HomeMy WebLinkAbout090213_Civil Penalty Assessment_20210915STATE OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
COUNTY OF BLADEN
FILE NO. PC-2020-0022
IN THE MATTER OF )
RUSSELL ODELL WOOD )
)
) FINDINGS AND DECISION
FOR VIOLATIONS OF SWINE WASTE ) AND ASSESSMENT OF
MANAGEMENT SYSTEM ) CIVIL PENALTIES
GENERAL PERMIT AWG100000 )
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. Russell Odell Wood owned and operated Cedar Bay Farm, a swine operation located along
570 Wood Lane, White Oak, NC in Bladen County.
B. Russell Odell Wood was issued Certificate of Coverage AWS090213 under General Permit
AWG100000 for Cedar Bay Farm on October 1, 2019 effective from the date of issuance,
with an expiration date of September 30, 2024.
C. Condition II.1. of General Permit AWG100000 states, “the collection, treatment, and
storage facilities, and the land application equipment and fields shall always be properly
operated and maintained at all times.” 15A NCAC 02T.1304(b)
D. On February 7, 2020, Jonathan Miller, a technical specialist with Agriment Services, Inc.
reported to DWR the freeboard level for the lagoon at Cedar Bay Farm had reached thirteen
(13) inches and submitted a thirty-day Plan of Action (POA). On February 11, 2020, DWR
staff conducted a structure evaluation inspection. During the inspection it was documented
that the lagoon marker was not accurate; a three (3) inch difference was observed between
what the marker indicated and the surveyed fluid level. The lagoon liquid level was three
(3) inches higher that the marker indicated. On February 14, 2020, DWR staff conducted a
routine compliance inspection. It was documented with pictures and samples that seepage
was occurring at the lagoon embankment. The crops which were present in the fields were
observed to be unsuitable for the nutrient uptake rates outlined in the facility’s Certified
Animal Waste Management Plan (CAWMP). In some fields suitable winter crops were
absent, and there was no evidence of the planting of any summer crops as outlined by the
CAWMP. It was noted that only four (4) of the sixty-three (63) solid set sprinklers
functioned properly. Three (3) of the sprinklers were observed leaking waste, which
ponded and flowed into an adjacent field. The ponding and runoff of waste was observed
in the fields where land application had recently taken place.
DocuSign Envelope ID: E92A3E83-33FF-4DAB-AE15-527540C2BF3E
E. Condition III. 17.d. of the AWS100000 General Permit 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 the first knowledge of the occurrence of
any of the following events: (d) deterioration or leak in a lagoon/storage pond that poses
an immediate threat to the environment or human safety or health.” 15A NCAC
02T.0108(b)
F. DWR has no record of receiving the 24-hour notification and the 5-day written report
concerning the seeping lagoon. DWR has no record of receiving the 24-hour notification
and the 5-day written report until February 7, 2020 that the lagoon was non-compliant.
Based on farm records, rain fall, pumping and the current population of sows on the farm,
the lagoon would have been less than 19 inches on lagoon marker (prior to the knowledge
that the marker was off by three inches) on or around January 15, 2020
G. 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-hours 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 the CAWMP; and (c) There is at least one (1) foot of structural
freeboard.”- [15A NCAC 02T.1304(b)]
H. On February 7, 2020 Jonathan Miller reported that Cedar Bay Farm lagoon level was
thirteen (13) inches and he submitted a thirty-day Plan of Action (POA) by email. DWR
has no record of receiving the 24-hour notification and the 5-day written report until
February 7, 2020 that the lagoon was non-compliant. Based on farm records, rain fall,
pumping and the current population of sows on the farm, the lagoon would have been less
than 19 inches on lagoon marker (prior to the knowledge that the marker was off by three
inches) on or around January 15, 2020
I. Condition III.17.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)]
J. On February 7, 2020 Jonathan Miller reported that Cedar Bay Farm lagoon was thirteen
(13) inches and submitted a thirty-day Plan of Action (POA) by email. Measurements by
DWR staff showed the lagoon level was ten (10) inches.
