HomeMy WebLinkAbout20130948 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