WQCS00004_Enforcement (Letter)_20181213

DocuSign Envelope ID: 6CBF89D9-5E2E-4C7D-80OF-7D2C8C98C7FE
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: WOCS00004
County: Buncombe
Case Number: DV-2018-0078
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; All SSO's may be detrimental to the environment but may not be
immediately quantified. Buncombe County Health Department posted a precautionary recreational water
use advisory for the French Broad River (FrB) (Class `B" water). The advisory recommended people and
pets avoid all contact with the river until testing and declared safe. Town Branch (a.k.a., Nasty Branch)
was heavily impacted with sewage from the release with wastewater solids visible during remedial
activities. A Division of Water Resources (DWR) sample collected on September 25, 2018, detected
10,000 CFU/100 ml fecal coliform bacteria near the impoundment in Town Branch. Other samples
collected in the French Broad River over the course of the remedial action were not elevated nor
demonstrated a clear impact.
2) The duration and gravity of the violation; The French Broad River (Class "B" water) was posted by the
Buncombe County Health Department from September 21 until September 26, 2018, a total of five days.
Bacteria samples obtained in the FrB River did not indicate elevated numbers downstream of Town
Branch. This is likely due to the emergency remedial actions (dam, emergency pumps, cleaning etc.) taken
by MSD.
3) The effect on ground or surface water quantity or quality or on air quality; All SSO's may be
detrimental to the environment but may not be immediately quantified. For the duration of a 5 day period,
20 miles of the French Broad River was not recommended to be used for recreational purposes. A DWR
sample collected on September 25, 2018, detected 10,000 CFU/100 ml fecal coliform bacteria near the
impoundment in Town Branch. Other samples collected in the French Broad River over the course of the
remedial action were not elevated nor demonstrated a clear impact likely due to MSD's response to the
release.
4) The cost of rectifying the damage; MSD reported expenditures of $31,000.
5) The amount of money saved by noncompliance; The exact amount is unknown but would include the expense of
replacing the breached sewer line which was greater than 80 years old.
6) Whether the violation was committed willfully or intentionally; It does not appear to be either.
7) The prior record of the violator in complying or failing to comply with programs over which the
Environmental Management Commission has regulatory authority; Last enforcement for this permit number was
DV-2018-0035.
8) The cost to the State of the enforcement procedures. Docosigned by.
$122.97 12/13/2018 E 17A38285848C�
_.
Date G. Landon Davidson, P.G., Regional Supervisor
Water Quality Regional Operations Section
Asheville Regional Office
Division of Water Resources, NCDEQ

DocuSign Envelope ID: 6CBF89D9-5E2E-4C7D-800E-7D2C8C98C7FE

DocuSign Envelope ID: 6CBF89D9-5E2E-4C7D-800E-7D2C8C98C7FE
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Certified Mail # 7017 2620 0000 9759 1734
Return Receipt Requested
December 13, 2018
Tom Hartye
Metropolitan Sewerage District of Buncombe County North Carolina
2028 Riverside Dr.
Asheville, NC 28804
SUBJECT: Notice of Violation and Assessment of Civil Penalty
for Violations of North Carolina General Statute (G.S.) 143-215.l(a)(6)
and Collection System Permit No. WQCS00004
Metropolitan Sewerage District of Buncombe County North Carolina
MSD Buncombe County Collection System
Case No. DV-2018-0078
Buncombe County
Dear Permittee:
This letter transmits a Notice of Violation and assessment of civil penalty in the amount of $3,122.97 ($3,000.00 civil penalty
+ $122.97 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). 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) 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).
North Carolina Department of Environmental Quality I Division of Water Resources
2090 U.S. 70 Highway, Swannanoa, NC 28778
828-296-4500

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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, G.
Landon Davidson, P.G., Regional Supervisor, Asheville Regional Office hereby make the following civil penalty
assessment against Metropolitan Sewerage District of Buncombe County North Carolina:
$3,000.00 For 1 of the 1 violations 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.
3 000.00 TOTAL CIVIL PENALTY
122.97 Enforcement Costs
3 122.97 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. I (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: 6CBF89D9-5E2E-4C7D-800E-7D2C8C98C7FE
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
G. Landon Davidson, P.G., Regional Supervisor
Water Quality Regional Operations Section
Asheville Regional Office
Division of Water Resources, NCDEQ
2090 U.S. 70 Highway
Swannanoa, NC 28778

DocuSign Envelope ID: 6CBF89D9-5E2E-4C7D-800E-7D2C8C98C7FE
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: [phone]
Fax: [phone]
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 Linda Wiggs with the Division of Water Resources staff of the Asheville Regional
Office at [phone] or via email at [e-mail].
Sincerely,
DocuSigned by:
7E617A38285848C...
G. Landon Davidson, P.G., Regional Supervisor
Water Quality Regional Operations Section
Asheville Regional Office
Division of Water Resources, NCDEQ
ATTACHMENTS
Cc: Asheville Regional Office Server, Laserfiche
G:\WR\WQ\Buncombe\Collection Systems\MSD Collection System WQCS00004\SSO's\September 2018\20181213_WQCS00004 DV20180078.rtf

DocuSign Envelope ID: 6CBF89D9-5E2E-4C7D-800E-7D2C8C98C7FE
Case Number: DV-2018-0078
JUSTIFICATION FOR REMISSION REQUEST
County: Buncombe
Assessed Party: Metropolitan Sewerage District of Buncombe County North Carolina
Permit No.: WQCS00004 Amount Assessed: $3,122.97
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: 6CBF89D9-5E2E-4C7D-800E-7D2C8C98C7FE
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. DV-2018-0078
Having been assessed civil penalties totaling $3,122.97 for violation(s) as set forth in the assessment document of the
Division of Water Resources dated December 13, 2018, 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: 6CBF89D9-5E2E-4C7D-800E-7D2C8C98C7FE
ATTACHMENT A
Metropolitan Sewerage District of Buncombe County
CASE NUMBER: DV-2018-0078
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
201802536
9/21/2018 CSO/SSO(Sewer Overflow) Discharge without valid permit
420,000
$3,000.00
201802894
9/28/2018 CSO/SSO(Sewer Overflow) Discharge without valid permit
300
$0.00