910023_Enforcement_19920707

fr. C. DEPT. OF NATURAL
RESOURCES AND
COMMUNITY DEVELOPAME % T
STATE OF NORTH CAROLINA JUL 0 7 1992 BEFORE THE
REMISSION COMMITTEE OF THE
COUNTY OF UNION DMSIOPa OF ENVIRONMENTAL�,9ANFGEh4EN VIRONMENTAL MANAGEMENT
MOORESVILLE REGIONAL OFFICE COMMISSION
WQ 91-2,3
IN THE MATTER OF:
Assessment of Civil Penalties
Against
DON HELMS AND
DON HELMS SWINE FARM
FINAL DECIS
©ET
JUL 2 1992 III
v
ENVIRONMENTAL MANAGEMENT
COMMMON_
THIS MATTER came before the Committee on Civil Penalty
Remissions of the Environmental Management Commission, pursuant
to N.C.G.S. 143-215.6A and 143B-282.1,on June 11, 1992, upon
recommendation of the Director of the Division of Environmental
Management for entry of a final decision on the assessment of
civil penalties and investigation costs against Don Helms and Don
Helms Swine Farm in the amount of $4,072.18 ($3,500.00 plus
$572.18 investigative costs). Don Helms' request for remission
was presented to the Committee on Civil Penalty Remissions for
consideration. The Division of Environmental Management was
represented by Ms. Brenda Smith, Regional Supervisor in the
Mooresville Regional Office, and Don Helms was represented by
Kenneth Helms, Esquire, of Monroe, North Carolina. Having
considered the record, arguments of the parties, and the factors
set forth in N.C.G.S. 143B-282.1(b) and (c), the Committee on
Civil Penalty Remissions finds the facts contained in the
Director's Findings and Decision and Assessment of Civil
Penalties as stipulated by Don Helms, and that the Director
properly applied the criteria set forth in N.C.G.S.

.16
-2-
143B-282.1(b) in determining the amount of the civil penalties
and in modifying the civil penalty to the sum of $2, 000. 00 plus
investigation costs. The Committee further finds that there are
no grounds for further remission or reduction of the penalties
assessed and modified by the Director. Upon duly made motion and
vote, the Committee finds that the assessment of the civil
penalty as modified by the Director should be upheld in its
entirety.
THEREFORE, IT IS ORDERED:
1. -That the assessment of civil penalties and investigtion
costs against Don Helms and Don Helms Swine Farm in the amount of
$2,572.18 is AFFIRMED.
2. That this Final Decision and Order be served upon Don
Helms and upon receipt hereof, the amount of $2,,572.18, be paid
to the Department of Environment, Health and Natural Resources.
This the „14: day of June, 1992.
irgil McBride, Vice Chairman
Environmental Management Commission

-3-
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the
foregoing FINAL DECISION on the parties listed below by the
methods indicated:
Mr. Don Helms _
511 Lawyers Road
Indian Trail, North Carolina 28079
Mr. R. Kenneth Helms, Jr.
P.O. Drawer 99
Monroe, North Carolina 28111-0099
Ms. Brenda Smith
Regional Supervisor
Mooresville Regional Office
Department of Environment, Health
and Natural Resources
P.O. Box 950
Mooresville, North Carolina 28115
This the 2d day of July, 1992.
Helmsfd.fc
CERTIFIED MAIL
RETURN RECEIPT
U.S. MAIL
U.S. MAIL
LACY H. THORNBURG
Attorney General
J11-6,Y) I '
LLA
Francis W. Crawley
Special Deputy Attorney General
N.C. Department of Justice
P. 0. Box 629
Raleigh, N.C. 27602-0629
919/733-5725

LACY H. THORNBURG
ATTORNEY GENERAL
State of North Carolina
Department of Justice
P.O. BOX 629
RALEIGH
27602-0629
July 2, 1992
CER'1114 ED MAIL
RETURN RECEIPT' REQUESTED
Mr. Don Helms
Don Helms Swine Farm
511 Lawyers Road
Indian Trail, North Carolina 28079
Dear Mr. Helms:
You will find enclosed the Final Agency Decision of the Environmental
Management Commission assessing civil penalties and investigative costs as set
forth in the decision document. According to North Carolina General Statutes
143-215.5 and 150B-45, you may seek judicial review of the Commission's decision
in the Superior Court by filing a petition within 30 days of receipt of a written
copy of the final agency decision. •
If you do not seek judicial review within the time allowed, you must
submit payment of the civil penalty and investigative costs assessed, by bank or
certified check made payable to the Department of Environment, Health and
Natural Resources by mail addressed as follows:
Department of Justice
Environmental Protection Section
P. O. Box 629
Raleigh, North Carolina 27602-0629
ATTENTION: Nancy K. Andrews
If you fail to pay the penalty or file a petition for judicial review, this
office will seek to collect the amount due through a civil action commenced in
Superior Court.
Sincerely,
LACY H. THORNBURG
Attorney General
Francis W. Crawley
Special Deputy Attorney
FWC/dw
cc: Mr. R. Kenneth Helms, Jr.
enclosure
:helmsltr.fc
General
An Equal Opportunity/Affirmative Action Employer

RECEIVED MA`I 2 91992
State of North Carolina
Department of Environment, Health and Natural Resources
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27604
James G. Martin, Governor
William W. Cobey, Jr., Secretary
i
Regional Offices
Asheville
704/251-6208
Fayetteville
919/486-1541
Mooresville
704/663-1699
Raleigh
919/571-4700
Washington
919/946-6481
Wilmington
919/395-3900
Winston-Salem
919/896-7007
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
MR DON HELMS
DON HELMS SWINE FARM
511 LAWYERS ROAD
INDIAN TRAIL NC 28079
May 22, 1992
RE: Request for Remission of Civil Penalty Pursuant to
N. C. G. S. 143-215.6A(f)
File No. WQ 91-23
Union County
Dear Mr. Helms:
George T. Everett, Ph.D
Director
Your request for remission has been placed on the agenda for the June 11, 1992,
meeting of the Environmental Management Commission's Committee on Civil Penalty
Remissions. The Committee will convene in the Ground Floor Hearing Room of the
Archdale Building located at 512 North Salisbury Street, Raleigh, North Carolina, at 9:00
a.m.
The factors to be considered by the Committee on Civil Penalty Remissions are whether:
(a) one or more of the civil penalty assessment factors in G.S. 143B-282.1(b)
were wrongly applied to the detriment of the petitioner;
(b) the violator promptly abated continuing environmental damage resulting
from the violation;
the violation was inadvertent or the result of an accident;
(c)
(d)
(e)
the violator had been assessed civil penalties for any previous violations;
payment of the civil penalty will prevent payment for the remaining
necessary remedial actions.
Pollution Prevention Pays
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone]
An Equal Opportunity Affirmative Action Employer

Page 2
Additionally, the Committee on Civil Penalty Remissions may remit the entire
amount of the penalty only when the violator has not been assessed civil penalties for
previous violations, and when payment of the civil penalty will prevent payment for the
remaining,necessary remedial actions.
You or your representative should be available to makeyour presentation to the
Committee on Civil Penalty Remissions at the above mentioned time and location. You are
allowed fifteen minutes for your presentation.
Your cooperation in this matter is greatly appreciated.
Sincerely,
George T. Everett
cc: Attorney General's Office
!Region.1 fzze
Kent Wiggins

C. FRANK GRIFFIN
THOMAS J CALDWELL
JAKE C. HELDER
W. DAVID LEE
GRIFFIN, CALDWELL, HELDER & LEE, P.A.
ATTORNEYS AT LAW
N. C. DEPT. OF NATURAL 314 NORTH HAYNE STREET
• RESOURCES AND P. O. DRAWER 99
COMMUNITY DEVELOPMENT MONROE. N.C. 281 1 1 -0099
MAR 1 71992
DIVISION OE EIVIROPE!TU ?°tII3GEMENT
R. KENNETH HELMS. JR. MOORESVILLE REGIONAL OFFICE,
March 5, 1992
DEPARTMENT OF ENVIRONMENT,
HEALTH AND NATURAL RESOURCES
Division of Environmental Management
512 North Salisbury Street
Raleigh, NC 27604
Re: Don Helms' Swine Farm
File No. WQ 91-23
Gentlemen:
TELEPHONE
704 / 289-4577
DIRECT CHARLOTTE LINE
704 / 372-4808
FAX 704 / 289-421 8
FEDERAL EXPRESS #2177589024
In connection with the above case, I am in receipt of a letter dated
February 7, 1992 from George T. Everett which states that should Mr. Helms
elect to exercise his option of presenting his request for remission of civil
penalty to the Committee on Civil Penalty Remissions, he must notify
Mr. Everett on or before February 28, 1992. We federal expressed Mr. Helms'
notification on February 26, 1992, but inadvertently sent it to the Industrial
Commission. Enclosed is a copy of said letter stamped by the Industrial
Commission's office. We hope this delay in notification will not cause a
problem.
Should you have any questions, please do not hesitate to contact me.
Yours truly,
GRIFFIN, CALDWELL, HELDER & LEE, P.A.
R. Kenneth Helms, Jr.
RKHjr/lpm
Enclosure

GRIFFIN, CALDWELL, HELDER & LEE, P.A.
• ATTORNEYS AT LAW
314 NORTH HAYNE STREET
P O. DRAWER 99
MONROE, N.C. 281 1 1 -0099
C FRANK GRIFFIN
THOMAS J. CALDWELL
JAKE C HELDER
W. DAVID LEE
R. KENNETH HELMS. JR.
INDUSTRIAL COMMISSION
430 North Salisbury Street
Dobbs Building
Raleigh, NC 27611
Re: Don Helms' Swine Farm
File No. WQ 91-23
Gentlemen:
February 26, 1992
.- TELEPHONE
704 / ;.'..99-4577
DIRECT CHARLOTTE LINE
704 / 372.4808
FAX 704 / 289.421 8
SECRET A,1Y'`•
199224
N.C. 1IAL
SSt0.i
W
In connection with the above case, I am in .receipt of a letter dated
February 7, 1992 from George T.,Everett. Please be advised that Mr. Helms
elects to exercise his option of presenting his request for remission of civil
penalty to the Committee on Civil Penalty Remissions.
Sehould you have any questions, please do not hesitate to contact me.
Yours truly,
GRIFFIN, CALDWELL, HELDER & LEE, P.A.
R. Kenneth Helms, Jr.
RKHjr/lpm

State of North Carolina
Department of Environment, Health and Natural Resources
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27604
James G. Martin, Governor George T. Everett, Ph.D
William W. Cobey, Jr., Secretary
Regional Offices
Asheville
704/251-6208
Fayetteville
919/486-1541
Mooresville
704/663-1699
Raleigh
919/571-4700
Washington
919/946-6481
Wilmington
919/395-3900
Winston-Salem
919/896-7007
March 11, 1992
MR DON HELMS
DON HELMS SWINE FARM
511 LAWYERS ROAD
INDIAN TRAIL NC 28079
Subject: Request to Appear before Committee on
Civil Penalty Remissions for WQ 91-23
Dear Mr. Helms:
itC,DEPT.
COM RESOURCESN
MFJNdI'y�gA
DEVELOPMENT
MAR 1 71992
DIVISION OF ENVIRON !ENTA( },AN{GNENT
1IOORESVILLE REGIONAL OFFICE
Director
The Division of Environmental Management has received your request dated
March 5, 1992, to appear before the Committee on Civil Penalty Remissions. You will
be notified by certified mail of the scheduled place, date, and time for the meeting.
Should you have any questions, please contact me or Dianne Wilburn at (919)
733-5083.
Sincerely,
62.
M. Kevin Bowden, Supervisor
Compliance/Enforcement Group
cc: Steve Tedder
fl oc esuileFelareg=ionWOO,ffice
Enforcement File
Attorney General's, Office
R. Kenneth Helms, Jr.
01
Pollution Prevention Pays
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone]
An Equal Opportunity Affirmative Action Emnlover

State of North Carolina
Department of Environment, Health and Natural Resources
Division of Environmental Management
512 North Salisbury Street ® Raleigh, North Carolina 27604
James G. Martin; Governor
William W. Cobey, Jr., Secretary
Regional Offices
Asheville
704/251-6208
Fayetteville
919/486-1541
Mooresville
704/663-1699
Raleigh
919/571-4700
Washington
919/946-6481
Wilmington
919/395-3900
Winston-Salem
919/896-7007
February 7, 1992
Certified Mail
Return Receipt Requested
Mr. Don Helms
Don Helm's Swine Farm
511 Lawyers Road
Indian Trail, North Carolina 28079
George T. Everett, Ph.D
Director
N. C. DEPT. OF NATURAL
RESOURCES AND
COMMUNITY m VE►.ONMEWT
FEB 1 9 1992
$IYISION OF ENVIRONMENTAL MANAGEMENT
MOORESVILLE, REGIONAL OFFICE
SUBJECT: Request for Remission of Civil Penalty
Pursuant to N.C.G.S. 143-215.6A(f)
County: Union
File No: WQ 91-23
Dear Mr. Helms:
I considered the information submitted in support of your request for
remission in accordance with G.S. 143-215.6A(f) and my delegation under G.S.
143-215.6A(h) and hereby modify my initial civil penalty assessment of
$4,072.18 (Civil Penalty - $3,500.00 plus Investigative Costs - $572.18) to the
total amount of $2,572.18 .
Should you choose to pay the modified penalties, you may tender payment
to me at the letterhead address on or before February 28, 1992. Please make
checks payable to the Department of Environment, Health, and Natural Resources.
You also have the option of presenting your request to the Committee on
Civil Penalty Remissions which is comprised of members of the Environmental
Management Commission. The committee may consider such requests and render
final and binding decisions in these matters. You may argue your request before
the committee and Division Staff will argue for full payment of the initial
assessment.
Pollution Prevention Pays
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone]
An Equal Opportunity Affirmative Action Employer

Page 2
February 7, 1992
Should you choose to present your request to the committee please notify
me at the letterhead address on or before February 28, 1992. Your request will be
scheduled to be heard on the agenda of the next scheduled committee meeting and
you will be notified of the date and time. If a response is not received by the
Division regarding this notice then your request will be scheduled on the agenda
for an upcoming committee meeting.
Thank you for your cooperation in this matter.
Sincer ly,
George T. Everett
cc: Attorney General's Office
EgOW. ioriail'O,ffice
nforcemerit file

Al Lso L
N. G. DEPT. OF NATURAL
RESOURCES AND
CU+,f',t UNITY DEVELOPMENT
State of North Carolina
LACY H. THORNBURG
ATTORNEY GENERAL
R. Kenneth Helms, Jr., Esq.
Attorney at Law
P.O. Drawer 99
Monroe, N.C. 28111-0099
Department of Justice
P.O. BOX 629
RALEIGH
27602-0629
January 24, 1.992
RE: Request for Remission of Civil Penalties
Don Helms' Swine Farm
Union County
Our . File No. WQ 91-23
Dear Kenneth:
J AN 2 81992
DIVISION OF Et IIROIfl ENTAI MANAGEMENT
EIOORESVII.IE REGIONAL OFFICE
The request for remission in the above -referenced matter dated January
16, 1992 has been received.
The request is being referred to Ms. Brenda Smith of the Mooresville
Regional Office for processing. The request will be fully considered by Mr.
George T. Everett, Director of the Division of Environmental Management. If
Mr. Everett's decision is unacceptable to you, you will have the opportunity to
make an oral presentation to the Environmental Management Commission at one
of their regularly scheduled meetings.
If you have any questions, please call Ms. Smith at (704)-663-1699.
Sincerely,
LACY H. THORNBURG
Attorney Ge . -r
By: Billy R.. Go win
Associate - ttorney General
BRG/ms
cc: George T. _ Everett
Brenda Smith i
Steve Tedder

sQt-t rz'
LACY H. THORNBURG
ATTORNEY GENERAL
State of North Carolina
Department of Justice
P.O. BOX 629
RALEIGH
27602-0629
N. C. DEPT. OF NATURAL
RESOURCES AND
COMMUNITY DEVELOPMENT
JAN 2 8 1992
DIVISION OF ENVIRONMENTAL MANAGEMENT
MOORESVILLE REGIONAL OFFICE:
1
MEMORANDUM
To: Brenda Smith, Moorseville Regional, Supervisor -
From: Billy R. 'Godwin, Associate Attorney General
RE:
Date.
REQUEST FOR REMISSION.
Don Helms' Swine Farm -
WQ 91-23
Union County
January 24, 1992
This memorandum transmits a request and supporting material from Mr. R.-
Kenneth Helms, attorney for Don Hettrie' Swine Farm for remission of the civil
penalties. assessed in the amount. of $4072.18.
Please copy this office with subsequent relevant correspondence or
memoranda so we can track -the „status of the case.
If you have any questions or need assistance in- handling the remission
request, do not hesitate to contact me.
BRG/ms
Attachment
cc: Kent Wiggens

CAI OLINA
OFFICE
GRIFFIN. CALDWELL. HELDER & LEE. P.A.
ATTORNEYS AT LAW
314 NORTH HAYNE STREET
P.O. DRAWER 99
MONROE. N.C. 281 1 1 -0099
ENVIRONMENTAL PROTECTION SECTION
RECEIVED
C. FRANK GRIFFIN TELEPHONE
THOMAS J. CALDWELL 704 / 289.4577
JAKE C. HELDER DIRECT CHARLOTTE LINE
W. DAVID LEE 704/372.4808
R. KENNETH HELMS. JR.
January 16, 1992
Mr. Billy R. Godwin
Associate Attorney General
NORTH CAROLINA DEPARTMENT OF JUSTICE
P. O. Box 629
Raleigh, NC 27602-0629
Re: Don Helms' Swine Farm
Dear Mr. Godwin:
FAX 704 / 289.4218
FEDERAL EXPRESS #1926807584
Enclosed is a signed REQUEST FOR REMISSION OF CIVIL PENALTIES; WAIVER OF RIGHT
TO AN ADMINISTRATIVE HEARING AND STIPULATION OF FACTS. We are requesting
remission on the following grounds:
1. The violation was inadvertent in that the leakage apparently occurred
through -the floor of the lagoon and was undetectable to Mr. Helms, who
was out of the state at that time. A copy of a letter to Rex Gleason is
attached as Exhibit "A", which details the events surrounding the storing
of waste in the subject lagoon.
2. Continuing environmental damage resulting from the violation was promptly
abated in that Mr. Helms removed the waste from the lagoon, pushed down
at least one of the banks, and the lagoon is no longer in use and there
are no plans to resume use of the same.
3. Mr. Helms has worked in the past with the Soil Conservationist in Union
County and DEHNR's Mooresville office and continues to do so, as shown by
a letter from the District Conservationist attached as Exhibit "B." This
is an attempt to prevent any further problems with his farm.
4. Mr. Helms has been assessed a civil penalty for a previous violation. He
elected to pay the penalty due to his failure to act within the requisite
time limits, although the discharge was unintentional.
5. Mr. Helms operates a small swine farm. He is married and has four
children. His farm has suffered through very lean economic times and has
been and is in severe financial difficulty. Mr. Helms simply cannot
sustain a penalty of the magnitude which has been assessed. He is simply
a farmer trying to do the best he can and comply with a complex array of
regulations. If Mr. Helms had not been so concerned with the possibility
of an accidental discharge, the second lagoon would not have been
constructed and he would not have transferred part of the waste to the
same as a precaution during his absence from the farm.

Mr. Billy R. Godwin
January 16, 1991
Page Two
In talking with Mr. Helms, he informs me that he is currently operating under
a Chapter 12 bankruptcy plan. I have not confirmed this and I am not sure how
this may affect this proceeding, but I wanted to let you know. As soon as I
get the information, I will get it -to you. In the meantime, I felt we had to
respond due to the time constraints.
Thank you for your consideration in this matter and please call if I can
answer any questions or be of any assistance.
Yours truly,
GRIFFIN, CALDWELL, HELDER & LEE, P.A.
R. Kenneth Helms, Jr.
RKHjr/lpm
Enclosures

•
Exhibit "A"
August 9, 1991
Mr. Rex Gleason
Division of Environmental Management
919 North Main Street
Mooresville, NC 28115
Re: Donald Heath Helms
Dear Mr. Gleason:
This letter is to acknowledge receipt by the above -referenced individual of
your letter dated August 5, 1991 notifying him of an alleged discharge of waste
from his swine farm into an unnamed tributary to Goose Creek. The waste lagoon in
question was dug approximately two years ago at the suggestion and with the
assistance of your Division and the District Conservationist Office here in
Monroe. At the time of the construction of the lagoon, Joe Crabb of your office,
along with Rick Pigg and Wayne Mqser of Phil Loudermilk's office, observed it.
The lagoon remained empty and was not used until July 31, 1991. On that date,
heavy rains caused Mr. Helms' first lagoon to reach near capacity. Mr. Helms
planned on being out of the state for several days and did not want to take the
chance of the first lagoon overflowing. It had been recommended by either your
office or by the District Conservationist Office that the level in the lagoon
should not be allowed. to rise,within,one foot of the rim. Since the level of the
waste was near the one -foot mark, Mr. Helms decided to act out of an abundance of
precaution and pump a portion -of the waste to the second lagoon. At the time when
the alleged leak occurred, there was approximately eight inches of waste in the
second lagoon.
Mr. Helms is now in the process -of removing the waste from the second lagoon
and has no plans.to resume the use of the same. I have contacted, on Mr. Helms'
behalf, Phil Loudermilk and discussed this situation. Mr. Loudermilk has informed
me that he has worked with Mr. Helms in the past and will continue to work with
him. Mr. Loudermilk suggested several alternatives 'including an incentive plan to
allow Mr. Helms to haul the waste away or an irrigation system. Mr. Helms is to
meet with Mr. Loudermilk and discuss which alternative will be moat feasible in an
attempt to alleviate any current or future problems that Mr. Helms may have with
his farm.
Mr. Helms has tried to comply with every recommendation made by the various
authorities concerning his farm. The steps he has already taken have been a
considerable expense to him. If the second lagoon had a leak in its floor as
alleged, it was undetectable to Mr. Helms and was moat certainly unintentional.
Mr. Helms is willing to continue to work with your office and/or Mr. Loudermilk's-
office and hopes that this matter can be resolved without any further proceedings.

Mr. Rex Gleason
Division of Environmental Management
August 9, 1991
Page 2
Please let your records reflect that I represent Mr. Helms, and send all
future correspondence concerning this violation to me.
Yours very truly,
GRIFFIN, CALDWELL, HELDER & LEE, P. A.
R. Kenneth Helms, Jr.
RKHjr/ror

+
`
�
UNITED STATES
UEPNRlMEN[ OF
A6K]CULTU/\E
'
Exhibit "D»
SOIL
CUNSOiVATlON
SEHVlUE
Don Helms
511 Lawyers Rd
Indian Trail, NC �8079
Sir;
604 LANCASlEH AVENUE
MUNROE, NC 28112
[phone]
-'
..# 0
11/19/91
Per your request OF 12/19/91 we are beginning to design an
irrigation waste disposal system for your swine operation
located at the above address. Funds are available through
- the NC Ag Cost -Share
e program and your operation is
designated high priority by the Union Soil and Water
Conservation District for cost share in installation i
� o� this
type of system. Completion of the application,
ou ,`�'�'3n~|
and design approval should be complete in ab t~�/
six weeks. '
Since/.�e/y,
|i| LouderMi|k
District Conservationist
Soil Conservation Service
/

STATE OF NORTH CAROLINA
COUNTY OF UNION
NORTH CAR,OLINA
ENVIRONMENTAL MANAGEMENT COMMISSION
FILE NO. WQ 91-23
IN THE MATTER 'OF ASSESSMENT
OF CIVIL PENALTIES AGAINST
DON HELMS' SWINE FARM
REQUEST FOR REMISSION OF CIVIL
PENALTIES; WAIVER OF RIGHT TO
AN ADMINISTRATIVE HEARING AND
STIPULATION OF FACTS
having been assessed civil penalties totaling $4,072.18 for violations
N.C. Gen. Statutes G.S.
the assessment document
dated December 4, 1991,
penalties, does hereby
above -stated matter and
assessment document.
of
143-215.1(a)(2) and G.S. 143-215.1(a)(6) as set forth in
of the Director, • Division of Environmental Management
the undersigned, desiring to seek remission of the civil
waive right to an administrative hearing
in the
does stipulate that the facts are as alleged in the
1 Ja;i 7
This the day of December,
dempentran
1994
zit
R. Kenneth Helms, Jr.
Attorney tor Don Helms
ADDRESS P. 0. Drawer 99
F(2/247-1
Monroe, NC 28111-0099
TELEPHONE [phone]

7.
State of North Carolina
D'partment of Environment, Health, and Natural ResourcesD C 1 7 1991
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27604
James G. Martin, Governor
William W. Cobey, Jr., Secretary
Regional Offices
Asheville
- 704/251-6208
• Fayetteville
919/486-1541
Mooresville
704/663.1699
Raleigh
919/733-2314
Washington
919/946-6481
Wilmington
919/395-3900
Winston-Salem
919/896-7007
December 9, 1991
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Don Helms' Swine Farm
511 Lawyers Road
Indian Trail, North Carolina 28079
RrAietu1 ficaiiAleA M°�6YE
George T. Everett, Ph.D.
Director
Dr. C. DEPT. OF NATURAL
RESOURCES AND
COMMUNITY DEVELOPMENT
DEC 1 9 1991
MEM OF ENVIOOrI.1E1TN. ii11JI CEMENT
MOORESVILL.E REGIONAL OFFICE
RE: Civil Penalty Assessment for Violations of G.S.
143-215.1(a)(2) and G.S. 143-215.1(a)(6), WQ 91-23,
Union County
Dear Mr. Helms:
Pursuant to G.S. 143-215.6A(d), this letter is notice of a civil
penalty assessed by the Department of Environment, Ilealth, and Natural
Resources (DEHNR). The civil penalty assessment document is attached.
Within 30 days from the date of receipt of this letter, you must
do one of the following:
(1) Pay the civil penalty assessment; or
(2) Submit a written request for remission or mitigation, which
includes a detailed justification for the request; or
(3)
File a written petition for a contested case hearing in the Office
of Administrative Hearings (OAH) appealing the penalty
assessment.
Additional information about your options is provided below.
PAYMENT
To pay the penalty, send your payment by check or money order
made payable to the North Carolina Department of Environment, Health,
and Natural Resources (or to DEHNR) to Billy R. Godwin, Associate
Attorney, General, North Carolina Department of Justice, Post • Office
Box 629, Raleigh, North Carolina 27602-0629. Mr. Godwin represents
DEI-INR in the resolution of this civil penalty assessment.
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone] / Pollution Prevention Pays
An Equal Opportunity Affirmative Action Employer

REMISSION
A request for remission or mitigation is not the proper:- method ' for
contesting the attached civil penalty assessment. Because a remission request
forecloses the option of an administrative hearing, the request must be
accompanied by a waiver of your right to an administrative hearing and a
stipulation that there are no factual or legal issues in dispute.. You must . sign
and return the attached waiver and stipulation form to this office. Finally, your
detailed justification should include any relevant documentation, and state a case
that:
-one or more of the civil penalty assessment factors in G.S. .143B-282.1(b)
• were wrongly applied to the detriment .of the petitioner;
-continuing environmental damage resulting
violation was promptly. abated;
-the violation was inadvertent or a result of
-the violator has not been assessed civil
violations;
-payment of the civil penalty will prevent
necessary remedial actions.
APPEAL
damage resulting from the
an accident;
penalties . ,for any previous
payment for the remaining
If you file a contested case petition, it must be in writing and in the
form prescribed by N.C. Gen. Stat. § 150B-23. - File the original petition and
one - copy with OAH, Post Office Drawer 27447, Raleigh, .North ,Carolina
27611-7447. Any questions about filing a petition may be directed to the Clerk
of OAH by telephoning [phone]. You must . serve DEHNR by mailing a
copy of the petition to:
Mr. John C. Hunter
Registered Agent and General Counsel
Post Office Box 27687
Raleigh, North Carolina 27611
To negotiate a settlement of this assessment, present your offer to
Associate Attorney General Godwin who may be contacted by telephone at (919)
733-7247. Settlement offers do not extend the 30-day deadline for responding to
this assessment. Payment of the penalty will not foreclose further enforcement
action against you for any continuing or new violation.

Page 3
Your attention to this matter is appreciated.
Sincerely,
George T. Everett, Director
Division of Environmental Management
GTE/jj •
Attachments: Assessment Document
cc: Billy R. Godwin
Kent Wiggins
Tim Donnelly
dempentran

STATE OF NORTH CAROLINA
COUNTY OF UNION
NORTH CAROLINA
ENVIRONMENTAL MANAGEMENT COMMISSION
FILE NO. WQ 91-23
• IN THE MATTER OF ASSESSMENT )
OF CIVIL PENALTIES AGAINST )
DON HELMS'. SWINE FARM )
REQUEST FOR REMISSION OF CIVIL
PENALTIES; WAIVER OF RIGHT TO
AN ADMINISTRATIVE HEARING AND
STIPULATION OF FACTS
Having been assessed civil penalties totaling $4,0,72.18 for violations of
N.C. Gen. Statutes G.S. 143-215.1(a)(2) and G.S. 143-215.1(a)(6) as set forth in
the assessment document of the Director, Division of Environmental Management
dated December 4, 1991, the undersigned, desiring to seek remission of the civil
penalties, does hereby waive right to an administrative hearing in the
above -stated matter and does stipulate that the facts are as alleged in the
assessment document.
This the
dempentran
day of December, 1991.
ADDRESS
TELEPIIONE
BY

STATE OF NORTH CAROLINA
COUNTY, OF UNION
IN THE MATTER OF:
Don:;Helms.i-Swine.Farm
»FORvIpLATIoNs
d.S. 143,4215.1(a) (2)
OPERATING,,A DISPOSAL
SYSTEM WITHOUT A PERMIT
'PERMITTING WASTE TO BE
:DISCHARGED IN VIOLATION
10F A 'WATER QUALITY.
STANDARD
NORTH CAROLINA
ENVIRONMENTAL MANAGEMENT COMMISSION
FILE N. WQ 91-23
:CIVIL PENALTY ASSESSMENT
, Acting pursuant to North Carolina General Statute (G.S.)
§ 143-215.6A and 15A North Carolina Administrative Code 2J .0003,
I; GeorgeT. Everett, , Director, Division of Environmental
Management (DEM),- North •Carolina Department of Environment,
Health, and Natural Resources (EHNR), make the following:
1. FINDINGS OF FACT:
. A. Don Helms is the owner and operator of a swine farm
located in Indian Trails Union County North Carolina.
B. By letter dated September 27, 1988, Helms was notified
(by certified mail) by Paul Wilms, then Director, Division
of Environmental Management, that his swine farm had been
designated a "concentrated animal feeding operation" (CAFO)
in accordance with 15A NCAC 2H .,0122 and 40 CFR 122.23.
C. Wilms' letter informed Helms that as a result of the
CAFO designation, he (Helms) must within- 60 days either
permanently eliminate discharges of waste to the waters of
the state or apply for a National Pollution Discharge
Elimination System (NPDES) permit.
D. Wilms' letter also informed Helms that he (Helms) could
contest the CAFO designation by filing a petition for a
contested case hearing in the Office of Administrative
Hearings (OAH) within 30 days of receipt of thenotice of
designation thereof.
. " •
-.„%„•-,,
E. Helms neither applied for an NPDES permit nor
challenged the CAFO designation in OAH.
'" `. •
.•••
., • . •. •

2 " -
•
F. On August 1, 199,1, personnel from DEM's Mooresville
Regional Office 'inspected Helms' swine farmi and observed
animal waste discharging from a leak in one of two waste
lagoons into an 'unnamed tributary of Goose Creek and that
the waste was then entering Goose Creek. This discharge was
not due to natural conditions.
G. The leaking lagoon was recently constructed to handle
• any excess waste from the first lagoon and was constructed
adjacent to the unnamed tributary of Goose'Creek with no
buffers provided.
H. During this inspection DEM personnel also took upstream
and downstream water qualitir samples from the tributary and
tested them for dissolved oxygen (bO) content. The
tributary was observed to be clear upstream from the point
of discharge but was observed to be a .charcoal grey color
for a considerable distance downstream. The test results
were as follows
dissolved oxygen (mg/1)
upstream: 6.75 ing/1 at 23°C
downstream: 2.0 mg/1 at 23°C
I. In accordance with 15A NCAC.213:,.0211,,the -water quality
standard for DO, in ClassC fresh surface waters -(non -trout)
is .a minimum of,5.0mg/1._ Goose Creek is a'Class C fresh
surface water '(non -trout). , • . -
_ .
. •
, J. On August 5, 1991, Brenda J. Smith, P.G., DEM Regional
Supervisor, sent Helms a certified Notice of Violation
•
(Notice) stating that he ,(Helms) was discharging waste
without a permit in violation of G.S. 143-215.1 and was in
violation of the water quality standard for DO. The Notice
,--'•• ordered these violations •to be ceased immediately and warned
of possible civil penalties of up to, $10,000.00 per day
•_under G.S. 143-215.6A. Finally; the Notice requested that,a
written 'response be submitted- to the Regional Office by
August 16, 1991.. Helms received this Notice on August 7,
1991. '
K. The downstream DO water quality standard was not
• •
exceeded due to natural conditions., There ' were no DO
exceedences upstream of the swine farm. .
L. Helms' swine farm was previously assessed a $1,000.00
- civil penalty plus $200.91 in investigative costs on August
- 8, 1990 for discharging without a perMi.E.
•
M. Staff costs and expenses associated with detecting the
violations, defining their nature and extent, and bringing
- the enforcement action, totalled $572.18.

II. CONCLUSIONS OF LAW:
A. Don. Helms is a "person" within the meaning of G.S.
143-2,12. (4) and. G.S. 143-215.6A.
B. The newly` constructed lagoon from which animal waste
leaked and discharged into the unnamed tributary 'of Goose
Creek 'was a"disposal system" as defined in G.S. 143-213(10)
and as" used within the meaning of G.S. 143-215.1(a) (2)
C. As a designated'CAFO, Don Helms' failure to obtain a
NPDES permit'prior'to constructing and operating an animal
waste disposal system within the State of North Carolina was
a violation'of G.S. 143-215.1(a) (2)'.
D. The DO reading, of ' 2.0 mg/1 downstream from the' point of
discharge -into the unnamed tributary, of Goose Creek,'. waters
of the State, was a violation of. G.S. .143-215..1.(a) (6,) and
the" applicable -standard of 5.0 mg/1 set by the Environmental
Management Commission in 15A NCAC 2B .0211.
E. Don Helms may be assessed a civil penalty of up 'to
$10,000.00per .day per violation pursuant to G.S. 143-215.6A
for each of the violations cited in Parts II, C andD above.
F. The $572.18 costs of investigation, enforcement, and
inspections in this matter were reasonable and may be
assessed against Don Helmspursuant to G.S. 143-215.3 (a) (9)
and G.S..143B-282.1(b)(8).
G. ' The Director, Division of Environmental Management
pursuant to G.S. 143-215-.6A(h) has been delegated the
authority to assess civil penalties. =.
III. DECISION:'
A. Don Helms is
$ 3
000
3 00
hereby assessed a civil penalty of:
for constructing and operating a
disposal system within the State of
North Carolina without a permit.
for, violating' the water quality
standard for' dissolved oxygen found
at 15A NCAC 2B .0211.
TOTAL CIVIL PENALTY, which
percent of ,the 'maximum
authorized by G.S. 143-215.
572.18 for reasonable investigative and
enforcement, costs
is the TOTAL AMOUNT DUE
is /7 // 0
penalty
6A.

B. Pursuant to G.S. 143-215.6A(c), in determining the
amount of the civil penalty I-. have considered the factors
set out in G.S. 143B-282.1(b).
D7t
S-243
George T. Ey'rett, Director
Division of Environmental Management

LACY H. THORNBURG
ATTORNEY GENERAL
--MEMORANDUM--
TO:
FROM:
DATE:
SUBJECT:
State of North Carolina
Department of Justice
P.O. BOX 629
RALEIGH
27602-0629
George Everett
Billy Godwin
Associate Attorney General
November 26, 1991
Final Assessment Document
Don Helms' Swine Farm
File No. WQ 91-23
Union County
N. C. DEPT. OF NAT.URAlL
RESOURCES AND
COMMUNITY DEVELOPMENT
NOV2 7 1991
DIVISION OF ENVIRONMENTAL MANAGE!;;'
MOORESVILLE REGIONAL OFFICE
Attached is the final assessment document
above -referenced matter. This document incorporates
received from the Regional Office and Section.
This case should be put on the agenda for
enforcement conference.
BG/sd
Attachment
cc: Steve Tedder, Section Chief
Barumtra'da Sm t"h' Regional Supervisor
Kent Wiggins
helmsmemo.bg
for the
comments
the next
An Equal Opportunity/Affirmative Action Employer

STATE OF NORTH CAROLINA
COUNTY OF UNION'
IN THE MATTER OF:
Don Helms' Swine Farm
FOR VIOLATIONS OF:
G.S. 143-215.1(a)(2)
OPERATING A DISPOSAL
SYSTEM WITHOUT A PERMIT
& G.S. 143-215.1(a)(6)
PERMITTING WASTE TO BE
DISCHARGED IN VIOLATION
OF A WATER QUALITY
STANDARD
NORTH CAROLINA
ENVIRONMENTAL MANAGEMENT COMMISSION
FILE NO. WQ 91-23
CIVIL PENALTY ASSESSMENT
Acting pursuant to North Carolina General Statute (G.S.)
§ 143-215.6A and 15A North Carolina Administrative Code 2J .0003,
I, George T. 'Everett, Director, Division of Environmental
Management (DEM), North Carolina Department of Environment,
Health," and Natural Resources (EHNR), make the following:
I. FINDINGS OF FACT:
A. Don Helms is the owner and operator of a swine farm
located in Indian Trails, Union County, North Carolina.
B. By letter dated September 27, 1988, Helms was notified
(by certified mail) by Paul Wilms, then Director, Division
of Environmental Management, that his swine farm had been
designated a "concentrated animal feeding operation" (CAFO)
in accordance with 15A NCAC 2H .0122 and 40 CFR 122.23.
C. Wilms' letter informed Helms that -as a result of the
CAFO designation, he (Helms) must within 60 days either
permanently eliminate discharges of waste to the waters of
the state or apply for a National Pollution Discharge
Elimination System (NPDES) permit.
D. Wilms' letter also informed Helms that he'(Helms) could
contest the CAFO" designation by filing a petition for a -
contested case hearing in the Office of Administrative
Hearings (OAH) within 30 days of receipt of the notice of
designation thereof.
E. Helms neither applied for an NPDES permit nor
challenged the CAFO designation in OAH.

-2-
F. On August 1, 1991, personnel from DEM's Mooresville
Regional Office inspected Helms' swine farm and observed
animal waste discharging from a leak in one of two waste
lagoons into an unnamed tributary of Goose Creek and_ that
the waste was then entering Goose Creek. This discharge was
not due to natural conditions.
G. The leaking lagoon was recently constructed to handle
any excess waste from the first lagoon and was constructed
adjacent to the unnamed tributary of Goose Creek with no
buffers provided.
H. During this inspection DEM personnel also took upstream
and downstream water quality samples from the tributary and
tested them for dissolved oxygen (DO) content. The
tributary was observed to be clear upstream from the point
of discharge but was observed to be a charcoal grey color
for a considerable distance downstream. The test results
were as follows:
dissolved oxygen (mg/1)
upstream: 6.75 mg/1 at 23°C
downstream: 2.0 mg/1 at 23°C
I. In accordance with 15A NCAC 2B .0211, the water quality
standard for DO in Class C fresh surface waters (non -trout)
is a minimum of 5.0 mg/l. Goose Creek is a Class C fresh
surface water (non -trout).
J. On August 5, 1991, Brenda J. Smith, P.G., DEM Regional
Supervisor, sent Helms a certified Notice of Violation
(Notice) stating that he (Helms) was discharging waste
without a permit in violation of G.S. 143-215.1 and was in
violation of the water quality standard for DO. The Notice
ordered these violations to be ceased immediately and warned
of possible civil penalties of up to $10,000.00 per day
under G.S. 143-215.6A. Finally, the Notice requested that a
written response be submitted to the Regional Office by
August 16, 1991. Helms received this Notice on August 7,
1991.
K. The downstream DO water quality standard was not
exceeded due to natural conditions. There were no DO
exceedences upstream of the swine farm.
L. Helms' swine farm was previously assessed a $1,000.00
civil penalty plus $200.91 in investigative costs on August
8, 1990 for discharging without a permit.
,M. Staff costs and expenses associated with detecting the
violations, defining their nature and extent, and bringing
the enforcement action, totalled $572.18.

-3-
II. CONCLUSIONS OF LAW:
A. Don Helms is a "person" within the meaning of G.S.
143-212.(4) and G.S. 143-215.6A.
x/7/9.
h-,r. �_r
,; : `gyp / a S u k 2
—L
3
tf
constructed lagoon from which animal waste
?barged into the unnamed tributary of Goose
Iposal system" as defined in G.S. 143-213(10)
lin the meaning of G.S. 143-215.1(a)(2).
inated CAFO, Don Helms' failure to obtain a
ior to constructing and operating an animal
system within the State of North Carolina was
3.S. 143-215.1(a) (2) .
ding of 2.0 mg/1 downstream from the point of
the unnamed tributary of Goose Creek, waters
was a violation of G.S. 143-215.1(a)(6) and
'standard of 5.0 mg/1 set by the Environmental
assion in 15A NCAC 2B .0211.
,z` ( ) may be
luvvo.-ou- p= --day per violation
for each of the violations cited
assessed a civil
pursuant
in Parts
penalty of up to
to G.S. 143-215.6A
II C and D above.
F. The $572.18 costs of investigation, enforcement, and
inspections in this matter were reasonable and may be
assessed against Don Helms pursuant to G.S. 143-215.3(a)(9)
and G.S. 143B-282.1(b)(8).
G. The Director,
pursuant to G.S.
authority to assess
DECISION:
Division of Environmental Management
143-215.6A(h) has been delegated the
civil penalties.
A. Don Helms is hereby
assessed a civil penalty of:
$ for constructing and operating a
disposal system within the State of
North Carolina without a permit.
$ for violating the water quality
standard for dissolved oxygen found
at 15A NCAC 2B .0211.
TOTAL CIVIL PENALTY, which is
percent of the maximum penalty
authorized by G.S. 143-215.6A.
$ 572.18 for reasonable investigative and
enforcement costs
$ is the TOTAL AMOUNT DUE

-4-
B. Pursuant to G.S. 143-215.6A(c), in determining the
amount of the civil penalty I have considered the factors
set out in G.S. 143B-282.1(b).
Date George T. Everett, Director
Division of Environmental Management
S-243

DIVISION OF ENVIRONMENTAL MANAGEMENT
August. 9, 1991
MEMORANDUM TO: Steve Tedder �{
FROM: Brenda J. Smith
THROUGH: D. Rex Gleason f‘9
PREPARED BY: Kim H. Colson
SUBJECT: Recommendation for Enforcement
Violation of NC General Statute 143-215.1 and
NC Administrative Code 15A NCAC 2B .0200
Don Helms Swine Farm
Union County, North Carolina
Attached is the enforcement report concerning violation of the
subject General Statute and Administrative Code.
The report should be self-explanatory; however, if you have
questions, please do not hesitate to contact Mr. Gleason or Mr.
Colson.
Attachment

Summary
Don Helms' swine farm was designated as a Concentrated Animal
Feedlot -Operation (CAFO) on September 27, 1988. Since that time,
the Helms' swine farm was assessed a civil penalty on August 8,
1990 for discharging without a permit on September 12, 1989.'Prior
to the designation, the Helms' swine farm was responsible for 5
documented discharges of animal waste. Mr. Helms'is currently
paying a $1000.00 civil penalty.
This recommendation for enforcement is for two additional
violations - 1) discharging without a permit and 2) violation of
the Water Quality stream standard for Dissolved Oxygen (D.O.).
Since the Helms' swine farm was' designated as a CAFO, the
release of animal wastewater into the stream would be an illegal
discharge. During the inspection, a discharge was occurring from
the second lagoon. Animal waste was. observed to beseeping from the
lagoon into the creek directly below the lagoon. This lagoon was
recently constructed to handle any excess wastewater from the first
lagoon, and was constructed adjacent to the stream with no buffers
provided. The subject stream was clear .upstream of the discharge;,
however, the stream was a charcoal gray color for a considerable
distance downstream of the lagoon.
D.O. readings recorded during the inspection showed a -
downstream level of 2.0 mg/1 at 23° C,while an upstream level was
recorded at 6.75 mg/1 at 23° C.-There are no.other known sources or
discharges of wastewater between the sampling points that would
affect the D.O. levels in the stream.

Chronology of Events/Correspondence
May 4, 1982
June 3, 1982
June 19, 1985
June 24, 1985
June 25, 1985
Complaint investigation concerning
discharge of animal waste.
Follow up inspection revealed that
the discharge had ceased.
Investigation of fish kill; source
not found.
Follow up investigation revealed a
breach in the Helms' swine farm
lagoon.
Mr. Helms reports the lagoon is
fixed.
July 8, 1985 Investigation revealed that the
lagoon had been repaired.
May 6, 1986
May 12, 1986
May 19, 1986
June 2, 1986
July 23, 1986
August 6, 1987
October 15, 1987
Complaint investigation revealed that
a discharge had occurred from ,the
swine lagoon.
Investi-gation revealed that no
corrective action had been taken.
Investigation revealed that no
corrective action had been taken.
Letter received from Don Helms
stated that the corrective action
had been taken.
Investigation revealed that
corrective action had been taken.
Investigation revealed that a
discharge was occurring.
Follow-up inspection revealed that
measures to cease discharge were
inadequate and a discharge was
occurring.
November 25, 1987 Letter from Don Helms states that
corrective action had been taken.
August 25, 1988
Investigation -revealed discharge
had occurred the previous day due to
a rain event less severe than the 25
,year, 24 hour storm. No freeboard was
observed by the inspector.

r�.
September 27, 1988 Don Helms' swine farm designated as a
CAFO.
September 12, 1989
December 7, 1989
March 23, 1990
August 8, 1990
April 9, 1991
August 1, 1991
August 9,1991
Inspection revealed a discharge. No
freeboard was observed by the
inspector in the first lagoon.. The
second lagoon had only a minor amount
of waste pumped to it.
Notice of Violation/Recommendation
for Enforcement letter sent to Mr.
Helms.
Recommendation for Enforcement
submitted for the unpermitted
discharge.
Civil penalty of.$1000.00 plus
$200.91 investigative costs assessed
against Mr. Helms.
Complaint investigation concerning
discharge. Investigation reveals no
discharge was occurring. Adequate
freeboard in lagoon. Complainant
alleges that Mr. Helms pumped the
waste .into the creek during a heavy
rain.
Follow-up investigation revealed a
discharge occurring from the second
lagoon. Waste is being discharge into
the creek through a leak in the
bottom of the earthen lagoon.
Dissolved Oxygen violations were
recorded during the inspection.
Recommendation for enforcement
submitted to Raleigh.

r}
•
CHECKLIST FOR PERMIT VIOLATIONS
1. A copy of the Designation letter is attached.
2. The alleged violator, Don Helms, is the same as the Designated
operation:
Mr. Don Helms
511 Lawyers Road
Indian Trail, North Carolina 28079
3. This enforcement does not include effluent limit violations.
4. Copies of correspondence are attached.
5. No chain -of -custody samples.
6. Violations are not due to a power failure.
7. Are violations chronic and/or due to a single operational
upset?
Discharges, appear to be chronic.
8. No notifications were submitted by Mr. Helms concerning any
previous discharges.
9. Investigative costs, itemized:
12 hours by Kim H. Colson for investigation and
enforcement report at $17.97/hour =$215.64
1 hour by D. Rex
at $31.59/hour
1 hour by Brenda
at $24.95/hour
Gleason for supervisory
J. Smith
review
for supervisory review
Total
= 31.59
= 24.95
$272.18
10. Civil Penalty Assessment Factors for Water Quality Cases are
attached.

i3
1,
•
CIVIL PENALTY ASSESSMENT FACTORS FOR WATER QUALITY CASES
CASE NAME: - Don Helms Swine Farm
ASSESSMENT FACTORS:
A. .CAUSE OF THE VIOLATIONS
The violations appeared to be caused by the improper
construction and operation of animal waste lagoons. Animal
waste was allowed to seep through a secondary lagoon into an
unnamed tributary to Goose Creek. The lagoon was constructed
in shallow soils with rocky material, adjacent to a small
stream.
B. THE DEGREE AND EXTENT OF HARM CAUSED BY THE VIOLATION
A Dissolved Oxygen (D.O.) water quality violation was
documented.
C. DURATION OF THE VIOLATION
There have been seven (7) previous documented discharges from
the subject farm since 1982, plus reports from citizens of
other discharges. The most recent violations occurred on
August 1, 1991,
D. EFFECT OF VIOLATION ON WATER, PUBLIC HEALTH AND FISH OR
WILDLIFE
There was one documented -Water Quality Violation for the D.O.
level in the stream. The upstream value for D.O. was 6.75 mg/1
at 23° C; the downstream value for D.O. was 2.0 mg/1 at 23° C.
There have been no documented fish kills due to this
violation.
E. EFFECTIVENESS OF ANY PREVENTIVE OR RESPONSIVE MEASURE TAKEN
BY THE VIOLATOR
To our knowledge no measures to prevent the continued
discharge have been taken by the alleged violator subsequent
to our most recent investigation. However, the violator has
expressed a willingness to. take measures to prevent the _
continued discharge of animal waste to the stream. A written
response from the violator has been requested.
F. COST OF RECTIFYING THE DAMAGE OR INFORMATION THAT WOULD BE
NEEDED TO DETERMINE THE COST, SUCH AS PROCESS RATES, CLEAN
UP COSTS
The cost to line the lagoon with an impermeable layer to
prevent further discharges and to adequately maintain the
lagoon are not known; however, such action would be necessary
to eliminate the discharge.

G. THE ALLEGED VIOLATOR'S PREVIOUS RECORD OF COMPLIANCE OF
NONCOMPLIANCE
There have been seven (7) previous discharges that have been
documented by this office and several other discharges alleged
by citizens. The subject farm was designated as a Concentrated
Animal Feedlot Operation on September 27, 1988., A civil
penalty of $1000.00 plus $200.91 investigative costs was
assessed on August 8, 1990 for a discharge which occurred on
September 12, 1989.
H. MITIGATING, AGGRAVATING FACTORS, IF ANY
None known.

CERTIFICATION PAGE
I certify that the information in this report is true
to the best of my knowledge. All violations of
self -monitoring data have been verified by hard copy review
of the monthly reports (if applicable) and the appropriate
permit . (if applicable) .
Signature of Principal Investigator(s): /i'J
DATE:

•
C. FRANK GRIFFIN;
THOMAS J. CALDWELL October
JAKE C. HELDER
W. DAVID LEE
- GRIFFIN, CALDWELL, HELDER & LEE, P.A.
ATTORNEYS AT LAW
••-.•w914 NORTH HAYNE STREET
R. G DEPT, QT NA"T'fi11* P.O. DRAWER 99
RESOUE."EZA '?Oki
MMU\ITY ttkvl:14 ' 44,4,, T
MONROE, N.C. 281 1 1 -0099
OCT 2 3 1991
R. KENNETH HELMS. JR.
111Itst�i a� ,r�.r.;.
IffinaLL PEWt L
Mr. Rex Gleason
Division Of Environmental Management
919 North Main Street _
Mooresville, NC 28115
22, 1991
TELEPHONE
704 / 289-4577
DIRECT CHARLOTTE LINE
704 / 372-4808
FAX 704 / 289.4218
Re: Donald Heath Helms Swine Farm In Union County, North Carolina
Dear Mr. Gleason:
Please advise as to the status of this matter.
Yours truly,
GRIFFIN, CALDWELL, HELDER & LEE, P. A.
R. Kenneth Helms, Jr.
RKH:cjg

r
DIVISION OF ENVIRONMENTAL MANAGEMENT
October 11, 199.1
Memorandum To: Billy Godwin
From: Brenda J. Smit6
Through: D. Rex Gleason 1F'
Prepared By: Kim H. Colson .fle:
Subject: Draft Assessment Document
Union County - Don Helms' Swine Farm
File No. WQ 91-23
Union County
This Office has reviewed the draft assessment document and
offers the following, comments:
Section I. H. - The dissolved oxygen reading for
downstream should be 2.0 mg/1. Note: The dissolved oxygen
in the creek was measured using a meter.
Section I. M. - The admistrative costs was not included
in the regional enforcement recommendation; $100.00
should be added to the costs of investigation.
Section II. D. - See comment for Section I. H.
Section II. F. - See comment for Section I. M.
If you have any questions or need additional information
concerning this matter, please feel free to contact this office.
KHC

LACY H. THORNBURG
ATTORNEY GENERAL
MEMORANDUM
10,6,4
miwz)RAttp-Abal
State of North Carolina
Department of Justice
P.O. BOX'629
RALEIGH
27602-0629
TO: rends Smth=0,
Regional Supervisor
Steve Tedder
Section Chief
FROM: Billy Godwin g6r
DATE: October 4, 1991
RE: Draft Assessment Document
Don Helms' Swine Farm
File No. WQ 91-23
Union County
Please coordinate review of the attached draft
assessment document in the above -referenced matter.
Careful review of the document is requested. In
addition, it would be advisable to review the enforcement
report again. Testimony as to the accuracy of the facts
contained in the assessment document and enforcement report
may be necessary at an administrative hearing. Please
submit any comments within two weeks of your receipt of this
memo.
Should you have any questions, please contact this
office.
BG/sd
attachment
cc: George Everett (w/out attachment)
An Equal Opportunity/Affirmative Action Employer

STATE OF NORTH CAROLINA
COUNTY OF UNION
IN THE MATTER OF:
Don Helms' Swine Farm
FOR VIOLATIONS OF:
G.S. 143-215.1(a)(2)
OPERATING A DISPOSAL
SYSTEM WITHOUT A PERMIT
& G.S. 143-215.1(a)(6)
PERMITTING WASTE TO BE
DISCHARGED IN VIOLATION
OF A WATER QUALITY
STANDARD
NORTH CAROLINA
ENVIRONMENTAL MANAGEMENT COMMISSION
FILE NO. WQ 91-23
CIVIL PENALTY ASSESSMENT
Acting pursuant to North Carolina General Statute (G.S.)
§ 143-215.6A and 15A North Carolina Administrative Code 2J .0003,
I, George T. Everett, Director, Division of Environmental
Management (DEM),North Carolina Department of Environment,
Health, and Natural Resources (EHNR), make the following:
I. FINDINGS OF FACT:
A. Don Helms is the owner and operator of a swine farm
located in Indian Trails, Union County, North Carolina.
B. By letter dated September 27, 1988, Helms was notified
(by certified mail) by Paul Wilms, then Director, Division
of Environmental Management, that his swine farm had been
designated a "concentrated animal feeding operation" (CAFO)
in accordance with 15A NCAC 2H .0122 and 40 CFR 122.23.
C. Wilms' letter informed Helms that as a result of the
CAFO designation, he (Helms) must within 60 days either
permanently eliminate discharges of waste to the waters of
the state or apply for a National Pollution Discharge
Elimination System (NPDES) permit.
D. Wilms' letter also informed Helms that he (Helms) could
contest the CAFO designation by filing a petition for a
contested case hearing in the Office of Administrative
Hearings (OAH) within 30 days of receipt of the notice of
designation thereof.
E. Helms neither applied for an NPDES permit nor
challenged the CAFO designation in OAH.

F. On August 1, 1991, personnel from DEM's Mooresville
Regional Office inspected Helms' swine farm and observed
animal waste discharging from a leak in one of two waste
lagoons into an unnamed tributary. of Goose Creek and that
the waste was then entering Goose Creek. This discharge was
not due to natural conditions.
G. The leaking lagoon was recently constructed to handle
any excess waste from the first lagoon and was constructed
adjacent to the unnamed tributary of Goose Creek with no
buffers provided.
H. During this inspection DEM personnel also took upstream
and downstream water quality samples from the tributary and
tested them for dissolved oxygen (DO) content. The
tributary was observed to be clear upstream from the point
of discharge but was observed to be a charcoal grey color
for a considerable distance downstream. The test results
were as follows:
dissolved oxygen (mq/1)
upstream: 6.75 mg/1 at 23°C
downstream: 2.1 mg/1 at 23°C
I. In accordance with.15A NCAC 2B .0211, the water quality
standard for DO in Class C fresh surface waters (non -trout)
is a minimum of 5.0 mg/1. Goose Creek is a Class C fresh
surface water (non -trout).
J. On August 5, 1991, Brenda J. Smith, P.G., DEM Regional
Supervisor, sent Helms a certified Notice of Violation
(Notice) stating that he (Helms) was discharging waste
without a permit in violation of G.S. 143-215.1 and was in
violation of the water quality standard for DO. The Notice
ordered that these violations to be ceased immediately and
warned of possible civil penalties of up to $10,000.00 per
day under G.S. 143-215.6A. Finally, the Notice requested
that a written response be submitted to the Regional Office
by August 16, 1991. Helms received this Notice on August 7,
1991.
K. The DO water quality standard was not exceeded due to
natural conditions.
L. Helms' swine farm was previously assessed a $1,000.00
civil penalty on August 8, 1990 for discharging without a
permit.
M. Staff costs and expenses associated with detecting the
nature and extent of the violations and of bringing the
enforcement action totaled $272.18.
374.10

-3-
II. CONCLUSIONS OF LAW:
A. Don Helms is a "person" within the meaning of G.S.
143-215.6A.
B. The newly constructed lagoon from which animal waste
leaked and discharged into the unnamed tributary of Goose
Creek was a "disposal system" as defined in G.S. 143-213(10)
and as used within the meaning of G.S. 143-215.1(a)(2).
C. As a designated CAFO, Don Helms' failure to obtain a
NPDES permit prior to constructing and operating an animal
waste disposal system within the State of North Carolina was
a violation of G.S. 143-215.1(a)(2).
'9 O
D. The DO reading of 2.1 mg/1 downstream from the point of
discharge into the unnamed tributary of Goose Creek, waters
of the State, was a violation of G.S. 143-215.1(a)(6) and
the applicable standard of 5.0 mg/1 set by the Environmental
Management Commission in 15A NCAC 2B .0211.
E. Don Helms may be assessed a civil penalty of up to
$10,000.00 per day per violation pursuant to G.S. 143-215.6A
for each of the violations cited in Parts II C and D above.
37 2-
F. The $272.18 costs of investigation and inspections in
this matter were reasonable and may be assessed against Don
Helms pursuant to G.S. 143-215.3(a)(9).
G. The Director, Division of Environmental Management
pursuant to G.S. 143-215.6A(h) has been delegated the
authority to assess civil penalties.
III. DECISION:
A. Don Helms is hereby assessed a civil penalty of:
$ for constructing and operating a
disposal system within the State of
North Carolina without a permit.
$ for violating the water quality
standard for dissolved oxygen found
at 15A NCAC 2B .0211.
$ TOTAL CIVIL PENALTY, which is
percent of the maximum penalty
authorized by G.S. 143-215.6A.
$ for reasonable investigative costs
$ is the TOTAL AMOUNT DUE

-4-
7
B. Pursuant to G.S. 143-215.6A(c), in determining the
amount of the civil penalty I have considered the factors
set out in G.S. 143B-282.1(b).
SA•243
Date George T. Everett, Director
Division of Environmental Management

C. FRANK GRIFFIN
THOMAS J. CALDWELL
JAKE C. HELDER
W. DAVID LEE-
R. KENNETH HELMS. JR.
GRIFFIN, C ALDWELL, HELDER & LEE, P.A.
ATTORNEYS AT LAW
314 NORTH HAYNE STREET
P.O. DRAWER 99 -
MONROE, N.C. 28110 -
August 9, 1991
Mr. Rex Gleason
Division_ofEnvironmental= Management
919 North Main Street -
Mooresville, NC 28115 _
Re: -Donald Heath Helms
Dear Mr. Gleason:
e. nErT.-0F NATURAL
ANDCOM -
Alcs.1 aF nENT -
J.i3 1 2 1991
TELEPHONE
- 704/289-4577
DIRECT CHARLOTTE LINE
704/372-4808
FAX [phone]
This letter istoacknowledge receipt by the above -referenced _ individual of
your letter dated August 5, 1991-notifying himofan alleged discharge_of waste
from his swine farm into an unnamed tributary to Goose Creek. The waste lagoon in
question, was dug approximately two years ago at the suggestion and -with the
assistance of your -Division and the District Conservationist Office here in
Monroe. At the time of the construction of the lagoon, Joe Crabb of your office,
along with Rick Pigg and Wayne Moser of Phil Loudermilk's offices observed it.
The lagoon, remained empty and was not used until July 31, 1991. On that -date,
heavy rains caused Mr. Helms' first lagoon to reach near capacity. Mr. Helms
planned on being out of the state for several days and did not want to take the
chance of the first lagoon -overflowing. It had been recommended by either your_
office or by the District Conservationist Office -that -the level in the lagoon
should not.be allowed to rise within one foot of the rim. Since the level of the.
wastewasnear the one -foot mark, Mr. Helms decided to act out of an abundance of
precaution and pump a portion of the waste to -the second lagoon. At the time when
the -alleged leak occurred, there was approximately eight inches of waste in the
second lagoon. -
Mr. Helms isnowin the process of removing the waste from the second lagoon
andhasno plans to resume the use of the same. I have contacted, on Mr. Helms'
behalf, Phil Loudermilk and discussed this situation. Mr. Loudermilk has --informed
me that he has worked with Mr. Helms in the past and will continue to work with
him. Mr. Loudermilk suggested several alternatives including an incentive plan to
allow Mr. Helms to haul the waste away or an irrigation -system. Mr. -Helms is to
meet -with Mr. Loudermilk and discuss which alternative will be most feasible in an
attempt to alleviate any current or future problems that Mr. Helms: may have with -
his farm.
Mr..Helms has tried to -comply with every recommendation made by the various
authorities concerning his farm. The steps he has already taken have been a -
considerable expense to him. If the second lagoon had a leak in its floor as
alleged, it was undetectable to Mr. Helms and was most certainly unintentional.
Mr. Helms is willing to -continue to work with your office and/or Mr. Loudermilk's
office and hopes that thismattercan beresolvedwithout any -further proceedings.

Mr. Rex Gleason
Division of Environmental Management
_August 9, 1991
Page 2
Please let your records reflect that I represent Mr. Helms, and send all
future correspondence concerning this violation to me.
Yours very truly,
GRIFFIN, CALDWELL, HELDER & LEE, P. A.
R. Kenneth Helms, Jr.
RKHjr/ror