20060447 Ver 2_Notice of Violation_20090108

CERTIFIED MAIL
RETURN RECEIPT REQUESTED
#7003 2260 0005 5381 0897
Olde Towne Company, LLC
Attn: Mr. Rocky Keim
387 Medina Road, Suite 600
Medina, OH 44256
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
January 8, 2009
SUBJECT: Assessment of Civil Penalties
DWQ Project # 06-0447
Olde Towne Company, LLC
Olde Towne
Wake County
Case No. PC -2008-0048
Dear Mr. Keim:
Coleen H. Sullins, Director
Division of Water Quality
S&EC
Attn: Nicole Thomson
11010 Raven Ridge Road
Raleigh, NC 27614
This letter transmits notice of a civil penalty assessed against Olde Towne Company, LLC in the amount
of $22,564.84, which includes $564.84 in investigative costs. Attached is a copy of the assessment
document explaining this penalty.
This action was taken under the authority vested in me by delegation provided by the Secretary of the
Department of Environment and Natural Resources and the Director of the Division of Water Quality.
Any continuing violation(s) may be the subject of a new enforcement action, including an additional
penalty.
Within thirty (30) calendar days of receipt of this notice, you must do one of the following three
options:
1. Submit payment of the penalty, OR
2. File a request for remission of civil penalties, OR
3. File a written petition with the Office of Administrative Hearings.
Failure to exercise one of the above three options within thirty (30) calendar days of your receipt of
these documents will result in this matter being referred to the Attorney General's Office with a
request to initiate a civil action to collect the penalty.
These options are detailed below:
Option 1— Submit payment of the penalty'
Payment should be made to the order of the Department of Environment and Natural Resources
DENR . You do not need to include any forms with your payment, however please reference the
Case No. PC -2008-0048 on your check or money order.
Payment of the penalty will not foreclose further enforcement action for any continuing or new
violation(s). Payment must be sent within 30 calendar days of receipt of this notice to the
attention of
North Carolina Division of Water Quality 1617 Mail Service Center Raleigh, NC 27699-1617 Phone [phone] Customer Service
Internet: www.ncwaterquality.org Location: 512 N. Salisbury St. Raleigh, NC 27604 Fax [phone]
An Equal Opportunity/Affirmative Action Employer — 50% Recycled/10% Post Consumer Paper
Noce hCarolina
Aah(ra!!y

Olde Towne Company, LLC
Wake County
Case No. PC -2008-0048
Page 2 of 3
John Hennessy
NC DENR-DWQ — Wetlands and Stormwater Branch
NPS Assistance & Compliance Oversight Unit
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
Option 2 — File a request for remission of civil penalties:
A request for remission or mitigation is limited to consideration of the reasonableness of the
amount of the penalty and is not the proper procedure for contesting the accuracy of any of the
statements contained in the assessment letter.
Because a remission request forecloses the option of an administrative hearing, such a
request will not be processed without a waiver of your right to an administrative hearing
and a stipulation that there are no factual or legal issues in dispute.
You must execute and return to this office the attached "Waiver of Right to an Administrative
Hearing and Stipulation of Facts" and the attached "Justification for Remission Request" which
should describe why you believe:
(a) one or more of the civil penalty assessment factors in G. S. 14313-282.1(b) were
wrongfully applied to the detriment of the petitioner;
(b) the violator promptly abated continuing environmental damage resulting from the
violation;
(c) the violation was inadvertent or a result of an accident;
(d) the violator had been assessed civil penalties for any previous violations;
(e) payment of the civil penalty will prevent payment for the remaining necessary remedial
actions.
For this option you must file your request for remission of civil penalties within thirty (30)
calendar days of receipt of this notice with the NPS Assistance & Compliance Oversight Unit.
Submit this information to the attention of:
John Hennessy
NC DENR-DWQ — Wetlands and Stormwater Branch
NPS Assistance & Compliance Oversight Unit
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
Option 3 — File a written petition with the Office of Administrative Hearings
If you wish to contest any portion of the civil penalty assessment, you must file a petition for a
contested case hearing. This must be in the form of a written petition to the Office of
Administrative Hearings and must conform to Chapter 150B of the North Carolina General
Statutes. For further information, please refer to the Office of Administrative Hearings website
(http://www.ncoah.com/).

