820043_ENFORCEMENT_20030527

ENFORCEMENT
NORTH CAROLINA
Department of Environmental Qual

ow ArERp6
�1'or
>�� -1
Michael F. Easley
Govemor
William G. Ross Jr., Secretary
Department of Environment and Natural Resources
0 Alan W. Kimek, P.E. Director
Division of Water Quality
May 22, 2003
Mr. Michael Rogers
1458 Wildcat Road
Harrells, NC 28444
RE: Remission Request
MAR Farms
Farm # 82-43
Sampson County
File # PC 03-006
Dear Mr. Rogers:
LMAY2 til 2003
MN
This letter is to acknowledge receipt of your request for remission of the civil penalty levied
against the subject facility. This request will be reviewed at the next scheduled conference on
June 4, 2003 and you will be notified about the Division's decision concerning remission. If you
have any questions, please call me at [phone], ext. 539.
Sincerely,
Steve Lewis
Non -Discharge Compliance & Enforcement
cc: Paul Rawls, Fayetteville Regional Supervisor w/attachment
99til erman, FRO w/attachment
Central Files
File # PC 03-006 w/ 3 attachments
A*A
NCI)E_NR,
Customer service: Mallft Address: Telephone [phone] Location:
1-877-823-6748 1617 Mail Service Center Fax [phone] N. Salisbury St.
Raleigh, North Carolina 27699-1617 State Courier 052-01-01 Raleigh, NC 27699-1617
An Equal Opportunity/ARlrmative Action Employer
50% recycled 110% post consumer paper
httpY1h2o. anr.state. nc. us

STATE OF NORTH CAROLINA
COUNTY OF Sam son
IN THE MATTER OF ASSESSMENT
OF CIVIL PENALTIES AGAINST
Michael and Lisa Rogers
ENVIRONMENTAL MANAGEMENT
COMMISSION
WAIVER OF RIGHT TO AN
ADMINISTRATIVE HEARING AND
STIPULATION OF FACTS
FILE NO. PC 03-006
Having been assessed civil penalties totaling $2,138.28 for violation(s) as set
forth in the assessment document of the Director of the Division of Water Quality dated April 11.
2003 , 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) days of receipt of the civil penalty assessment. -No new evidence in support of a remission
request will be allowed after thirty (30) days from the receipt of the civil penalty assessment. .
This the / / 4 day of ��a f ' .2002.
ZILSIGNATURE
ADDRESS
TELEPHONE
(9/v) _�_?_z -- yam/ e� _.._

May 7, 2003
Dear Steve Lewis:
I am writing in response to your letter notifying me of
assessment of civil penalties. This is my request for remission of
those penalties.
I would like -to begin by addressing the statement that I failed
to notify DWQ when I entered into violation of my required
storage capacity. My only defense is simply that I actually did call
in as required. On February 24th I entered into freeboard less than
19". As required I called the DWQ office in Fayetteville and
asked to speak with John Hasty. The lady who answered said that
he had gone to a meeting in Raleigh. When I explained that I
needed to notify DWQ of violation, I was connected with another
lady. She took my information and assured me that my
notification was accomplished.
It was a complete shock to be informed that my notification
was not received or made note of. I have since talked to Mr. Hasty
and I believe he has discussed the matter with you. I also believe
he is aware that I called in. It is my hope that you will take into
account this statement of my actions and any input Mr. Hasty has
and grant remission of this charge.
In regards to the other civil penalty assessed for violation of
adequate freeboard, it is .certainly true that this occurred. Again,
on February 24t` I entered into violation. Since the 5-' of February
I had received 4.6" of rainfall hampering my efforts to pump. The
next 25 days leading up to March 21'% I received 8.9 inches of rain.
Again, this added to my lagoon level while preventing me from
pumping. On March 21St, after a 2.9" rainfal l event, I was under
12" freeboard. In order to remedy the situation a pump and haul
outfit was hired. On March 25&26, 5 inches were pumped and
moved at a cost of $9,200.00. On March 31 ", I was at 16"
freeboard. I have since been able to lower my lagoon out of

violation. In order to help prevent this situation from occurring
again, I am installing more efficient cup waterers as a water
conservation practice. The cost for this is approximately
$7,500.00. It is my hope that you will consider these
circumstances while addressing my request for remission of this
penalty. Frequent excessive rainfall in a short time frame kept me
from applying to my fields. I have tried to be aggressive and
proactive in addressing the violation (pump & haul and installation
of new waterers) at a significant financial cost. When field
conditions did not support pumping, I did not pump. There has
been no damage to the natural resources of the State, to public
health, or to private property. As soon as weather and field
conditions allowed I returned to acceptable freeboard levels. There
were no willful or intentional acts on my part to violate the terms
of the General Permit. It is certainly my desire to run my operation
in a fashion which fulfills my obligation to the state, and also
which I can take personal pride in. Again, I hope you will take this
information into consideration as you review my request for
remission of the penalties assessed. '
Sincerely,
yL
Michael S. Rogers
M&R Farms
Facility # 82-43

Atlantic Coast Contracting, Inc',
8656 Timothy Road
P. O. Box'1086'
Dunn, NC -.28334-7193
Bill To
Randy Barefoot
CIO Prestage Farms, Inc.
P O Box 438
Clinton, NC 28329
Quantity I Description -
i dulsng Waste Watt:
03-1-6-03 2=3,000 gaftris
0=-_17-0: 11••1.000 Qallars
400.000 Gal :cns 0.0=3 cc -its Per gallon'= 39_00.{,0.
+! l
Invoice
Date Invoice #
3/31/2003 484•
P.O. No. , i Terms
Rate I Amount
F
9.=00.00 I y ',G.CA)
I•
Tota]

�5
vN
OF W A rE9pG Michael F. Easley
_O�
Governor
William G. Ross Jr., Secretary
Department of Environment and Natural Resources
0 Alan W. Klimek, P.E. Director
Division of Water Quality
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Michael and Lisa Rogers
M&R Farms
1458 Wildcat Road
Harrells NC 28444
April 11, 2003
APER 14 2003 t
L r
i'
SUBJECT: Assessment of Civil Penalties for Violation(s) of
N.C. General Statute(s) 143-215.1
M&R Farms
Sampson County
File No. PC 03-006
AWS820043
Dear Michael and Lisa Rogers:
This letter transmits notice of a civil penalty assessed against Michael and Lisa Rogers in the
amount of $2,138.28, including $138.28 in enforcement costs.
Attached is a copy of the assessment document explaining this penalty. This action was taken
under the authority vested in me by delegation pursuant to N.C.G.S. 143-215.6A(h). Further
investigations of this situation may result in additional penalties.
Within thirty days of receipt of this notice, you must do one of the following:
1. Submit payment of the penalty:
Payment should be made directly to the order of the Department of Environment and
Natural Resources (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:
Steve Lewis
Water Quality Section
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
OR
N DENIR
Customer Service: Mailing Address: Telephone [phone] Location:
1-877-623.6748 1617 Mail Service Center Fax [phone] N. Salisbury St.
Raleigh, North Carolina 27699-1617 State Courier #52-01-01 Raleigh, NC 27699-1617
An Equal Opportunity/Afrmative Action Employer
50% recycled/ 10% post -consumer paper
httpr//h2o. enrstate.nc. us

2. Submit a written request for remission or mitigation including a detailed justification for such
request:
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 as letter. Because a remission request forecloses the option of an
administrative hearing, such a request must be accompanied by a waiver (form attached) 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 and stipulation form and a detailed
statement which you believe establishes whether:
(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.
Please submit this information to the attention of:
Steve Lewis
DWQ
1617 Mail Service Center
Raleigh NC 27699-1617
OR
3. Submit a written request for an administrative hearing:
If you wish to contest any statement in this assessment letter, you must request an administrative
hearing. This request 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. You must
File your original petition with the
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, North Carolina 27699-6714
and
Mail or hand -deliver a copy of the petition to
Mr. Dan Oakley
Registered Agent
Dept. of Environment and Natural Resources
1601 Mail Service Center
Raleigh, North Carolina 27699-1601

Failure to exercise one of the options above within thirty days, as evidenced by a date stamp (not a
postmark) indicating when we received your response, 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. Please be advised
that additional assessments may be levied for future violations which occur after the review period of this
assessment.
If you have any questions, please contact Steve Lewis at [phone], extension 539.
Sincerely,
Y
ent Wiggins
Acting Supervisor
Non -Discharge Compliance/Enforcement
ATTACHMENTS
cc: [Wegional'Supervisor w/ attachments
Compliance/Enforcement File w/ attachments
Central Files w/ attachments
Public Information Office w/ attachments

STATE OF NORTH CAROLINA ENVIRONMENTAL MANAGEMENT
COMMISSION
COUNTY OF Sampson
IN THE MATTER OF ASSESSMENT } WAIVER OF RIGHT TO AN
OF CIVIL PENALTIES AGAINST ) ADMINISTRATIVE HEARING AND
Michael and Lisa Rogers ) STIPULATION OF FACTS
FILE NO. PC 03-006
Having been assessed civil -penalties totaling'_$2,13$,28 for violation(s) as set
forth in the assessment document of the Director of the Division of Water Quality dated April 11
2003 , 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) days of receipt of the civil penalty assessment. No new evidence in support of a remission
request will be allowed after thirty (30) days from the receipt of the civil penalty assessment. .
This the day of , 20_
SIGNATURE
ADDRESS
TELEPHONE