K. Condition II.2 of General Permit AWG100000 states: “A vegetative cover shall be
maintained as specified in the facility’s CAWMP on all land application fields and buffers
in accordance with the CAWMP. No waste shall be applied upon areas not included in the
CAWMP or upon areas where the crop is insufficient for nutrient utilization. However, if
the CAWMP allows, then waste may be applied up to thirty (30) days prior to planting or
breaking dormancy. – [15A NCAC 02T .1304(b)]
DocuSign Envelope ID: E92A3E83-33FF-4DAB-AE15-527540C2BF3E
L. On February 14, 2020 during the routine compliance inspection, DWR staff documented
with pictures that the spray fields failed to meet permit conditions by having a crop that
was sufficient for nutrient utilization. There were only a few fields that had any green and
growing crop, or it could not be determine if it had been planted . It was documented by
IRR-2 forms that the farm failed to manage the lagoon during the previous summer
pumping windows. Less than 30 % of the available Plant Available Nitrogen (PAN)
allowed for Bermuda crop on six pulls was utilized. Only 40% of the available PAN
allowed for Crabgrass on 6 pulls was utilized. Only 50% of the available PAN allowed for
Pearl Millett Pasture, with no evidence the crop was every planted and no evidence
irrigation equipment has been in these fields was utilized.
M. 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.” – [15A
NCAC 02T .1304(b)]
N. On February 14, during the routine compliance inspection, DWR staff documented with
pictures that 3 of the solid set sprinklers allowed waste to flow out (not as designed),
ponded and flowed down hill to another spray field. In addition, no crop was planted. Other
fields were saturated that had just been pumped on, and that caused some ponding. It was
documented that the sprinklers spray pattern does not meet the designed wetted diameter.
O. Condition III.6 of the AWG100000 General Permit states: “The Permittee shall record all
irrigation and land application events including hydraulic loading rates, nutrient loading
rates and cropping information. – [G.S. 143-215.10C(e)(8)]
P. On February 14, 2020 during the routine compliance inspection, it was documented by
IRR-2 forms that the farm failed to manage the lagoon during the previous summer
pumping windows. Less than 30 % of the available Plant Available Nitrogen (PAN)
allowed for your Bermuda crop on six pulls was utilized. Only 40% of the available PAN
allowed for Crabgrass on 6 pulls was utilized. Only 50% of the available PAN allowed for
Pearl Millett Pasture, with no evidence the crop was every planted and no evidence
irrigation equipment has been in these fields was utilized.
Q. Condition II.26 of General Permit AWG100000 states: “All waste application equipment
must be tested and calibrated at least once every two years. The results must be documented
on forms provided by, or approved by, the Division.”- [15A NCAC 02T .1304(b)(9)]
R. On February 14, 2020, DWR staff documented that the farm did not have an irrigation
calibration for the solid set system. Technical Specialist Mr. Geno Kennedy said he had
not done the calibration because the system was not working as designed.
S. Condition II.1 of General Permit AWG100000 states: “The collection, treatment, and
storage facilities, and the land application equipment and fields shall always be properly
operated and maintained. – [15A NCAC 02T.1304(b)]
T. On February 14, 2020 DWR staff observed farm records indicating that all the farm
hydrants and solid set zones had been used during the summer and winter of 2019 and
2020. DWR staff documented that only 4 solid set sprinklers worked out of 63 due to most
sprinkler heads were broken off.
DocuSign Envelope ID: E92A3E83-33FF-4DAB-AE15-527540C2BF3E
U. Condition II.17 of General Permit AWG100000 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. – [15A NCAC 8F.0203(b) and 15A NCAC
02T.0108(c)]
V. On February 14, during the routine compliance inspection, DWR staff documented with
pictures that 3 of the solid set sprinklers allowed waste to flow out (not as designed),
ponded and flowed down hill to another spray field. In addition, no crop was planted. Other
fields were saturated that had just been pumped on, and that caused some ponding. It was
documented that the sprinkles spray pattern does not meet the designed wetted diameter.
Additionally, DWR staff documented with the farm records that the OIC documented on
IRR 2 forms signed by owner and OIC waste was applied on pulls 1 through 12 and the
solid set system. It is evident that the OIC of this farm failed to operate and maintain this
Permitted facility as specified in the CAWMP and Permit AWG100000.
W. Russell Odell Wood had no valid permit for the above-described activity.
X. On April 8, 2020 the Division issued a Notice of Violation (NOV/NOI) with intent to
enforce through the civil penalty assessment process to Russell Odell Wood identifying
violations of N.C.G.S. 143-215.1 and Permit No. AWG100000.
