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Home My WebLink AboutAWD200012_FK-2021-0001_20210528ROY COOPER Governor ' ONNE DELLI-GATTI :vary s. DANIEL SMITH Director NORTH CAROLINA Environmental Quality May 28, 2021 CERTIFIED MAIL ITEM 70181830 00018037 2063 - RETURN RECEIPT REQUESTED Mr. Rodney Wagner Dutt & Wagner of North Carolina, Inc. 1142 W Main St Abingdon, VA 24210 SUBJECT: CIVIL PENALTY REMISSION REQUEST Permit AWD200012 Case FK-2021-0001 Cherokee County Dear Mr. Wagner: I have considered the information submitted by your firm in support of a request for remission in the subject case. The prompt response on the part of your staff and the removal of the waste sources to the receiving stream were noted by Division staff, as was the accidental nature of the spill which caused the fish kill. Therefore, in accordance with NCGS 143-215.6A (f), the civil penalty will be reduced by $10, 000.00. Your organization is responsible is responsible for the remaining penalties and enforcement costs, which total $42,107.666. If you choose to pay the penalties, send payment to the letterhead address within thirty (30) days of receipt of this letter. Please make the check payable to NC DEQ. If payment is not received within thirty (30) days of receipt of this letter, in accordance with NCGS § 143-215.6A (f), your requests for remission of the civil penalties (with supporting documents) and my recommendation to deny the requests will be delivered to the North Carolina Environmental Management Commission's (EMC) Committee On Civil Penalty Remissions (Committee) for final agency decision. If you desire to make an oral presentation to the Committee on why your requests for remission meet one or more of the five statutory factors you were asked to address, you must complete and return the attached forms within thirty (30) days of receipt of this letter. Please mail the completed forms to: Mr. Charles H. Weaver NC DEQ / DWR / NPDES 1617 Mail Service Center Raleigh, NC 27699-1617 Your request for an oral presentation and the documents in this matter will be reviewed by the EMC Chairman and, if it is determined that there is a compelling reason to require an oral presentation from you, you will be notified by certified mail of the date, time, and place that your oral presentation can be North Carolina Department of Environmental Quality I Division of Water Resources 512 North Salisbury Street 11617 Mail Service Center I Raleigh, North Carolina 27699-1617 North Carolina 919.707.9000 FK-2021-0001 Remission Decision Page 2 of 3 made. Otherwise, the final decision on your request for remission will be made by the Committee based on the written record. Thank you for your cooperation in this matter. If you have any questions about this letter, please contact Mr. Weaver at charles.weaver@ncdenr.gov. Sincerely, for S. Daniel Smith Director, Division of Water Resources cc: NPDES file SENDER: COMPLETE THIS SECTION • Complete items 1, 2, and 3. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. Dutt & Wagner of North Carolina, Inc. Attn: Rodney Wagner 1142WMain St Abingdon, VA 24210 111111111111111111 11111111111 III III 9590 9402 3951 8060 0172 84 COMPLETE THIS SECTION ON DELIVERY A. Signature gent ddressee C. Date of a elivery Y=- w No D. Is delivery address different from item 1? If YES, enter delivery address below: o9 St 3. Service Type ❑ Adult Signature ❑ Adult Signature Restricted Delivery 0 Certified Mail® ❑ Certified Mail Restricted Delivery ❑ Collect on Delivery Delivery Restricted Delivery ril 7018 1830 0001 8037.2063 ..ail