820599_PC-2021-0013 F&D_20210630

STATE OF NORTH CAROLINA NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY

COUNTY OF SAMPSON

FILE NO. PC-2021-0013

IN THE MATTER OF )
KEITH B. BUTLER )
)
) FINDINGS AND DECISION
FOR VIOLATIONS OF SWINE WASTE ) AND ASSESSMENT OF
MANAGEMENT SYSTEM ) CIVIL PENALTIES
GENERAL PERMIT AWG100000 )
PURSUANT TO NORTH CAROLINA )
GENERAL STATUE 143-215.1 )

Acting pursuant to delegation provided by the Secretary of the Department of Environmental
Quality and the Director of the Division of Water Resources, I, Jeff Poupart, Chief of the Water Quality
Permitting Section of the Division of Water Resources (DWR), make the following:

I. FINDINGS OF FACT:

A. Keith B. Butler owned and operated Keith B. Butler Farm, a swine operation located along
5070 Brinson Ln Clinton NC. Sampson County.

B. Keith B. Butler was issued Certificate of Coverage AWS820599 under North Carolina
Swine Waste Management System General Permit AWG100000 for Keith B. Butler Farm
on October 1, 2019 with an expiration date of September 30, 2024.

C. Condition V.2 of General Permit AWG100000 states “the maximum waste level in
lagoons/storage ponds shall not exceed that specified in the facility’s Certified Animal
Waste Management Plan (CAWMP). At a minimum, maximum waste level for
lagoons/storage ponds must not exceed the level that provides adequate storage to contain
the 25-year, 24-hour storm event plus an additional one (1) foot of structural freeboard
except that there shall be no violation of this condition if: (a) there is a storm event more
severe than a 25-year, 24-hour event, (b) the Permittee is in compliance with its CAWMP,
and (c) there is at least one (1) foot of structural freeboard.” – [15A NCAC 02T .1304(b)]

D. The CAWMP for Keith B. Butler Farm requires that the freeboard for the lagoon is
Nineteen (19) inches.

E. On January 15, 2021, DWR staff was in the area of the Keith B Butler Farm and staff were
conducting random Structure Evaluations because of the above average non-compliant
lagoon levels that were being reported due to the recent rain events. DWR contacted Keith
Butler prior to the site inspection to get permission to visit the farm. Mr. Keith Butler
advised DWR staff that his lagoon was non-compliant with a level around 13 inches, and
that his employee was conducting a waste application event. Additional DWR staff came
to the site to conduct a survey of the lagoon to determine the level of the lagoon base d on
the water marks on the lagoon marker and lagoon walls. DWR staff documented with
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pictures and survey equipment that the waste level in the lagoon was at 14 inches, but
noticed that the lagoon was previously at 6 inches based on the survey data of water marks
on the lagoon marker and solid objects in the lagoon wall. There was also water marks
along the berm that showed that the lagoon was previously higher than the 14 inches that
was observed on January 15, 2021. DWR staff asked Mr. Butler when his lagoon level was
non-compliant, and Mr. Butler stated that it was non-compliant about two (2) weeks prior
to Christmas 2020. Mr. Butler also confirmed that the waste level in the lagoon was
consistent with the water marks and on several solid objects in the lagoon wall indicating
the level was less than 12 inches for a period of time.

F. Condition II.5 of General Permit AWG100000 states “in no case shall land application
result in excessive ponding or any runoff during any given application event.” – [15A
NCAC 02T .1300].

G. On January 15, 2021, while staff was at the Keith Butler Farm, there was an active waste
application event. The spray field that was being irrigated on was a field where soybeans
were harvested, but there was no winter crop present. DWR staff documented with pictures
that the field that was being irrigated on was saturated from the rain events that happened
prior to irrigating. Due to the saturated condition of the field, waste was ponding and
running to other areas of the field. DWR documented both the ponding of waste and runoff
and absence of winter crop in the spray field with pictures.

H. Condition II.17. of General Permit AWG100000 states in part that “In accordance with
15A NCAC 8F .0203(c)(2), the OIC or a designated back-up OIC of a Type B Animal
Waste Management System shall inspect, or a person under the supervision of an OIC or
designated back-up OIC shall inspect, the land application site as often as necessary to
insure that the animal waste is land applied in accordance with the CAWMP. In no case
shall the time between inspections be more than 120 minutes during the application of
waste. A record of each inspection shall be recorded on forms supplied by, or approved
by, the Division and shall include the date, time, spray field number and name of the
operator for each inspection. Inspection shall include but not be limited to visual
observation of application equipment, spray fields, subsurface drain outlets, ditches, and
drainage ways for any discharge of waste.” – [15A NCAC 8F .0203(b) and 15A NCAC
02T .0108(c)]

I. On January 15, 2021, during the duration that DWR staff was on site, neither Keith Butler
or his employee went out into the field to look at the condition of the waste application
event. DWR staff talked with a farm employee, and he stated that he did not go into the
field, he just observed the spray event from the farm path in his golf cart.

J. Condition III.17. of General Permit AWG100000 states that “The Permittee shall report by
telephone to the appropriate Division Regional Office as soon as possible, but in no case
more than twenty-four (24) hours following first knowledge of the occurrence of any of
the following events: (e) Failure to maintain storage capacity in a lagoon/storage pond
greater than or equal to that required in Condition V.2. of this General Permit. (f) Failure
to maintain waste level in a lagoon/storage pond below that of the designed structural
freeboard (twelve (12) inches from top of dam or as specified in lagoon/storage pond
design). Note that this notification is in addition to the report required by Condition III.17.e
above. – [15A NCAC 02T .0108(b)]

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K. DWR staff were not notified by the permittee about the high waste levels in the animal
waste storage lagoons as required by the permit. Mr. Butler responded to his violations that
were presented to him and stated that his lagoon fell below 19 inches back in the middle of
November. He stated he should have reported, but did not. He thought he could quickly get
it back into compliance. He stated he knows it was a carless mistake and he will not let that
happen again. He was trying to limit his waste application so his spray field could dry and
the farmer could pick his soybeans, but due to all the rain events, the field was saturated
and his lagoon kept rising.

L. On February 15,2021, the Division issued a Notice of Violation (NOV/NOI) with intent to
enforce through the civil penalty assessment process to Keith Butler identifying violations
of N.C.G.S. 143-215.1 and Permit No. AWG100000.

M. The NOV was sent by certified mail, return receipt requested and received on February 19,
2021.

N. The cost to the State of the enforcement procedures in this matter totaled $347.76.

Based upon the above Findings of Fact, I make the following:

II. CONCLUSIONS OF LAW:

A. Keith B. Butler is a "person" within the meaning of G.S. 143-215.6A pursuant to G.S. 143-
212(4).

B. A permit for an animal waste management system is required by N.C.G.S. 143-215.1.

C. The above cited failure in Findings of Facts I.E to maintain the liquid level in the lagoon
at the level specified in the CAWMP is a violation of Condition V.2. of the General Permit
AWG100000.

D. The above cited failure in Findings of Facts I.G to prevent excessive ponding and runoff
of waste during land application is a violation of Condition II.5 of the General Permit
AWG100000 requiring that in no case, shall land application rates result in excessive
ponding or any runoff during any given application event.

E. The above cited failure in Findings of Fact I.I. that the Operator in Charge (OIC) or a
person under the supervision of an OIC failed to inspect the land application as often as
necessary to ensure that the animal waste is land applied in accordance with the CAWMP
violated Condition II.17. of the General Permit AWG100000.

F. The above cited failure in Findings of Fact I.K. that failure to provide notification to the
Regional Office violated Condition III.17.e. & f. of the General Permit AWG100000.

G. Keith B. Butler may be assessed civil penalties in this matter pursuant to G.S. 143-
215.6A(a)(2), which provides that a civil penalty of not more than twenty-five thousand
dollars ($25,000.00) per violation may be assessed against a person who is required but
fails to apply for or to secure a permit required by G.S. 143-215.1.

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H. The State's enforcement costs in this matter may be assessed against Keith B. Butler
pursuant to G.S. 143-215.3(a)(9) and G.S. 143B-282.1(b)(8).

I. The Chief of the Water Quality Permitting Section, Division of Water Resources, pursuant
to delegation provided by the Secretary of the Department of Environmental Quality and
the Director of the Division of Water Resources, has the authority to assess civil penalties
in this matter.

Based upon the above Findings of Fact and Conclusions of Law, I make the following:

III. DECISION:

Accordingly, Keith B. Butler, owner of Keith B. Butler Farm at the time of the noncompliance is
hereby assessed a civil penalty of:

$1,000.00__ For violating Condition V.2. of the General Permit AWG100000 for
failure to maintain the maximum waste level in the lagoon/storage pond
which shall not exceed that specified in the facility’s CAWMP.

$1,000.00__ For violation of Condition II.5. of the General Permit AWG100000 for
failure to prevent excessive ponding and runoff of waste during
application events.

$1,500.00___ For violation of Condition II.17. of the General Permit AWG100000 for
failure of the Operator in Charge (OIC) or a person under the supervision
of an OIC to inspect the land application as often as necessary to ensure
that the animal waste is land applied in accordance with the CAWMP.

$1,500.00 __ For violating Condition III.17.e & f. of the General Permit AWG100000,
for failure to report by telephone to the appropriate Division Regional
Office about high waste levels in the animal waste storage lagoon.

$5,000.00 ___ TOTAL CIVIL PENALTY

$347.76____ Enforcement costs

$5,347.76___ TOTAL AMOUNT DUE

Pursuant to G.S. 143-215.6A(c), in determining the amount of the penalty I have taken into account the
Findings of Fact and Conclusions of Law and the factors set forth at G.S. 143B-282.1(b), which are:

(1) The degree and extent of harm to the natural resources of the State, to the public health, or
to private property resulting from the violation;
(2) The duration and gravity of the violation;
(3) The effect on ground or surface water quantity or quality or on air quality;
(4) The cost of rectifying the damage;
(5) The amount of money saved by noncompliance;
(6) Whether the violation was committed willfully or intentionally;
(7) The prior record of the violator in complying or failing to comply with progr ams over
which the Environmental Management Commission has regulatory authority;
(8) The cost to the State of the enforcement procedures.
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IV. NOTICE:

I reserve the right to assess civil penalties and investigative costs for any continuing violations
occurring after the assessment period indicated above. Each day of a continuing violation may be
considered a separate violation subject to a maximum $25,000.00 per day penalty. Civil penalties
and investigative cost may be assessed for any other rules and statutes for which penalties have not
yet been assessed.

V. TRANSMITTAL:

These Findings of Fact, Conclusions of Law and Decision shall be transmitted to Keith B. Butler
in accordance with N.C.G.S. 143-215.6(A)(d).

_________________ _______________________________
(Date) Jeff Poupart, Chief
Water Quality Permitting Section
Division of Water Resources
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