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Home My WebLink About20181710 Ver 1_DEMLR NOV_20190104ROY COOPER Governor MICHAEL S. REGAN Secretary WILLIAM E. (TOBY) VINSON, JR. Interim Director NORTH CAROLINA Environmental Quality January 4, 2019 NOTICE OF VIOLATIONS OF THE SEDIMENTATION POLLUTION CONTROL ACT AND GENERAL PERMIT - NCG 010000 TO DISCHARGE STORMWATER UNDER THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM FOR CONSTRUCTION ACTIVITIES CERTIFIED MAIL RETURN RECEIPT REQUESTED 7005 0390 000135314281 RETURN RECEIPT REOUESTED 7005 0390 000135314274 RFM and Gwaltney Farms, LLC Attn: Warren Wakeman 306 E. Main Street, Suite 200 Lakeland, FL 33804 RE: Project Name: Red Fox meadows Project ID: AVERY -2019-004 RFM and Gwaltney Farms, LLC Attn: Warren Wakeman 3026 Beech Mountain Parkway Banner Elk, NC 28604 County: Avery Compliance Deadlines: 30 days from receipt for SPCA violations 30 days from receipt by certified mail for Construction Stormwater Permit NCG 010000 violations> Dear Mr. Wakeman: On December 20, 2018, personnel of this office inspected a project located off Beech Mountain Parkway, Banner Elk in Avery County, North Carolina. This inspection was performed to determine compliance with the North Carolina Sedimentation Pollution Control Act (SPCA) of 1973 and General Permit - NCGO10000 to Discharge Stormwater Under The National Pollutant Discharge Elimination System for Construction Activities (Construction Stormwater Permit NCG010000). The inspection revealed a land -disturbing activity of approximately 2.5 acres being conducted. It is our understanding that you and/or your firm are responsible for this land -disturbing activity. The purpose of this letter is to inform you that this activity was found to be in violation of the North Carolina Department of Environmental Quality I Division of Energy, Mineral and Land Resources Q Asheville Regional Office 1 2090 U.S. Highway 701 Swannanoa, North Carolina 28778 828.296.4500 RFM and Gwaltney Farms, LLC January 4, 2019 Page 2 of 5 SPCA, G.S. 113A-50 to 66, Title 15A, North Carolina Administrative Code (NCAC), Chapter 4 and Construction Stormwater Permit NCO 010000. If you feel that you are not responsible for the following violations, please notify this office immediately. The violations of the SPCA that were found are: 1. Failure to file an erosion and sedimentation control plan with this office 30 or more days prior to initiating any land -disturbing activity that will disturb more than one acre on a tract, failure to secure this office's prior approval of the plan for any land -disturbing activity prior to beginning the land -disturbing activity. G.S. 113A -54(d)(4), G.S. 113A-57(4) and 15A NCAC 413.0107(c). No sedimentation and erosion control plan has been submitted to this office for the above-mentioned project. 2. Failure to take all reasonable measures to protect all public and private property from damage by such land -disturbing activities. 15A NCAC 4B .0105. Inadequate erosion control measures have been installed onsite. As a result, sediment has washed into an unnamed tributary to Whitehead Creek (Class C; Trout). 3. Failure to retain along designated trout waters a buffer zone 25 feet wide or of sufficient width to confine visible siltation by natural or artificial means within the 25 percent of that portion of the buffer zone nearest the land -disturbing activity, whichever is greater. G.S. 113A-57(1). Approximately 576 linear feet of trout buffer has been disturbed along an unnamed tributary to Whitehead Creek (Class C; Trout). The violations of the Construction Stormwater Permit NCG 010000 that were found are: 1. Discharge of stormwater without a permit. Because the land -disturbing activity does not have an approved erosion and sedimentation control plan it does not have coverage under the Construction Stormwater Permit NCG 010000 and you are not permitted to discharge stormwater. G.S. 143-215.1(a) and 15A N.C.A.C. 02H .0126. An approved sedimentation and erosion control plan was not obtained prior to land disturbing activities. Therefore, coverage to discharge stormwater from land disturbing activities has not been obtained. To correct these violations, you must: 1. Submit one copy of an approvable sedimentation and erosion control plan and the appropriate plan review fee to this office. Until the required plan has been approved, no land -disturbing activity may be conducted, except that which is necessary to bring the site into compliance. Until an erosion and sedimentation plan has been approved, any land - disturbing activity, except that which is necessary to bring the site into compliance, will constitute additional violations of the SPCA and G.S. 143-215.1(a) and 15A N.C.A.C. 02H .0126. Following our review of the plan within 30 days of receipt, this office will RFM and Gwaltney Farms, LLC January 4, 2019 Page 3 of 5 notify you that the plan has been approved, approved with modifications or disapproved. Following approval of the plan, all land -disturbing activity on the site must be conducted in accordance with the terms of the approved plan, the SPCA and the implementing rules and Construction Stormwater Permit NCG 010000. 2. Apply for and obtain a trout buffer variance from the Asheville Regional Engineer. 3. Re-establish and maintain a 25 -foot undisturbed buffer along the creek bank. 4. Install measures needed onsite to retain sediment onsite. 5. Establish a groundcover on all bare areas. 