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HomeMy WebLinkAbout310026_Settlement Agreement_20231024STATE OF NORTH CAROLINA SETTLEMENT AGREEMENT File No. 22 CVS 729 DWR Case No. DV-2019-0096 COUNTY OF DUPLIN NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WATER RESOURCES AND SHEILA GRAHAM Sheila Graham (hereinafter "Defendant"), and the North Carolina Department of Environmental Quality (hereinafter "DEQ"), Division of Water Resources (hereinafter "DWR"), (collectively hereinafter the "Parties") hereby enter into this Settlement Agreement in order to resolve matters in controversy between them pursuant to N.C. Gen. Stat. §§ 143-215.6A, 130A- 22 and 130A-311 et. seq. Defendant is an individual who resides in Duplin County, North Carolina. These matters arose out of DWR's assessment of a civil penalty against Defendant (DWR Case No. DV-2019-0096) issued November 7, 2019. On or about November 7, 2019 the administrative penalty assessment (hereinafter "APA") was sent to Defendant by certified mail, return receipt requested, and received on November 14, 2019. Defendant failed to exhaust her administrative remedies by failing to file a contested case petition with the North Carolina Office of Administrative Hearings (hereinafter "OAH"). Defendant also failed to submit payment of the APA. On December 19, 2022 through assistant Special Deputy Attorney General, Phillip Reynolds, on behalf of DEQ, DWR, the Attorney General's Office filed an action in Duplin County Superior Court (File No.: 22 CVS 729) to collect the outstanding civil penalties in the amount of $39,000.00, administrative costs of $4,607.96, court costs of $230.00 and interest as of date of filing of $6,499.38 for a total of $50,337.34. Proper service was had upon Defendant by sheriff, in accordance with Rule 40) of the Rules of Civil Procedure. Defendant has not paid the amount demanded by DEQ, DWR in the complaint (Duplin County File No.: 22 CVS 729). As of today's date, Defendant is liable to DEQ for the outstanding APA with accrued interest and court costs in the amount of $50,337.34. that: Without any hearing of fact or law in the above -styled matter, Defendant and DEQ agree 1. In order to avoid the cost and delay of further litigation, Defendant and DEQ have entered into this Settlement Agreement and have agreed that all parties have been correctly designated and that there is no question as to misjoinder or nonjoinder. 2. Without adjudication of these claims, according to the terms and conditions below, and specifically provided that Defendant complies fully and completely with each and all of the terms and conditions, DEQ agrees to accept total settlement, inclusive of administrative costs, penalties and court costs in the amount of $44,000.00 (hereinafter, the "Settlement Amount") as full settlement payment of the civil penalties, investigative costs, accrued interest, and court costs related to DWR Case No. DV-2019-0096. 3. Defendant agrees to pay to DEQ the Settlement Amount in a total of 37 payments: an initial payment of $4,608.00 to be attributed to the administrative costs; 35 payments of $1,095.00 and a 36t' (final) payment of $1,067.00 due November 15, 2026. 4. Payment of the Settlement Amount shall be made by check written from the trust account of Defendant's attorney and made payable to the "North Carolina Department 2 of Environmental Quality" or "NCDEQ". Defendant shall sign this Settlement Agreement and the Statement Authorizing Confession of Judgment and Verification before a Notary and return this Settlement Agreement and the Statement Authorizing Confession of Judgment and Verification no later than October 15, 2023. The first payment is due October 15, 2023. The original signed and notarized Settlement Agreement, Statement Authorizing Confession of Judgment and Verification, and the first payment are due, and must be received, no later than October 15, 2023. The original signed and notarized Settlement Agreement, Statement Authorizing Confession of Judgment and Verification, and the payment shall be mailed to the following address: Regular or certified mail: Meghan Melloy Assistant Attorney General Environmental Division North Carolina Department of Justice Post Office Box 629 Raleigh, NC 27602-0629 Express or overnight mail. Meghan Melloy Assistant Attorney General Environmental Division North Carolina Department of Justice 114 W. Edenton Street Raleigh, NC 27603 5. Where payment is refused or returned by the bank for any reason, it is a breach of the terms and conditions contained in Paragraphs Three (3) and Four (4) of this Settlement Agreement, and DEQ shall be entitled to charge and collect the costs for processing each returned check, in the amount of Twenty -Five Dollars ($25.00). 6. The breach of any term or condition contained in Paragraphs Three (3) or Four (4) of this Settlement Agreement, by Defendant, will render due and payable the Entire amount owed of $43,837.96 plus interest at the legal rate of 7% from December 19, 2022, less any payments received. 