Olde Towne Company, LLC
Wake County
Case No. PC -2008-0048
Page 3 of 3
Within thirty (30) calendar days of receipt of this notice, you must file your original petition for
a contested case hearing in the:
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, North Carolina 27699-6714.
You must also mail or hand -deliver a copy of the written petition to:
Ms. Mary Penny Thompson
NCDENR
Office of General Counsel
1601 Mail Service Center
Raleigh, NC 27699-1601
and to:
John Hennessy
NC DENR-DWQ — Wetlands and Stormwater Branch
NPS Assistance & Compliance Oversight Unit
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
The violations addressed by this assessment and any impacts to waters must be abated and properly
resolved. You are encouraged to contact Natalie Landry with the DWQ Raleigh Regional Office at (919)
791-4200 if you need assistance in achieving compliance at the site. Please be advised that additional
assessments may be levied for future, continuing, or other violations beyond the scope of this
specific assessment.
If you have any questions, please see the following website:
http://h2o.enr.state.nc.us/ws/nps.acouindex.htin or contact Katie Merritt at [phone] or me at (919)
807-6377.
Sincerely,
f
John Hennessy
Division of Water Quality
ATTACHMENTS
cc: Danny Smith — DWQ Raleigh Regional Office Supervisor
Natalie Landry — DWQ Raleigh Regional Office
Cyndi Karoly — 401 Oversight/Express Review Permitting Unit
John Hennessy — DWQ NPS Assistance & Compliance Oversight Unit Supervisor

JUSTIFICATION FOR REMISSION REQUEST
DWQ Case Number: PC -2008-0048 County: Wake
Assessed Party: Olde Towne Company, LLC
Permit No. (if applicable): Amount Assessed: $22,564.84
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
applies. 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 (attach additional pages as necessary):

STATE OF NORTH CAROLINA ENVIRONMENTAL MANAGEMENT
COMMISSION
COUNTY OF WAKE
IN THE MATTER OF ASSESSMENT ) WAIVER OF RIGHT TO AN
OF CIVIL PENALTIES AGAINST ) ADMINISTRATIVE HEARING AND
OLDE TOWNE COMPANY, LLC ) STIPULATION OF FACTS
CASE NO. PC -2008-0048
Having been assessed civil penalties totaling $ 22,564.84 for violation(s) as
set forth in the assessment document of the Director of the Division of Water Quality dated
January 8, 2009 , the undersigned, desiring to seek remission of the civil penalties, 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 Quality within
thirty (30) calendar days of receipt of the civil penalty assessment. No new evidence in support
of a remission request will be allowed after thirty (30) calendar days from the receipt of the civil
penalty assessment.
This the day of 20
NAME (printed)
SIGNATURE
ADDRESS
TELEPHONE

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE MATTER OF
OLDE TOWNE COMPANY, LLC
FOR VIOLATIONS OF
15A NCAC 2B.0211 (2)
Water Quality Certification Condition of
DWQ # 06-0447 Revised -2
15A NCAC 2B.0231 (a) and (b)(1) and (5)
15A NCAC 2B.0211 (3) (f)
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES
CASE NO. PC -2008-0048
FINDINGS AND DECISION
AND ASSESSMENT OF
CIVIL PENALTIES
Acting pursuant to North Carolina General Statues (hereby known as G.S.) 143-215.6A, I, John
Hennessy, of the Division of Water Quality (hereby known as DWQ), make the following:
I. FINDING OF FACT
A. Olde,Towne Company, LLC is the owner of record of the following parcels in
what is known as Olde Towne: 1732064655, 1732062346, 1722849976,
1722845383,1722937105,1722939573,1732032738,1732133268,1732150043,
1732255970,1732253288,1732344507,1732346981,1732355214,1732451391,
1732358928, 1732372031, and 1732372599. Olde Towne is located east of New
Hope Road, north of Rock Quarry Road and west of Barwell Road Wake County,
North Carolina.
B. Olde Towne Company, LLC is a company organized and existing under the laws
of the State of North Carolina.
C. A Pre -Construction Notification Application (hereby known as PCN) was
submitted to Division of Water Quality (hereby known as DWQ) on March 17,
2006. The respective 401 Water Quality Certification DWQ # 06-0447 Revised -2
(GC3374 and GC3402) with Additional Conditions was issued to Olde Towne
Company, LLC on January 8, 2007.
Amount Approved (Units)
Plan Location or Reference
404/Wetland
0.7901 acres of wetland (0.4752 acres
permanent impacts, 0.3149 acres temporary
impacts)
PCN page 4 of 11
Stream
592 linear feet stream (300 linear feet
permanent, 292 linear feet temporary impacts)
PCN page 5 of 11
Buffer -Zone 1
42,110 (square ft.
PCN page 9 of 11
Buffer -Zone 2
29,980 (square ft.)
PCN page 9 of 11

