090129_Civil Penalty Assessment_20230710

STATE OF NORTH CAROLINA NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY

COUNTY OF BLADEN

FILE NO. DV-2023-0047
IN THE MATTER OF )
)
MURPHY-BROWN, LLC )
) FINDINGS AND DECISION
FOR VIOLATIONS OF SWINE WASTE ) AND ASSESSMENT OF
MANAGEMENT SYSTEM ) CIVIL PENALTIES
GENERAL PERMIT AWG100000 )

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. Murphy-Brown, LLC owns and operates Farm 7692, a swine operation located 11486 Old
Fayetteville Road in Bladen County NC.

B. Murphy-Brown, LLC was issued Certificate of Coverage AWS090129 under North
Carolina Swine Waste Management System General Permit AWG100000 for Farm 7692
on October 1, 2019 effective from the date of issuance, with an expiration date of
September 30, 2024.

C. Condition I.1. of the General Permit AWG100000 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 January 27, 2023, staff of the NC Department of Environmental Quality (DEQ)
Division of Water Resources (DWR), Water Quality Regional Operations Section
(WQROS), Fayetteville Regional Office (FRO) received a phone call at 4:58 PM from Mr.
Mike Cudd about a spill at Farm 7692, a permitted swine waste management facility
(AWS090129). Mr. Cudd informed DWR staff that the recycling line had failed and caused
waste to flow into a secondary containment basin in which the valve had been left open by
the Farm Manager. DWR staff arrived on site around 5:50 pm on January 27, 2023 and
documented with pictures that waste had flowed to an unnamed tributary leading to Little
Turnbull Creek. Waste was observed and documented with pictures at the location where
Little Turnbull Creek goes under Old Fayetteville Road which is approximately thirty-three
hundred (3300) feet from the containment area as the water flows.

E. In addition, DWR staff documented the process of recovering the waste in Little Turnbull
Creek and placing it back in the lagoon. The freeboard in the lagoon at the time waste
recovery started was approximately thirty-seven (37) inches. A large pump was placed at
Old Fayetteville Road with lay flat hose going into a hydrant in the closest spray field, and
this allowed the permittee to pump waste/water out of Little Turnbull Creek into the
irrigation system and return it to the lagoon. The pump was running by 8:30 pm Friday
night and continued to run nonstop until Monday, January 30, 2023 at 8:00 am when it was
cut off. Several more trash pumps were set up along the unnamed tributary to capture waste
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and return it to the lagoon. Waste recovery continued throughout the night and into
Saturday afternoon from the locations in the woods.

F. DWR staff returned on Saturday January 28, 2023 and documented a beaver dam was
located approximately two hundred and eighty eight (288) feet from the Old Fayetteville
Road location stated above, and this acted as a natural containment dam which prevented
the majority of the waste from flowing downstream of the dam. This was documented with
pictures and the repair of the recycle line was also documented. On Sunday January 29,
2023, DWR staff returned to the facility and documented the large pump at Old Fayetteville
Road was still running, and the amount of waste was visually less than on Friday and the
water level in the stream continued to drop. DWR staff returned on Monday January 30,
2023, at 8:00am and five (5) water samples were taken by DWR staff and delivered to
Environmental Chemist Inc. The large pump was cut off at 8:00am and the lagoon level
was documented at 26 inches. On February 7, 2023, DWR staff returned to take water
samples at the same 5 locations taken on January 30, 2023, and they were taken to
Environmental Chemist Inc.

G. On February 7, 2023 the Division issued a Notice of Violation (NOV/NOI) with intent to
enforce through the civil penalty assessment process to Murphy-Brown, LLC.

H. The NOV was sent by certified mail, return receipt requested, and received on February
16, 2023.

I. The cost to the State of the enforcement procedures in this matter totaled $1,675.06.

Based upon the above Findings of Fact, I make the following:

II. CONCLUSIONS OF LAW:

A. Murphy-Brown, LLC is a “person” within the meaning of G.S. 143-215.6A pursuant to
G.S. 143-212(4).

B. The unnamed tributary to Little Turnbull Creek constitutes waters of the State within the
meaning of G.S. 143-212(6).

C. The above-cited conditions described in Findings of Fact I.D. through I.F violate Condition
I.1 of the AWG100000 General Permit due to unlawful discharge of wastes to waters of
the State.

D. Murphy-Brown, LLC 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 or who violates or fails
to act in accordance with terms, conditions, or requirements of any permit issued pursuant
to authority conferred by Part 1 or Part 1A of Article 21, Chapter 143.

E. The State’s enforcement costs in this matter may be assessed against Murphy-Brown, LLC
pursuant to G.S. 143-215.3(a)(9) and G.S. 143B-282.1(b)(8).

F. 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.

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Based upon the above Findings of Fact and Conclusions of Law, I make the following:

III. DECISION:

Accordingly, Murphy-Brown, LLC is hereby assessed a civil penalty of:

$4000.00 __ For violation of Condition I.1 of General Permit AWG100000 for
discharge of animal waste to the waters of the State without a permit as
required by G.S. 143-215.1.

$4000.00 __ TOTAL CIVIL PENALTY

$1675.06__ __ Enforcement costs

$5675.06 _ 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-282.1(b), which are:
(1) The degree and extent of harm to the natural resources of the State, to the public health, or
to private property resulting from the violation;
(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 Murphy-Brown,
LLC in accordance with N.C.G.S. 143-215.6(A)(d).

_________________ _______________________________
(Date) Michael Pjetraj, P.E.
Deputy Director
Division of Water Resources
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7/17/2023