DV-2022-0080_civil penalty case

DocuSign Envelope ID: 50B0C293-E70E-4D21-9713-6182C4860207
ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
RICHARD E. ROGERS, JR.
Director
NORTH CAROLINA
Environmental Quality
September 19, 2022
CERTIFIED MAIL ITEM 7018 1830 0001 8037 1141 - RETURN RECEIPT REQUESTED
Mr. Paul Peek
Custom Pak, Inc.
2123 Ridge Rd
Hendersonville, NC 28792
SUBJECT: Assessment of Civil Penalties for Violation(s) of N.C. General Statute(s) 143-215.1
Custom Pak, Inc.
Enforcement Case DV-2022-0080
Henderson County
Dear Mr. Geisler:
This letter transmits notice of a civil penalty assessed against Custom Pak, Inc. in the amount of
$36,506.20, including $506.20 in enforcement costs.
Attached is a copy of the assessment document explaining this penalty. This action was taken
under the authority vested in me pursuant to delegation provided by the Secretary of the Department of
Environmental Quality. Any continuing violation(s) may be the subject of a new enforcement action,
including an additional penalty.
Within thirty days of receipt of this notice, you must do one of the following:
1. Submit payment of the penalty:
Payment should be made directly to the order of the Department of Environmental
Quality (do not include waiver form). Payment of the penalty will not foreclose further
enforcement action for any continuing or new violation(s).
Please submit payment to the attention of:
Ms. Wren Thedford
NC DEQ / DWR / NPDES
1617 Mail Service Center
Raleigh, NC 27699-1617
or
North Carolina Department of Environmental Quality I Division of Water Resources
512 North Salisbury Street 11611 Mail Service Center I Raleigh, North Carolina 27699-1611
919.707.9000

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Case Number DV-2022-0080
Page 2
2. Submit a written request for remission including a detailed justification for such
request:
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. Because a remission request forecloses the option of
an administrative hearing, such a request must be accompanied by a waiver of your right
to an administrative hearing and a stipulation and agreement that no factual or legal
issues are in dispute. Please prepare a detailed statement that establishes why you believe
the civil penalty should be remitted and submit it to the Division at the address listed
below. In determining whether a remission request will be approved, the following
factors shall be considered:
(a.) whether one or more of the civil penalty assessment factors in NCGS 143B-282.1
(b) were wrongfully applied to the detriment of the violator;
(b.) whether the violator promptly abated continuing environmental damage resulting
from the violation;
(c.) whether the violation was inadvertent or a result of an accident;
(d.) whether the violator has been assessed civil penalties for any previous violations;
or
(e.) whether payment of the civil penalty will prevent payment for the remaining
necessary remedial actions.
Please note that all evidence presented in support of your request for remission must be
submitted in writing. The Director of the Division will review your evidence and inform
you of his decision in the matter of your remission request. The response will provide
details regarding the case status, directions for payment, and provision for further appeal
of the penalty to the Environmental Management Commission's Committee on Civil
Penalty Remissions (Committee). Please be advised that the Committee cannot consider
information that was not part of the original remission request considered by the Director.
Therefore, it is very important that you prepare a complete and thorough statement in
support of your request for remission.
In order to request remission, you must complete and submit the enclosed "Request for
Remission of Civil Penalties, Waiver of Right to an Administrative Hearing, and
Stipulation of Facts" form within thirty (30) days of receipt of this notice. The Division
also requests that you complete and submit the enclosed "Justification for Remission
Request." Both forms should be submitted to the following address:
Charles H. Weaver
NC DEQ / DWR / NPDES
1617 Mail Service Center
Raleigh, NC 27699-1617