Restricted Delivery (over $500) ❑ Priority Mail Express® ❑ Registered MailTm ❑ Registered Mail Restricted Delivery ❑ Return Receipt for Merchandise ❑ Signature ConfirmationTM 0 Signature Confirmation Restricted Delivery PS Form 3811, July 2015 PSN 7530-02-000-9053 Domestic Return Receipt DocuSign Envelope ID: A7BB41 CA-69D6-439C-91 BE-4264C71 D3F4E DIVISION OF WATER RESOURCES CIVIL PENALTY REMISSION FACTORS Case Number: FK-2021-0001 Region: Asheville Assessed Entity: Dutt & Wagner of North Carolina, Inc. Permit: AWD200012 County: Cherokee (a) Whether one or more of the civil penalty assessment factors were wrongly applied to the detriment of the petitioner: (b) Whether the violator promptly : bated continuing environmental damage resulting from the violation: Permittee States: The incident occurred during July 2020. Due to equipment failure in two poultry houses slated for demolition in August 2021, solid manure became liquified and spilled from the buildings. Dutt & Wagner (D&W) immediately notified DEQ and took measures to mitigate the spill, including the purchase of equipment specifically to handle liquid manure. D&W planned to demolish & replace the two houses responsible for the spill, but the equipment failed before scheduled demolition/replacement. DWR Response: Violations were promptly abated, the violator remained in constant communication with us during remediation, violator performed required stream sampling, removed key pollution sources and conveyances, etc. (c) Whether the violation was inadvertent or a result of an accident: (d) Whether the violator had been assessed civil penalties for any previous violations: (e) Whether payment of the civil penalty will prevent payment for the remaining necessary remedial actions: Permittee States: D&W has not had a civil penalty assessed against them prior to this incident. DWR Response: No previous assessments were made. This incident appears to be the result of an accident and was promptly abated. DECISION Original Penalty (without Enforcement Costs) Partial Remission El Subtotal Retaining Enforcement Costs $50,000.00 20% or $10,000.00 (amount remitted) $40,000.00 $2107.66 Total Assessment $42,107.66 -DocuSigned by: Poly 8FB19B8491:D2478 5/28/2021 S. Daniel Smith Date DUTT & WAGNER OF NORTH CAROLINA, INC. 1142 WEST MAIN STREET Abingdon, VA 24210 Phone (276) 645-0394 Fax (276) 645-0396 February 10, 2021 Mr. Charles Weaver NC Division of Water Resources Water Quality Permitting Section - NPDES 1617 Mail Service Center Raleigh, NC 27699-1617 RE: Case No: FK-2021-0001 FED EX Express 8119 8448 1620 Cherokee Country, N.C. Return Receipt Requested Dear Mr. Weaver, RECEIVED FEB 2 3 2021 NCDEQ/DWR/NPDES As part owner and overall manager of Dutt and Wagner of North Carolina, Inc., I am requesting the remission of the civil penalty assessed to Dutt and Wagner of North Carolina, Inc. case # FK92021-0001. I would like you to consider the 2nd factor of your letter dated January 21, 2021 and (b) of the "Justification for Remission Request" "the violator promptly abated continuing environmental damage resulting from the violation". Our management team believes we acted promptly to abate the cause of the violation. The time of action to abate is as follows: 07/31/2020 — Fish kill reported to DEQ on Taylors Creek 08/01/2020 — DEQ investigated the incident and left a business card with farm workers. It was a weekend and the complex manager, David Larson, was not on site at the time of the inspection, but communicated via email to Landon Davidson with DEQ to have a telephone conversation the next day. David arrived after inspectors had left and proceeded to build a temporary earthen dam at the ditch line by LH 8 to prevent any further release of manure into the creek. 