NOV Response 20201194

STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
Roy COOPER
GOVERNOR
July 3, 2024
NC Division of Water Resources
Transportation Permitting Branch
1617 Mail Service Center
Raleigh NC 27699-1617
ATTN: Ms. Amy Chapman, Supervisor
Transportation Permitting Branch
Subject: NCDOT Response to Notice of Violation
J.R. "JOEY" HOPKINS
SECRETARY
Reference: NCDWR NOV-2024-PC-0386 Dated June 13, 2024
NCDWR Project No. 20201194
USACE Action ID SA W-2018-01012
NCDOT TIP U-5713/R-5777A&B US 70 Improvements in James City,
Craven County
Dear Ms. Chapman,
This letter is in response to the North Carolina Division of Water Resources (NCDWR)
Notice of Violation (NOV-2024-PC-0386) issued on June 13, 2024, for unauthorized fill
in a jurisdictional stream on project U-5713/R-5777A&B, US 70 Improvements in James
City, in Craven County. Included are the requested responses addressing items from your
letter as well as a letter from our prime contractor for the same.
NCDWR NOV-2024-PC-0386
As requested, responses to the questions in your June 13, 2024, letter are as followed:
• Please explain how the violation occurred
Mailing Address:
Telephone: [phone] Location:
NC DEPARTMENT OF TRANSPORTATION
Fax: [phone] ROUSE ROAD EXTENSION
DIVISION 2
Customer Service: 1-877-368-4968 KINSTON, NC 28504
2815 ROUSE ROAD EXTENSION
KINSTON, NC 28504
Website: www.ncdotgov

As indicated in your letter, an onsite inspection of the project was held on June 4, 2024,
by Mr. Garcy Ward with NCDOT and contractor staff in attendance. When the
unauthorized fill was discovered during the inspection, discussions were held among the
three parties as to how and why the earthen material had been pushed into stream SJ at
Site 18 near Culvert 5. At the time of those discussions, it was speculated and reported to
Mr. Ward that it had to have happened during the retrieval of an excavator that had
overturned at the culvert on May 31. These statements were made as speculation by the
staff that was present at the inspection without inquiring from their staff performing the
culvert excavation or the subcontractor hired to build the culvert.
Immediately following the conclusion of the June 4 inspection and discovery of the
unauthorized fill, NCDOT and Balfour Beatty started an investigation and began
interviewing staff that had been present at the culvert in the days leading up to the
inspection. We have concluded that the violation actually occurred during culvert
wingwall excavation sometime between noon on Monday, June 3, and noon on Tuesday,
June 4. This conclusion has been made based on the photographs taken by our project
inspection staff on May 30, June 3, and the morning of June 4 as well as numerous
conversations with our inspection staff and the contractor. The exact day and time are
still not known, as it was not realized that the unauthorized fill (spoil pile) had spilled
into the jurisdictional stream until Mr. Ward's inspection.
Site 18 was permitted for buffer, wetland, and stream impacts. The highlighted location
on the plan snippet on the next page shows where the unauthorized fill exceeded our
permitted footprint and encroached into 20' of jurisdictional stream (permit label SJ)
located between two sections of jurisdictional stream that had been permitted for impacts.

Our investigation further revealed that the unauthorized fill was placed while a stockpile
of earthen material was being generated during excavation for the culvert wingwalls. The
stockpile was placed within the area that had been permitted, but due to the size began
encroaching into the 20 linear feet of stream between the two permitted sites (highlighted
in drawing above), which had not been permitted for temporary impacts. At the time the
material exceeded our permitted footprint, this perennial stream had no water in it and
due to the vantage point of the excavator operator, it could have been unclear to him as to
the small area of jurisdictional stream not being permitted for impacts.

• Please explain why the violation was not reported to DWR within 24 hrs.
As stated above, it was originally speculated that the violation occurred on May 31
during retrieval of an over -turned excavator. Our thorough investigation has revealed
that the violation most likely occurred between noon on June 3 and noon on June 4
during wingwall excavation based on project notes, photographs, and interviews. The
unauthorized fill was discovered on the afternoon of June 4 during Mr. Ward's onsite
investigation. While the project staff had not realized the material had encroached into
the unpermitted 20-foot section of the stream until the onsite inspection, the 24-hour
timeframe to report the violation had not been exceeded based on our investigation. We
do understand that based on the speculative information provided to Mr. Ward at the
onsite inspection, we would have exceeded the 24-hour timeframe to report.
t

• List any actions necessary to remediate the violation and prevent it from
happening again.
Upon conclusion of Mr. Ward's onsite inspection, the contractor began retrieving the
material that had encroached into the unpermitted area and repaired the adjoining area to
bring it back into compliance, as shown in the two photos below. The contractor worked
into the evening on June 4 and continued early the next morning.

The contractor had a project -wide "stand -down" with their staff to discuss this incident
and the lessons learned. The same was held with the Department's project inspection
staff. The contractor has committed to having meetings with their subcontractors to
ensure all are aware of the permitted versus non -permitted areas on the project to
eliminate any possibility of encroaching into a non -permitted area again. Ensuring this
and other areas are clearly marked for jurisdictional features, permitted or not, is the best
way to ensure this does not happen again. For Site 18, additional high visibility fencing
has been added, as shown in photo above, to clearly designate to not enter the stream
where it is not permitted for impacts.
The NCDOT and contractor are reviewing all other permit sites on the project to get
refreshed with them since there has been a substantial amount of time between when the
permits were received and the beginning of construction. There have been lessons learned
regarding high visibility fence placement at sensitive areas that are unusual in nature and
its purpose to provide awareness to someone where they can and cannot work. While
high visibility fence had been installed at Site 18 prior to work commencing, it had not
been installed correctly to delineate the stream, buffer, and wetland impacts at this
location; therefore, leaving the 20-foot of unpermitted stream impact without delineation.
This oversight had not been realized by any of the parties during previous monthly
agency review meetings. This has since been corrected and high visibility fence has been
installed at Site 18 per the drawings below.

TE 18
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Furthermore, NCDOT site personnel and construction staff have been reminded of the
need to do a 360-degree walk around at all jurisdictional sites at a minimum of the
beginning and end of each day. Additionally, as required in the Water Quality
Certification (WQC), a copy of the WQC will be onsite at all times.
We are committed to revisiting and reviewing all permitted sites prior to beginning new
work with the contractor and each subcontractor. We have had multiple meetings and
discussions on this subject, to ensure all parties understand the seriousness of this

incident and the repercussions. The contractor is taking additional measures with their
staff to ensure they understand the requirements of the permit and what orange fence
represents, as well as reviewing their work sites on a routine basis including but not
limited to ensuring orange fence is always maintained. You will find additional
information regarding their approach succeeding this response.
The Department and its contractor truly regret this incident occurred and understand the
shortcomings on our part with the events leading up to the violation. Please know that we
take these actions very seriously, and efforts will be made to ensure such deficiencies do
not occur again.
We would ask that the North Carolina Division of Water Resources (NCDWR) give
consideration to rescinding this Notice of Violation based on the new information that we
are presenting based on a thorough investigation that was held by the Department and the
contractor following the discovery of the unauthorized fill; information that is contrary to
the speculative information provided to Mr. Ward during his inspection. Should you
have any questions regarding any of this information, please contact Jordan Scott at 252-
439-2847 or jcsi cottl rir,ncdot.gov or myself at 252-775-6100 or jdstroud cr ncdot.<foV
Sincerely,
eremy Stroud, PE
Division Two Engineer
CC: Gary Ward, DEMLR, Washington Regional Office
Tom Steffens, US Army Corps of Engineers, Washington Field Office
Stephen Lane, NC Division of Coastal Management
Cadmus Capehart, PE, NCDOT Division 2 Deputy Engineer
Jordan Scott, PE, NCDOT Division 2 Construction Engineer
Troy Brooks, PE, NCDOT State Construction Engineer
Jay Johnson, NCDOT, Division 2 Environmental Officer
Wendi Johnson, PE, Gannett Flemming
Chris Rivenbark, RK&K
Jay Boyd, Balfour Beatty

July 1, 2024
Banoup Beatty
US-70 Jarnes City
3314 Jaeckle Drive. Unit 140
Wilmington NC 28403
910-452-1145
kntton, 4."balfourbeatt\iis.coin
NCDEQ, Division of Water Resources
Attn: Ms. Amy Chapman Sent via L"S Mail & E-mail
1617 MSC
Raleigh, NC 27699-1617
NCDWR Project No. 20201194
Tip No, U-5713 R-5777AB
Location U.S. 70 from the eastern approach of the Neuse River Bridge to approximately
one (1) mile east of S.R. 1116 (Thurman Road)
County Craven County
the
Subject: Notice of Violation
NOV-2024-PC-0386
Dear Ms. Chapman,
Balfour Beatty Infrastructure, Inc. (BBII) is in receipt of the North Carolina Department of
Environmental Quality (NCDEQ) letter dated June 13, 2024 for unauthorized fill in a
jurisdictional stream at the above referenced project. BBII has conducted a thorough
investigation and offers the following information in response to the letter with details
organized under the same headings as the NOV letter:
HOW THE VIOLATION OCCURRED
As part of constructing Culvert #5 (Site 18) near 16+50RT Y22RPC, BBII provided excavation
and installation of a slide rail shoring system in support of subcontractor, Mountain Creek
(MC). Mountain Creek's scope is to form, reinforce, and pour cast -in -place box culverts at
various locations on the project. MC mobilized on Monday 6/3/24 and on Tuesday 6/4/24
during a routine agency review with BBII personnel it was determined that there had been
impacts to the stream channel outside of the area permitted for the construction of Culvert #5.
Both BBII and MC had a heavy equipment operator utilizing a large excavator in the bottom of
the excavation removing earth and placing it on the slope above them. The BBII scope of
work was completed and the area was handed off to MC to begin work constructing the base
slab and walls of the permanent culvert on 6/3/24. Although BBII performed most of the
excavation scope, MC mobilized an excavator to handle formwork and concrete and to
perform minimal excavation as their work progressed. It is believed that due to the limited
visibility of the operator from his vantage point that it was not apparent that the angle of
www.balfour beattyus torn

