250042_Civil Penalty Assessment_20210902

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STATE OF NORTH CAROLINA NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY
COUNTY OF CRAVEN
IN THE MATTER OF
MATTHEW REID DAVENPORT
FOR VIOLATIONS OF SWINE WASTE
MANAGEMENT SYSTEM
GENERAL PERMIT AWG100000
PURSUANT TO NORTH CAROLINA
GENERAL STATUTE 143-215.1
FILE NO. PC-2020-0047
FINDINGS AND DECISION
AND ASSESSMENTS OF
CIVIL PENALTIES
Acting pursuant to delegation provided by the Secretary of the Depailinent 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. Matthew Davenport owned and operated M & S Nursery, a swine animal feeding operation in
Craven County.
B. M & S Nursery was issued Certificate of Coverage AWS250042 under General Permit
AWG100000 for M & S Nursery on October 1, 2019, effective upon issuance, with an
expiration date of September 30, 2024.
C. Condition IL4 of General Permit AWG100000 states "Land application rates shall be in
accordance with the CAWMP. In no case shall the total land application rates from all
nutrient sources exceed the agronomic rate of the nutrient of concern for the receiving crop."
— [G.S. §143.215.10C, and 15A NCAC 02T .1304(b)]
D. On August 24, 2020, staff of the NC Division of Water Resources (DWR), Water Quality
Regional Operations Section (WQROS) conducted a compliance inspection for Permit No.
AWS250042. During the inspection, DWR Staff noted the over application of nitrogen on the
2019/2020 small grain overseed. The facility utilizes a 1001b. Plant Available Nitrogen
(PAN) for small grain. Therefore, the facility can apply 50 lbs. of PAN October through
December and 501bs. PAN January through March. The facility can not apply more than 25
lbs. total of PAN in December and January. The facility applied 68 lbs. PAN October through
December on Field 6, Tract 183. The facility applied 28.01 lbs. PAN in December on Field 7,
Tract 183. The facility applied 63 lbs. PAN in February on Field 1, Tract 183.
E. 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 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 Permiee is in
compliance with its CAWMP, and (c) there is at least one (1) foot of structural freeboard." —
[15A NCAC 02T .1304(b)]

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F. On August 24, 2020, staff of the NC Division of Water Resources (DWR), Water Quality
Regional Operations Section (WQROS) conducted a compliance inspection for Permit No.
AWS250042. Upon arrival DWR staff noted high waste levels in both lagoons. Waste levels
were documented at 19 inches and 17 inches. DWR staff also noted the facility experienced
high waste levels of 17 inches and 18 inches in June of 2020. The Division was not notified
of these high waste levels.
G. Condition IIL17(e) of General Permit AWG100000 states "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." — [15A NCAC 02T
.0108(b)]
H. On August 24, 2020, staff of the NC Division of Water Resources (DWR), Water Quality
Regional Operations Section (WQROS) conducted a compliance inspection for Permit No.
AWS250042. Upon arrival DWR staff noted high waste levels in both lagoons. Waste levels
were documented at 19 inches and 17 inches. DWR staff also noted the facility experienced
high waste levels of 17 inches and 18 inches in June of 2020. The Division was not notified
of these high waste levels.
I. Matthew Davenport does not have a valid permit for the above -described activity.
J. The cost to the State of the enforcement procedures in this matter totaled $250.00.
Based upon the above Findings of Facts, I make the following:
II. CONCLUSIONS OF LAW:
A. Matthew Davenport is a "person" within the meaning of G.S. 143-215.6A pursuant to G.S.
143-212(4).
B. The above -cited over application of nitrogen as stated in Findings of Fact I.D violates
Condition IL4 of the General Permit AWG100000 which states land application rates shall be
in accordance with the CAWMP and shall not exceed agronomic rates of the receiving crop.
C. The above -cited non -compliant freeboard levels in the lagoons as stated in Findings of Fact
I.F violates Condition V.2 of the General Permit AWG100000 which states that waste levels
for the lagoons must not exceed that which is specified in the CAWMP or that which
provides adequate storage for a 25-year, 24-hour storm event plus an additional one (1) foot
of structural freeboard.
D. The above -cited failure to notify the Division of high waste levels in the lagoons as stated in
Findings of Fact I.H violates Condition III.17(e) of the General Permit AWG100000 which
states the Permittee shall report any failure to maintain proper storage capacity in any lagoon
to the appropriate Division Regional Office within twenty-four (24) hours of first knowledge
of the incident.
E. Matthew Davenport 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 act in accordance with the terms, conditions, or requirements of a permit required by G.S.
143-215.1.

DocuSign Envelope ID: A24CAFA2-B459-41CB-B3ED-F48432AACA14
F. General Statute 143-215.3(a)(9) and G.S. 143B-282.1(b)(8) provides that the reasonable costs
of any investigation, inspection or monitoring survey may be assessed against a person who
violates any regulations, standards, or limitations adopted by the Environmental Management
Commission or violates any terms or conditions of any permit issued pursuant to N.C.G.S.
143-215.1, or special order or other document issued pursuant to N.C.G.S. 143-215.2.
G. 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 Facts and Conclusions of Law, I make the following:
III. DECISION:
Accordingly, Matthew Davenport, owner of M & S Nursery at the time of noncompliance, is hereby
assessed a civil penalty of:
$ 500.00
For violation of Condition IL4 of the General Permit AWG100000 for
failure to properly land apply waste at rates which are acceptable per the
facility's CAWMP.
$ 500.00 For violation of Condition V.2 of the General Permit AWG100000 for
failure to maintain compliant freeboard levels in the lagoons.
$ 500.00 For violation of Condition III.17(e) of the General Permit AWG100000
for failure to notify the Division of non -compliant lagoon levels.
$ 1,500.00 TOTAL CIVIL PENALTY
$ 250.00 Enforcement costs
$ 1,750.00 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 programs over
which the Environmental Management Commission has regulatory authority;
(8) The cost to the State of the enforcement procedures.

DocuSign Envelope ID: A24CAFA2-B459-41CB-B3ED-F48432AACA14
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 Matthew
Davenport in accordance with N.C.G.S. 143-215.6(A)(d).
(Date)
EDocuSigned by:
8FB19B649DD2478...
Jeff Poupart, Chief
Water Quality Permitting Section
Division of Water Resources