STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF TRANSYLVANIA 08 EHR 0512

__________________________________________________________________

CHRISTOPHER E TAYLOR )

JANE TAYLOR, )

Petitioners, )

) DECISION

v. )

)

NC DEPARTMENT OF ENVIRONMENT AND )

NATURAL RESOURCES, LAND QUALITY )

SECTION, )

Respondent. )

)

__________________________________________________________________

This contested case was heard on 8 October 2008 in Hendersonville, Henderson County, North Carolina, the Honorable Selina M. Brooks, Administrative Law Judge presiding.

APPEARANCES

Petitioner Christopher E. Taylor appeared pro se. Petitioner Jane Taylor did not appear personally, but was represented by her husband and co-petitioner, Christopher E. Taylor. Respondent was represented by Sueanna P. Sumpter, Assistant Attorney General.

ISSUE

Did the respondent act in an arbitrary and capricious manner in making the subject 24 January 2008 civil penalty assessment against the petitioners, jointly and severally, for violations of the Sedimentation Pollution Control Act of 1973 (N.C.G.S. Chapter 113A, Article 4) (“SPCA”) and implementing rules (codified at 15A N.C. Admin. Code 4)?

BURDEN OF PROOF

The petitioners bear the burdens of proof and persuasion with regard to their contentions that the respondent acted arbitrarily and capriciously in making the subject assessment.

PRE-TRIAL MOTIONS

At the outset of the proceedings, the respondent moved for summary disposition of petitioner Jane Taylor’s case for failure to prosecute her action, citing the petitioner’s failure to appear either personally or through a licensed attorney. The motion was denied.

WITNESSES

The following witnesses were called by the respondent:

Shawna Riddle

Francis M. Nevils, Jr.

The following witnesses were called by the petitioners:

James Alton Taylor

Christopher Taylor

EXHIBITS

The following exhibits were offered by the respondent and received into evidence: 1, 2A, 2B, 3, 4, 5, 6, 7, 8, 9A, 9B, 9C, 10, 11A, 11B, 11C, 11D, 12, 13, 14, 15, 16. The petitioners did not offer any exhibits.

FINDINGS OF FACT

The undersigned finds the following to be the facts:

The petitioners were at all times relevant the owners of a tract of real property located off Highway 276, in Connestee Falls, in Transylvania County, North Carolina. R Ex. 14

The subject property is traversed by Little River, being Class C-trout waters of the State.

In response to a complaint received from the Division of Water Quality, an agency within the North Carolina Department of Environment and Natural Resources, respondent’s representative, Shawna Riddle, inspected the subject property on 2 July 2007. Ms. Riddle found that a land-disturbing activity affecting approximately two acres had been conducted on the site. R Ex. 1, 2A

The petitioners did not have an approved erosion and sedimentation control plan for this disturbance. A ditch had been cut leading to the watercourse on the property and 120 feet of trout buffer had been disturbed without a variance. Since these are trout waters, an undisturbed buffer zone at least twenty-five feet in width should have been provided. The ditch, which extended into the trout buffer area, was raw and had not been stabilized, and the disturbed area along the watercourse had not been vegetated. Sand had been brought onto the site and a beach area created in the buffer. No erosion and sedimentation measures had been provided on the site, and sediment had entered Little River by way of the ditch. Ms. Riddle observed sediment in the watercourse and was able to trace its path to where the ditch had been cut. R. Ex. 1, 2A

Ms. Riddle found that the land-disturbing activity was not conducted in compliance with the SPCA and implementing rules. First, since the area disturbed was in excess of an acre and there was no approved erosion and sedimentation control plan for the project, petitioners were in violation of N.C.G.S. sec.113A-57(4) and 15A N.C. Admin. Code 4B .0107(c). Second, sufficient measures had not been installed to prevent sediment from leaving the site, a violation of N.C.G.S. sec. 113A-57(3). Third, petitioners had failed to take all reasonable measures to prevent sediment from leaving the site, a violation of 15A N.C. Admin. Code 4B .0105. Fourth, there was not an adequate buffer zone along Little River, a violation of N.C.G.S. sec. 113A-57(1). R Ex. 1

