990012_Civil Penalty Assessment_20230712

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STATE OF NORTH CAROLINA NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY
COUNTY OF YADKIN
FILE NO. DV-2023-0093
IN THE MATTER OF )
TIM A. SMITHERMAN )
FINDINGS AND DECISION
FOR VIOLATIONS OF CATTLE WASTE ) AND ASSESSMENT OF
MANAGEMENT SYSTEM ) CIVIL PENALTIES
GENERAL PERMIT AWG200000 )
Acting pursuant to delegation provided by the Secretary of the Department of Environmental
Quality and the Director of the Division of Water Resources, I, Michael Pjetraj, Deputy Director of the
Division of Water Resources (DWR),make the following:
I. FINDINGS OF FACT:
A. Tim A. Smitherman owned and operated Shady Grove Dairy, a permitted cattle operation
in Yadkin County.
B. Tim A. Smitherman was issued Certificate of Coverage AWC990012 under General Permit
AWG200000 for Shady Grove Dairy on October 31, 2019 effective from the date of
issuance,with an expiration date of September 30,2024.
C. Condition 1.1. of the General Permit AWG200000 states that"Any discharge of waste that
reaches surface waters or wetlands is prohibited except as otherwise provided in this
General Permit and associated statutory and regulatory provisions. Waste shall not reach
surface waters or wetlands by runoff,drift,manmade conveyance,direct application,direct
discharge or through ditches, terraces, or grassed waterways not otherwise classified as
state waters."
D. On February 2, 2023, DWR WSRO received a complaint of discolored water and odor
within Hall Creek.An investigation of the complaint by DWR WSRO staff on February 3,
2023 indicated that discharge from the secondary containment catch-basin below New#4
Waste Storage Pond(WSP)was actively occurring into an unnamed tributary(UT)to Hall
Creek.
E. Hall Creek is located with the Yadkin River Basin and is classified as WS-IV waters,which
are waters used as sources of water supply for drinking, culinary, or food processing
purposes where a WS-I, II or III classification is not feasible.
F. Samples were collected by DWR staff within the at UT to Hall Creek. Sample locations
within the UT were upstream of the observed discharge, at the point of discharge, and
downstream of the discharge. Samples were analyzed by Statesville Analytical for fecal
coliform, nitrate & nitrite, phosphorus, and total kjeldahl nitrogen. Analytical results
showed elevated fecal coliform and total kj eldahl nitrogen at the discharge and downstream
sample locations.

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G. Condition V.2 of General Permit AWG200000 states "the maximum waste level in
lagoons/storage ponds shall not exceed that specified in the facility's Certified Animal
Waste Management Plan (CAWMP). At a minimum, maximum waste level for
lagoons/storage ponds must not exceed the level that provides adequate storage to contain
the 25-year, 24-hour storm event plus an additional one (1) foot of structural freeboard
except that there shall be no violation of this condition if. (a) there is a storm event more
severe than a 25-year,24-hour event,(b)the Permittee is in compliance with its CAWMP,
and(c)there is at least one(1)foot of structural freeboard."
H. Engineer design specifications state the designed maximum liquid level for "New #4"
waste storage pond(WSP)as 27.6-inches. The spillway of"New#4"WSP is designed to
overflow with 12-inches of structural freeboard remaining and directs overflow to a
downslope engineer-designed secondary containment catch-basin.
I. The waste level in"New#4"WSP was in exceedance of the maximum level by 15.6-inches
on January 23,2023.
J. Condition III.17.e of General Permit AWG200000 states that the permittee shall report by
telephone to the appropriate Division Regional Office as soon as possible, but in no case
more than twenty-four(24)hours following the first knowledge of the occurrence of failure
to maintain storage capacity in a storage pond greater than or equal to that required in
Condition V.2 of the permit.
K. DWR WSRO was notified by phone on January 23, 2023 when the waste level was 15.6-
inches above the permitted level. A phone call was received by DWR Winston-Salem
Regional Office(WSRO)on January 23,2023,making notification of freeboard exceeding
the maximum liquid level. The level at the time of the notification was at the structural
freeboard level of 12-inches. This is the level of the overflow spillway.
L. On February 27,2023 the Division issued a Notice of Violation(NOV/NOI)with intent to
enforce through the civil penalty assessment process to Tim A. Smitherman identifying the
violation of conditions of Permit No. AWG200000.
M. The NOV was sent by certified mail, return receipt requested and received on March 2,
2023.
N. A written response to NOV-2023-DV-0 I 11,including facility records and a Plan of Action
(POA),was received by DWR WSRO on March 22,2023.
O. The cost to the State of the enforcement procedures in this matter totaled$881.73.
Based upon the above Findings of Fact,I make the following:
II. CONCLUSIONS OF LAW:
A. Tim A. Smitherman is a"person"within the meaning of G.S. 143-215.6A pursuant to G.S.
143-212(4).
B.
C. Unnamed tributary to Hall Creek located with the Yadkin River Basin constitutes waters
of the State within the meaning of G.S. 143-212(6).

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D. The conditions described in Findings of Fact I.D, I.E & I.F constituted a violation of
General Permit AWG200000 due to the unlawful discharge of wastewater to waters of the
State.
E. The above cited failure in Findings of Facts I.H & I.1 to maintain the liquid level in the
lagoon at the level specified in the CAWMP is a violation of Condition V.2.of the General
Permit AWG200000.
F. The above cited failure in Findings of Fact IX to provide notification to the Regional
Office violated Condition I11.17.e. of the General Permit AWG200000.
G. Tim A. Smitherman 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 ($25,000.00) per violation 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.
H. The State's enforcement costs in this matter may be assessed against Tim A. Smitherman
pursuant to G.S. 143-215.3(a)(9) and G.S. 14313-282.1(b)(8).
I. The Deputy Director 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:
Accordingly, Tim A. Smitherman, owner of Shady Grove Dairy at the time of the noncompliance
is hereby assessed a civil penalty o£
$8000.00 For violation of Condition 1.1 of General Permit AWG200000 for
discharge of animal waste to the waters of the State.
$2000.00 For violation of Condition V.2 of General Permit AWG200000 by
exceeding the maximum waste level in"New"waste storage pond.
$1000.00 For violating Condition 111.17.e of the General Permit AWG200000, for
failure to report by telephone to the appropriate Division Regional Office
of exceeding the maximum waste level.
$11,000.00 TOTAL CIVIL PENALTY
$881.73 Enforcement costs
$11,881.73 TOTAL AMOUNT DUE
Pursuant to 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 G.S. 143B-282.I(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 violation;

DocuSign Envelope ID:0328F2AE-1DB2-4211-9150-A17A3025DD2B
(2) The duration and gravity of the violation;
(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 violation was 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;
(8) 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 Tim A.
Smitherman in accordance with N.C.G.S. 143-215.6(A)(d).
Doc/IuSigne''d by:t
7/12/2023 NG� �f
(Date) Michael Pjetraj,P.E.
Deputy Director
Division of Water Resources