090099_DV-2021-0031 CPA_20210915

STATE OF NORTH CAROLINA NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY

COUNTY OF BLADEN

FILE NO. DV-2021-0031
IN THE MATTER OF )
)
BARRY D. BILLUPS )
)
)
FOR VIOLATIONS OF SWINE WASTE ) FINDINGS AND DECISION
MANAGEMENT SYSTEM ) AND ASSESSMENT OF
GENERAL PERMIT AWG100000 ) CIVIL PENALTIES
PURSUANT TO NORTH CAROLINA )
GENERAL STATUTE 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. Barry D. Billups owned and operated Barry Billups Farm, a swine operation located along
415 Culbreth-Smith Rd. Elizabethtown, NC. Bladen County.

B. Barry D. Billups was issued Certificate of Coverage AWS090099 under General Permit
AWG100000 for Barry Billups on October 1, 2019, effective from the date of issuance,
with an expiration date of September 30, 2024.

C. G.S. 143-215.1(a) states: “no person shall do the following things or carry out any of the
following activities unless the person has received a permit from the Commission and has
complied with all the conditions set forth in the permit: made any outlets into the waters of
the State.”.

D. Condition I.1 General Permit AWG100000 states in part: “Any discharge of waste which
reaches surface waters or wetlands is prohibited except as otherwise provided in this
General Permit and associated statutory and regulatory provisions. Waste shall not reach
surface waters or wetlands by runoff, drift, manmade conveyances, direct application and
direct discharge or through ditches not otherwise classified as State waters.”

E. On November 16, 2020, during a structural evaluation visit, DWR staff noticed evidence
that waste was ponded in the spray field and waste was in the drainage ditch area next to
the lagoon leading to a ditch that flows offsite. After further investigation of the ditch,
DWR staff documented with pictures and samples that waste was in the ditch and flowed
into an unnamed tributary that flows into Turn Bull Creek. Mr. Billups stated he had
pumped on November 15, 2020 in the afternoon, and he said he drove into the farm the
morning of the 16th but did not check the field or drainage area by walking them, just
observed from the truck.

DocuSign Envelope ID: 5EF47388-2CE3-4A85-AA7C-E4838E3E33F7
F. On November 13, 2020, Mr. Billups reported his lagoon level to Fayetteville Regional
Office (FRO)that his lagoon level was eight (8) inches after receiving eleven (11) inches
of rain on November 12, 2020. DWR staff surveyed the lagoon banks and determined the
level to be nine (9) inches and the marker also read 9 inches. Mr. Billups immediately took
measures to contain waste and recovered waste over the next few days back to the lagoon.
In addition, the hogs were removed from the farm and waste was hauled to another lagoon
to get lagoon levels back into compliance.

G. Condition II.5 of General Permit AWG100000 states: “in no case, shall land application
rates result in excessive ponding or any runoff during any given application events.”

H. On November 16, 2020, during a structural evaluation visit DWR staff noticed evidence
that waste was ponded in the spray field next to the lagoon. Waste was ponded in several
locations in front of the gun carts, gun cart pulls, and various other areas in the spray field.
Waste was observed in the drainage ditch area next to the lagoon leading to a ditch that
flows offsite.

I. Condition II.17 of the AWG100000 General Permit states: “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.
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.”

J. On November 16, 2020 during routine compliance inspection, DWR staff was able to
document the violations with very little effort. It is reasonable to assume that whoever
operated the waste application equipment should have seen the ponded waste if they had
conducted the 120 minutes inspection as specified in the permit.

K. On December 3, 2020 the Division issued a Notice of Violation (NOV/NOI) with intent to
enforce through the civil penalty assessment process to Barry D. Billups identifying
violations of N.C.G.S. 143-215.1 and Permit No. AWS090099 the violations include the
unlawful discharge of wastes to waters of the State.

L. The NOV was sent by certified mail, return receipt requested and received on January 15,
2021.

M. The cost to the State of the enforcement procedures in this matter totaled $621.26.

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

II. CONCLUSIONS OF LAW:
A. Barry D. Billups is a "person" within the meaning of G.S. 143-215.6A pursuant to G.S.
143-212(4).

B. Unnamed tributary to Turn Bull Creek constitutes waters of the State within the meaning
of G.S. 143-215.1 pursuant to G.S. 143-212(6).
DocuSign Envelope ID: 5EF47388-2CE3-4A85-AA7C-E4838E3E33F7

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

D. The above-cited discharge constituted making an outlet to waters of the State for purposes
of G.S. 143-215.1(a)(1), for which G.S. 143-215.1 requires a permit.

E. The above-cited discharge as stated in Findings of Fact I.E violates Condition I.1 of
General Permit AWG100000 that requires no animal waste be discharged to surface waters
and /or wetlands of the state.

F. The above cited excessive ponding and runoff during application events as stated in
Findings of Fact I.G violates Condition II.5 of General Permit AWG100000 requiring that
in no case, shall land application rates result in excessive ponding or any runoff during any
given application events.

G. The above cited failure of OIC to inspect the land application as often as necessary to
ensure that the animal waste is land applied in accordance with the CAWMP as stated in
Findings of Fact I.J violates Condition II.17 of General Permit AWG100000 requiring that
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.

H. Barry Billups 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.

I. 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.

J. 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, Barry D. Billups, owner of Barry Billups Farm at the time of the noncompliance is
hereby assessed a civil penalty of:

$3,000.00__ For violation of Condition I.1 of General Permit AWG 100000 for making
an outlet to the waters of the State without a permit as required by G.S.
143-215.1.

DocuSign Envelope ID: 5EF47388-2CE3-4A85-AA7C-E4838E3E33F7

$1,000.00____ For violating of Condition II.5 of General Permit AWG100000 for failure
to prevent land application rates that resulted in excessive ponding and
runoff during any given application events.

$1,000.00______ For violation of Condition II.17 of 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.

$5,000.00_____ TOTAL CIVIL PENALTY.

$621.26______ Investigation costs assessed.

$5,621.26_____ 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.

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 Barry D. Billups
in accordance with N.C.G.S. 143-215.6(A)(d).

_________________ _______________________________
(Date) Jeff Poupart
Water Quality Permitting Protection
Division of Water Resources
DocuSign Envelope ID: 5EF47388-2CE3-4A85-AA7C-E4838E3E33F7