990012_Enforcement (Other)_20231218

DEC 18 2023
STATE OF NORTH CAROLINA
COUNTY OF YADKIN
SHADY GROVE DAIRY,
Petitioner,
V.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENTAL QUALITY, DIVISION
OF WATER RESOURCES,
Respondent.
NJG QEQ/DWR
CBntrai Office
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
23 EHR 03613
Settlement Agreement
Petitioner Tim A. Smitherman ("Petitioner") and Respondent North Carolina Department
of Environmental Quality ("DEQ"), Division of Water Resources ("DWR") (collectively, the
"Parties") hereby enter into this Settlement Agreement ("Agreement") in order to resolve a matter
in controversy between them. This matter arose out of the issuance of a civil penalty assessment
dated July 12, 2023, by DWR in the amount of $11,000 with $881.73 in investigative costs.
WHEREAS Petitioner owns and operates Shady Grove Dairy located on Shady Grove
Church Road, East Bend in Yadkin County, North Carolina.
WHEREAS DWR's Winston-Salem's Regional Office received a complaint of discolored
water and odor within Hall Creek on February 2, 2023.
WHEREAS in response to the complaint, DWR staff conducted an investigation and
observed that a secondary containment catch -basin below New #4 Waste Storage Pond ("Pond")
on Shady Grove Dairy Farm was actively discharging into an unnamed tributary to Hall Creek.
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DWR staff discovered that the Pond was overflowing through a designed spillway and the waste
was flowing into the catch -basin, which then itself was also overflowing and discharging to the
unnamed tributary to Hall Creek.
WHEREAS farm personnel ultimately admitted to DWR staff that the discharge had been
occurring over the course of five days. Although the farm reported a high waste level in the Pond
to DWR on January 23, 2023, a review of farm records revealed that the waste level in the Pond
had been impermissibly high for weeks before the farm notified DWR.
WHEREAS DWR determined that Shady Grove Dairy had unlawfully discharged
wastewater into waters of the State, failed to maintain liquid levels in the lagoon, and failed to
notify DWR of a discharge in violation of the General Permit AWG200000.
WHEREAS on July 12, 2023, DWR issued a civil penalty of $11,000 with $881.73 in
investigative costs ("the CPA").
WHEREAS Petitioner filed a Petition for Contested Case Hearing, challenging DWR's
assessment of a civil penalty.
WHEREAS during the pendency of the litigation, Petitioner and Respondent entered into
negotiations.
NOW THEREFORE, for and in consideration of the mutual promises contained herein and
without the adjudication of the findings of fact or conclusions of law set forth herein, the Parties
agree to settle the controversy as follows:
1. In order to avoid the cost and delay of further litigation, the Parties have entered into this
Agreement and have agreed that all Parties have been correctly designated and that there
is no question as to misjoinder or nonjoinder.
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2. The Petitioner shall pay DEQ $9,900.00 plus the $881.73 in enforcement costs, for a total
amount of $10,781.73 ("Settlement Amount") in one lump sum payment. The payment
shall be received no later than thirty (30) days from the date of this fully executed
agreement. The payment shall be made by check made payable to the "North Carolina
Department of Environmental Quality" and delivered to the following address:
Regular or certified mail.
Miressa D. Garoma
Animal Feeding Operations Program
Division of Water Resources
North Carolina Department Environmental Quality
1636 Mail Service Center
Raleigh, NC 27699-1636
3. Where payment is refused by the bank for any reason, it is a breach of the terms of this
Agreement, and DWR shall be entitled to charge and collect the costs for processing each
returned check, in the amount of thirty-five dollars ($35.00).
4. In the event Petitioner fails to comply with any of the conditions of this Agreement,
Petitioner shall immediately owe Respondent the entire amount of the original civil penalty
assessment, i.e., $11,881.73, including interest and costs, less any payments already made.
5. Concurrent with the execution of this Settlement Agreement, Petitioner further agrees to
execute a verified Statement Authorizing Confession of Judgment in Yadkin County, North
Carolina, in the sum of Eleven Thousand Eight Hundred Eighty -One Dollars and Seventy
Three cents ($11,881.73) less any payments received. If any term or condition contained
in Paragraphs Two (2) of this Settlement Agreement is breached by Petitioner, DEQ shall
be entitled to file, and subsequently act upon, said Confession of Judgment as provided for
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by its terms and applicable law; provided, however, that prior to filing the Confession of
Judgment DEQ shall provide Petitioner with written notice of breach by mail and fifteen
(15) days from the date of the notice to cure such breach. The written notice may be sent
via first class mail to Petitioner's last known address, and is not required to be served by
certified mail or other personal service.
6. Nothing in this Agreement shall restrict the right of DEQ or DWR to inspect or take
enforcement action against Petitioner for any new or subsequent violations of the water
quality statutes and the relevant rules promulgated thereunder. Similarly, nothing in this
Agreement shall restrict the right of Petitioner to contest a new or subsequent enforcement
action.
7. Petitioner expressly agrees that by entering into this Agreement, Petitioner waives, for
purposes of collection of any sums due hereunder, any and all defenses to the underlying
civil penalty assessment, and that the issues in any action to collect said penalty will be
limited to Petitioner's compliance with the terms of this Agreement.
8. Within five (5) days of execution of this Agreement by the Parties, Petitioner shall file a
voluntary dismissal with prejudice of Petitioner's Petition for Contested Case Hearing in
the above captioned matter, 23 EHR 03613.
9. The Parties agree and acknowledge that they have reviewed, negotiated and agreed to the
terms herein as a result of an arms' length transaction entered in good faith. No inference
or presumption shall be made against the drafter of this document as to the meaning of any
term herein.
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10.
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12.
13.
14.
15.
The Parties agree and acknowledge that the consideration for this settlement is the promises
contained herein and that this Agreement contains the whole agreement between them.
This Agreement shall be construed and interpreted in accordance with the laws of the State
of North Carolina, without giving effect to North Carolina's rules concerning conflicts of
laws. The exclusive venue for enforcement of this Agreement is North Carolina.
This Agreement shall become effective immediately following execution by both of the
Parties. In the interests of time and efficiency, the signature pages may be delivered
separately to the Parties. Scanned and e-mailed execution are as valid as original execution.
Thereafter, all copies of the Agreement and executed signature pages shall constitute an
original.
Petitioner must send an original signed and notarized Settlement Agreement and Statement
Authorizing Confession of Judgment and Verification to the following address:
Regular or certified mail. -
Ashton H. Roberts
Assistant Attorney General
Environmental Division
North Carolina Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
Express or overnight mail. -
Ashton H. Roberts
Assistant Attorney General
Environmental Division
North Carolina Department of Justice
114 W. Edenton Street
Raleigh, NC 27603
This Agreement shall be binding upon the Parties, their successors and assigns, upon
execution by the undersigned, who represent and warrant that they are authorized to enter
into this Agreement on behalf of the Parties hereto.
This Agreement is entered into knowingly, intelligently, and voluntarily.
[signatures on following page(s)]
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STATE OF NORTH CAROLINA
COUNTY OF YADKIN
STATE OF NORTH CAROLINA, ex rel.,
ELIZABETH S. BISER, SECRETARY,
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENTAL QUALITY
Plaintiff,
M
Tim A. Smitherman,
Defendant.
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
CVS
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 him in the sum of Eleven Thousand Eight Hundred
Eighty -One Dollars and Seventy Three cents ($11,881.73), less any payments received, and in
support thereof shows unto the Court the following:
Plaintiff is the sovereign State of North Carolina. The Department of
Environmental Quality is an agency of the State of North Carolina established
pursuant to the provisions of N.C. Gen. Stat. § 14313-279.1, et seq.
2. Defendant, Tim Smitherman is a natural person who owns and operates Shady
Grove Dairy in Yadkin County, NC
3. The Defendant is liable to Plaintiff pursuant to a Settlement Agreement, wherein
Defendant agreed to take certain actions to resolve a civil penalty assessed in the
amount of Eleven Thousand Eight Hundred Eighty -One Dollars and Seventy Three
cents ($11,881.73).
4. The breach of any term or condition contained in Paragraphs Two (2) of the
Settlement Agreement by Defendant will render due and payable the sum of Eleven
Thousand Eight Hundred Eighty -One Dollars and Seventy Three cents
($11,881.73) less any payments received.

5. 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 fifteen (15) 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 Eleven Thousand
Eight Hundred Eighty -One Dollars and Seventy Three cents ($11,881.73) 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 Lday of _ % e- C � , 2023.
�Flm A. Smitherman

RESPONDENT NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL
QUALITY, DIVISION OF WATER RESOURCES
By: _
Michael Pjetraj, P.E.
Deputy Director, Division of Water Resources
North Carolina Department of Environmental Quality
Date:
PETITIONER SHADY GROVKDAIRY
By:
im A. Smitherman
Date: AA - /
G

STATE OF NORTH CAROLINA
VERIFICATION
COUNTY OF YAUKIN
TIM SMITHERMAN, being first duly sworn, deposes and says:
I have read the foregoing STATEMENT AUTHORIZING CONFESSION OF
JUDGMENT and I am familiar with all of the facts and circumstances stated therein and the
statements contained therein are true of my own knowledge, except for those matters and things
stated therein upon information and belief, and as to those matters and things, I believe them to
be true.
This the day of 2 , 2023.
TIM SNIITHERMAN
County of.
Subscribed and sworn to before me this day by Tim Smitherman.
This the day of ��� . , 2023.
Signature of Nota Publi
Printed Name of Notary Public
My commission expires: % - .1,0 - ale
Vic J. ATTNEWS
Notary public -North Carolina
COUNTY OF YADKIN
My commission Expires: