20081111 Ver 1_Notice of Violation_20100920

?WarF 8 ++1?? ?g
0 - 9 Michael F. Easley, Governor
Q William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
? r
`C Coleen H. Sullins, Director
Division of Water Quality
September 20, 2010
CERTIFIED MAIL #70.09 3410 0002 1399 0543
RETURN RECEIPT REOUESTED
BSC Holdings Inc.
Attn: Mr. Barry Siegal
3411-D West Wendover Ave
Greensboro NC 27407
CERTIFIED MAIL #7009 3410 0002 1399 0512 (as previousiv sent and received)
RETURN RECEIPT REOUESTED
BSC Holdings Inc.
Attn: Mr. Barry Siegal
PO Box 8306
Greensboro, NC 27419
CERTIFIED MAIL #7009 3410 0002 1399 0543
RETURN RECEIPT REOUESTED
Robinhood Court Apartment Homes LLC
Attn: Mr. Barry Siegal
3411-D West Wendover Ave
Greensboro NC 27407
Subject: NOTICE OF VIOLATION and
RECOMMENDATION FOR ENFORCEMENT
DWQ# 2008-1111 inspection
DWQ# SW4090401 inspection
DWQ# NCGO10000 inspection
NOV-2010-PC-0964
Forsyth County
Dear Mr. Siegal:
This Notice of Violation is a re-issuance of a Notice issued by the Division of Water Quality
(Division) on August 23, 2010. The purpose of this re-issuance is to correct an error in the
company name from BCS Holdings, to the correct corporation name of BSC Holdings Inc. In
addition, this re-issuance is being issued to both BSC Holdings Inc, the permittee for DWQ#
2008-1111 and Robinhood Court Apartment Homes LLC, the permittee for SW4090401 and
NCGO 10000.
The Division has received correspondence from Wescott, Small & Associates regarding the
violations noted in the letter dated August 23, 2010 and repeated below. On September 7, 2010
North Carolina Division of Water Quality, Winston-Salem Regional Office
Location: 585 Waughtown St. Winston-Salem, North Carolina 27107 One
Phone: [phone] FAX: [phone] Customer Service: 1-877-623-6748 NorthCarolina
Internet: www,ncwaterquality.org Naturally
An Equal Opportunity 1 Affirmative Action Employer
Page 2 of 5
Mr. Barry Siegal
September 20, 2010
Forsyth County
the Division notified you that we have approved the restoration plan with additional conditions.
The restoration must be completed within 30 days of receipt of the letter or October 15, 2010
whichever is later. In addition, no additional buildings shall be occupied until the Stormwater
BMPs serving those buildings are installed and certified by a professional engineer. The Division
also requires that you continue to address maintenance of the completed stormwater BMPs as
well as erosion control measures throughout the site.
The following text is taken from the original Notice of Violation letter dated August 23, 2010.
Please note that the Division has received responses to all items listed below at the time of this re-
issuance:
On August 17, 2010, Sue Homewood of the Division of Water Quality conducted a site visit of
the Robinhood Court Apartments. According to our records, the first phase of the facility opened
for business in December 2009 and additional phases have continued to be completed, and
buildings occupied, throughout 2010.
The site inspection identified multiple violations and deficiencies with regards to Stream
Standards, Wetland Standards and the following permits issued to you: DWQ 401 General
Certification Approval 2008-1111, DWQ Stormwater Permit No. SW4090401 and NPDES
Construction Stormwater General Permit NCGO 10000.
Stream Standard Violations:
• Specifically, 15A NCAC 2B.0216 which references 15A NCAC 2B .0211 (3)(0 which
states: Oils; deleterious substances; colored or other wastes: only such amounts as shall
not render the waters injurious to public health, secondary recreation or to aquatic life
and wildlife or adversely affect the palatability of fish, aesthetic quality or impair the
waters for any designated uses; for the purpose of implementing this Rule, oils,
deleterious substances, colored or other wastes shall include but not be limited to
substances that cause a film or sheen upon or discoloration of the surface of the water or
adjoining shorelines pursuant to 40 CFR 110.4(a)-(b) which are hereby incorporated by
reference including any subsequent amendments and addition. The site investigation
confirmed that as a result of the construction activities, sediment had been placed in the
stream adjacent to Bio-Retention Cell #2. Approximately 150 feet of stream impacts to an
unnamed tributary to Muddy Creek occurred as a result of the land disturbing activities
at the subject site. These impacts represent a stream standard violation. A review of the
NDPES Construction Stormwater records kept by the project management agency,
Windsor, indicated that the failure had occurred approximately four weeks prior to the
site inspection but had not been reported to the Division or repaired.