08/02/2020 — During the telephone call David had with Landon Davidson of DEQ, David was made aware of second release from BH4 at the rear of the house. David Larson made sure temporary earthen dams were installed at all manure haul doors and down the ditch line of BH4 to prevent future release. 08/03/2020 — Scott Wike and Frank Stophel moved heavy equipment to the farm site. Scott and Frank are contractors that D&W of NC use especially for demolition and construction. They arrived the morning of the 3rd and proceeded to pump effluent and remove contaminated soil from ditch lines to prevent any more manure from washing into the creek. The contaminated soil and effluent from LH8 and BH4 were stored in LH6 until it could be properly land applied. With the heavy equipment, they built a 3ft. earthen dam against the sides of LH8 to prevent any further release, sealed the culvert from the ditch line under road, and installed a catch basin if the earthen dam failed. They also constructed an earthen dam at doors of BH4 higher than was done the day before. 08/04/2020 — The contractors installed a gravel check dam at the intersection of our ditch line from LH8 to Taylors Creek and installed a series of check dams by BH4 to prevent sedimentation from entering the creek at both locations. Out dated drinkers (water nipples) caused what was supposed to be dry manure to become liquid manure in a layer house built for dry storage. The water systems were not replaced in these two houses when we purchased the farm as both were marked to be decommissioned and demolished in August of 2021. FK-2021-0001 Page 2 As a result of the spill, we moved up the scheduled shut down of LH8 and removal of birds from August 2021 to January 2021 (this was the earliest we could schedule the birds to be rendered) giving up 6 months of potential egg production by moving out 60,000 birds at a significant monetary loss. We also advanced the move out of BH4 birds from 8/21/2020 to 8/10/2020. BH4 has been decommissioned and the two flocks scheduled to be grown in this house will be grown out of state by a pullet contractor at an increased cost per bird. We were equipped to handle dry poultry manure and were not equipped to pump liquid manure. A liquid manure pump tank trailer had to be purchased at a cost of over $20,000.00. I have also attached as many of the invoices from the contractor and vendors that I could find from that period of time. As you will see, it was a significant amount. The release of manure into state waters was a terrible thing to happen and this bothers me deeply. We, as a company take our responsibility to protecting ground water seriously and have always had that in the forefront of our minds in designing poultry houses. When we purchased and started operating the Andrews NC layer farm in July 2017, we bought it knowing that most of the housing and equipment was dated and in some cases, worn out. We started decommissioning the oldest houses as soon as the birds in each house came up for depopulation and did not repopulate these houses. When we took over operation of the farm, LH8 and BH4 were not chosen for immediate shut down as we felt that the equipment could safely go into 2021. It was a bad decision in hindsight and one I would change if I could. The water systems failed in both houses causing more water Teaks than the house workers could repair before