The trout buffer requirements are set forth in N.C.G.S. sec. 113A-57(1) and 15A N.C. Admin. Code 2B .0125. The statute requires that an undisturbed buffer at least twenty-five feet in width must be maintained along trout waters. Plans which include land-disturbing activities within the buffer may be approved only when the duration of the disturbance is temporary and the extent minimal. The rule provides that the buffer area along trout waters is measured from the top of the bank. Further, the rule states that, where a temporary and minimal disturbance is allowed as an exception to the statute, the activity is limited to not more than ten percent of the total length of the buffer within the tract such that there is not more than one hundred linear feet of disturbance for each one thousand linear feet of buffer zone. Larger areas may be disturbed only with the written approval of the respondent. In this case, the total amount of the disturbance in the buffer was measured as one hundred and twenty feet, plus the width of the ditch excavated in the buffer. This exceeded the amount of disturbance which could be undertaken in the buffer without a variance.

On 20 July 2007, the respondent sent to the petitioners a “Notice of Violations of the Sedimentation Pollution Control Act” (“NOV”) A copy of the inspection report completed by Ms. Riddle on 2 July 2007 was sent to the petitioners with the NOV. The NOV informed the petitioners that they were in violation of the following provisions of the SPCA and implementing rules:

A. N.C.G.S. sec. 113A-54(d)(4) - 57(4) and 15A N.C. Admin. Code 4B .0107(c) for failure to file an acceptable erosion control plan at least 30 days prior to commencement of land-disturbing activities and failing to obtain prior approval of the plan before commencing those activities;

B. N.C.G.S. sec. 113A-57(3), for failure on a tract of more than one acre where more than one acre is uncovered, to install sedimentation and erosion control devices sufficient to retain sediment generated by the activity within the boundaries of the tract during construction and development;

C. 15A N.C. Admin. Code 4B .0105, for failure to take all reasonable measures to protect all public and private property from damage by his land-disturbing activities; and

D. N.C.G.S. sec. 113A-57(1) for failure to retain along 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.

The NOV advised the petitioners that, to correct the violations, they must: first, prepare and submit for approval an erosion control plan, fully implement that plan upon approval and, pending approval of a plan, immediately provide measures on site sufficient to control erosion, prevent sedimentation damage, and comply with all provisions of the SPCA; second, install adequate sediment and erosion control measures sufficient to retain sediment onsite and out of the watercourse; establish a groundcover on all disturbed areas; and re-establish and maintain a 25-foot buffer along the watercourse. R Ex. 3

The NOV indicated that, if the violations were not corrected by the compliance deadline, enforcement action might be taken, including assessment of continuing civil penalties of up to $5,000 per day. The deadline was established as either 19 August 2007 or thirty days following petitioners’ receipt of the document, whichever was longer. The NOV was received by the petitioners on 24 July 2007, and the compliance deadline was accordingly 30 days thereafter, or 23 August 2007. R Ex. 3

On 20 August 2007, Ms. Riddle sent to the petitioners a notice indicating that the compliance inspection would be conducted on 24 August 2007. R Ex. 4

On 24 August 2007, Ms. Riddle conducted the compliance inspection. Neither the petitioners nor any representative of theirs was onsite at the time. She found that the site was still in violation of the statutes and rules cited in the NOV. No proposed erosion control plan had been submitted. Some erosion and sediment control measures had been installed on parts of the site, but these were insufficient. Areas of the buffer were without vegetative cover and no application for a trout buffer variance had been received. Sediment, slight in amount, was still leaving the site by way of the ditch and entering Little River. R Ex. 5

A copy of Ms. Riddle’s inspection report of 24 August 2007 was sent to the petitioners on 7 September 2007 along with a “Notice of Continuing Violations” (“NOCV”). The petitioners received this mailing on 11 September 2007. R Ex. 6

On 11 September 2007, the respondent received from the petitioners a “Financial Responsibility Form” (“FRO”). That document was submitted in conjunction with a proposed erosion and sedimentation control plan for the subject property and indicated, among other things, that the land-disturbing activity had already occurred, affected 2 acres, and was for the purpose of constructing a campground. The proposed plan was disapproved on 8 October 2007. R Ex. 8, 9A

On 24 September 2007, and again on 17 October 2007, Ms. Riddle made inspections of the petitioners’ property and found it still to be in violation of certain of the statutes and rules cited in the NOV. There was still no approved plan, and the buffer zone violation had still not been corrected. R Ex. 8, 10

On 13 November 2007, petitioners submitted a revised erosion and sedimentation control plan to the respondent. That plan was approved with modifications on 19 November 2007. R Ex. 9B, 9C

On or about 12 October 2007, the respondent’s regional office referred the matter of the petitioners’ violations to Francis M. Nevils, Jr., Section Chief, Land Quality Section, for enforcement. In addition to providing a narrative description of the violations, Ms. Riddle forwarded a copy of the documents in the regional office file for Mr. Nevils’ review. R Ex. 11A, 11B,11C, 11D

On 24 January 2008, Mr. Nevils assessed civil penalties against the petitioners, jointly and severally, in the total amount of thirty-six thousand seven hundred and twenty dollars ($36,720). This represented a daily penalty of three hundred and forty dollars $340) applied for a period of 108 days. The penalty period began on 2 July 2007, the date the violations were discovered, and ended on 17 October 2007, the date of the last non-compliance inspection report available to Mr. Nevils at the time. R Ex. 13

Mr. Nevils arrived at the penalty amount after reviewing the file, including the Guidelines completed by the Regional Office, and after considering those factors set forth in N.C.G.S. sec.113A-64(a)(3) and the rules of the North Carolina Sedimentation Commission. R Ex. 12

Mr. Nevils assessed penalties for violations of the following provisions of the SPCA and implementing rules:

A. N.C.G.S. sec. 113A-54(d)(4) - 57(4) and 15A N.C. Admin. Code 4B .0107(c) for failure to file an acceptable erosion control plan at least 30 days prior to commencement of land-disturbing activities and failing to obtain prior approval of the plan before commencing those activities;

B. N.C.G.S. sec. 113A-57(3), for failure on a tract of more than one acre where more than one acre is uncovered, to install sedimentation and erosion control devices sufficient to retain sediment generated by the activity within the boundaries of the tract during construction and development;

C. 15A N.C. Admin. Code 4B .0105, for failure to take all reasonable measures to protect all public and private property from damage by his land-disturbing activities; and

D. N.C.G.S. sec. 113A-57(1) for failure to retain along 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.

R. Ex. 13

Upon consideration of the types of violations committed, Mr. Nevils assessed ten dollars ($10) for each of the four (4) violations, yielding a total of forty dollars ($40) for this factor. R Ex. 12

In referring this matter for assessment of penalties, the regional office had indicated that off-site sedimentation, slight in amount, had occurred. After considering the degree and extent of the harm caused by the violation, Mr. Nevils increased the daily penalty amount by fifty dollars ($50). The range Mr. Nevils typically applies in cases of slight damage is from zero to one hundred dollars ($100). R Ex. 12

In this case, there was no approved plan for the land-disturbing activity. In considering the effectiveness of the steps taken to correct the violations, Mr. Nevils believed that some remedial efforts had been made but were not very effective. As a result, he increased the daily penalty amount by two hundred dollars ($200). R Ex. 12 After considering whether the violations were committed willfully, Mr. Nevils increased the daily penalty amount by fifty dollars ($50). The petitioners had received the NOV, were given time to correct the violations, but failed to correct them. R Ex. 12

Mr. Nevils did not further increase the daily penalty amount based upon his consideration of the amount of money the violators saved by their noncompliance, the cost of rectifying the damage, or staff investigative costs. R Ex. 12

Upon consideration of the required factors, Mr. Nevils arrived at a daily penalty amount of three hundred and forty dollars ($340). Multiplying the daily penalty amount by the number of days in the penalty period, being one hundred and eight (108) yielded a total assessment amount of thirty-six thousand seven hundred and twenty dollars ($36,720). R Ex. 12, 13

James Taylor testified on behalf of the petitioners. Mr. Taylor is the petitioner Christopher Taylor’s cousin. The petitioners authorized Mr. Taylor and his father, Alton Taylor, to maintain the subject property. In November of 2006, James and Alton Taylor retained a logger to log the property. After the logging operation concluded, they began to clean up the property by removing limbs and engaging in earth-moving operations to smooth out the area. The purpose of the land-disturbing activity was for construction of a campground. The ditch on the site had been constructed prior to the logging, but the loggers had filled it in to stop water from flowing through it. James and Alton Taylor reopened the ditch, deepened it in an effort to level it and bring it to grade with Little River, and extended it to the river. In July of 2007, the ditch was draining to the watercourse. The witness denied that sand had been brought onto the site. Both James and Alton Taylor sustained injuries in unrelated incidents in January of 2007 and work on the property stopped at that time. However, the witness indicated that the site was seeded numerous times but without much success due to lack of rain. The witness installed matting in the ditch in September of 2007, but then placed soil on top of it. He also placed rip rap in the ditch, a measure not consistent with the proposed erosion control plan developed by the petitioners’ consultant.

CONCLUSIONS OF LAW

BASED UPON THE FINDINGS OF FACT, the undersigned concludes as follows:

The petitioners have not met their burden of showing that the agency acted arbitrarily and capriciously in making the subject assessment. To the contrary, the respondent’s decision was well-reasoned, reflects fair and careful consideration of the matter, and is fully supported by the evidence.

The respondent did not act arbitrarily and capriciously in determining that, during the 108-day period beginning 2 July 2007 and ending 17 October 2007, the petitioners violated the following provisions of the SPCA and implementing rules:

N.C.G.S. sec. 113A-54(d)(4), N.C.G.S. sec. 113A-57(4), and 15A N.C. Admin. Code 04B .0107(c) were violated since petitioners initiated a land-disturbing activity affecting more than one acre on a tract without submitting an erosion and sedimentation plan for the activity at least 30 days before the initiation of the land-disturbing activity and began the activity prior to plan approval.

N.C.G.S. sec. 113A-57(3) was violated since petitioners’ land-disturbing activity affected more than one acre on a tract and petitioners failed to install sedimentation and erosion control devices and practices sufficient to retain sediment generated by land-disturbing activity within the boundaries of the tract during construction.

15A N.C. Admin. Code 04B .0105 was violated since petitioners failed to take all reasonable measures to protect all public and private property from damage caused by land-disturbing activity.

N.C.G.S. sec. 113A-57(1) was violated since petitioners failed to provide in proximity to a lake or natural watercourse, a buffer zone as defined in 15A N.C. Admin. Code 04A .0105(4).

The respondent did not act arbitrarily and capriciously in determining the amount of the penalty, the amount being in all respects reasonable and appropriate.

DECISION

The respondent’s 24 January 2004 assessment against the petitioners, jointly and severally, of civil penalties in the total amount of thirty-six thousand seven hundred and twenty dollars ($36,720) is upheld in its entirety.

NOTICE

Since this contested case arose from an assessment of civil penalties pursuant to N.C.G.S. sec. 113A-64, the Secretary of the North Carolina Department of Environment and Natural Resources, or his delegate, will make the Final Agency Decision in this matter pursuant to N.C.G.S. sec. 113A-55.

The Secretary, as the final agency decision maker in this contested case, is required to give each party an opportunity to file exceptions to this Decision and to present written arguments prior to making the Final Agency Decision. N.C. Gen. Stat. sec. 150B-36(a).

The Secretary is required by N.C. Gen. Stat. sec. 150B-36(b) to serve a copy of the Final Agency Decision on all parties and to furnish a copy to the parties’ attorneys of record and to the Office of Administrative Hearings.

ORDER

It is hereby ordered that the Secretary serve a copy of the Final Agency Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6417, in accordance with N.C. Gen. Stat. sec. 150B-36(b).

This the 9th day of December, 2008.

____________________________________

Selina M. Brooks

Administrative Law Judge

A copy of the foregoing was sent to:

Christopher E. Taylor

Jane Taylor

8421 Tatebrook Lane

Huntersville NC 28078

PETITIONER

Sueanna P. Sumpter

Assistant Attorney General

N.C. Department of Justice

2 N. French Broad Avenue

Asheville NC 28801

ATTORNEY FOR RESPONDENT

This the ____ day of December, 2008.

___________________________________

Office of Administrative Hearings

6714 Mail Service Center

Raleigh, N.C. 27699-6714

Phone: 919-431-3000

Fax: 919-431-3100

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