7. Concurrent with the execution of this Settlement Agreement, Defendant further agrees to execute a verified Statement Authorizing Confession of Judgment in Duplin 3 County, North Carolina, in the sum of $43,837.96 (penalty, administrative costs, and court costs), plus interest at the legal rate of 7% from December 19, 2022, and check processing costs, which is attached hereto and incorporated herein by reference. If any term or condition contained in Paragraphs Three (3) or Four (4) of this Settlement Agreement is breached by Defendant, DEQ shall be entitled to file, and subsequently act upon, said Confession of Judgment as provided for by its terms and applicable law; provided, however, that prior to filing the Confession of Judgment DEQ shall provide Defendant with written notice of breach by mail and thirty (30) days from the date of the notice to cure such breach. The written notice may be sent via first class mail to Defendant's last known address, and is not required to be served by certified mail or other personal service. 8. In the event of a breach of any term or condition contained in Paragraphs Three (3) or Four (4) of this Settlement Agreement, by Defendant, the sole issues in any action by DEQ are to collect the Entire amount owed of $43,837.96 plus interest at the legal rate of 7% from December 19, 2022, and check processing costs, less any payments received, in accordance with the terms of Paragraph Six (6) of this Settlement Agreement, and Defendant's compliance with the terms and conditions of this Settlement Agreement. 9. Defendant expressly agrees that by entering into this Settlement Agreement, Defendant waives, for purposes of collection of any sums due hereunder, any and all defenses to the underlying assessment of the November 7, 2019 administrative penalty and the underlying assessments of the civil penalties and enforcement costs in DWR Case No. DV-2019-0096. 10. DEQ agrees to accept the Settlement Amount in complete satisfaction of the civil penalties, investigative costs, accrued interest, and court costs related to Enforcement Matter DWR Case No. DV-2019-0096, and the administrative penalty assessed November 7, 2019, and accrued 4 interest for said administrative penalty, subject to the terms and conditions of this Settlement Agreement and Defendant's full compliance in every respect with the terms and conditions of this Settlement Agreement. 11. DEQ agrees to dismiss the Civil Action (Duplin County File No.: 22 CVS 729) within forty-five (45) days from the receipt of the original signed and notarized Settlement Agreement, Statement Authorizing Confession of Judgment and Verification and cleared funds on the first payment, subject to the terms and conditions of this Settlement Agreement and Defendant's full compliance in every respect with the terms and conditions of this Settlement Agreement. 12. Nothing in this Settlement Agreement shall restrict any right of DEQ, including DWR, to take any enforcement action against Defendant for any continuing violation, violation occurring subsequent to the administrative penalty assessments, or future violation of environmental statutes, rules, or regulations. 13. The Parties agree that all sums payable to DEQ pursuant to this Settlement Agreement and the Statement Authorizing Confession of Judgment are debt for penalties payable to and for the benefit of DEQ and the sovereign State of North Carolina. 14. The Parties agree that the consideration for this settlement is the promises contained herein, and that this Settlement Agreement contains the whole agreement between them. 15. This Settlement Agreement shall be binding upon the Parties, their successors and assigns, and is entered into knowingly, intelligently, and voluntarily upon execution by the undersigned, who represent and warrant that they are authorized to enter into this Settlement Agreement on behalf of the Parties hereto. 16. Attorney Meghan Melloy serves as counsel for DEQ and drafted this Settlement 5 Agreement on DEQ's behalf. 17. The Defendant is represented by counsel, Attorney John Ryan of Ryan Legal Services, PLLC. 18. Defendant hereby acknowledges that she has read this Settlement Agreement, has had an opportunity to retain and confer with her attorney, fully understands the contents of the Settlement Agreement, consents to the terms and conditions of the Settlement Agreement and settlement of the claims on the terms and conditions set forth herein, and does so in reliance upon her own judgment and advice of her attorney, and not in reliance on any other representations or promises of DEQ, its representatives, or its attorneys. 19. The Parties have negotiated this settlement of this matter and agree that the negotiated settlement is expressed fully in this Settlement Agreement. 20. In the event of any dispute over the interpretation of this Settlement Agreement, there shall be no rule of construction requiring that this Settlement Agreement be construed in favor of or against either of the Parties. Each of the terms of this Settlement Agreement are contractual, not a mere recital. 