Y. The NOV was sent by certified mail, return receipt requested and received on May 1, 2020
Z. The cost to the State of the enforcement procedures in this matter totaled $1,455.67
Based upon the above Findings of Fact, I make the following:
II. CONCLUSIONS OF LAW:
A. Russell Odell Wood 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. G.S. 143-215.1(a) states that “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: make any outlets into the waters
of the State.”
D. The above cited failure to maintain lagoons and spray fields as stated in Findings of Fact
I.D. violates Condition II.1 of General Permit AWG100000.
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E. The above cited activity of allowing a seep to continue unrepaired and unreported to the
Regional office as mentioned in Findings of Fact I.F violates Condition III.17.d of
General Permit AWG100000.
F. The above cited failure to maintain lagoon levels as mentioned in Findings of Fact I.H
violates Condition V.2 of General Permit AWG100000 which requires that the maximum
waste level in lagoons/storage ponds shall not exceed that specified in the facility’s
Certified Animal Waste Management Plan (CAWMP).
G. The above cited failure to report high freeboard by telephone to the appropriate Regional
Office as stated in Findings of Fact I.J violates Condition III.17.e of General Permit
AWG100000.
H. The above cited failure to follow requirements of the CAWMP as cited in Findings of Fact
I.L violates Condition II.2 of General Permit AWG100000 which requires that vegetative
cover shall be maintained as specified in the facility’s CAWMP on all land application
fields and buffers in accordance with the CAWMP.
I. The above cited failure to prevent excessive ponding or runoff as stated in Finding of Fact
I.N violates Condition II.5 of General Permit AWG100000 which requires that in no case
shall land application rates result in excessive ponding or any runoff during any given
application event.
J. The above cited failure to follow record keeping procedures as mentioned in Findings of
Fact I.P violates Condition III.6 of General Permit AWG100000 which requires that the
Permittee shall record all irrigation and land application events.
K. The above cited failure to maintain correct calibration of application equipment as stated
in Findings of Fact I.R violates Condition II.26 of General Permit AWG100000 which
requires that all waste application equipment must be tested and calibrated at least once
every two years.
L. The above cited failure to maintain application equipment as stated in Findings of Fact I.T
violates Condition II.1 of General Permit AWG100000 which requires that the collection,
treatment, and storage facilities, and the land application equipment and fields shall always
be properly operated and maintained.
M. The above cited failure to properly inspect application events as stated in Findings of Facts
I.V violates Condition II.17 of the AWG100000 General Permit which requires 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.
N. Russell Odell Wood 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.
O. 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
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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.
P. 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, Russell Odell Wood, owner of Cedar Bay Farm at the time of the noncompliance is hereby
assessed a civil penalty of:
$5000.00_____ For violation of Condition II.1 of General Permit AWG100000 for failure
to properly operate and maintain the collection, treatment, and storage
facilities, and the land application equipment and fields always. (seeping
lagoon).
$500.00_____ For violation of Condition III.17.d of General Permit AWG100000 for
failure to 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 the following events. d.
failure to report any deterioration or leak in a lagoon/storage pond that
poses an immediate threat to the environment or human safety or health.
$1000.00____ For violation of Condition V.2 of General Permit AWG100000 for failure
to maintain the maximum waste level in three (3) lagoons/storage ponds
which shall not exceed that specified in the facility’s CAWMP. At a
minimum, maximum waste level that provides adequate storage to contain
the 25- year, 24-hour storm event plus an additional one (1) foot of
structural freeboard.
$_500.00____ For violation of Condition III.17.e of General Permit AWG100000 for
failure to 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 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 the General Permit.
$3000.00____ For violation of Condition II.2 of General Permit AWG100000 for failure
to establish and maintain vegetative cover as specified in the facility’s
CAWMP on all land application fields.
$1000.00___ 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 application events.
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$2000.00___ For violation of Condition III.6 of General Permit AWG100000 for failure
to record all irrigation and land application events including hydraulic
loading rates, nutrient loading rates and cropping information.
$500.00___ For violation of Condition II.26 of General Permit AWG100000 for failure
to test and calibrate all waste application equipment at least once every
two years. The results must be documented on forms provided by or
approved by the Division.
$500.00____ 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.
$14000.00___ TOTAL CIVIL PENALTY
$1455.67____ Enforcement costs
$15455.67__ 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 Russell Odell
Wood 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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