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Home My WebLink AboutWQCS00004_FK20240001_20240506 DIVISION OF WATER RESOURCES - CIVIL PENALTY ASSESSMENT Violator: Metropolitan Sewerage District of Buncombe County North Carolina Facility Name: MSD Buncombe County Collection System Permit Number: WQCS00004 County: Buncombe Case Number: FK-2024-0001 ASSESSMENT FACTORS 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; The extent of harm is unknown. Brown Branch is a Class C waterbody protected for secondary contact recreation. Discharges of untreated wastewater may be detrimental but may not be readily quantifiable. 2) The duration and gravity of the violation; Approximately 353 gallons of untreated wastewater discharged to Brown Branch for a period of 35 minutes, which caused a fish kill of approximately 100 fish. 3) The effect on ground or surface water quantity or quality or on air quality; Surface water quality was impacted due to the fish kill of approximately 100 fish, most likely from a decrease in dissolved oxygen. 4) The cost of rectifying the damage; The exact cost of corrective action is unknown. 5) The amount of money saved by noncompliance; The amount of money saved by noncompliance is de minimis. 6) Whether the violation was committed willfully or intentionally; We do not believe 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; and There have been no civil penalties assessed in the past 12 months. 8) The cost to the State of the enforcement procedures. $135.15 ___________________ __________________________________________ Date Daniel Boss, Assistant Regional Supervisor Water Quality Regional Operations Section Asheville Regional Office Division of Water Resources, NCDEQ DocuSign Envelope ID: 4C3A6D7E-7959-4153-8A6A-4E57E3AFF622 5/3/2024 DocuSign Envelope ID: 4C3A6D7E-7959-4153-8A6A-4E57E3AFF622 Certified Mail # 9589 0710 5270 0731 8015 39 Return Receipt Requested May 6, 2024 Thomas E Hartye, PE Metropolitan Sewerage District of Buncombe County North Carolina 2028 Riverside Dr Asheville, NC 28804-3054 SUBJECT: Notice of Violation and Assessment of Civil Penalty for Violations of North Carolina General Statute (G.S.) 143-215.1(a)(6) and Collection System Permit No. WQCS00004, and for violation of Water Quality Standards 15A NCAC 02B .0211 (2) Metropolitan Sewerage District of Buncombe County North Carolina MSD Buncombe County Collection System Case No. FK-2024-0001 Buncombe County Dear Permittee: This letter transmits a Notice of Violation and assessment of civil penalty in the amount of $835.15 ($700.00 civil penalty + $135.15 enforcement costs) against Metropolitan Sewerage District of Buncombe County North Carolina. This assessment is based upon the following facts: a review has been conducted of the Sanitary Sewer Overflow (SSO) 5-Day Report submitted by Metropolitan Sewerage District of Buncombe County North Carolina. This review has shown the subject facility to be in violation of the requirements found in Collection System Permit No. WQCS00004 and G.S. 143-215.1(a)(1), as well as for the violation of Water Quality Standards 15A NCAC 02B .0211 (2) due to the fish kill that occurred from the SSO. The violation(s) that occurred are summarized in Attachment A to this letter. Based upon the above facts, I conclude as a matter of law that Metropolitan Sewerage District of Buncombe County North Carolina violated the terms, conditions or requirements of Collection System Permit No. WQCS00004 and G.S. 143-215.1(a)(1), as well as for the violation of Water Quality Standards 15A NCAC 02B .0211 (2) in the manner and extent shown in Attachment A. In accordance with the maximums established by G.S. 143-215.6A(a)(2), a civil penalty may be assessed against any person who violates the terms, conditions or requirements of a permit required by G.S. 143-215.1(a). DocuSign Envelope ID: 4C3A6D7E-7959-4153-8A6A-4E57E3AFF622 Based upon the above findings of fact and conclusions of law, and in accordance with authority provided by the Secretary of the Department of Environmental Quality and the Director of the Division of Water Resources, I, Daniel Boss, Assistant Regional Supervisor, Asheville Regional Office hereby make the following civil penalty assessment against Metropolitan Sewerage District of Buncombe County North Carolina: $350.00 For 1 of the 1 violation of Water Quality Standards 15A NCAC 02B .0211 (2) for Sanitary Sewer Overflow(s) resulting in a fish kill of approximately 100 fish. $350.00 For 1 of the 1 violation of Collection System Permit No. WQCS00004 and G.S. 143-215.1(a)(1) for Sanitary Sewer Overflow(s) resulting in a discharge without a valid permit. $700.00 TOTAL CIVIL PENALTY $135.15 Enforcement Costs $835.15 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; and (8) The cost to the State of the enforcement procedures. Within thirty (30) days of receipt of this notice, you must do one of the following: (1) Submit payment of the penalty, OR (2) Submit a written request for remission, OR (3) Submit a written request for an administrative hearing Option 1: Submit payment of the penalty: Payment should be made directly to the order of the Department of Environmental Quality (do not include waiver form). Payment of the penalty will not foreclose further enforcement action for any continuing or new violation(s). Please submit payment to the attention of: Attn: PERCS Branch Division of Water Resources 1617 Mail Service Center Raleigh, North Carolina 27699-1617 DocuSign Envelope