Ms. Homewood noted that areas adjacent to a stream on the property showed evidence of
previous erosion and sediment loss events, and the sediment and erosion control measures
designed to protect the stream were not being properly maintained.
Wetland Standard Violations:
• Specifically, 15A NCAC 2B.0231 which states: Liquids, fill or other solids or dissolved
gases may not be present in amounts which may cause adverse impacts on existing
wetland uses. The site investigation confirmed that as a result of the construction
activities, sediment had been placed in a wetland adjacent to Bio-Retention Cell #2.
Approximately 2500 square feet of wetland impacts occurred as a result of the land
disturbing activities at the subject site. These impacts represent a wetland standard
violation. A review of the NDPES Construction Stormwater records kept by the project
Page 3 of 5
Mr. Barry Siegal
September 20, 2010
Forsyth County
management agency, Windsor, indicated that the failure had occurred approximately
four weeks prior to the site inspection but had not been reported to the Division or
repaired.
DWQ 401 General Certification Approval 2008-1111:
You submitted a Pre-Construction Notification (PCN) on July 15, 2008. The impacts were
requested under U.S. Army Corps of Engineers Nationwide Permit(s) 39, and the corresponding
General Water Quality Certifications. The Division issued an approval letter for the impacts on
November 17, 2009. The approval letter specifies that the activities must follow the conditions
listed in the General Water Quality Certifications, as well as additional conditions listed in the
letter.
Condition 4 states the following: "Before any permanent building is occupied at the
subject site, facilities shall be constructed and operational, and the stormwater
management plan shall be implemented.....No changes to the structural stormwater
practices shall be made without written authorization from the Division of Water
Quality" A file review was conducted and the review has indicated that the post
construction stormwater measures for the project have not been properly certified by an
engineer at this time.
Please note that the Notice of Violation letter issued to you on March 31, 2010 noted
these same deficiencies. The Division received a response to that Notice on April 19,
2010 indicating that the specifically identified bio-retention cells had been completed.
The Division re-iterated the need to ensure all future stormwater controls were installed
and certified by an engineer prior to occupancy of future buildings on the project site.
The Division has since determined that although construction was completed on Bio-
Retention Cells #2 and #3, they have not been properly certified by an engineer according
to our records.
DWQ Stormwater Permit No. SW4090401:
The Division issued an approval letter for the Stormwater Management Facility on April 14, 2009
and a Modification was approved on October 12, 2009. The approval letter specifies that the
activities must follow the conditions listed in the permit.
• Condition 11 6 states the following: "Upon completion of construction, prior to issuance
of a Certificate of Occupancy, and prior to operation of this permitted facility, a
certification must be received from an appropriate designer for the system installed
certifying that the facility has been installed in accordance with this permit, the approved
plans and specifications, and other supporting documentation." 4 file review was
conducted and the review has indicated that the post construction Stormwater measures
for the project have not been properly certified by an engineer at this time.
Please note that the Notice of Violation letter issued to you on March 31, 2010 noted
these same deficiencies. The Division received a response to that Notice on April 19,
2010 indicating that the specifically identified bio-retention cells had been completed.
The Division re-iterated the need to ensure all future Stormwater controls were installed
and certified by an engineer prior to occupancy of future buildings on the project site.
The Division has since determined that although construction was completed on Bio-
Retention Cells #2 and #3, they have not been properly certified by an engineer according
to our records.
• Condition 11 2 states the following: "During construction, erosion shall be kept to a
minimum and any eroded areas of the system will be repaired immediately." A site
inspection indicated that Infiltration Trench #3 was not properly protected during
Page 4 of 5
Mr. Barry Siegal
September 20, 2010
Forsyth County
construction and no indication of repairs was evident. In addition, Infiltration Trench #1
and #2 were not being properly protected from erosion at the time of the inspection.
The approval letter specifies that the activities must follow the conditions listed in the
permit. The Approval Letter, Condition 113 states the following: "The permittee shall at
all time provide the operation and maintenance necessary to assure the permitted
stormwater system functions at optimum efficiency. The approved Operation and
Maintenance Plan must be followed in its entirety and maintenance must occur at the
schedule intervals including, but not limited to: d. Immediate repair of eroded area." A
site inspection indicated that a structural failure occurred at Bio-Retention Cell #2. The
structural failure was noted by the project management company and inspection reports
note that the owner and the contractor were notified of the failure. This structural failure
caused sediment to enter a stream and a wetland. The structural failure had not been
immediately repaired as required by the Permit.
NPDES Construction Stormwater General Permit NCG010000:
An Erosion Control Permit was issued for this facility on November 17, 2008. Upon receipt of
this approval, the NDPES Construction Stormwater Permit (NCGO10000) became immediately
effective.
• Part II, Section E (3)(a) of Permit NCGO10000 states the following: "The permittee shall
report to the central office or the appropriate regional office any noncompliance which
may endanger health or the environment. Any information shall be provided orally within
24 hours from the time the permittee became aware of the circumstances." As a result of
the site inspection Ms. Homewood conducted a NPDES Construction Stormwater records
review. Mr. David Maines of Windsor provided Ms. Homewood with the appropriate
records. All records were being properly kept and indicated that inspections were being
conducted as required. However, the records indicated that there have been multiple
areas of concern and areas that needed repairs that have not been addressed in a timely
manner. The file review noted that no reports have been made to the Division of
sediment loss on the site.
Requested Response
This Office requests that you respond to this letter in writing within 15 days of receipt of this
Notice. Your response should be sent to both this office at the letterhead address and to the
attention of Mr. John Hennessy at the Wetlands and Stormwater Branch, NPS Assistance and
Compliance Oversight Unit, 1617 Mail Service Center, Raleigh, NC 27699-1617. Your response
should address the following items:
Please clearly indicate what efforts you have taken to temporarily stabilize the site to
prevent off-site sedimentation. The site inspection noted that the silt fence adjacent to the
stream at the front of the property had not been properly maintained and areas adjacent to
the tennis court and temporary stream crossing are not stable. Regardless of the status
of an approved erosion control plan, this issue should be addressed immediately in
order to avoid additional stream standard violations. In addition, the area adjacent
to the failed Bio-Retention Cell #3 should be immediately stabilized until repaired
and restored.
Immediately assess and repair the failure of Bio-Retention Cell #3. The failure of this
cell remains a threat for the water quality of the stream below the cell. In addition,
Page 5 of 5
Mr. Barry Siegal
September 20, 2010
Forsyth County
failure of the bio-retention cell may result in discharge of improperly treated stormwater
to the stream.
3. Submit a stream and wetland restoration plan for channel impacted by the failure of Bio-
Retention Cell #3.
4. Provide a copy of all Certificates of Occupancy issued by the City of Winston-Salem at
this time. Please indicate a schedule of completion for the remaining buildings on-site.
5. Provide an engineer's certification for ALL stormwater measures that are currently
serving occupied buildings. For each stormwater measure that is unable to be certified
until repairs are made, provide a detailed schedule of the specific repairs that are
necessary and when they will be conducted.
6. Provide an analysis by an engineer for the remaining stormwater measures for the project
and for each, indicate what repairs are necessary to ensure they will operate properly
prior to occupying the buildings draining to the measure.
Thank you for your attention to this matter. This Office is considering sending a recommendation
for enforcement to the Director of the Division of Water Quality regarding these issues and any
future/continued violations that may be encountered. Your above-mentioned response to this
correspondence will be considered in this process. This office requires that the violations, as
detailed above, be abated immediately. These violations and any future violations are
subject to a civil penalty assessment of up to $25,000.00 per day for each violation. Should
you have any questions regarding these matters, please contact Sue Homewood at 336-771-4964
or myself at 336-771-5000.
Sincerely,
Steve W. Tedder
Water Quality Regional Supervisor
Winston Salem Regional Office
cc: Michael Westcott, Westcott, Small & Assoc. (via email)
Rodney Bentley, Windsor Investments (via email)
David Maines, Windsor Investments (via email)
Russell Yoder, Winston-Salem/Forsyth County Inspections Division (via email)
Chris Murphy, Assistant Director, Winston-Salem/Forsyth County Inspections Division
(via email)
NPS Assistance and Compliance Oversight Unit
DWQ-401 Unit - File Copy DWQ #08-1111
DWQ-WSRO