Olde Towne Company, LLC
Wake County
Page 2
D. On February 29, 2008, DWQ staff observed impacts to an unnamed tributary to
Walnut Creek in Olde Towne from the unauthorized excavation, mechanized
grading and placement of earthen fill. The stream impacts were quantified to be
340 linear feet (680 square feet) by Soil and Environmental Consultants, PA in an
after -the -fact PCN application submitted to DWQ on June 6, 2008.
E. Title 15A North Carolina Administrative Code (hereby known as NCAC) 2B
.0211 (2) requires that "The waters shall be suitable for aquatic life propagation
and maintenance of biological integrity, wildlife, secondary recreation, and
agriculture; sources of water pollution which preclude any of these uses on either
a short-term or long-term basis shall be considered to be violating a water quality
standard."
F. On February 29, 2008 and April 10, 2008, DWQ staff observed sediment
deposition impacts in wetlands ranging from 2-30 inches. Additionally, on
February 29, 2008 DWQ observed sediment deposition impact to a pond located
in the watershed of an unnamed tributary to Big Branch. The wetland impacts
were quantified to be 0.92 acres (39,876 square feet) and the pond impacts were
quantified to be 0.11 acres (4,780 square feet) by Soil and Environmental
Consultants, PA in a report submitted to DWQ, on April 15, 2008, titled "Revised
Sediment Impact Delineation Report, Clean-up, and Stabilization Plan".
G. Additional Condition No. 2 of 401 Water Quality Certification DWQ # 06 -0447 -
Revised -2 states that "No Waste, Spoil, Solids, or Fill of Any Kind: No waste,
spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian areas
beyond the footprint of the impacts depicted in the Pre -Construction Notification.
All construction activities, including the design, installation, operation, and
maintenance of sediment and erosion control Best Management Practices, shall be
performed so that no violations of state water quality standards, statutes, or rules
occur."
H. The water quality standards for wetlands, as found in Title 15A NCAC 2B
.0231(a), are designed to protect, preserve, restore and enhance the quality and
uses of wetlands and other waters of the state influenced by wetlands.
I. Title 15A NCAC 2B .0231(b) (1) requires "Liquids, fill or other solids or
dissolved gases may not be present in amounts which may cause adverse impacts
on existing wetland uses;"
J. Title 15A NCAC 2B .0231(b) (5) requires "Hydrological conditions necessary to
support the biological and physical characteristics naturally present in wetlands
shall be protected to prevent adverse impacts on: C. The chemical, nutrient and
dissolved oxygen regime of the wetland; D. The movement of aquatic fauna; and
F. Water levels or elevations.

