HomeMy WebLinkAbout550002_Civil Penalty Assessment_20231115STATE OF NORTH CAROLINA NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY
COUNTY OF LINCOLN
FILE NO. DV-2023-0128
IN THE MATTER OF )
)
GARY MACGIBBON )
) 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. Gary MacGibbon owns and operates Gar-Mac Dairy, a permitted cattle operation in Lincoln
County.
B. Gary MacGibbon was issued Certificate of Coverage AWC550002 under General Permit
AWG200000 for Gar-Mac Dairy on December 3, 2019 effective from the date of issuance,
with an expiration date of September 30, 2024.
C. Condition I.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. June 7, 2023, DWR Mooresville Regional Office (MRO) staff received phone calls
regarding a fish kill, foam, and water quality concerns within Indian Creek in Lincoln
County. Upon investigation of the concerns on the same day, DWR staff followed the
contamination upstream, and discovered discharge of animal waste from a damaged hydrant
that was part of Gar-Mac Dairy’s irrigation system had entered an unnamed tributary that
drains to Indian Creek. DWR staff documented the discharge with pictures and with
samples showing elevated fecal coliform bacteria in the stream. Public health advisories
were issued by Lincoln (June 7 – 15, 2023) and Gaston (June 7 – 8, 2023) Counties to avoid
contact with waters in Indian Creek.
E. Mr. MacGibbon submitted a report to DWR on June 8, 2023, indicating that Gar-Mac Dairy
discharged an estimated 33,600 gallons of waste to an unnamed tributary to Indian Creek.
F. Indian Creek is located with the Catawba 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.
G. Condition II.5. of the General Permit AWG100000 states that “In no case shall land
application result in excessive ponding or any runoff during any given application event.”
DocuSign Envelope ID: 27F106C1-E1F6-45A2-A6E9-4D75B3A8DEE1
H. DWR staff visited Gar-Mac Dairy site on June 7, 2023, to investigate the multiple phone
calls complaining about the water quality in Indian Creek in Lincoln County. During the
visit, DWR staff found that there was a broken hydrant associated with the animal waste
irrigation system at Gar-Mac Dairy. The animal waste flowed out of the hydrant and the
runoff entered Indian Creek in Lincoln County. DWR staff documented the discharge with
pictures and samples. Per your report of June 8, 2023, Gar-Mac Dairy discharged an
estimated 33,600 gallons of waste to an unnamed tributary to Indian Creek.
I. On August 4, 2023, a Notice of Violation/Intent to Enforce (NOV-2023-DV-0300) was
issued to Gary MacGibbon of Gar-Mac Dairy identifying permit condition violations.
J. NOV-2023-DV-0300 was sent by certified mail with return receipt and was received by
Gary MacGibbon of Gar-Mac Dairy on August 7, 2023.
K. A written response to NOV-2023-DV-0300 from Gary MacGibbon of Gar-Mac Dairy,
including facility records and a Plan of Action (POA), was received by DWR MRO on
August 14, 2023. The response stated that Mr. MacGibbon agreed “with the violations
Division of Water Resources (DWR) has cited and will use this occurrence as a valuable
lesson to insure it does not happen again.”
L. The cost to the State of the enforcement procedures in this matter totaled $1355.89.
Based upon the above Findings of Fact, I make the following:
II. CONCLUSIONS OF LAW:
A. Gary MacGibbon is a “person” within the meaning of G.S. 143-215.6A pursuant to G.S.
143-212(4).
B. The unnamed tributary to Indian Creek located with the Catawba River Basin constitutes
waters of the State within the meaning of G.S. 143-212(6).
C. The conditions described in Findings of Fact I.D, & I.E constituted a violation of Condition
I.1 of General Permit AWG200000 by unlawfully discharging wastewater to waters of the
State.
D. The above cited failure in Findings of Fact I.H by utilizing an irrigation system with a
broken hydrant that resulted in runoff of animal waste during an application event is a
violation of Condition II.5. of the General Permit AWG200000.
E. Gary MacGibbon 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 the terms, conditions, or requirements of any permit issued pursuant to
authority conferred by Part 1 or Part 1A of Article 21, Chapter 143.
F. The State’s enforcement costs in this matter may be assessed against Gary MacGibbon
pursuant to G.S. 143-215.3(a)(9) and G.S. 143B-282.1(b)(8).
G. 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.
DocuSign Envelope ID: 27F106C1-E1F6-45A2-A6E9-4D75B3A8DEE1
Based upon the above Findings of Fact and Conclusions of Law, I make the following:
III. DECISION:
Accordingly, Gary MacGibbon, owner of Gar-Mac Dairy at the time of the noncompliance is hereby
assessed a civil penalty of:
$5000.00 __ For violation of Condition I.1 of General Permit AWG200000 for discharge
of animal waste to the waters of the State.
$1000.00 ____ For violation of permit condition II.5. of General Permit AWG200000 by
utilizing an irrigation system with a broken hydrant that allowed for runoff
of animal waste during an application event
$6000.00 __ TOTAL CIVIL PENALTY
$1355.89_ _ Enforcement costs
$7355.89 __ 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 Gary MacGibbon
in accordance with N.C.G.S. 143-215.6(A)(d).
_________________ _______________________________
(Date) Michael Pjetraj, P.E.
Deputy Director
Division of Water Resources
DocuSign Envelope ID: 27F106C1-E1F6-45A2-A6E9-4D75B3A8DEE1
11/15/2023