the leaked water turned what was dry manure into a mixture of dry and liquid manure. The liquid manure going to the sides of the house where the doors are located. This and the labor shortage problems that COVID-19 Pandemic has presented to us a perfect storm of disaster in the form of a fish kill in Taylors Creek caused by liquid manure leaking from two old layer houses. Once we were made aware of the release of liquid manure from our layer houses, I feel we acted as promptly as we possibly could to contain the situation. Dutt and Wagner of North Carolina, Inc. not having had a violation or penalty before and because this being our first violation, we're surprised at the dollar amount of the civil penalty being so high. We take the incident seriously and have taken actions quickly and also took measure so that it will not happen again, but; want to state that whatever the dollar amount we pay in civil penalties would have been spent in replacing the out of date, worn out equipment and housing with modern state of the art equipment and housing that I have envisioned and planned for this farm. We are getting there, but just are not there yet as this incident reminds me. So, any reduction in civil penalties would be applied to farm improvements to be more efficient and better able to protect our ground water. Sincerely, Rodney Wagner, Dutt & Wagner of North Carolina, Inc. Attachments IUSTIFICATION FOR REMISSION REQUEST DWR Case Number: FK-2021-0001 County: Cherokee Assessed Party: Dutt and Wagner of N.C., inc. Amount Assessed: $52.107.66 Please use this form when requesting remission of this civil penalty. You must also complete the "Request For Remission, Waiver of Right to an Administrative Hearing, and Stipulation of Facts" form to request remission of this civil penalty. You should attach any documents that you believe support your request and are necessary for the Director to consider in evaluating your request for remission. Please be aware that a request for remission is limited to consideration of the five factors listed below as they may relate to the reasonableness of the amount of the civil penalty assessed. Requesting remission is not the proper procedure for contesting whether the violation(s) occurred or the accuracy of any of the factual statements contained in the civil penalty assessment document, Pursuant to N.C.G.S. § 143B-282.1(c), remission of a civil penalty maybe granted only when one or more of the following five factors apply. Please check each factor that you believe applies to your case and provide a detailed explanation, including copies of supporting documents, as to why the factor applies (attach additional pages as needed). (a) one or more of the civil penalty assessment factors in N.C.G.S. 143B-282.1(b) were wrongfully applied to the detriment of the petitioner (the assessment factors are listed in the civil penalty assessment document); /17 (b) the violator promptly abated continuing environmental damage resulting from the violation (i.e., explain the steps that you took to correct the violation and prevent future occurrences); (c) the violation was inadvertent or a result of an accident (i.e., explain why the violation was unavoidable or something you could not prevent or prepare for); ✓ (d) the violator had not been assessed civil penalties for any previous violations; (e) payment of the civil penalty will prevent payment for the remaining necessary remedial actions (i.e., explain how payment of the civil penalty will prevent you from performing the activities necessary to achieve