Olde Towne Company, LLC
Wake County
Page 3
K. Title 15A NCAC 213 .0211 (3)f requires that "Oils; deleterious substances;
colored or other wastes: only such amounts as shall not render the waters
injurious to public health, secondary recreation or to aquatic life and wildlife or
adversely affect the palatability of fish, aesthetic quality or impair the waters for
any designated uses;".
L. The impacts occurred to wetlands, Class WL waters, an unnamed tributary that
drains to Walnut Creek, Class C Nutrient Sensitive Waters within the Neuse River
Basin, and a pond located within an unnamed tributary to Big Branch, Class C
Nutrient Sensitive Waters within the Neuse River Basin.
M. The cost to the State of the enforcement procedures in this matter totaled $564.84.
Based upon the above Finding of Fact, I make the following:
II. CONCLUSION OF LAW
A. Olde Towne Company, LLC is a "person" within the meaning of G.S. 143-
215.6A pursuant to G.S. 143-212 (4).
B. The wetlands, unnamed tributary that drains to Walnut Creek, and the pond
located within an unnamed tributary to Big Branch located at the site, constitute
waters of the State within the meaning of G.S. 143-212 (6).
C. Olde Towne Company, LLC violated Title 15A NCAC 2B .0211 (2) by impacts
to 340 linear feet of an unnamed tributary from excavation, mechanized grading
and placement of earthen fill.
D. The 401 Water Quality Certification, DWQ # 06 -0447 -Revised -2 was issued in
accordance with Title 15A NCAC 2H .0500.
E. Olde Towne Company, LLC violated Additional Condition No. 2 of Water
Quality Certification DWQ # 06 -0447 -Revised -2 General Certification by impacts
to wetlands and a pond from sediment deposition, and a stream from fill beyond
the footprint of the Olde Towne Company, LLC impacts depicted in the Pre -
Construction Notification
F. Olde Towne Company, LLC violated Title 15A NCAC 2B .0231 (a) and (b)(1)
and (5) by impacts to 0.92 acres (39,876 square feet) of wetlands from sediment
deposition.
G. Olde Towne Company, LLC violated Title 15A NCAC 2B .0211 (3)(0 by
impacts to 0.11 acres (4,780 square feet) of pond from sediment deposition.

Olde Towne Company, LLC
Wake County
Page 4
H. Olde Towne, LLC may be assessed civil penalties in this matter pursuant to G.S.
143-215.6A (a)(1), which provides that a civil penalty of not more than twenty-
five thousand dollars ($25,000) per violation per day may be assessed against a
person who violates any classification, standard, limitation, or management
practice established pursuant to G.S. 143-214.1, 143-214.2, or 143-215.
I. Olde Towne Company, LLC 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) per violation per day 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 such permit or any other permit or
certification issued pursuant to authority conferred by this Part
J. Olde Towne Company, LLC may be assessed civil penalties pursuant to G.S. 143-
215.6A (a)(6) 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
violates a rule of the Commission implementing this Part, Part 2A of this Article,
or G.S. 143-355(k)
K. The State's enforcement cost in this matter may be assessed against Olde Towne
Company, LLC pursuant to G.S. 143-215.3 (a)(9) and G.S. 14313-282.1 (b)(8).
L. John Hennessy of the Division of Water Quality, pursuant to delegation provided
by the Secretary of the Department of Environment and Natural Resources and
the Director of the Division of Water Quality, has the authority to assess civil
penalties in this matter.
Based upon the above Findings of Fact and Conclusions of Law, I make the following:
III. DECISION
Accordingly, Olde Towne Company, LLC is hereby assessed a civil penalty of.
$ r
000 for one (1) violation of Title 15A NCAC 2B .0211 (2) by impacts
to 340 linear feet of an unnamed tributary from excavation,
mechanized grading and placement of earthen fill
© for one (1) violation of Additional Condition No. 2 of Water
Quality Certification DWQ # 06 -0447 -Revised -2 General
Certification by impacts to wetlands and a pond from sediment

Olde Towne Company, LLC
Wake County
Page 5
deposition, and a stream from fill beyond the footprint of the
impacts depicted in the Pre -Construction Notification
$ QD d for one (1) violation of Title 15A NCAC 2B .0231 (a) and (b)(1)
and (5) by impacts to 0.92 acres (39,876 square feet) of wetlands
from sediment deposition
$ ©o� for one (1) violation of Title 15A NCAC 2B .0211 (3)(f) by
impacts to 0.11 acres (4,780 square feet) of pond from sediment
deposition
${ o d o TOTAL CIVIL PENALTY, authorized by G.S. 143-215.6A
$ 564.84 Enforcement Cost
$ dy TOTAL AMOUNT DUE
As required by G.S. 143-215.6A(c), in determining the amount of penalty, I considered the
factors set out in G.S. 143B -2'82.1(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 violations;
(2) The duration and gravity of the violations;
(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 violations were 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
D
Da
Hennessy
ion of Water Quality