STATE OF NORTH CAROLINA
COUNTY OF SAMPSON
IN THE MATTER OF
MICHAEL AND LISA ROGERS
FOR NON-DISCHARGE_GENER_AL
PERMIT VIOLATIONS
NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES
File No. PC 03-006
} FINDINGS AND DECISION
AND ASSESSMENT OF
CIVIL PENALTIES
Acting pursuant to delegation provided by the Secretary of the Department of
Environment and Natural Resources and the Director of the Division of Water Quality, I, J. Kent
Wiggins, Acting Supervisor of the Non -Discharge Compliance and Enforcement Unit of the
Division of Water Quality (DWQ), make the following:
I. FINDINGS OF FACT:
A. Michael and Lisa Rogers own and operate M&R Farms, a swine operation in
Sampson County.
B. Michael and Lisa Rogers were issued Certificate of Coverage AWS820043 under
General Permit AWG100000 for M&R Farms on August 18, 1999, effective
August 18, 1999, with an expiration date of April 30, 2003.
C. Condition No. V. 3. of the General Permit states in part that "The maximum waste
level in lagoons/storage ponds shall not exceed that specified in the Certified
Animal Waste Management PIan (CAWMP). At a minimum, maximum waste
level for lagoons/storage ponds must not exceed the level that provides adequate
storage to contain the 25 -year, 24-hour storm event plus an additional one (1) foot
of structural freeboard."
D. The 25 -year, 24-hour storm event for the facility's location is t etween seven (7)
and eight (8) inches according to National Weather Service, Technical Paper 40,
Rainfall Frequency Atlas of the United States, 1961.
E. Based on the 25 -year, 24-hour storm event of eight (8) inches and one foot of
required structural freeboard, the waste level for adequate storage in the lagoon
for M&R Farms is twenty (20) inches.

F. Condition No. W. 6. e. of the General Permit requires that the permittee shall
report by telephone to the appropriate Regional Office as soon as possible, but in
no case more than 24 hours following first knowledge of the occurrence of failure
to maintain storage capacity in a lagoon/storage pond greater than or equal to that
required in Condition V. 3. of the issued permit.
G. On March 21, 2003, a representative of Prestage Farms, the integrator for M&R
Farms, reported to DWQ staff from the Fayetteville Regional Office that the waste
level of the lagoon at M&R Farms was eight (8) inches which exceeded the level
of adequate storage specified in the CAWMP.
H. The Fayetteville Regional Office had not received notification from M&R Farms
that the waste level exceeded the level of adequate storage specified in the
CAWMP.
I. The costs to the State of the enforcement procedures in this matter totaled
$138.28.
Based upon the above Findings of Fact, I make the following:
lI. CONCLUSIONS OF LAW:
A. Michael and Lisa Rogers are "persons" within the meaning of G.S. 143-215.6A
pursuant to G.S. 143-212(4).
B. A permit for an animal waste management system is required by G.S. 143-215.1.
C. The above-cited failure to maintain the Iiquid level in the lagoon at the level
specified in the CAWMP violated Condition No. V. 3. of the General Permit.
D. The above-cited failure to report by telephone to the appropriate Regional Office
as soon as possible, but in no case more than 24 hours following first knowledge
of the occurrence of failure to maintain storage capacity in a lagoon/storage pond
greater than or equal to that required in Condition No. V. 3 violated Condition No.
III. 6. e. of the General Permit.
E. Michael and Lisa Rogers may be assessed civil penalties pursuant to G.S. 143-
215.6A(a)(2) which provides that a civil penalty of not more than twenty-five
thousand dollars ($25,000.00) per violation may be assessed against a person who
violates or fails to act in accordance with the terms, conditions, or requirements of
a permit required by G.S. 143-215.1.
F. The State's enforcement costs in this matter may be assessed against Michael and
Lisa Rogers pursuant to G.S. 143-215.3(a)(9) and G.S. 143B-282. I (b)(8).

G. The Acting Supervisor of the Non -Discharge Compliance and Enforcement Unit,
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:
Michael and Lisa Rogers is hereby assessed a civil penalty of:
$
1,500.00 for violating Condition No. V. 3. of the General Permit by
failing to maintain the liquid level in the lagoon at the level
specified in the CAWMP
$ 500.00 for violating Condition No. 111. 6. e. of the General Permit
by failing to report by telephone to the appropriate Regional
Office as soon as possible, but in no case more than 24
hours following first knowledge of the occurrence of failure
to maintain storage capacity in a lagoon/storage pond
greater than or equal to that required in Condition No. V. 3
$ 138.28
$_ 2,138.28
Enforcement costs
TOTAL AMOUNT DUE
As required by G.S. 143-215.6A(c), in determining the amount of the penalty I considered
the factors listed in G.S. 143B -282.1(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 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.
r
3
(Da e) �eent Wiggins, Ac ' upervisor
on -Discharge Compliance and Enforcement Unit
Division of Water Quality

DWQ- - CIVIL ASSESSMENT REMISSION FACTORS CONSIDERATION
Case Number:R, o 3 -co (0 Region PRo County:
Assessed
Entity:
(0 Whether one or more of the civil penalty assessment factors were wrongly applied
to the detriment of the petitioner;
Notes:
(4"" Whether the violator promptly abated continuing environmental damage resulting
from the violation;
Notes.,��y s —
(} , Whether the violation was inadvertent or a result of an accident;
Notes:
O Whether the violator had been assessed civil penalties for any previous violations;
Notes:
O Whether payment of the civil penalty will prevent payment for the remaining
necessary remedial actions.
Notes:

Decision (Check one)
Request Denied Full Remission Partial
remission Amount remitted
Date Alan Klimek, P.E.