090159_DV-2021-0040 CPA_20210929

STATE OF NORTH CAROLINA NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY

COUNTY OF BLADEN

FILE NO. DV-2021-0040
IN THE MATTER OF )
BIG BAY NURSERY, LLC )
)
)
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. Big Bay Nursery, LLC owned and operated Big Bay Nursery a swine operation located along
1748 Burney Road Bladenboro NC. in Bladen County.

B. Big Bay Nursery, LLC was issued Certificate of Coverage AWS090159 under General Permit
AWG100000 for Big Bay Nursery 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 that “The collection, treatment, and
storage facilities, and the land application equipment and fields shall be properly operated and
maintained at all times.” – [15A NCAC 02T .1304(b)]

D. On February 9, 2021, DWR staff conducted a routine compliance inspection at Big Bay
Nursery and documented that the underground pipe located between hydrant 20 and 21 was
broken (leaking). Waste was coming to the surface. Waste has collected along the edge of the
spray field and in the woods. The broken pipe allowed waste to flow anytime the system was
pressurized which caused ponding with runoff which went into the field edge and into the
woods edge. Based on farm records, the last application of waste was on January 23, 2021
which was seventeen (17) days prior to this inspection. The amount of waste and the condition
of the farm, DWR staff estimates it has been a long period of time that the pipe has been
leaking. Because no one checked the system it was allowed to continue to discharge every
time the system operated.

E. 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)]

F. On February 9, 2021, DWR staff documented with pictures that several hydrant locations had
excessive ponding of waste from a recent spray event on January 23, 2021. In addition,
ponding with runoff from broken pipe was documented.

DocuSign Envelope ID: 6C55BE03-80B3-48CE-9F93-F715711930F0
G. 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.” – [15A NCAC 8F .0203(b) and 15A NCAC 02T .0108(c)]

H. On February 10, 2021, DWR staff returned to collect water samples of the adjacent ditch and
stream. The samples confirmed waste was in the field and woods edge. Mr. Campbell stated
in his response that he had back surgery due to a back injury that prevented him from taking
care of the farm appropriately. This resulted in him having to hire the work to be done. DWR
staff’s prior knowledge of this farm they have always had hired staff to do the irrigation. Mr.
Campbell stated in his response that because of his injury and surgery, he did not go to the
farm as required by his permit to insure it was operated as designed. His onsite representative
was also not aware of the condition of this farm prior to the inspection. Based on farm records,
the last application of waste was on January 23, 2021 which was seventeen (17) days prior to
this inspection. The amount of waste and the condition of the farm, DWR staff estimates it has
been a long period of time that the pipe has been leaking. Because no one checked the system
it was allowed to continue to discharge every time the system operated

I. Condition III.17.a General Permit AWG100000 states in part 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: g. An application of waste either in excess of the limits set out in the
CAWMP or where runoff enters ditches, surface waters, or wetlands .” – [15A NCAC 02T
.0108(b)]

J. On January 9, 2021, DWR staff documented that the underground pipe located between
hydrant 20 and 21 was broken (leaking). DWR did not receive the 24-hour notification and 5-
day written report concerning the broken pipe or wastewater ponding and runoff of waste from
the facility.

K. On May 28, 2021 DWR issued a Notice of Violation (NOV/NOI) with intent to enforce
through the civil penalty assessment process to Big Bay Nursery, LLC identifying violations
of N.C.G.S. 143-215.1 and Permit No. AWG100000.

L. The cost to the State of the enforcement procedures in this matter totaled $582.16.

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

II. CONCLUSIONS OF LAW:
A. Big Bay Nursery, LLC 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 to properly operate and maintain the collection, treatment, and storage
facilities, and the land application equipment and fields as stated in Findings of Fact I.D
violates Condition II.1 of General Permit AWG100000.
DocuSign Envelope ID: 6C55BE03-80B3-48CE-9F93-F715711930F0

D. The above cited excessive ponding and runoff during application events as stated in Findings
of Fact I.F 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.

E. 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.

F. The above-cited failure to notify the Fayetteville Regional Office within 24 hours of first
awareness of a discharge as stated in Findings of Fact I.J violates Condition III.17.g of the
General Permit AWG100000 which 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: g.
An application of waste either in excess of the limits set out in the CAWMP or where runoff
enters ditches, surface waters, or wetlands.” [15A NCAC 02T .0108(b)]

G. Big Bay Nursery, LLC 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.

H. 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.

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, Big Bay Nursery, LLC, owner of Big Bay Nursery at the time of the noncompliance is
hereby assessed a civil penalty of:

$1000.00 __ For violation of Condition II.1. of General Permit AWG100000 for failing to
properly maintain the waste collection, treatment, and storage facilities at all
times

$2000.00 ____ 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.

DocuSign Envelope ID: 6C55BE03-80B3-48CE-9F93-F715711930F0
$1000.00 ____ 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.

$1000.00____ For violation of Condition III.17.g of the 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: a. An application of waste
either in excess of the limits set out in the CAWMP or where runoff enters
ditches, surface waters, or wetlands.

$5000.00 ___ TOTAL CIVIL PENALTY.

$582.16___ Investigation costs assessed.

$5582.16_____ 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 Big Bay Nursery,
LLC in accordance with N.C.G.S. 143-215.6(A)(d).

_________________ _______________________________
(Date) Jeffrey Poupart
Water Quality Permitting Protection
Division of Water Resources
DocuSign Envelope ID: 6C55BE03-80B3-48CE-9F93-F715711930F0
10/7/2021