20090693 Ver 1_Court Case Settlement_20100108

STATE OF NORTH CAROLINA
COUNTY OF WAKE
CHRISTOPHER and
JENNIFER T. MITSCH RL.ICH
Petitioners
V.
NORTH CAROLINA DEPARTMENT OF )
ENVIRONMENT AND NA"I'URAL )
RESOURCES, DIVISION OF WATER )
QUALITY, )
Respondent. )
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
09 EHR 4581
`s.
SETTLEMENT AGREEMENT
The North Carolina Department of Environment and Natural Resources ("NC DENR"),
Division of Water Quality" ("Respondent") and Christopher and Jennifer T. Mitscherlich
("Petitioners"), hereby enter into this Settlement Agreement (hereinafter "Agreement") in order
to amicably resolve matters in controversy as it relates to the civil penalty assessment WQ-2009-
0002. This matter arose out of the assessment of civil penalties for WQ2009-0002 in the amount
of eight thousand two hundred sixty-eight dollars and forty-two cents ($8,268.42), including
investigative costs of two hundred sixty-eight dollars and forty-two cents ($268.42). The above
penalty was assessed by DWQ on July 8, 2009 for property located at 9508 Bartons Creek Road
in Wake County, North Carolina. Petitioners and Respondent have reached the following
settlement agreement in this matter;
I . Petitioners tihall pay Respondent six thousand six hundred sixty-eight dollars and
forty-two cents ($6,668.42.), ("Settlement Amount") which includes six thousand four hundred
($6,400.00) for the civil penalty and two hundred sixty-eight dollars and forty-two cents
($268.42) for investigative costs, totaling $6,668.42. The Settlement Amount shall be made in a
lump sum payment due within thirty (30) days of the execution of this Agreement.
2. The payment should be made by check payable to the "North Carolina
Department of Environment and Natural Resources" or to "DENR" at the following address:
John A. Payne
Assistant Attorney General
N. C. Department of Justice
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699-9001
3. Petitioner shall adhere to all conditions and parameters as set forth in Addendum
A & B, which are attached hereto and incorporated into this agreement.
4. Petitioners and Respondent expressly stipulate and acknowledge that, by entering
into this Agreement, Petitioners waive, for purposes of collection of any sums due hereunder,
any and all defenses to the underlying civil penalty assessments. Upon a breach of paragraphs
one, two or Addendum A or B of this Agreement, by Petitioners, the sole issue in any action by
Respondent is to collect the entire amount of the civil penalty assessments; i.e., amount of eight
thousand two hundred sixty-eight dollars and forty-two cents ($8,268.42), in accordance with the
terms of paragraph three above and will be limited to Petitioners' compliance with the terms of
this Agreement.
5. Respondent agrees to accept the payment of $6,400.00 in addition to investigative
costs of $268.42 for a total of $6,668.42, in complete satisfaction of the civil penalty assessment
subject to the terms of this Agreement.
6. Nothing in this Agreement shall restrict any right of Respondent to take any
enforcement action against Petitioners for any future violations occurring after July 8, 2009.

7. The parties agree that the consideration for this settlement is the promises
contained herein and that this Agreement contains the whole agreement between them.
8. This Agreement shall be binding upon the parties, their successors and assigns,
upon execution by the undersigned, who represent and warrant that they are authorized to enter
into this agreement on behalf of the parties hereto.
9. Petitioners and Respondent agree that, for purposes of any future bankruptcy
proceeding, this Agreement is not intended as, nor shall it be deemed to constitute, a novation of
any claims asserted by the Respondent pursuant to this Agreement are nondischargeable in
bankruptcy under I 1 U.S.C. § 523. Nothing in this Agreement releases any nondischargeability
claims that may be asserted by the Respondent in any bankruptcy proceeding, and nothing in this
Agreement shall be deemed a waiver of the Respondent's right to rely on the nature of any claim
or debt released in this Agreement to show that the claim or debt is nondischargeable.
10. This Agreement shall be binding upon the parties and is entered into knowingly,
intelligently and voluntarily.
WITHDRAWAL OF PETITION
Entry of this Agreement serves as Petitioner's Voluntary Withdrawal with Prejudice of its
Petition for a Contested Case Hearing in this matter as it relates to WQ-2009-0002. The parties
agree this matter is concluded and that no further proceedings are needed or required to resolve
the contested case forWQ-2009-0002.
FOR:
THE DIVISION OF WATER
Qt1AI-,YTY
ohn Hennessy
DWQ NPS Assistance & Compliance
Oversight Unit Supervisor
FOR:
CHRISTOPHER and JENNIFER T.
MITSCHERLICH
hristopher Mitscherllc,h
Date:
/ 6- A r iL)
Date:
fifer T. Mitscherlich
Date: - v ?i
APPROVED AS TO FORM
ROY COOPER
Attorney Genera
13y.
John A. Payne
Assistant Attorney General
N. C. Department of Justice
Environmental Division
9001 Mail Service Center
LAW OFFICE OF MARK A FOGEL
Attorney and Counselor at Law
By:? C.
Mark E. Fogel
Attorney at Law
P. O. Box 1189
Raleigh, NC 27602
ATTORNEY FOR THE PETITIONER
Raleigh, NC 27699-9001
ATTORNEY FOR THE RESPONDENT
Date: { /A(
Date: ! L / f
Addendum A
A. The Scope of the restoration addressed in this settlement is based on Petitioner's express
stipulation that: 1) the retaining wall, from its origin to its terminus; 2) the
roadway/driveway, paralleling to the pond and adjacent to the retaining wall; and 3) the
footprint of the building adjacent to the pond were all existing and located on-site, which
will be depicted as a part of the remediation plan submitted to NC DENR in accordance
with this agreement.
B. Remediation Plan. That within 60 days, submit an approvable remediation plan. This plan
must clearly describe all restoration measures to be installed and/or implemented on the
site. The plan must minimally include design details that address all of the following
items as detailed below:
1} Scope and footprint of Riparian Buffer Restoration: The plans and maps must
minimally depict riparian restoration as follows:.
a) Pond-side restoration. Beyond 14 feet, from the toe of the retaining wall,
continuing to the water (pond) edge the riparian buffer is to be
replanted/restored.
b) Strip along the retaining wall. Along the entire reach of the retaining wall,
from the toe of the wall, a 3-foot grass strip, which may be periodically be
mowed, is to be installed.
c) Driveway. From the outer edge of the Moot grass strip, a dual gravel wheel
driveway may be constructed. This driveway is to be constructed such that the
wheel tracks can and should be maintained, and may be periodically mowed.
d) Driveway width. The driveway and respective grassed strips shall be
2)
3)
4)
5)
6)
located within a 14-foot wide footprint that starts at the toe of the retaining
wall. Beyond the 14-feet from the toe of the retaining wall, (toward the pond)
is riparian buffer that is to be replanted and restored. The riparian buffer area
is not to be mowed or otherwise cleared of vegetation.
Map. Provide a map depicting the pond, retaining wall, building, driveway,
grassed vegetative strips and location of re-plantings.
Riparian zone planting plan. As a part of the restoration plan, gravel fill must be
removed from riparian zone prior to plantings of grass or trees. A detailed
riparian planting plan must minimally include two native hardwood wetland
0
species with a stem density of 681tress per acre on an 8 x 8 grid.
Schedule. Provide a schedule with specific dates of when the plantings will be
accomplished.
Remediation Completion Report. Within 30 days of the completion of the
remediation efforts, a written report must be provided to DWQ's Raleigh
Regional Office detailing the result of the restoration efforts.
Monitorinn and Reporting. Provide a monitoring and reporting plan that
documents inspection and written accounts of whether the pond banks have
become unstable, if remediation and stabilization efforts have failed or are
failing, and if remediation efforts for the site (including plantings and riparian
areas) are failing or are not surviving. The monitoring report is required and
must include quarterly (March, June, September, December) inspections/review
of the restored riparian areas. The report must describe each monthly
inspection result, include digital photographs, include the date of the inspection,
and describe any repairs or corrections including dates of completion.
7) Monitoring-Triggered Repairs or Corrections. If monitoring efforts as required
in paragraph six or written notification is provided from DWQ that confirms
degradation of the riparian area, the pond, unstable eroding or rilled areas, or
dead plantings, the Petitioner must undertake repairs or corrections immediately
(within 20 days of the observation).
8) Drain Pipe Removal. All of the drainage pipes encroaching into or through the
buffer must be removed. All stormwater must be conveyed as diffuse flow.
This must be achieved prior to the stormwater exiting/crossing beyond 14 feet
from the toe of the retaining wall.
9) Remediation and Submissions. The Petitioner expressly agrees to submit the
Remediation Plans within 60 days after the completion of this agreement to the
DWQ's Raleigh Regional Office, attention Danny Smith, and to NC DWQ,
Wetlands and Stormwater Branch, NPS Assistance and Compliance Unit, 1617
Mail Service Center, Raleigh NC 27699-1617, attention John Hennessy.
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