20090693 Ver 1_Notice of Violation_20090716

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NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
July 8, 2009
Christopher and Jennifer T Mitscherlich CERTIFIED MAIL
9508 Barton Creek Road RETURN RECEIPT REQUESTED
Raleigh, NC 27615 7003 2260 0005 5381 1702
.
SUBJECT: Assessment of Civil Penalties a_ `-,A
Christopher and Jennifer T Mitscherlich
9508 Bartons Creek Road property
JUL ZJ
Wake County
Case No. WQ-2009-0002
DFNR - WATER QUALITY
Dear Mister and Mrs. Mitscherlich:
This letter transmits notice of a civil penalty assessed against Christopher and Jennifer T
Mitscherlich in the amount of $8.268.42, which includes $268.42 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. WQ-2009-0002 on your check or money
order.
Wetlands and Storrnwater Branch
1617 Mail Service Center, Raleigh, North Carolina 27699-1617
Location: 512 N. Salisbury St. Raleigh, North Carolina 27604
Phone: [phone] FAX: [phone] Customer Service: 1-877-623-6748
Internet: www.ncwaterquality.org
An Equal Opportunity 1 Affirmative Action Employer
NorthCarolina
Naturally
Christopher and Jennifer T Mitscherlich
Wake County
Case No. WQ-2009-0002
Page 3 of 3
North Carolina General Statutes. For further information, please refer to the Office of
Administrative Hearings website (http://www.ncoah.com/).
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:
lfsending by First Class Mail via the US Postal Service: lfsending via delivery service (UPS, FedEx, etc.):
John Hennessy John Hennessy
NC DENR-DWQ - Wetlands and Stormwater Branch NC DENR-DWQ - Wetlands and Stormwater Branch
NPS Assistance & Compliance Oversight Unit 2r- NPS Assistance & Compliance Oversight Unit
1617 Mail Service Center 512 N. Salisbury Street
Raleigh, NC 27699-1617 Raleigh, NC 27604
The violations addressed by this assessment and any impacts to waters must be abated and
properly resolved. You are encouraged to contact Martin Richmond with the DWQ Raleigh
Regional Office at [phone] 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/npsacouindex.htm or contact Niki Maher at [phone] or
myself at [phone].
ncer y,
ohn Hennessy
Division of Water ity
ATTACHMENTS
cc: Danny Smith / Martin Richmond - DWQ Raleigh Regional Office
John Hennessy - DWQ NPS Assistance & Compliance Oversight Unit Supervisor
Gray Hauser - DLR Land Quality Section (copy sent via pdf)
STATE OF NORTH CAROLINA
ENVIRONMENTAL MANAGEMENT
COMMISSION
COUNTY OF WAKE
IN THE MATTER OF ASSESSMENT
OF CIVIL PENALTIES AGAINST
Christopher and Jennifer T Mitscherlich
WAIVER OF RIGHT TO AN
ADMINISTRATIVE HEARING AND
STIPULATION OF FACTS
CASE NO. WO-2009-0002
Having been assessed civil penalties totaling $ 8.268.42 for violation(s) as
set forth in the assessment document of the Director of the Division of Water Quality dated
lulu 7. 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
IUSTIFICATION FOR REMISSION REQUEST
DWQ Case Number: WQ-2009-0002 County: Wake
Assessed Party: Christopher and Jennifer T Mitscherlich
Permit No. (if applicable): Amount Assessed: $8,268.42
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 Stioulation 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. § 1438-282.1(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. 1438-282.1(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
T17 -e-., explain if pre vious violations have resulted in you being assessed civil penalties),
- (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 preventyou from
performing the activities necessary to achieve compliance).
EXPLANATION (attach additional pages as necessary):
STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE MATTER OF )
CHRISTOPHER & JENNIFER T )
MITSCHERLICH )
FOR VIOLATIONS OF )
15A NCAC 2B .0233 (4) and (5) )
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES
CASE NO. WQ-2009-0002
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:
1. FINDING OF FACT
A. Christopher and Jennifer T Mitscherlich are the owners of record of parcel
number 1718556372-000, located at 9508 Barton Creek Rd in Wake County,
North Carolina.
B. On July 18, 2008, DWQ staff conducted a site visit of the subject property and
observed that trees had been removed, undergrowth vegetation had been cleared,
mechanical grading had occurred, fill material had been introduced, and
impervious surfaces had been constructed within the 50-foot Neuse River
Riparian Buffer. Impacts totaled approximately 345 linear feet (10,625 square
feet) of buffer along a pond and unnamed tributary to Falls Lake.
C. Title 15A North Carolina Administrative Code 2B .0233 (4) of the Neuse River
Riparian Buffer Rules requires that 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.
D. On July 18, 2008, DWQ staff also observed corrugated pipes had been installed,
directing concentrated flow through the Neuse River Riparian Buffer.
E. Title 15A North Carolina Administrative Code 2B .0233 (5) of the Neuse River
Riparian Buffer Rules requires that "Diffuse flow of runoff shall be maintained in
the riparian buffer by dispersing concentrated flow and reestablishing vegetation."
F. The impacts occurred to a pond and an unnamed tributary of Falls Lake, Class
WS IV; NSW, CA waters within the Neuse River Basin.
G. The cost to the State of the enforcement procedures in this matter totaled $268.42.
Christopher and Jennifer T Mitscherlich
Wake County
Page 2 of 3
Based upon the above Finding of Fact, I make the following:
Il. CONCLUSION OF LAW
A. Christopher and Jennifer T Mitscherlich are "persons" within the meaning of G.S.
143-215.6A pursuant to G.S. 143-212 (4).
B. The pond and unnamed tributary to Falls Lake located at the site constitutes
waters of the State within the meaning of G.S. 143-212 (6).
C. Christopher and Jennifer T Mitscherlich violated Title 15A NCAC 2B .0233 (4)
by the removal of vegetation, mechanical grading, and placement fill and
impervious surfaces in approximately 345 linear feet (10,625 square feet) of
Neuse River Riparian Buffer.
D. Christopher and Jennifer T Mitscherlich violated Title 15A NCAC 2B .0233 (5)
by not maintaining diffuse flow through the Neuse River Riparian Buffer by the
placement of the corrugated pipes..
E. Christopher and Jennifer T Mitscherlich 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.
F. Christopher and Jennifer T Mitscherlich 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).
G. The State's enforcement cost in this matter may be assessed against Christopher
and Jennifer T Mitscherlich pursuant to G.S. 143-215.3 (a)(9) and G.S. 14313-
282.1 (b)(8).
H. 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:
Christopher and Jennifer T Mitscherlich
Wake County
Page 3 of 3
III. DECISION
Accordingly, Christopher and Jennifer T Mitscherlich are hereby assessed a civil penalty o£
$ (??')0 d for violation of Title 15A NCAC 2B .0233 (4) by the removal of
vegetation, mechanical grading, and introduction of fill and
impervious surfaces in approximately 345 linear feet (10,625
square feet) of Neuse River Riparian Buffer.
for violation of Title 15A NCAC 2B .0233 (5) by not maintaining
- id ©)
diffuse flow through Neuse River Riparian Buffer by the
placement of the corrugated pipes
$ -J 6 TOTAL CIVIL PENALTY, authorized by G.S. 143-215.6A
-, 5? Enforcement Cost
$ R? (if `- 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-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 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
Date
C!
J Hennessy
ivision of Water Quality