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Home My WebLink About20130948 Ver 1_Notice of Violation_20140319f A4 NCDENR North Carolina Department of Environment and Natural Resources Division of Water Resources Water Quality Programs Pat McCrory Thomas A. Reeder John E. Skvarla, III Governor Director Secretary March 19, 2014 Beaver Creek Investors, Inc. ` Attn: John Pierce PO Box 1685 Jacksonville, NC 28540 Beaver Creek Investors, Inc. Attn: Betty Bullock PO Box 1685 Jacksonville, NC 28540 Morton Trucking, Inc. Attn: Elijah Morton 121 GarnetLn Jacksonville, NC 28546 SUBJECT: Assessment of Civil Penalties Project No. 20130948 Beaver Creek Investors, Inc. and Morton Trucking, Inc. Bridgeport Subdivision Onslow County Case No. SS- 2014 -0002 Dear Mr. Pierce and Mr. Morton: CERTIFIED MAIL RETURN RECEIPT REQUESTED 7003 2260 0005 5380 7637 CERTIFIED MAIL RETURN RECEIPT REQUESTED 7003 2260 0005 5380 7644 CERTIFIED MAIL RETURN RECEIPT REQUESTED 7003 2260 0005 5380 7651 This letter transmits notice of a civil penalty assessed against Beaver Creek Investors, Inc. and Morton Trucking, Inc. in the amount of $5,379.61, which includes $379.61 in investigative costs. Attached is a copy of the assessment document explaining this penalty. This action was taken under the authority vested in me by delegation provided by the Secretary of the Department of Environment and Natural Resources (DENR) and the Director of the Division of Water Resources (DWR). Any continuing violation(s) may be the subject of a new enforcement action, including an additional penalty. Within thirty (30) calendar days of receipt of this notice, you must do one of the following three options: 1. Submit payment of the penalty, OR 2. File a request for remission of civil penalties, OR 3. File a written petition with the Office of Administrative Hearings. Failure to exercise one of the above three options within thirty (30) calendar days of your receipt of these documents will result in this matter being referred to the Attorney General's Office with a'request to initiate a civil action to collect the penalty 401 & Buffer Permitting Unit 1650 Mail Service Center, Raleigh, North Carolina 27699 -1650 Location: 512 N. Salisbury St Raleigh, North Carolina 27604 Phone: 919 -807 -63001 FAX: 919 -807 -6494 Internet www.ncwaterauality.org An Equal Opportunity 1 Affirmative Action Employer Beaver Creek Investors, Inc and Morton Trucking, Inc Onslow County Case No. SS- 2014 -0002 Page 2 of 3 These options are detailed below: Option 1— Submit payment of the penalty: Payment should be made to the order of the Department of Environment and Natural Resources (DENR). Please include the Case No. SS- 2014 -0002 on your check or money order. Payment of the penalty will not foreclose further enforcement action for any continuing or new violation(s). Payment must be sent within 30 calendar days of receipt of this notice to the following: If sending via US Postal Service Karen Higgins DWR -401 & Buffer Permitting Unit 1650 Mail Service Center Raleigh, NC 27699 -1650 Option 2 — File a request for remission of civil penalties: If sending via delivery service (UPS, FedEx, etc.) Karen Higgins DWR -401 & Buffer Permitting Unit 512 N. Salisbury Street Raleigh, NC 27604 A request for remission or mitigation is limited to consideration of the reasonableness of the amount of the penalty and is not the proper procedure for contesting the accuracy of any of the statements contained in the assessment letter. Because a remission request forecloses the option of an administrative hearing, such a request will not be processed without a waiver of your right to an administrative hearing and a stipulation that there_ are no factual or legal issues in dispute. You must execute and return to this office the attached "Waiver of Right to an Administrative Hearing and Stipulation of Facts" and the attached "Justification for Remission Request" which should describe why you believe: (a) one or more of the civil penalty assessment factors in G.S. 143B- 282.1(b) were wrongf411y applied to the detriment of the petitioner; (b) the violator promptly abated continuing environmental damage resulting from the violation; (c) the violation was inadvertent or a result of an accident; (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. For this option you must file your request for remission of civil penalties within thigy (30) calendar days of receipt of this notice. Submit this information to the following: If sending via US Postal Service If sending via delivery service (UPS, FedEx, etc.) Karen Higgins Karen Higgins DWR -401 & Buffer Permitting Unit DWR -401 & Buffer Permitting Unit 1650 Mail Service Center 512 N. Salisbury Street Raleigh, NC 27699 -1650 Raleigh, NC 27604 Option 3 — File a written petition with the Office of Administrative Hearings: This decision can be contested as provided in Articles 3 and 4 of General Statute 150B by filing a written petition for an administrative hearing to the Office of Administrative Hearings (hereby known as OAH) within thirty (30) calendar days of your receipt of this notice. A petition form may be obtained from the OAH at http: / /www.ncoah.com/ or by calling the OAH Clerk's Office at (919) 431 -3000 for information. A petition is considered filed when the original and one (1) copy ! Beaver Creek Investors, Inc and Morton Trucking, Inc. Onslow County Case No SS- 2014 -0002 Page 3 of along with any applicable OAH filing fee is received in the OAH during normal office hours (Monday through Friday between 8:00am and 5:00pm, excluding official state holidays). The petition may be faxed to the OAH at (919) 431 -3100, provided the original and one copy of the petition along with any applicable OAH filing fee is received by the OAH within five (5) business days following the faxed transmission. Mailing address for the OAH: If sending via U.S. Postal Service: If sending via delivery service (UPS, FedEx, etc.) Office of Administrative Hearings Office of Administrative Hearings 6714 Mail Service Center 1711 New Hope Church Road Raleigh, NC 27699 -6714 Raleigh, NC 27609 -6285 One (1) copy of the petition must also be served to DENR: Lacy Presnell, General Counsel Department of Environment and Natural Resources 1601 Mail Service Center Raleigh, NC 27699 -1601 The violations addressed by this assessment and any impacts to waters must be abated and properly resolved. You are encouraged to contact Joanne Steenhuis with the DWR Wilmington Regional Office at (910) 796 -7215 if you need assistance in achieving compliance at the site. Please be advised that additional assessments may be levied for future, continuing, or other violations beyond the scope of this specific assessment. If you have any questions, please see the following website: http:/ /portal ncdenr.org /web /wci/ws /cu or contact Niki Maher at (919) 807 -6367, Karen Higgins at (919) 807 -6360 or me at (919) 707 -8795. Sincerely, Cynthia Karoly Division of Water Resources ATTACHMENTS cc: Jim Gregson/ Joanne Steenhuis - DWR Wilmington Regional Office -File Copy 401 & Buffer Permitting Unit _ File Copy (-Bev L17y Sfricklend - 401,Permittingi JUSTIFICATION FOR REMISSION REQUEST DWR Case Number: SS- 2014 -0002 County: Onslow Assessed Party: Beaver Creek Investors, Inc. & Morton Trucking, Inc. Permit No. (if applicable): 20130948 Amount Assessed: $5,379.61 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 may be granted only when one or more of the following five factors applies. 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); (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 (i.e., explain if previous violations have resulted in you being assessed civil penalties); (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 (attach additional pages as necessary): STATE OF NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION COUNTY OF ONSLOW IN THE MATTER OF ASSESSMENT ) WAIVER OF RIGHT TO AN OF CIVIL PENALTIES AGAINST ) ADMINISTRATIVE HEARING AND Beaver Creek Investors, Inc. & Morton Trucking, Inc.) STIPULATION OF FACTS CASE N0. SS- 2014 -0002 Having been assessed civil penalties totaling $5,379.61 for violation(s) as set forth in the assessment document of the Director of the Division of Water Resources dated March 19, 2014, the undersigned, desiring to seek remission of the civil penalties, 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) calendar days of receipt of the civil penalty assessment. No new evidence in support of a remission request will be allowed after thirty (30) calendar days from the receipt of the civil penalty assessment. This the - - day of 120 NAME (printed) SIGNATURE ADDRESS TELEPHONE STATE OF NORTH CAROLINA COUNTY OF ONSLOW IN THE MATTER OF BEAVER CREEK INVESTORS, INC. & MORTON TRUCKING, INC. FOR VIOLATIONS OF 15A NCAC 0213 .0221 (2), 15A NCAC 0213.0231 (b), and 15A NCAC 02H.0501 and .0502 NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES CASE NO. SS- 2014 -0002 FINDINGS AND DECISION AND ASSESSMENT OR CIVIL PENALTIES Acting pursuant to North Carolina General Statutes (hereby known as G.S.) 143- 215.6A, I, Cynthia Karoly, of the Division of Water Resources (hereby known as DWR), make the following: I. FINDING OF FACT A. Beaver Creek Investors, Inc. is the owner of record of the subject site, tract 1 (parcel number 029791) and tract 2 (parcel number 157998), located on Old Folkstone Road in Onslow County, North Carolina. B. Beaver Creek Investors, Inc. is a company organized and existing under the laws of the State of North Carolina. C. Morton Trucking, Inc. was contracted by Beaver Creek Investors, Inc. to perform construction activities at the subject site. D. Morton Trucking, Inc is a company organized and existing under the laws of the State of North Carolina. E. Beaver Creek Investors, Inc. submitted an application dated August 20, 2013, for a 401 Water Quality Certification (hereby known as WQC). The application requested authorization for permanent impacts to wetlands and streams on the subject site and was received by DWR on September 3, 2013. F. DWR found the application to be incomplete as submitted and requested more information via a letter dated October 11, 2013 to the applicant, and via an email dated October 7, 2013 to the applicant's consultant. G. On January 7, 2014, as the result of a referral by the US Army Corps of Engineers (hereby known as USACE), DWR staff conducted an inspection. On January 14, 2014, a joint site inspection was conducted by DWR and USACE. Clearing and grubbing and installation of culverts in wetlands and in a stream were observed at Beaver Creek Investors, Inp and Morton Trucking, Inc Onslow County Page 2 of 5 the subject site. At the time of the inspections, no WQC had been issued for the site. H. Title 15A North Carolina Administrative Code (hereby known as NCAC) 02H .0500 requires securing a WQC (as required by Section 401 of the Federal Water Pollution Control Act) before impacting streams and/ or wetlands. - , I. During the January 7, 2014 and January 14, 2014 site visits, DWR staff ooserved approximately 0. 10 acres of wetland impacts from the installation of a culvert and fill for -a road. _ J. The water quality standards for wetlands, as found in Title 15A NCAC 02B - - - .0231(a), are designed to protect, preserve, restore and enhance --the quality and - uses of wetlands and other waters of the state influenced by wetlands. - - K. Title 1'5A NCACO2B .0231(b)(1) requires "Liquids, fill,or other solids-or - dissolved gases may not be present in amounts which may cause adverse impacts on existing wetland uses;" L. Title 15A NCACO2B .0231(b)(5) requires "Hydrological conditions necessary to support the biological and physical characteristics naturally present in wetlands shall be protected to prevent- adverse impacts on: C. The chemical, nutrient and dissolved oxygen regime of the wetland; D. The movement of aquatic fauna; and F. Water levels or elevations. M. During the January 7, 2014 and January 14, 2014 site visits, DWR staff observed approximately 94 linear feet of stream impacts from the installation of a culvert. N. Title 15A NCACO2B .0221 (2) requires that "The waters shall be suitable for aquatic life propagation and maintenance of biological integrity, wildlife, secondary recreation. Any source of water pollution which precludes any of these uses including their functioning as PNAs, on either a short-term or long -term basis shall be considered to be violating a water quality standard." O. On January 15, 2014, DWR Wilmington Regional Office (hereby known as WiRO) issued a Notice of Violation (hereby known as NOV). DWR records indicate that the NOV was received on January 17, 2014, by both parties. On January 23, 2014 and on January 24, 2014, DWR received a written response to the NOV from Morton Trucking, Inc. and Beaver Creek Investors, Inc. respectively. P. On December 10, 2013, DWR received a revised application; however it was still incomplete. On January 6, 2014, January 11, 2014, and January 16, 2014, the Beaver Creek Investors, Inc and Morton Trucking, Inc. Onslow County Page 3 of 5 DWR WiRO received additional incomplete revisions of the application. On February 4, 2014, and February 11, 2014, the DWR WiRO received the necessary information to complete the application and a WQC was issued on February 13, 2014, and revised on February 21, 2014 Q. The impacts occurred to an unnamed tributary (hereby known as UT) to Turkey Creek, Class SA; ORW waters, and wetlands, Class WL waters, within the Cape Fear River Basin. R. The cost to the State of the enforcement procedures in this matter totaled $379.61. Based upon the above Finding of Fact, I make the following: II. CONCLUSION OF LAW A. Beaver Creek Investors, Inc. and Morton Trucking, Inc are "persons" within -the - meaning of G.S. 143- 215.6A pursuant to G.S. 143 -212 (4). B. The UT to Turkey Creek and wetlands located at the site constitute waters of the State within the meaning of G.S. 143 -212 (6). C. Beaver Creek Investors, Inc. and Morton Trucking, Inc violated Title 15A NCAC 02H .0500 by the unauthorized impacts to a stream and wetlands without first securing a WQC as required by Section 401 of the Federal Water Pollution Control Act. D. Beaver Creek Investors, Inc. and Morton Trucking, Inc violated Title 15A NCAC- 02B .0231(a) and (b) (1) and (5) by impacts to approximately 0. 10 acres of - wetlands -from the installation of a culvert and fill for a road. - E. Beaver Creek Investors, Inc. and Morton Trucking, Inc violated Title 15A NCAC ,02B .0211 (2) by impacts to approximately 94 linear feet of UT to Turkey Creek from the installation of a culvert. F. Beaver Creek Investors, Inc. and Morton Trucking, Inc may be assessed civil penalties in this matter pursuant to G.S. 143- 215.6A (a)(1), which provides that a civil penalty of not more than twenty -five thousand dollars ($25,000) per violation per day may be assessed against a person who violates any classification, standard, limitation, or management practice established pursuant to G.S. 143- 214.1, 143 - 214.2, or 143 -215. G. Beaver Creek Investors, Inc. and Morton Trucking, Inc 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) per Beaver Creek Investors, Inc. and Morton Trucking, Inc Onslow County Page 4 of 5 violation per day 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, or who violates or fails to act in accordance with the terms, conditions, or requirements of such permit or any other permit or certification issued pursuant to authority conferred by this Part. H. Beaver Creek Investors, Inc. and Morton Trucking, Inc may be assessed civil penalties pursuant,to G.S. 143- 215.6A (a)(6) which provides that a civil penalty of not more than_twenty -fve thousand dollars ($25,000.00) per violation per day may be assessed against a person who violates a rule of the Commission implementing this Part, Part 2A of this Article, or G.S. 143- 355(k). I. The State's enforcement cost in this matter may be assessed against Beaver Creek Investors, Inc. and Morton Trucking, Inc pursuant to G.S: 143 -215.3 (a)(9) and G.S. 143B -282.1 (b)(8). - , _ Cynthia Karoly of the DWR, pursuant to delegation provided by the Secretary of the Department of Environment and Natural Resources and the Director of the DWR, 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, Beaver Creek Investors, Inc. and Morton Trucking, Inc are hereby assessed a civil penalty of for violation of Title 15A NCAC 02H .0500 by the unauthorized impacts to a stream and wetlands without first securing a WQC as required by Section 401 of the Federal Water Pollution Control Act 6 0 for violation of Title 15A NCAC 02B .0231(a) and (b) (1) and (5) by impacts to approximately 0.10 acres of wetlands from the installation of a culvert and fill for a road $ 31 0 0 DO for violation of Title 15A NCAC 02B .0221 (2) by impacts to approximately 94 linear feet of UT to Turkey Creek from the installation of a culvert Beaver Creek Investors, Inc. and Morton Trucking, Inc Onslow County Page 5 of 5 TOTAL'CIVIL PENALTY, authorized by G.S. 443- 215.6A $ 379.61 Enforcement Cost $ S 3 7 `1, �O j TOTAL AMOUNT DUE As required by G.S. 143- 215.6A(c), in determining the amount of penalty, I considered the factors set out-in 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 violations; (2) The duration and gravity of the violations; (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 violations were 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; and (8) The cost to the State of the enforcement procedures Mnrc L 11, 2 otl - Date Cy is Karoly Division of Water Resources 0