20010635 Ver 1_Mediation Proposal (Draft)_20030618

JOHN D. RUNKLE
ATTORNEY AT LAW
POST OFFICE HOX 3793
CHAPEL HILL, NORTH CAROLINA 27515
TELEPHONE: [phone]
June 18, 2003
VIA FAX
Ramona Cunningham O'Bryant
Smith Moore LLP
P.O. Box 21927
Greensboro, N.C. 27420
Benne C. Hutson
Helms Mulliss & Wicker
P.O. Box 31247
Charlotte, N.C. 28231
Sueanna P. Sumpter
Assistant Attorney General
N.C. Department of Justice
124 College St., Suite 300
Asheville, N.C. 28801
Re: MEDIATION PROPOSAL -- DRAFT
Nancy Hensley and Diane Kent v. DENR and Mountain Air, 02 HR 1739
Mountain Air v. DENR and Nancy Hensley and Diane Kent, 02 EHR 1768
Counsel:
First, we would appreciate any proposals for settlement between Mountain Air and the
Division so that we can review them prior to the mediation.
As the first DRAFT of a settlement proposal for our mediation on Friday, my clients have
asked me to send you the following. This may be changed somewhat by Friday, especially
if there are technical changes that could be added to the BMPs in ~ 5 below.
The matters to be resolved are the consolidated appeals of the 401 Certification; a
potential appeal of the granting of a trout buffer variance by Land Quality; and a potential
citizen suit under the Sedimentation Act for damages to Hensley and Kent. fNote that G.S.
1 13A-56 allows civil relief and authorizes attorney fees and expert witnesses fees;
evidence of violations shows per se negligence.)
Settlement proposal Idraft):
Mountain Air to pay Hensley and Kent 5200,000 for damages and expenses to date.
RECYCLED PAPER ~~ ~ (~ ~ 1

~ ~ --
2. Mountain Air to pay a penalty of S2,000 for each future violation found by Land Quality
or Water Quality as part of inspections. This includes violations in the Sedimentation
Inspection Reports, Notice of Violations and other similar enforcement actions under
permits, certifications or variances issued by Land Quality or Water Quality. Mountain Air
to pay 54,000 for a second violation for any given project, and S 10,000 for each additional
violation for any given project. The penalties to go to a land trust, such as the
Conservation Trust for NC does work in the mountains along the Parkway and elsewhere.
Mountain Air to pay an additional penalty of S 10,000 for any violation that generates a
Notice of Violation. Penalties to go to a land trust.
Mountain Air to pay the equivalent in penalty to any monetary fine assessed by Land
Quality or Water Quality. Penalties to go to a land trust.
After the second violation of any project, all construction activities other than necessary to
correct the violation will cease until the violation is corrected.
For each violation or other enforcement action above, Mountain Air to put a notice in the
Burnsville and Asheville newspapers of at least 3 column inches describing the violation
and corrective action, along with Mountain Air contact information.
3. Land duality to file inspection reports, correspondence and enforcement actions with
Water duality and Clean Water for NC. Water duality to file reports, correspondence and
enforcement actions filed with Land duality and Clean Water.
4. Water duality to conduct an inspection within 48 hours of any violation cited by Land
Quality. Water duality to conduct an inspection within 24 hours of a storm event greater
than 1 "within 24 hours. Water duality to conduct an inspection at least once a month
regardless of violations or storm events
5. Mountain Air to retain a 30-foot naturally vegetated buffer on both sides of all trout
streams on its property.
6. Mountain Air to test, or in the alternative establish a S 10,000 community fund to test,
the drinking water springs of the families living in the Banks Creek valley at least quarterly
for pesticides and organics.
I look forward to your response.
Sincerely,

John D. Runkle