NOV-2008-PC-0776 Ver 1_Notice of Violation_20081210

F WArF
O?0 9QG Michael F. Easley, Governor
William G. Ross Jr., Secretary
l ' North Carolina Department of Environment and Natural Resources
> "I Coleen H. Sullins, Director
Division of Water Quality
December 10, 2008
Revised-Address correction
CERTIFIED MAIL #7007 2680 0001 8696 7278
RETURN RECEIPT REQUESTED
Garner Apartments Association
Attn: G.E. Holt
448 Viking Drive, Suite 390
Virginia Beach, VA 23452
Subject: NOTICE OF VIOLATION
NOV-2008-PC-0776
Tetra Companies-Roadway (NCR001277)
35°36'50" N,-78°34'01" W
Stormwater General Permit (NCG010000) Condition
Neuse Riparian Buffer
Removal of Best Usage
Failure to Secure a 401 Water Quality Certification
Johnston County
Dear Mr. Holt:
On November 5, 2008 Natalie Landry and David Parnell from the Raleigh Regional Office (RRO) of the Division of
Water Quality (DWQ) conducted a site inspection for the tract/project known as Tetra Companies-Roadways located on
Technology Drive, Johnston County, North Carolina. The stream on the site is an unnamed tributary (UT) to Swift Creek,
Class C Nutrient Sensitive Waters (NSW), in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ inspection and file review:
The file review confirmed that a Pre-construction Notification (PCN) has not been received by the Division of Water
Quality for this project and that a 401 Water Quality Certification has not been issued.
The subject project has approved Erosion and Sedimentation Control Plans and is therefore subject to the stormwater
general permit NCGO 10000. A stormwater general permit (NCGO10000) is issued upon the approval of an Erosion and
Sedimentation Control Plan. This permit applies to projects that receive a Division of Land Resources (or local delegated
program) Erosion and Sedimentation Control Plan for land disturbance of 1 acre or greater. Specifically, the stormwater
general permit (NCGO10000) authorizes the discharge of stormwater under the National Pollutant Discharge Elimination
System (NPDES) in accordance with Title 15A North Carolina Administrative Code 2H.0100.
A copy of the approved Erosion and Sedimentation Control Plan was not found on the subject site. A rain gauge was
observed on the site. Monitoring records for two weeks in May 2008 were in a binder in the inspection box.
DWQ received a copy of a Sedimentation Inspection Report issued by the Division of Land Resources Land Quality
Section, dated October 30, 2008, for Tetra Companies Roadway citing the following violations: Failure to follow
th Carolina Division of Water Quality Raleigh Regional Office Surface Water Protection Phone [phone] Customer Service
met: h2o.enr.state.nc.us 1628 Mail Service Center Raleigh, NC 27699-1628 FAX [phone]
An Equal Opportunity/Affirmative Action Employer- 50% Recycled/10% Post Consumer Paper
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Tetra Companies-Roadway
Johnston County
approved plan, Insufficient measures to retain sediment on site, Failure to take all reasonable measures, Inadequate buffer
zone, Graded slopes and fills too steep, Unprotected exposed slopes and Failure to maintain erosion control measures.
DWQ observations during the site inspection show gullies and
loss of sediment outside the limits of disturbance below Pipe #1
(as depicted on the Approved Erosion and Sedimentation Control
Plan). In addition, vehicle tracks were observed crossing the
stream in this area. Sediment loss outside the limits of
disturbance and in the buffer was observed below the Rock
Check Dam (see Plan for location) down to the stream at depths
ranging from <1-3 inches. Sediment was observed outside the
limits of disturbance and in the buffer below Sediment Trap #3
and in the stream for approximately 108 linear feet at depths
ranging from 2-9 inches. Sediment Trap #9 is eroding and the
headwalls around Pipe #3 are failing. Sediment deposition was
observed in the stream for approximately 225 linear feet, at
depths ranging from 9-18 inches, below Pipe #3 crossing.
DWQ observations during the site inspection also show the installation of a culvert (Pipe #3) in the UT to Swift Creek,
approximately 60 feet in length, and removal of the buffer associated with the crossing construction.
As a result of the site inspection and file review, the following violations, described below, are noted:
1. Stormwater General Permit (NCGO10000) Condition
II. Neuse Buffer
III. Removal of Best Usage
IV. Failure to Secure 401 Water Quality Certification
Item I. Stormwater General Permit (NCGO10000)
General Permit NCGO10000 Part I, Section A. No. 2
The permittee shall implement the plan, which has been approved by the approval authority. The approved plan is
considered a requirement or condition of this general permit. Deviation from the approved plan, or approved amendment
to the plan, shall constitute a violation of the terms and conditions of this general permit except that deviation from the
approved plan will be allowed (1) to correct an emergency situation where sediments are being discharged off site or (2)
when minor modifications have been made for the purpose of improving the performance of the erosion and
sedimentation control measures and notification of the minor modifications has been made to the Division of Land
Resources (or approved local program). Such a deviation from the approved plan shall be noted on the approved plan
maintained on the job site. During active construction, a copy of the approved plan shall be maintained on the site.
General Permit NCGO10000 Part II, Section C. No. 1
The permittee shall at all times operate and maintain all facilities and systems of treatment and control (and related
appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this general
permit.
Item H. Neuse Buffer
The Buffer Rules apply to riparian buffers directly adjacent to surface waters in the Neuse River Basin (intermittent
streams, perennial streams, lakes, ponds and estuaries). The protected buffer extends 50-feet landward from the landward
edge of coastal marsh (as identified by the Division of Coastal Management) or from the top of bank of any feature shown
as surface waters on either a paper copy of the soil survey maps prepared by the Natural Resource Conservation Service
Photos 1: Sediment deposition in stream
below Pipe #3 crossing.