21. The Defendant hereby warrants that she is competent to enter into this Settlement Agreement and that no court or tribunal of competent jurisdiction has found her to be incompetent or otherwise incapable of handling her business affairs or entering into a binding agreement or contract. 22. Defendant hereby expressly acknowledges that DEQ or any other governmental agency may consider this matter as an admission of fault in order to weigh, assess or otherwise calculate future penalties as provided by law. However, the agreements, statements and actions taken herein are made solely for the purpose of settling this matter economically and amicably on without further litigation and shall not be deemed or construed to be an admission of fault by Defendant with respect to any private matter not involving DEQ or concession of non -liability by DEQ. [The remainder of this page is intentionally left blank.] [The signatures are on the following pages.] THE NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WATER RESOURCES Michael Pjetraj D Director Division of Water Resources, DEQ Date: to JLl %a NORTH CAROLINA County of Subscribed before me this day by Michael Pjetraj This the o- day of _ � � , 2023 S' ature of Notary Public J O CL-r1 l 15- (�9 c �'I Printed Name of Notary Public My Commission expires: LJ—J-'7— �20,1-7 G C%c' Sheila Graham Date: h / tz. I "7Z State of NC — County of WPr(r4 C' Subscribed before me this day by Sheila Graham. This the I day of &-ropes , 2023. Sig to of Nota)Public Printed Name of Notary Public My Commission expires: di 2 S [SEAL] [SEAL] uu�wa►u XN a MY --� i fJ g COMMISSION EXPIRES 7(9/2+Y15 M 1�p` STATE OF NORTH CAROLINA COUNTY OF DUPLIN STATE OF NORTH CAROLINA, ex rel., ELIZABETH S. BISER, SECRETARY, NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY, DIVISION OF WATER RESOURCES, Plaintiff, ►v SHEILA GRAHAM, a/k/a SHEILA GRAHAM SCHMALBACH Defendant. IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION 22 CVS 729 STATEMENT AUTHORIZING CONFESSION OF JUDGMENT The Defendant, pursuant to Rule 68.1 of the North Carolina Rules of Civil Procedure, hereby authorizes the entry of judgment against it in the amount of $43,837.96 plus interest at the legal rate of 7% from December 19, 2022, and check processing costs, and in support thereof shows unto the Court the following: Plaintiff is the North Carolina Department of Environmental Quality, which is an agency of the State of North Carolina established pursuant to the provision of N.C. Gen. Stat. § 14313-279.1, et seq. 2. Defendant, Sheila Graham is an individual doing business in Duplin County, North Carolina, and Defendant's principal place of business is situated in Duplin County, North Carolina. The undersigned Defendant is liable to Plaintiff named above pursuant to the Settlement Agreement, wherein Defendant agreed to pay the Settlement Amount of $44,000.00 in 37 consecutive installments within a specified timeframe for the administrative penalties assessed against Defendant by Plaintiff on November 7, 2019. 4. The breach of any condition of paragraphs three (3) or four (4) of the Settlement Agreement by Defendant will render due and payable the amount of $43,837.96 plus interest at the legal rate of 7% from December 19, 2022, and check processing costs, less any payments received. Plaintiff shall be entitled to file, and subsequently act upon to the extent allowed by law, this Confession of Judgment. However, Plaintiff shall first give the Defendant written notice of its intention to file the Confession of Judgment, and allow Defendant thirty (30) days from the date of the notice to pay in full the outstanding Settlement Amount and any check processing costs, before filing the Confession of Judgment. Plaintiff's written notice may be sent via first class mail to Defendant's last known address, and is not required to be served by certified mail or other personal service. 6. Subject to the foregoing terms, the undersigned Defendant authorizes the entry of judgment in favor of the above named Plaintiff in the sum of $43,837.96 plus interest at the legal rate of 7% from December 19, 2022 and check processing costs, less any payments received, plus costs and interest at the legal rate from the date of the entry of this judgment, until paid in full. This the Pz day of C)C_-1 . 12023. DEFENDANT Sheila Graham By: Sheila Graham STATE OF NORTH CAROLINA VERIFICATION COUNTY OF RANDOLPH Sheila Graham, DEFENDANT, being first duly sworn, deposes and says: She has read the foregoing Statement Authorizing Confession of Judgment and the statements contained therein are true of her own knowledge, except for those matters and things stated therein upon information and belief, and as to those things, he believes them to be true. This the _(2 day of MT • 12023. Sheila Graham State of N e- County of WA-kei6 Subscribed and sworn to before me this day by Sheila Graham This the 12 day of 00 r . , 2023. [SEAL] of Notary v H -.+ C V �� �+- ted Name of Notary Public My commission expires: z0Z,$ 3