Director of DWQ, was delegated authority to
assess the civil penalty at issue. (T p 1 I6) Before assessing the civil penalty at issue, Mr.
Reeder considered all the factors listed in N.C. Gen. Stat. § 143-282.1(b). (Respondent's Exhibit
20; T p 119)
19. In his position as Deputy Director of DWQ, Mr. Reeder assessed approximately
one hundred fifty (150) to two hundred (200) non -point source cases, including wetlands
violations, buffer violations, and violations for impacts to streams without 401 Certification. (T
p 121-123) In Mr. Reeder's evaluation of the civil penalty at issue in this contested case, the
underlying violations were among the most egregious violations for which he had assessed
penalties during his time with DWQ, and the civil penalty assessed was consistent with other
assessments made by Mr..Reeder during his time with DWQ. (T pp 121-122)
CONCLUSIONS 017 LAW
1. All parties are properly before the Office of Administrative Hearings, and the
Office of Administrative Hearings has jurisdiction over both the parties and over the subject
matter at issue.
2. All parties have been correctly designated, and there is no question as to
misjoinder or nonjoinder of parties.
3. Petitioners are "persons" within the meaning of N.C..Gen. Stat. § 143-215.6A
pursuant to N.C. Gen. Stat. § 143-212(4).
4. A permit is required to discharge waste or storinwater to waters of the State .
pursuant to N.C. Gen. Stat. § 143-215.1(a).
5. Waters of the State existed on the Site. Petitioners violated N.C. Gen. Stat. § 143-
215.1 by discharging wastewater and storinwater to those waters without. a permit in 2005.
6. Pursuant to 15A N.C. Admin. Code 2B.0211, fresh surface waters in the State
"shall be suitable for aquatic life propagation and maintenance of biological integrity, wildlife,
secondary recreation, and agriculture. Sources of water pollution which preclude any of these
uses on either a short-term or long-term basis shall be considered to be violating a water quality
standard."
- 6 -

Fresh surface waters existed at the Site. Petitioners violated 15A N.C. Admin.
Code 2B.021 I by excavating 1850 linear feet of stream, thereby removing the use of those
waters.
8. A vegetated buffer spanning 50 feet must be maintained adjacent to surface
waters'in the Neuse River Basin pursuant to 15A N.C. Admin. Code 2B.0233. For purposes of
this buffer rule, a surface water is "present if the feature is approximately shown on either the
most recent version of the soil survey map prepared by the Natural Resources'Conservation
Service of the United States Department of Agriculture or the most recent version of the
1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States
Geologic Survey."
9. Surface waters existed at this site for the purposes of 15A N.C. Admin. Code
2B.0233, since the Site is located within the Neuse River Basin and a stream feature was shown
at the Site on the most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic
maps prepared by the United States Geologic Survey.
10. Petitioners violated 15A N.C. Admin. Code 2B.0233 by removing the vegetated
buffer beside the surface waters present on the Site.
IL Pursuant to 15A N.C. Admin. Code 2B.023 I (a),. wetlands in the State shall be
suitable for uses such as "Mtorm and flood water storage and retention and the moderation of
extreme water'level fluctuations." In order to ensure that wetlands in the State are suitable for
such uses, "[1]iquids, fill or other solids or dissolved gases may not be present in amounts which
may cause adverse impacts on existing wetland uses," pursuant to 15A N.C. Admin. Code
2B.023 I (b).
12. Wetlands existed on the Site as shown on Petitioner Anderson Sand & Gravel's
map entitled `Borrow Pit Overall Site," submitted March of 2000. These wetlands constitute
waters of the State pursuant to N.C. Gen. Stat. § 143-212(6).
13. Petitioners violated 15A NCAC 2B.0231 by causing "fills and other solids" to be
present in amounts that would "cause adverse impacts on existing wetland uses."
14. A 401 Water Quality Certification is required to discharge dredged or fill material
to wetlands in the State pursuant to 15A N.C. Admin. Code 21-1.0501 and 2H.0502.
15. Petitioners violated 15A N.C. Admin. Code 2110501 and 2I-L0502 by causing
discharges of dredged or fill material to wetlands without first obtaining a 401 Water Quality
Certification.
16. Respondent properly assessed Petitioners for $44,933.84. The assessment was
appropriate in amount due to the violations at the Site.
17. Under North Carolina law, dissolved corporations are prohibited from conducting
any business other than that appropriate to winding up their affairs and liquidating their assets.
- 7 -

N.C. Gen. Stat. § 55-1.4-05(a). In Guilford Builders Supply Co. v. Reynolds, 249 N.C. 612, 61,
107 S.E.2d 80, 83 (1959), the North Carolina Supreme Court stated:
Under certain circumstances, stockholders, officers and directors may be held
liable as individuals or partners when such stockholders, officers and directors
permit the charter of the corporation to expire, and continue to obtain credit for
and on behalf of a purported but non-existent corporation.
In the similar context of a corporation with a suspended charter due to non-payment of taxes,. the
North Carolina Court of Appeals stated;
The general rule is that the shareholders of a corporation whose charter has been
suspended "are not made individually liable for its debts incurred during the
suspension" .... On the other hand, directors and officers are personally liable
for corporate obligations incurred by them on behalf of the corporation, or by
others with their acquiescence, if at that time they were aware that the corporate
charter was suspended.
Charles A. Torrence Co. v. Clary, 121 N.C. App. 211, 213, 464 S.E.2d 502, 504 (N.C. Ct. App.
1995) (citations omitted).
18. Mr. Anderson continued to carry on business in the name of Anderson Sand &
-- Gravel, LLC, by continuing to conduct mining operations at the Site under a mining permit
issued by the Division of Land Resources and using mining rights lield by Anderson Sand &
Gravel, LLC. Mr. Anderson was aware of the dissolution of Anderson Sand & Gravel, LLC,'but
failed to wind up the affairs of the business. Instead, Mr. Anderson continued to benefit from
activities undertaken oil behalf of the dissolved corporation. Therefore, Mr. Anderson assumed
personal responsibility for the liabilities Incurred in the name of Anderson Sand & Gravel, LLC
after its dissolution on June 12, 2003. Anderson Sand &. Gravel, LLC may also be liable for
violations that occurred before the date of its dissolution.
19. When a dissolved corporation is reinstated, the corporation continues its activities
as if the dissolution had never occurred. N.C. Gen. Stat. § 55-14-22(c). The reinstatement
"relates back to and takes effect as of the date of the administrative dissolution and the
corporation resumes carrying on its business as if the administrative dissolution had never
occurred, subject to the rights of any person who reasonably relied to his prejudice upon the
certificate of dissolution." 1(1. Therefore, any liabilities incurred by the corporation after the date
of the administrative dissolution remain liabilities of the corporation once it has been reinstated.
20. Gerald L. Anderson, LLC was administratively dissolved, but was later reinstated.
Pursuant to N.C. Gen. Stat. § .55-14-22, a reinstated corporation continues its activities as if it
was never dissolved. Therefore, Gerald L. Anderson, LLC retains any liabilities that it incurred,
regardless of the (late oil which they were incurred.
- 8 -

Based on the foregoing Findings of Fact and COnCILlsio115 of Law, the undersigned
makes the following:
PROPOSED DECISION
The Environmental Management Commission should uphold the decision to assess a civil
penalty against Petitioners for violations of the State's water pollution laws in the amount of
$44,933.84.
NOTICE
The Environmental Management Commission, the agency making the final decision in
this contested case, is required to give each party an opportunity to'file exceptions to this
recommended decision and to present written arguments to those in the agency who will make
the final decision. N.C. Gen. Stat. § 150B-36(a).
The Environmental Management Commission is required by N.C. Gen. Stat. § 150B-
36(b3) to serve a copy of the final decision on all parties and to the Office of Administrative
Hearings.
This the day of ', 2008.
Beecher Gray
Administrative Law Judge
- 9 -

State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Water Quality
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
October 28, 1996
Tina Anderson
Anderson Sand & Gravel
223 N Cardinal Lane
Wilmington , NC 23405
IT
ALT4
[DEHNR
Subject: General Permit No, NCG020000
Anderson Sand & Gravel
COC NCG020343
Craven County .
Deal' Tina Anderson
In accordance with your application for discharge permit received on May- 15, 1996, we are forwarding
herewith the subject certificate of coverage to discharge under the subject state - NPDES general permit. This
permit is issued pursuant to the requirements of North Carolina General Statute 143-215 .1 and the
Memorandum of Agreement between North Carolina and the US Environmental Protection agency dated
December 6, 1983.
If any parts, measurement frequencies or sampling requirements contained in this permit are
unacceptable to you, you have the right to request an individual permit by submitting an individual permit
application. Unless such demand is made, this certificate of coverage shall be final and binding.
Please take notice that this certificate of coverage is not transferable except after notice to the Division
of Water Quality. The Division of Water Quality may require modification or revocation and reissuance of
the certificate of coverage.
This permit does not affect the legal requirements to obtain other permits which may be required by the
Division of Water Quality or permits required by the Division of Land Resources, Coastal Area Management
Act or any other Federal or Local governmental permit that may be required.
If you have any question concerning this permit, please contact MR. ANTONIO EVANS at telephone
number 919/733-5083.
Sincerely,
C! tD L E-Y AFN`4E'
A. Preston Howard, Jr. P.E.
cc: Washington Regional Office
EPA
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post -consumer paper

STATE OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
DIVISION OF WATER QUALITY
GENERAL PERMIT NO. NCG020000
CERTIFICATE OF COVERAGE No. NCG020343
STORMWATER, MINE DEWATERING, AND/OR OVERFLOW FROM
PROCESS WATER RECYCLE SYSTEMS DISCHARGES
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
In compliance with the provision of North Carolina General Statute 143-2I5.1, other lawful standards and
regulations promulgated and adopted by the North Carolina Environmental Management Commission, and the
Federal Water Pollution Control Act, as amended,
Anderson Sand and Gravel
is hereby authorized to construct and operate or continue operation of a treatment system for mine dewatering and/or
recycle systems process wastewater overflow with the discharges of treated wastewater and/or construct and discharge
stormwater from a facility located at
Anderson Sand and.Gravei
221 Spruill Town Rd.
Craven County
to receiving waters designated as an unnamed tributary to Bear Branch , Gass C Sw NSW in the Neuse River Basin
in accordance with the effluent limitations, monitoring requirements, and other conditions set forth in Parts I, II, III
and IV of General Permit No. NCG020000 as attached.
This certificate of coverage shall become effective October 28, 1996.
Tliis Certificate of Coverage shall remain in effect for the duration of the General Permit,
Signed this day October.28, 1996.
QR1GI AL SIGNED BY
A. Preston Howard, Jr., P.E., Director
Division of Water Quality
By Authority of the Environmental Management Commission

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