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Tetra Companies-Roadway
Johnston County
of the U.S. Department of Agriculture or the most recent version of the 1:24000 scale quadrangle topographic maps
prepared by the U.S. Geological Survey. The protected riparian buffer has two zones: Zone 1 consists of a vegetated area
that is undisturbed except for uses provided for in Item (6) of this Rule (Title 15A NCAC 02B .0233); Zone 2 shall
consists of a stable, vegetated area that is undisturbed except for activities and uses provided for in Item (6) of this Rule
(Title 15A NCAC 02B .0233). The purpose of these rules is to protect and preserve riparian buffers in the Neuse River
Basin to maintain the nutrient removal functions of these streamside areas necessary to protect surface waters.
15A NCAC 02B.0233 (4)
Zones 1 and 2 of the riparian buffer remain in vegetation that is undisturbed except for those uses provided for in Item (6)
of this Rule.
15A NCAC 0213.0233 (5)
Diffuse flow of runoff shall be maintained in the riparian buffer by dispersing concentrated flow and reestablishing
vegetation.
Item III. Removal of Best Usage
15A NCAC 02B .0211 (2)
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.
Item IV. Failure to Secure 401 Water Quality Certification
Title 15A NCAC 2H .0501 requires certifications pursuant to Section 401 of the Clean Water Act whenever construction
or operation of facilities will result in a discharge into navigable waters, including wetlands, as described in 33 CFR Part
323. Title 15A NCAC 2H .0502 states any person desiring issuance of the State certification or coverage under a general
certification required by Section 401 of the Federal Water Pollution Control Act shall file with the Director of the North
Carolina Division of Water Quality. The file review confirmed that a Pre-construction Notification has not been received
by the Division of Water Quality for this project and that a 401 Water Quality Certification has not been issued.
Requested Response
The following information must be mailed or hand delivered to the Raleigh Regional Office at the address provided below
within 30 days of receipt of this letter.
1. Please provide copies of all rainfall data and monitoring records for erosion and sedimentation control BMPs and
stormwater outfalls. If you do not have these records available, state why and provide records taken from the date
of receipt of this letter through to the date of your response to this letter to DWQ.
2. Explain in your response how and when you anticipate being in full compliance with the stormwater general
permit and your Erosion and Sedimentation Control Plan.
3. Please provide documentation (including a detailed site map/survey) depicting all jurisdictional water features
(e.g. streams, wetlands, buffers) on the site. This documentation should describe and quantify the impacts to
those jurisdictional features, and should include plans to avoid further stream, buffer and wetland impacts on the
site.
4. Please submit the following documents for review and approval:
a. Stream and Buffer Restoration Plan (sediment impacts) - Sediment impacts to the stream and buffers onsite
must be removed. As a part of this plan, you should provide the amount (depth) of material that has been
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Tetra Companies-Roadway
Johnston County
deposited in the buffer and stream. This information should be depicted on a map you provide. It is
recommended that you use hand labor (buckets, shovels and wheelbarrows) to remove deposited sediment
from the stream and buffers. The sediment should be removed, taken to high ground away from jurisdictional
areas and stabilized. Also, the plan must address the measures that will be used for temporary
stabilization/sediment control while this work is under way. Include in the Restoration Plan your designs for
achieving diffuse flow in the buffer where concentrated flow is present.
b. Stream and Buffer Restoration Plan (culvert impacts) - Please explain how you plan to restore the pattern,
profile and dimension of the impacted stream channel and the impacted buffer to include the removal of the
culvert and associated fill. The streambed must be restored to the original profile, the stream banks must be
stabilized and any fill material must be removed from the stream and buffer. The buffer restoration plan must
be developed to ensure that at least two native tree species are planted at a density sufficient to provide 320
trees/acre at maturity. This density is usually achieved by planting approximately 436 trees/acre on a 10 ft. x
10 ft. grid or 681 trees/acre on a 8 ft. x 8 ft. grid. Please see the Guidelines for Riparian Buffer Restoration
(October 2004) for assistance in developing your plan (available on the web at:
http://www.nceep.net/news/reportsibuffers.pdf). This plan must include the types of native woody vegetation
selected, methodology of planting, and a site map indicating the location of the replanting efforts.
c. Permit Application - If you wish for any impacts to remain in place, you must apply for a 401 Water Quality
Certification. Please note that sediment impacts to streams are not permittable. A PCN must be submitted
within 30 days of receipt of this NOV.
d. Please indicate in your response a detailed schedule with dates explaining when the restoration will be
accomplished and the status of your PCN.
Submit Requested Items To:
Natalie Landry
DWQ Raleigh Regional Office
3800 Barrett Drive
Raleigh, NC 27609
Thank you for your attention to this matter. This office requires that the violations, as described above, be properly
resolved. These violations and any future violations are subject to a civil penalty assessment of up to $25,000.00 per day
for each violation. Should you have any questions regarding these matters, please contact Natalie Landry at (919) 791-
4200.
i
i"
Sanc ely,
Danny Smit
Regional Supervisor
Surface Water Protection Section
cc: Raleigh RO - Water Quality
Raleigh RO - Land Quality (Brad Cole)
John Hennessy, NPS Assistance and Compliance Oversight Unit
Ian McMillan, DWQ, 401 Wetlands Certification Unit