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Case Number DV-2022-0080
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or
3. File a petition for an administrative hearing with the Office of Administrative Hearings:
If you wish to contest any statement in the attached assessment you must file a petition for an
administrative hearing. You may obtain the petition form from the Office of Administrative
Hearings. You must file the petition with the Office of Administrative Hearings within thirty (30)
days of receipt of this notice. A petition is considered filed when it is received in the Office of
Administrative Hearings during normal office hours. The Office of Administrative Hearings accepts
filings Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m., except for official state
holidays. The original and one (1) copy of the petition must be filed with the Office of
Administrative Hearings. The mailing address for the Office of Administrative Hearings is:
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
A copy of the petition must also be served on DENR as follows:
Mr. Bill Lane, General Counsel
NC Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
Please indicate the case number (as found on page one of this letter) on the petition.
Failure to exercise one of the options above within thirty (30) days of receipt of this letter, as
evidenced by an internal date/time received stamp (not a postmark), will result in this matter being
referred to the Attorney General's Office for collection of the penalty through a civil action. Please be
advised that additional penalties may be assessed for violations that occur after the review period of this
assessment.
If you have any questions, please contact G. Landon Davidson at 828-298-4500.
Sincerely,
DocuSigned by:
8328B44CE9EB4A1...
Richard E. Rogers, Jr.
Director, Division of Water Resources
CC: WAYNE WALLING, LFC ENTERPRISES, LLC (315 NEW MARKET RD E, IMMOKALEE, FL 34142)

DocuSign Envelope ID: 50B0C293-E70E-4D21-9713-6182C4860207
JUSTIFICATION FOR REMISSION REQUEST
Case Number: DV-2022-0080
Assessed Party: Custom Pak, Inc.
Amount Assessed: $36,506.20
County: Henderson
Case Number DV-2022-0080
Page 4
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;
(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:

DocuSign Envelope ID: 50B0C293-E70E-4D21-9713-6182C4860207
Case Number DV-2022-0080
Page 5
STATE OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY
COUNTY OF HENDERSON
IN THE MATTER OF ASSESSMENT
OF CIVIL PENALTIES AGAINST
Custom Pak, Inc.
WAIVER OF RIGHT TO AN
ADMINISTRATIVE HEARING
AND STIPULATION OF FACTS
CASE NUMBER DV-2022-0080
Having been assessed civil penalties totaling $36,506.20 for violation(s) as set forth in the assessment
document of the Division of Water Resources dated June 28, 2022, 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 within thirty (30) days of receipt of the notice of
assessment. No new evidence in support of a remission request will be allowed after thirty (30) days
from the receipt of the notice of assessment.
This the day of , 2022.
Signature
ADDRESS
TELEPHONE
EMAIL

DocuSign Envelope ID: 50B0C293-E70E-4D21-9713-6182C4860207
ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
RICHARD E. ROGERS, JR.
Director
NORTH CAROLINA
Environmental Quality
STATE OF NORTH CAROLINA NORTH CAROLINA DEPARTMENT
OF ENVIRONMENTAL QUALITY
COUNTY OF HENDERSON
CASE DV-2022-0080
IN THE MATTER OF )
CUSTOM PAK INC. )
) FINDINGS AND DECISION
FOR DISCHARGE WITHOUT A PERMIT ) AND ASSESSMENT OF
AND VIOLATIONS OF WATER QUALITY) CIVIL PENALTIES
STANDARDS )
Acting pursuant to North Carolina General Statute (hereby known as G.S.) 143-215.6A, I, John Hennessy,
of the Division of Water Resources (hereby known as DWR), make the following:
I. FINDINGS OF FACT:
A. Custom Pak Inc. (CPI) is a corporation organized and existing under the laws of the State
of North Carolina.
B. CPI is the owner of record of parcel #9690710230 in Henderson County, street address
2123 Ridge Rd, Hendersonville, NC 28792. CPI operates and maintains a vegetable
processing facility at this location.
C. On the night of May 13, 2022, DWR Water Quality Regional Operations Section
(WQROS) Asheville Regional Office (ARO) staff received a report from Bud Justus that
the creek on his property at 4333 Sugarloaf Rd, Hendersonville, NC 28792 had
developed a red, slimy material on the creek bed. Mr. Justus said that the material had
first been observed by him about two weeks prior to his reporting of the incident. On
May 17th ARO staff received a report from Monika Vasquez that Henderson Creek had a
red, slimy material covering the creek bed at her property, 356 Chinaberry Lane,
Hendersonville, NC 28792. On May 16th and 17th, 2022, staff from the ARO visited
4333 Sugarloaf Rd, 2123 Ridge Rd, and 356 Chinaberry Lane to conduct investigations.
D. On May 16, 2022, at about noon DWR staff observed a red organic waste in the UT to
Henderson Creek, a Class C-Trout stream, at 4333 Sugarloaf Rd that completely covered
the creek bed. Then staff drove to 2123 Ridge Rd, site of CPI's vegetable processing
facility. Upon arrival, staff observed that the pump station on CPI's property had two
wet -well hatches open, there were large hoses laying around the pump station, a vacuum
truck was on site, and the ground downslope of the pump station was very muddy and
D_E
NORTH CAROLINA
DnpnNnenl of Environmental Duali\
North Carolina Department of Environmental Quality I Division of Water Resources
Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500

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DV-2022-0080
wet. Staff spoke with Jonathon Johnston, maintenance manager of the facility, while on
site. Mr. Johnston confirmed that the pump station had a wastewater overflow that was
discovered by him Friday, May 13, 2022 in the afternoon. He did not know when the
wastewater overflow began and discovered it was occurring when he walked out to
inspect the pump station that Friday. Mr. Johnston mentioned that the circuit breaker for
the pump controls had tripped, and he could not remember if the pump station alarms
went off. Staff could see a large quantity of tomato seeds and residue beyond CPI's
property fence line. Staff traced the flow of the discharge from 4333 Sugarloaf Rd to the
spill site at 2123 Ridge Rd by walking along various segments of the UT to Henderson
Creek.
E. On May 17, 2022 staff performed site inspections at 4333 Sugarloaf Rd and 356
Chinaberry Lane. Dissolved oxygen levels in Henderson Creek and the UT to Henderson
Creek were measured at various points between the properties of 356 China Berry Lane
and 4333 Sugarloaf Rd. The dissolved oxygen levels in the degraded stream sections
measured in a range of 1.7-4.1 mg/L. The dissolved oxygen in an unaffected upstream
tributary to Henderson Creek was 7.8 mg/L. Approximately 1900 feet of Henderson
Creek and the UT to Henderson Creek were observed as degraded by the red organic
waste.
F. On May 27, 2022, CPI and its parent company LFC Enterprises LLC received a Notice of
Violation & Intent to Assess Civil Penalty (NOV-2022-DV-0153) dated May 24, 2022,
for discharge without a permit, removal of best use, violation of dissolved oxygen stream
standard, failure to report within 24 hours, and violation of colored or other waste stream
standard.
G. DWR WQROS ARO did not receive a response to NOV-2022-DV-0153 from either CPI
or parent company LFC Enterprises LLC.
H. ARO staff requested estimates of the overflow volume from CPI and LFC Enterprises and
did not receive a response. Based on self -reported data from CPI to the City of
Hendersonville, a reasonable estimate for the amount of wastewater that spilled into the
UT to Henderson Creek is 150,000 gallons.
I. The costs to the State of the enforcement procedures in this matter totaled $506.20
Based upon the above Findings of Fact, I make the following:
II. CONCLUSIONS OF LAW:
A. Custom Pak Inc. is a "person" within the meaning of N.C.G.S. 143-215.6A pursuant to
N.C.G.S. 143-212 (4).
B. Henderson Creek and the UT to Henderson Creek constitute waters of the State within the
meaning of G.S. 143-215.1 pursuant to G.S. 143-212 (6).

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DV-2022-0080
C. As documented on May 16 and 17, 2022, CPI violated North Carolina General Statute 143-
215.1 by making an outlet to waters of the State without a valid permit and 15A NCAC
02B.0211 (2) through the removal of best use of the surface water for aquatic life
propagation, and survival.
D. N.C.G.S. 143-215.6A (a) (2) provides that a civil penalty of not more than $25,000.00 may
be assessed against a person who violates any classification, standard, limitation, or
management practice pursuant to G.S. 143-214.1, 143-214.2, or 143-215.
E. N.C.G.S. 143-215.6A (b) provides that if any failure to act as required by the rules is
continuous, a civil penalty of not more than $25,000.00 per violation may be assessed for
each day the violation continues.
F. The State's enforcement cost in this matter may be assessed against CPI pursuant to G.S.
143-215.3 (a) (9) and G.S. 143B-282.1 (b) (8).
G. John Hennessy of the 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:
Custom Pak Inc. is hereby assessed a civil penalty of:
$10,000
$10,000
for two of two violations of 15A NCAC 02B.0211 (2) by having a
discharge that resulted in the removal of best use of the surface water
for aquatic life.
for one violation ofNorth Carolina General Statute (G.S.) 143-215.1
(a) (1) by making an outlet into waters of the State without a valid
permit.
$1,000 for one violation of 15A NCAC 02B.0506 (a) (2) (A) (i) by failing
to report a sanitary sewer overflow within 24 hours of occurrence.
$5,000 for one violation of dissolved oxygen stream standard (15A NCAC
02B.0211 (6)) by causing dissolved oxygen values less than 6.0
mg/L in trout waters.
$10,000
for two of two violations of deleterious substances stream standard
15A NCAC 02B.0211 (12) by rendering the water injurious to
aquatic life and affecting aesthetic quality and designated use.

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DV-2022-0080
$ 506.20 Enforcement costs
$ 36,506.20 TOTAL AMOUNT DUE
Pursuant to N.C.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 N.C.G.S. 143B-282.1 (b), which
are:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
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;
The duration and gravity of the violation;
The effect on ground or surface water quantity or quality or air quality;
The cost of rectifying the damage;
The amount of money saved by noncompliance;
Whether the violation was committed willfully or intentionally;
The prior record of the violator in complying or failing to comply with programs over
which the Environmental Management Commission has regulatory authority; and
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 Custom Pak Inc. in
accordance with N.C.G.S. 143-215.6 (A) (d).
9/19/2022
(Date)
EDocuSigned by:
8328B44CE9EB4A1...
John Hennessy, Supervisor
Compliance and Expedited Permitting Unit
Division of Water Resources

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DV-2022-0080
NORTH CAROLINA DIVISION OF WATER RESOURCES
Violator: Custom Pak Inc.
County: Henderson
Case Number: DV-2022-0080
Permit Number: Not Applicable
ASSESSMENT FACTORS
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;
The unpermitted discharge of industrial wastewater from a pump station at 2123 Ridge Road,
Hendersonville, NC to a UT of Henderson Creek (Class C-Trout) resulted in a dissolved
oxygen level unsuitable to trout and other aquatic life, and a removal of aesthetic quality for
property owners along the affected stream sections. Class C waters are protected for aquatic
life propagation, survival, and maintenance of biological integrity. Trout designated waters
have the additional protection that allows for natural trout propagation and survival and year-
round maintenance of stocked trout. Additional effects of unpermitted discharges may
detrimental but not immediately quantifiable.
2. The duration and gravity of the violation;
Based on reports from two independent households and interview with the maintenance
manager of the Custom Pak Inc facility, the unpermitted discharge of wastewater to a UT to
Henderson Creek likely began at by May 1, 2022 and definitely continued until the early
afternoon of May 13, 2022. DWR staff observed the degraded condition of the stream on May
16 and 17, 2022.
Approximately 1900 feet of stream length was observed to contain the red organic waste and
dissolved oxygen levels in that length was measured between 1.7 and 4.1 mg/L on May 17,
2022. Based on self -reported data from Custom Pak Inc., we estimate the volume of
wastewater discharge to be about 150,000 gallons.
3. The effect on ground or surface water quantity or quality or air quality;
The discharge without a valid permit resulted in the short-term removal of best use of the
surface water for aquatic life propagation and survival, a dissolved oxygen level that is too low
to support trout and other aquatic life sensitive to that parameter, and a removal of aesthetic
quality of the stream.
4. The cost of rectifying the damage;
The cost of rectifying the damage is unknown but would include replacement of the fish and

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DV-2022-0080
aquatic life killed, and removal of the organic waste.
5. The amount of money saved by noncompliance;
The amount saved by noncompliance includes the cost of a pretreatment system to remove
seeds and other solids that clog the discharge force main, the cost of hiring vacuum trucks
pump and haul the wastewater during the overflow, and the revenue acquired by the facility
remaining in operation during the overflow.
6. Whether the violation was committed willfully or intentionally;
We believe that these violations were neither willful nor intentional.
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
Custom Pak Inc. has had sanitary sewer overflows at this site before, but it is unknown if
surface water was affected by previous overflows and the quantity of previous overflows.
8. The cost to the State of the enforcement procedures.
The total costs incurred by the State totaled $506.20.
—DocuSigned by:
9/19/2022
Date
-8328B44CE9EB4A1...
John Hennessy
Supervisor, Compliance and Expedited Permitting Unit
Division of Water Resources