ID: 4C3A6D7E-7959-4153-8A6A-4E57E3AFF622 Option 2: Submit a written request for remission or mitigation including a detailed justification for such request: Please be aware that a request for remission is limited to consideration of the five factors listed below as they may relate to the reasonableness of the amount of the civil penalty assessed. Requesting remission is not the proper procedure for contesting whether the violation(s) occurred or the accuracy of any of the factual statements contained in the civil penalty assessment document. Because a remission request forecloses the option of an administrative hearing, such a request must be accompanied by a waiver of your right to an administrative hearing and a stipulation and agreement that no factual or legal issues are in dispute. Please prepare a detailed statement that establishes why you believe the civil penalty should be remitted, and submit it to the Division of Water Resources at the address listed below. In determining whether a remission request will be approved, the following factors shall be considered: (1) whether one or more of the civil penalty assessment factors in NCGS 143B-282.1(b) was wrongfully applied to the detriment of the petitioner; (2) whether the violator promptly abated continuing environmental damage resulting from the violation; (3) whether the violation was inadvertent or a result of an accident; (4) whether the violator had been assessed civil penalties for any previous violations; or (5) whether payment of the civil penalty will prevent payment for the remaining necessary remedial actions. Please note that all evidence presented in support of your request for remission must be submitted in writing. The Director of the Division of Water Resources will review your evidence and inform you of his decision in the matter of your remission request. The response will provide details regarding the case status, directions for payment, and provision for further appeal of the penalty to the Environmental Management Commission’s Committee on Civil Penalty Remissions (Committee). Please be advised that the Committee cannot consider information that was not part of the original remission request considered by the Director. Therefore, it is very important that you prepare a complete and thorough statement in support of your request for remission. In order to request remission, you must complete and submit the enclosed “Request for Remission of Civil Penalties, Waiver of Right to an Administrative Hearing, and Stipulation of Facts” form within thirty (30) days of receipt of this notice. The Division of Water Resources also requests that you complete and submit the enclosed “Justification for Remission Request.” Both forms should be submitted to the following address: Attn: PERCS Branch Division of Water Resources 1617 Mail Service Center Raleigh, North Carolina 27699-1617 AND Daniel Boss, Assistant Regional Supervisor Water Quality Regional Operations Section Asheville Regional Office Division of Water Resources, NCDEQ 2090 U.S. 70 Highway Swannanoa, NC 28778-8211 DocuSign Envelope ID: 4C3A6D7E-7959-4153-8A6A-4E57E3AFF622 Option 3: File a petition for an administrative hearing with the Office of Administrative Hearings: If you wish to contest any statement in the attached assessment document you must file a petition for an administrative hearing. You may obtain the petition form from the Office of Administrative Hearings. You must file the petition with the Office of Administrative Hearings within thirty (30) days of receipt of this notice. A petition is considered filed when it is received in the Office of Administrative Hearings during normal office hours. The Office of Administrative Hearings accepts filings Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m., except for official state holidays. The petition may be filed by facsimile (fax) or electronic mail by an attached file (with restrictions) - provided the signed original, one (1) copy and a filing fee (if a filing fee is required by NCGS §150B-23.2) is received in the Office of Administrative Hearings within seven (7) business days following the faxed or electronic transmission. You should contact the Office of Administrative Hearings with all questions regarding the filing fee and/or the details of the filing process. The mailing address and telephone and fax numbers for the Office of Administrative Hearings are as follows: 6714 Mail Service Center Raleigh, NC 27699 6714 Tel: (919) 431-3000 Fax: (919) 431-3100 One (1) copy of the petition must also be served on DEQ as follows: Mr. William F. Lane, General Counsel Department of Environmental Quality 1601 Mail Service Center Raleigh, North Carolina 27699-1601 Please indicate the case number (as found on page one of this letter) on the petition. Failure to exercise one of the options above within thirty (30) days of receipt of this letter, as evidenced by an internal date/time received stamp (not a postmark), will result in this matter being referred to the Attorney General's Office for collection of the penalty through a civil action. Please be advised that additional penalties may be assessed for violations that occur after the review period of this assessment. If you have any questions, please contact Lauren Armeni with the Division of Water Resources staff of the Asheville Regional Office at (828) 296-4667 or via email at lauren.armeni@deq.nc.gov. Sincerely, Daniel Boss, Assistant Regional Supervisor Water Quality Regional Operations Section Asheville Regional Office Division of Water Resources, NCDEQ ATTACHMENTS: Justification for Remission Request, Attachment A Ec: Laserfiche DocuSign Envelope ID: 4C3A6D7E-7959-4153-8A6A-4E57E3AFF622 JUSTIFICATION FOR REMISSION REQUEST Case Number: FK-2024-0001 County: Buncombe Assessed Party: Metropolitan Sewerage District of Buncombe County North Carolina Permit No.: WQCS00004 Amount Assessed: $835.15 Please use this form when requesting remission of this civil penalty. You must also complete the “Request For Remission, Waiver of Right to an Administrative Hearing, and Stipulation of Facts” form to request remission of this civil penalty. You should attach any documents that you believe support your request and are necessary for the Director to consider in evaluating your request for remission. Please be aware that a request for remission is limited to consideration of the five factors listed below as they may relate to the reasonableness of the amount of the civil penalty assessed. Requesting remission is not the proper procedure for contesting whether the violation(s) occurred or the accuracy of any of the factual statements contained in the civil penalty assessment document. Pursuant to N.C.G.S. § 143B-282.1(c), remission of a civil penalty may be granted only when one or more of the following five factors apply. Please check each factor that you believe applies to your case and provide a detailed explanation, including copies of supporting documents, as to why the factor applies (attach additional pages as needed). ___ (a) one or more of the civil penalty assessment factors in N.C.G.S. 143B-282.1(b) were wrongfully applied to the detriment of the petitioner (the assessment factors are listed in the civil penalty assessment document); ___ (b) the violator promptly abated continuing environmental damage resulting from the violation (i.e., explain the steps that you took to correct the violation and prevent future occurrences); ___ (c) the violation was inadvertent or a result of an accident (i.e., explain why the violation was unavoidable or something you could not prevent or prepare for); ___ (d) the violator had not been assessed civil penalties for any previous violations; ___ (e) payment of the civil penalty will prevent payment for the remaining necessary remedial actions (i.e., explain how payment of the civil penalty will prevent you from performing the activities necessary to achieve compliance). EXPLANATION: DocuSign Envelope ID: 4C3A6D7E-7959-4153-8A6A-4E57E3AFF622 STATE OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY COUNTY OF BUNCOMBE IN THE MATTER OF ASSESSMENT ) WAIVER OF RIGHT TO AN OF CIVIL PENALTIES AGAINST ) ADMINISTRATIVE HEARING AND ) STIPULATION OF FACTS Metropolitan Sewerage District of Buncombe County North Carolina MSD Buncombe County Collection System ) ) PERMIT NO. WQCS00004 ) CASE NO. FK-2024-0001 Having been assessed civil penalties totaling $835.15 for violation(s) as set forth in the assessment document of the Division of Water Resources dated May 6, 2024, the undersigned, desiring to seek remission of the civil penalty, does hereby waive the right to an administrative hearing in the above-stated matter and does stipulate that the facts are as alleged in the assessment document. The undersigned further understands that all evidence presented in support of remission of this civil penalty must be submitted to the Director of the Division of Water Resources within thirty (30) days of receipt of the notice of assessment. No new evidence in support of a remission request will be allowed after (30) days from the receipt of the notice of assessment. This the day of , 20_____ __________________________________________ SIGNATURE ADDRESS ___________________________________________ ___________________________________________ ___________________________________________ ___________________________________________ TELEPHONE ___________________________________________ DocuSign Envelope ID: 4C3A6D7E-7959-4153-8A6A-4E57E3AFF622 ATTACHMENT A Metropolitan Sewerage District of Buncombe County North Carolina CASE NUMBER: FK-2024-0001 PERMIT NO: WQCS00004 REGION: Asheville FACILITY: MSD Buncombe County Collection System COUNTY: Buncombe _____________________________________________________________________________________________________________________________________________________________________________ Other Violations _____________________________________________________________________________________________________________________________________________________________________________ INCIDENT VIOLATION TOTAL VOLUME PENALTY NUMBER DATE VIOLATION TYPE VIOLATION DESCRIPTION (GALLONS) AMOUNT ______________________________________________________________________________________________________________________________________________________________________________ 202400593 3/7/2024 CSO/SSO(Sewer Overflow) Discharge without valid permit 353 $350.00 ______________________________________________________________________________________________________________________________________________________________________________ 202400593 3/7/2024 CSO/SSO(Sewer Overflow) SSO caused a fish kill of 353 $350.00 approximately 100 fish. ______________________________________________________________________________________________________________________________________________________________________________ DocuSign Envelope ID: 4C3A6D7E-7959-4153-8A6A-4E57E3AFF622