repose from the stockpile caused the material to overtop the silt fence and go beyond
acceptable boundaries.
WHY THE VIOLATION WAS NOT REPORTED WITHIN 24 HOURS
Initially during discussions on -site during the agency review one of the BBII team members
had stated that the material loss may have potentially occurred on May 30th because that was
when BBII had an excavator reworking the slope in the area. However, that has been ruled
out through the investigation. There were BBII superintendents and inspection staff on site at
that time who verified that stockpiled material was removed from the area at that time to help
with access. The initial statement about the violation potentially taking place on the 30th was
not intended to mislead but was simply caused by confusion regarding the timeline at a
stressful point in the discussion with the agencies.
BBII superintendent Jake Gainey arrived early for night shift operations on the evening of
June 2"d and stopped to inspect the culvert #5 location prior to going to work. At that time
there was no material in the JS. BBII erosion control supervisor Tony Mitchell performed his
weekly erosion control inspection on Monday June V and did not notice any issues at the
culvert site.
Sometime between noon on Monday and noon on Tuesday during the agency review, the
excavator operator deposited material on the stockpile that overtopped the silt fence and
impacted the jurisditional stream. Due to the tight work area and limited visibility from the
excavation it was not known at the time that the material had overtopped the silt fence and
gone beyond acceptable boundaries. Please refer to Attachment A for an aerial view of the
Culvert #5 location taken on 6/17/24.
BBII found the JS had been impacted when reviewing the site with the agencies on 6/4/24.
Although it is impossible to know the exact time that the impact took place it is reasonable to
believe it happened sometime from late Monday afternoon to midday on Tuesday.
Immediately upon discovery of the issue BBII took action to recover material and repair the
area.
ACTIONS NECESSARY TO REMEDIATE AND PREVENT IN THE FUTURE
After the loss was found during the Agency Review, BBII immediately mobilized crews to
address the loss of material beyond the silt fence into the JS. The fact that the stream was
dry did certainly aid in quick recovery and the material was removed from the JS within hours.
The team worked late that day and had the rest of the area cleaned up just after nightfall with
seeding and mulching ongoing throughout the next day.
To make sure that a similar issue doesn't happen again BBII held a stand -down with every
worker on the project to discuss the incident and review procedures, protocol, and discuss

personal accountability. Subcontractors were also briefed in the same fashion. In the future
a spotter will be used when visibility is limited for operators working adjacent to
environmentally sensitive areas and BBII will intensify efforts to closely monitor subcontractor
work.
The attached aerial photograph with plan overlay (Attachment A) shows the culvert 5 work
area. The area highlighted in fluorescent green is where the impact took place. The purple
circle represents the approximate stockpile location.
We apologize for the oversight that caused the impact and recognize that we are only as
good as the weakest link within the organization. I assure you that this was an isolated
incident and does not speak to the BBII culture regarding environmental stewardship or
compliance. The team will continue to look for ways to improve our operations regarding
environmental compliance and we welcome input from DEQ and NCDOT regarding our path
forward. This lesson is being shared throughout our operations in the Southeast as a
teaching moment for a lesson learned the hard way.
We ask for DEQ to please review the information provided in this response and consider
rescinding the notice of violation considering the following factors:
• New information providing an adjusted timeline for reporting within the 24 hours period
• The team's quick response and remediation of impacts.
• The fact that this was an isolated event caused by a single heavy equipment operator
• BBII's self -directed mandatory stand -down and retraining of staff and subcontractors
• The project team's environmental record on the site to date
• BBII's culture related to environmental awareness and performance within the state
resulting in no NOVs issued in more than two decades.
In summary, BBII reiterates a commitment to Zero Harm not only to the safety of our workers
and the community but also Zero Harm to the environment as we continue to deliver
infrastructure improvements in the communities where we work and live.
If you have any questions, please feel free to contact me at 910-452-1145.
Sincerely,
Jay
Vice President of Operations
Balfour Beatty Infrastructure, Inc.

Attachments: Attachment A
EC
Jeremy Stroud, PE
R. Cadmus Capehart, PE
Jordan Scott
Wendi Johnson, PE
Mark Johnnie
Josh Sommer, PE
Keith Nixon
Project Files
Balfour Beatty

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