compliance). EXPLANATION: Plectse Sew 41l occ -l4e-42, /G l 'M STATE OF NORTH CAROLINA COUNTY OF CHEROKEE IN THE MATTER OF ASSESSMENT OF CIVIL PENALTIES AGAINST DUTT AND WAGNER OF N.C., INC. DEPARTMENT OF ENVIRONMENTAL QUALITY WAIVER OF RIGHT TO AN ADMINSTRATIVE HEARING AND RECEIVED FEB 23 2021 NCDEQ/DWR/NPDES STIPULATION OF FACTS CASE NO. FK-2021-0001 Having been assessed civil penalties totaling $52,107.66 for violation(s) as set forth in the assessment document of the Division of Water Resources dated January 21, 2021, the undersigned, desiring to seek remission of the civil penalty, does hereby waive the right to an administrative hearing in the above -stated matter and does stipulate that the facts are as alleged in the assessment document. The undersigned further understands that all evidence presented in support of remission of this civil penalty must be submitted to the Director of the Division of Water Resources within thirty (30) days of receipt of the notice of assessment. No new evidence in support of a remission request will be allowed after (30) days from the receipt of the notice of assessment. This the E (e+1 ay of ' C401 , 202„ 1 ► ADDRESS Ai„2 SIGNATURE 1142 West Main Street Abingdon, VA 24210 TELEPHONE 9,,7-356—'tog& Abingdon Equipment Inc 19138 Lee Highway Abingdon, VA 24210 US INVOICE Invoice: 01-43425 Date: 9/22/2020 PO: 50263 Custld: GREEN VALL Cust Email: Phone: (276) 628-2372 Fax: (276) 628-2635 Phone: (276) 628-2116 Email: Salesperson: Admin Web site: www.abingdonequipment.com User: ben Bill To: GREEN VALLEY POULTRY FARM GREEN VALLEY POULTRY FARM P.O. BOX 518 ABINGDON, VA 24212 Ship To: GREEN VALLEY POULTRY FARM Item Misc Part Remark Type Description MC Misc Part RE NUHN 600 GAL SPREADER Qty Tax Price Discount Net Price 1.0000 $20,000.00 $20,000.00 Total: $20,000.00 Totals Sub Total: Total Tax: Invoice Total: $20,000.00 $0.00 $20,000.00 Forms of Payment Ty pe Charge Description Customer Id: GREEN VALL Due on the 10th -c{ . 1l Arn re do mL4 1 Thank you for your business. A Amount $20,000.00 Total Forms of Payment: $20,000.00 Balance Due On This Invoice: $20,000.00 ALL ACCT? N BEG-ACCT 780.280000 END-ACCT 780.280000 PRT 6841626 SEQ ZRO N PERIOD 0720 DATE WIDE Y CONS ALL -CO N COS 4 EXTRA DESC Y TOTS ONLY N DEBITS Y CREDITS Y MAINTAIN N INACTIVE N BEG DATE 000000 END DATE 999999 BEG JRNL END JRNL zzzzzzzz BEG PERIOD 0720 END PERIOD 0121 TITLE ALL ACTIVITY DATE 01-26-21 DAY TUES DUTT & WAGNER OF NC, INC. GENERAL LEDGER ACTIVITY ACCOUNTING PERIOD 01-21 THRU 07-21 DATE PERIOD JRNL# REFERENCE ACCOUNT# ACCOUNT NAME INVC/CHK # TYPE TIME 15:35 DEBIT OP: REB PAGE 1 CREDIT AP CHECK# CO# 4 780.280000 REPAIRS-LAYER#8 8-26-20 02-21 AP9999SB DRAIN LINES 8-27-20 02-21 AP99995J LH8 DRAINAGE 8-27-20 02-21 AP9999SJ LH8 DRAINAGE 9-03-20 02-21 AP9999sz EQUIP/LABOR/HA PERIOD 02 SUBTOTALS: 4 ENTRIES 9-09-20 03-21 AP9999Ss FRGHT NUHN PUM PERIOD 03 SUBTOTALS: 1 ENTRY BAL: BAL: BEGINNING BALANCE .00 5986 WHOLESALE SUPPLY GROUP, I 763658 DR 120.13 6538 BLUE ROCK MATERIALS, LLC 4840 DR 253.60 6538 BLUE ROCK MATERIALS, LLC 4854 DR 264.00 6002 SCOTT WIKE CONSTRUCTION 081020 DR 15,664.13 16,301.86 DIFF: 16,301.86 16,301.86 * .00 * 5024 DUTT & WAGNER OF VA, INC. 924660 DR 500.00 31950 16,801.86 DIFF: 500.00 500.00 * .00 * ENDING BALANCE 16,801.86 TOTAL 16,801.86 GRAND TOTAL 31903 31826 31826 31890 16,801.86 .00 Who%SaSuppy GrQu Plumbingle, Electrical, al HVAC Sup; lies OC. PO Box 4080 Cleveland, TN 37320-4080 www.wholesalesupply.us INVOICE DATE CU$7OMER NO. BRANCH {NVOICE NUMBER 1 8/18/20 184099 Murphy NC Division 828-837-2977 0763658 SOLD DUTT & WAGNER OF VA, INC. TO P.O. BOX 518 ABINGDON , VA SHIP DATE CUSTOMER P.Q. 24212 518 ORDER NUMBER SHIP NC JOB TO TERMS INVOICE SALESMAN 8/17/20 NC JOB 0294440 NET TENTH PROX 1275 ORDERED QTY SHIPPED ITEM NO. DESCRIPTION PRICE AMOUNT 60 4 1 60 4 1 0230243 0242705 0284696 4 X 20 BOAMCORE/NON-PRESSURE PVC-DWV PIPE C 4 COUPLING PVC-DWV 100 05936 4801 EA 30876 16 OS HEAVY DUTY PVC CEMENT EA RECEIVED SY SCOTT Stop by our Showrooms and Chock Out Our Huge Lighting Clearance Sale!! IF PAID BEFORE 9/10/20 PAY TSZS AMOUNT RECEIVED AUG 2 0 2020 TAX $120.13 TOTAL 145.436 3.809 9.774 87.26 15.24 9.77 $7.86 #120.13 ALL CLAIMS AND RETURNED GOODS MUST BE ACCOMPANIED BY THIS BILL 2% SERVICE CHARGE ADDED AFTER 30 DAYS WHICH IS AN ANNUAL PERCENTAGE RATE OF 24% ECU\ Blue Rock Materials, LLC 4047 North Carolina Hwy 294 Murphy, NC 28906 828-644-1865 Location: Blue Rock Customer 352 Dutt & Wagner of N.C. Order : MAINTENANCE Maintenance P.O.: Product : #3 l Carrier : 300 • Vehicle : Received: 300-1 * 3 stone SCOTT WIKE SCOTT WIKE GREEN 8/4/2020 .8:55:11AM 4840 Pound Tons Metric Gross 55680 m 27.84 m 25.26 m Tare 23980 * 11.99* 10.88* Net 31700m 15.85m 14.38m rn Manual Weight, * Manual P.T. 15.85 Ton Ordered Received Remaining 0.00 15.85 -15.85 Today: 15.85 Loads: 1 Weighmaster: J.Ledford 42074 N.C.. Slue Rock Materials, LLC 4047 North Carolina Hwy 294 Murphy, NC 28906 828-644-1865 Location: Blue Rock Customer: 352 Dutt & Wagner of N.C. Order : MAINTENANCE Maintenance P.O.. Product : SURGE SURGE Carrier : 300 SCOTT WIKE Vehicle : 300-1 SCOTT WIKE GREEN Received: COPY 4 OFFICE 8/4/2020 /0:33:52AM 4854 Pounds Tons Metric Gross 55980 m 27.99m 25.39 m Tare 23980 * 11,99 * 10.88 * Net 32000 m 16.00m 14.51 m m Manual Weight, * Manual P.T. 16.00 Ton Ordered 0.00 Received 16.00 Remaining -16.00 Today: 16.00 Loads: 1 Weighmaster: J.Ledford 42074 N.C.. COPY 4 OFFICE • -1111110c INASI iNfimaigisse k e elg41/L-t-/-c 2/c"40: ;,• �j ram° �az�� :'r°* A/4, •v�712 10 • let SEP 0 3 2020 /4_ • • CUSTOMER NO. ERMS By accepting shipment, Customer agrees to pay a charge of 1:'2% Per month on invoice amounts not paid within 7 days of shipment. and all costs of collection. including attorney's fees. Dutt & Wagner of Virginia, Inc. P.O. BOX 0518 • ABINGDON, VIRGINIA 24212-0518 TELEPHONE 276.828-2116 DUTTAI, WAGNER OF-NOPTH OAROLINA, P. 0. BOX-2230 . ANDREWS NC 20c10:1 en-221-4131 DUTT � UAGNER Of NORTH 01.4,:t.1_11,k, LPIL P. O. BOX 2230 ANDREWS NG 204301 ORDER NO. PRODUCT NO. SOLD BY 02/LINFT4_08 SHIP VIA SHIPPING DATE DESCRIPTION CSC. IT Li AIPPED FROM TEN VALLEY FARM'3 „ fiIPPED TO WAGNFP. OF NI: 4RIER-DUIT & WANE1) OF ..1:VER711AYLOR To i-sal CUSTOMER COPY pt InVoice 1 924t60 -000 InV patqs- 09/09/20 - Pa <PI tt FOLo HERE FIP MAILING INVOICE DATE INVOICE NO. INVOICE REFERENCE PRICE UNITS DISCOUNT son.00lop EACH t ,4 SEP 0 I 500.0!' DUTT & WAGNER OF VIRGINIA POLICY ON CLAIMS ALL PRODUCTS PURCHASED FROM DUTT 8, WAGNER SHOULD BE INSPECTED BY THE CUSTOMER AT THE TIME OF RECEIPT TO VERIFY QUALITY, DATES AND cop4orrior4. iP A PROBLEM EXISTS, THE CUSTOMER LIUST CALL OR HAVE THE DRIVER CALL FOR ADJUSTMENTS OS RETURNS. NO OTHER CLAIMS FOR CREDIT WILL BE GIVEN AFTER DELIVERY EXCEPT FoR CREDIT FROM THE MANUFACTURER. REV. 5/10 REMOVE CONTAMINATED SOIL. FILL IN DITCH LINE. CREATE EARTHEN DAM AT LH8 CLOSING DITCH LINE AND FINISHING EARTHEN DAM AT LH8 CLOSED DITCH LINE. COMPLETED EARTHEN DAM AGAINST LH8. COMPLETED SECONDARY CONTAINMENT. COMPLETED SECONDARY CONTAINMENT AT LH8 SHOWING HEIGHT OF EARTHEN DAM TO LH8 CLEAN DITCH LINE BY BH4 AND INSTALLED GRAVEL CHECK DAM.