6. Submit a sediment removal and stream restoration plan for approval to this office for approval. SPCA Violations The violations of the SPCA cited herein may be referred to the Director of the Division of Energy, Mineral and Land Resources (Director) for appropriate enforcement action, including civil penalty assessments for an initial one -day violation and/or a continuing violation. The penalty for an initial one -day violation of the SPCA may be assessed in an amount not to exceed $5,000.00. The Division of Energy, Mineral and Land Resources is not required to provide a time period for compliance before assessing an initial penalty for the violations of the SPCA cited herein. Please be advised that a civil penalty may be assessed for the initial day of violations of the SPCA regardless of whether the violations are corrected within the time period set out below. In addition, if the violations of the SPCA cited herein are not corrected within 30 calendar days of receipt of this Notice, this office may request that the Director take appropriate legal action against you for continuing violations pursuant to NCGS 113A-61.1 and 113A-64. A penalty may be assessed from the date of the violation of the SPCA, pursuant to NCGS 113A -64(a)(1), and for each day of a continuing violation of the SPCA in an amount not to exceed $5,000.00 per day. Construction Stormwater Permit NCG 010000 Violations The violations of the Construction Stormwater Permit NCG 010000 cited herein may be referred to the Director of the Division of Energy, Mineral and Land Resources (Director) for appropriate enforcement action, including civil penalty assessments for a continuing violation. This Notice serves as a letter of proposed civil penalty assessment. You have up to 20 calendar days from receipt of this Notice by certified mail to cease the violations listed above, and to submit in writing reasons why the civil penalty should not be assessed. RFM and Gwaltney Farms, LLC January 4, 2019 Page 4 of 5 Accordingly, you are directed to respond to this letter in writing within 30 calendar days of receipt of this Notice by certified mail. Your response should be sent to this regional office at the letterhead address and include the following: 1. The date by which the corrective actions listed above have been or will be completed. 2. A plan of action to prevent future violations. 3. A plan for restoration of sedimentation damage. 4. Reasons why a civil penalty should not be assessed. Pursuant to G.S. 143-215.6A, these violations and any future violations are subject to a civil penalty assessment of up to a maximum of $25,000.00 per day for each violation. Your above- mentioned response to this correspondence, the degree and extent of harm to the environment and the duration and gravity of the violation(s) will be considered in any civil penalty assessment process that may occur. Please be advised that any new land -disturbing activity associated with this project should not begin until the area presently disturbed is brought into compliance with the SPCA and Construction Stormwater Permit NCG 010000. When corrective actions are complete, you should notify this office so that work can be inspected. You should not assume that the project is in compliance with the SPCA and Construction Stormwater Permit NCG 010000 until we have notified you. After installation, all erosion control measures must be maintained in proper working order until the site is completely stabilized. We solicit your cooperation, and would like to avoid taking further enforcement action. At the same time, it is your responsibility to understand and comply with the requirements of the SPCA and Construction Stormwater Permit NCG 010000. Copies of the relevant statute and administrative rules may be examined at this office or will be sent to you upon request. Should you have questions concerning this notice or the requirements of the SPCA and Construction Stormwater Permit NCG 010000 please contact either Shawna Riddle or me at your earliest convenience. Sincerely, Stanley E. Aiken, PEGA Regional Engineer Land Quality Section RFM and Gwaltney Farms, LLC January 4, 2019 Page 5 of 5 Enclosures: Sedimentation Inspection Report Construction Stormwater Permit NCG 010000 Financial Responsibility Form (if cited for no plan) Erosion Control Plan Checklist (if cited for no plan) ESC Technical Assistance Document ec: Deborah Reese, Administrative Assistant, (Deborah.Reesegnedenr.go ) Zan Price, PE Assistant Regional Supervisor Water Quality Regional Operations Section, (Zan.proce&ncdem. eov) Julie Coco, PE, State Sediment Specialist, (Julie.Coco@ncdenr.gov) Sedimentation/Construction Stormwater Inspection Report North Carolina Department of Environmental Quality Division of Energy, Mineral and Land Resources 2090 US Highway 70, Swannanoa, NC 28778 (828) 296-4500 County: Avery Project: Red Fox Meadows River basin: Watauga Person financially responsible: RFM and Gwaltney Farms, LLC Project #: AVERY -2019-004 Address: Warren Wakeman 306 E. Main Street, Suite 200 Lakeland, FL 33804 1. Project Location: Beech Mountain Pkwy, Banner Elk Pictures: Yes - Digital 2. Weather and soil conditions: damp pc Initial inspection: Yes 3. Is site currently under notice of violation? No 4. Is the site in compliance with S.P.C.A. and rules? No If no, check violations below: 5. Violations: ✓ a. No approved plan, G.S. 113A-57(4) and 15A NCAC 4B .0107(c) ✓ f. Failure to take all reasonable measures, 15A NCAC 4B .0105 ✓ g. Inadequate buffer zone, G.S. 113A -57(l) 6. Is the site in compliance with the NPDES Permit? No Describe: Failure to obtain NPDES Permit 7. Has sedimentation damage occurred since last inspection? Yes If Yes, where? (check all that apply) ✓ Lake/Natural watercourse on the tract Description: sediment has washed into Whitehead Creek (Class C;Trout). Degree of damage: Slight 8. Contact made with (name): Inspection report: Gave Report Title: Date given/sent: January 07, 2019 9. Corrective action needed: Sumbit an erosion control plan for approval to this office. Apply for and obtain a trout buffer variance. Re-establish a 25 -foot undisturbed buffer along the creek bank. Install measures needed to retain sediment onsite. Establish a groundcover on all bare areas. Submit a sediment removal and stream restoration plan for approval. 10. Comments: Site visit due to a complaint. Approximately 2.5 acres have been disturbed. 567 linear feet of trout buffer has been disturbed. Reported by: Shawna Riddle Others present: R. Brooks Date of inspection: December 20, 2018 Time arriving on site: 10:00 AM Time leaving site: 11:00 AM cc: