STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ONSLOW 03 EHR 0796

RALPH C. LUNA, )

Petitioner )

)

v. )

) DECISION

N.C. DEPARTMENT OF )

ENVIRONMENT AND )

NATURAL RESOURCES )

)

Respondent. )

This contested case was heard by the Honorable Beryl Wade, Administrative Law Judge, on June 3 - 4 and August 18, 2004, in North Topsail Beach, North Carolina. The parties filed proposed findings of fact and conclusions of law on October 1 (Respondent) and October 12, 2004 (Petitioner).

APPEARANCES

For Petitioner: Jeffrey S. Miller, Attorney at Law

636 Court Street

Jacksonville, North Carolina 28540

For Respondent: Nancy E. Scott

Assistant Attorney General

Environmental Division

114 West Edenton Street

9001 Mail Service Center

Raleigh, North Carolina 27699-9001

WITNESSES

Witnesses called by Petitioner

1. Samuel Uzzell, Cooperative Extension Agent, North Carolina State University, tendered and admitted as expert witness in botany and plant pathology, as well as agriculture in Pitt, Greene, Lenoir and Onslow Counties of North Carolina.

2. Ralph “Chris” Luna, Petitioner

Witnesses called by Respondent

1. Mark Fry, Eastern District Supervisor for Field Operations, Solid Waste Section, Division of Waste Management, Department of Environment and Natural Resources.

2. John Crowder, Waste Management Specialist, Solid Waste Section, Division of Waste Management, Department of Environment and Natural Resources.

3. Kevin Turner, former Onslow County litter control agent.

4. Ray Williams, Environmental Technician, Solid Waste Section, Division of Waste Management, Department of Environment and Natural Resources.

5. Ted Lyon, Supervisor of the Composting and Land Application Branch, Solid Waste Section, Division of Waste Management, Department of Environment and Natural Resources. Mr. Lyon was tendered and admitted as an expert in both soil science and management of waste through land application.

6. Dr. Albert R. Rubin, Professor in Department of Biological and Agricultural Engineering, North Carolina State University, tendered and accepted as an expert in waste management and agricultural utilization of byproducts and waste materials.

7. James C. Coffey, Section Chief, Solid Waste Section, Division of Waste Management, Department of Environment and Natural Resources.

EXHIBITS RECEIVED INTO EVIDENCE

Petitioner’s Exhibits

1. Photograph taken by Petitioner of Mr. Cole’s property on June 3, 2004, during the lunch break of the hearing.

2. Photograph taken by Petitioner of Mr. Cole’s property on June 3, 2004, during the lunch break of the hearing.

3. Photograph taken by Petitioner of Mr. Cole’s property on June 3, 2004, during the lunch break of the hearing.

4. Copy of article by Dr. Ronald Korsak, Associate Institute Director of the USDA Agricultural Research Service in Beltsville, Maryland: “Scrap Construction Gypsum Utilization” (1996).

5. Copy of paper entitled “Uses of Ground Sheetrock (Gypsum) as a Soil Amendment,” by J.D. Zublena, A.R. Rubin and D.A. Crouse, published by N.C. State University Department of Soil Science (revised April, 1995).

6. Exhibit 6 not admitted.

7. Photograph taken by Petitioner of Mr. Cole’s property on June 3, 2004, during the lunch break of the hearing.

Respondent’s Exhibits

1. Five color photographs taken at Mr. Cole’s property by John Crowder on May 24, 2002.

2. Onslow County investigative case file Page 2 of handwritten Notes made by Kevin Turner at Cole property: Drawing of Cole property depicting dimensions of two areas where sheet rock (gypsum wallboard) found on property.

3. Onslow County investigative case file Page 5 of Handwritten Notes taken by Kevin Turner at Cole property. Page 5 admitted only for notes taken at Cole property on August 23, 2002: dimensions and depths of two areas of wallboard debris on property.

4. Chapter 89F of the North Carolina General Statutes: The North Carolina Soil Science Licensing Act. Official Notice taken of this Act.

5. Resume of Dr. A. R. Rubin.

6. 15A North Carolina Administrative Code 13B, Rules .0103 through .0201 (official notice taken).

7. Affidavit of Dr. Ronald Korsak.

8. Compliance Order with $4000 Administrative Penalty dated April 7, 2003, issued by Division of Waste Management to Ralph C. Luna, (copy also attached as Exhibit A to Petition for a Contested Case Hearing.) Two copies of Compliance Order were also filed by Respondent on June 12, 2003, as “document constituting agency action that caused the filing of the contested case petition.”

9. Copy of North Carolina General Statute 130A-22.

10. Copy of 15A North Carolina Administrative Code 13B, Rule .0702.

11. Copy of Penalty Computation Worksheet for administrative penalty issued to Petitioner.

OFFICIAL NOTICE

1. Official Notice is taken of Chapter 89F of the North Carolina General Statutes: The North Carolina Soil Science Licensing Act.

2. Official Notice is taken of Solid Waste Management Rules 15A North Carolina Administrative Code 13B, Rules .0103 through .0201.

FINDINGS OF FACT

1. Petitioner Ralph C. Luna filed a Petition for a Contested Case Hearing with the Office of Administrative Hearings on May 8, 2003. [Petition]

2. Petitioner challenges issuance by Respondent of a compliance order with $4,000 administrative penalty against Petitioner. The compliance order was dated April 7, 2003, and received by Petitioner on April 10, 2003. [Compliance Order; Attachment A to Petition]

3. The administrative penalty was levied against Petitioner for disposal of waste sheetrock (gypsum wallboard) on the property of Mr. James C. Cole located on Highway 17 in Onslow County, in violation of 15A N. C. Administrative Code 13B § .0201. [Compliance Order pp. 1-3]

4. Petitioner is a drywall contractor. Since 1985 he has engaged in business as a sole proprietor under the name Dry Tech Drywall Contractors of Jacksonville, N.C. He employs nine people as “independent subcontractors” in his business. [T Vol.1 p.241, p. 252]

5. Petitioner and Petitioner’s subcontractors delivered scrap sheetrock from Petitioner’s jobs to Mr. Cole’s property over a period of eight to ten months prior to June of 2002. [T Vol. 1 p. 242, p. 244, p. 252]

6. Petitioner testified that he was currently disposing of the scrap wallboard from his drywall contracting business at the Onslow County Landfill. Classified as construction debris, the tipping fee for disposal of the wallboard at the landfill is between $30 and $35 per ton. [T Vol 1 p. 245]

7. Around the middle of May, 2002, John Crowder, Solid Waste Management Specialist with Respondent’s Division of Waste Management, received a complaint about sheetrock dumped on the Cole property. He referred the complaint to Kevin Turner of the Onslow County litter control agency “Keep Onslow Beautiful”. [T Vol. 1 pp. 40-42]

8. On May 24, 2002, Mr. Crowder took five color photographs of the areas where sheet rock was deposited on the Cole property. The photographs were admitted as Respondent’s Exhibit 1. Photo #1 is a view from the side of U.S. Highway 17 looking toward a mobile home on the property. In this picture, the ground is covered with white sheetrock. Photo#2 was taken next to the mobile home looking back toward Highway 17. Broken pieces of sheetrock cover the ground in this picture, and there are several very large pieces of sheetrock visible in the lower right-hand corner of the picture. Photos #3 and #4 show a different area on the Cole property, looking north and east back toward the woods from the mobile home. Photo #5 is a close-up view of the sheetrock in the first photo, showing the sheetrock broken into pieces 3 inches by 3 inches or larger. [T Vol. 1 pp. 42-46; R Ex. 1]

9. In each of the photos the ground is completely covered with sheetrock; there is no grass or other vegetation visible through the sheetrock. Mr. Crowder did not measure the two areas of sheet rock deposition, but estimated that the area in front of the mobile home was close to half an acre, and the area to the rear was half to three-quarters of an acre. [T Vol. 1 p. 48; R Ex. 1]

10. Kevin Turner testified that he had worked for Keep Onslow Beautiful for about a year and a half prior to moving to his current job in the County tax office. Prior to that he had been an Onslow County Sheriff’s Deputy for nine years. [T Vol. 1 pp. 64-65.]

11. Mr. Turner kept contemporaneous records of his investigation of this matter. Mr. Turner spoke with Mr. Cole during his first visit to the site on June 3, 2002. Mr. Turner documented this conversation with contemporaneous handwritten notes. His investigation records, including all of the handwritten notes, were kept in a case file labeled with a case number in a filing cabinet in his office at Keep Onslow Beautiful. Mr. Turner had photocopies of his handwritten notes from his investigative files with him on the witness stand. [T Vol. 2, pp. 73-74]

12. Mr. Cole has since died and thus was unavailable to testify at the hearing. (T Vol. 1 pp. 71-72.

13. Mr. Turner read from his handwritten notes documenting his visit with Mr. Cole on June 3, 2002. “I met with Mr. Cole at his residence and explained that the sheetrock would need to be dug up. Mr. Cole said he will speak to the contractor that gave him the sheetrock for assistance in the cleanup. I gave Mr. Cole one of my business cards and told him to keep me informed.” [T Vol. 1 p. 76]

14. Mr. Turner continued to read from his handwritten notes made during his investigation of this matter: “On June 12, Mr. Cole called and told me the contractor’s name is Chris Tech Drywall. And he gave a phone number of 389-4983.” [T Vol. 1 p. 76]

15. Mr. Turner called the telephone number Mr. Cole had given him. He spoke to Mr. Luna at that number and explained to him why he was calling. Luna responded by telling him that he hauled sheetrock all over Maysville, which is in Jones County, and it’s being done in New Hanover County as well. Mr. Turner asked Mr. Luna to remove the sheetrock from the Cole property. [T Vol. 1 p. 77]

16. Mr. Luna told Mr. Turner that he had put the sheetrock on Mr. Cole’s property. [T Vol. 1 pp. 89-90]

17. Mr. Turner made a drawing of the Cole property during his investigation. [T Vol. 1 p. 86] The drawing depicts Mr. Cole’s residence, a rectangular area in front of Mr. Cole’s residence where he observed sheet rock and a larger rectangular area to the left and rear of the residence where he observed sheet rock. [R Ex. 2; T Vol. 1 p. 86]

18. On August 23, 2002, Mr. Turner measured each of the two areas where he observed sheet rock, using a measuring wheel around the perimeter and a ruler for depth. He recorded his measurements in his handwritten notes kept in his investigative file of this matter. The area in front of Mr. Cole’s residence was a rectangle measuring 234 feet in length, 68 feet in width and 6 inches in depth. The larger area to the rear of the property measured 511 feet in length, 67 feet in width and 12 inches in depth. The total area covered with sheetrock was approximately 1.15 acres. [R Ex. 3; T Vol. 1 p. 85, p. 147]

19. Mr. Turner testified that on each occasion when he visited the Cole property between June 3 and August 23 the two areas of sheet rock deposition looked the same as in the photos taken by John Crowder on May 24. [T Vol. 1 pp. 67-68, pp. 90-91]

20. Because Onslow County was not having success in getting the site cleaned up, John Crowder asked Ray Williams, an environmental technician with the Division of Waste Management, to assist the County and try to get the site cleaned up. [T Vol. 1 p. 45, pp. 95-96]

21. Mr. Williams testified that he visited the site on May 24, 2002, and it looked the same as in Mr. Crowder’s photographs. The site also looked pretty much the same on June 28, 2002 when Mr. Williams started his official investigation. [T Vol. 1 pp. 95-97]

22. Mr. Williams took a stick and stuck it down in different places across the site in both areas to measure the depth of the sheetrock. He had a tape measure in his car with which he measured the depth on the stick. The front area was, on average, about six inches deep, and the area in the back was 12 inches deep. [T Vol. 1 p. 97]

23. Mr. Williams telephoned Mr. Luna, who refused to give his mailing address, his full name, or the name of his lawyer. When he told Mr. Luna that he wanted to send him some information about removing the material from the site so that he could help Mr. Cole remove it, Mr. Luna said he was not going to remove it. Mr. Luna told Mr. Williams that he did not know what he was talking about. Mr. Luna hung up on Mr. Williams. [T Vol. 1 pp. 99-100]

24. After obtaining Mr. Luna’s address from another source, Mr. Williams sent him a Notice of Violation by certified mail, which was returned unclaimed. A second notice of violation sent in October, 2002 was also returned unclaimed. On February 12, 2003 Mr. Williams sent Mr. Luna a Notice of Intent to Issue a Compliance Order, which was also returned unclaimed. [T Vol. 1 pp. 99-102]

25. Mr. James C. Coffey has been Chief of the Solid Waste Section of the Division of Waste Management since April of 2002; he was Acting Section Chief for a year prior to that. He has a B.S. Degree in geological engineering. He is a licensed professional geologist with eighteen years experience in the Solid Waste Section. Before becoming Section Chief he was head of the Permitting Branch of the Section. [T Vol. 2 pp. 6-7, 10]

26. Mr. Coffey has been delegated the authority to assess administrative penalties for violations of the solid waste management statutes and rules by the Director of the Division of Waste Management Dexter Matthews. [T Vol. 2 p. 12]

27. Mr. Coffey issued the Compliance Order with Administrative Penalty of $4000 to Mr. Luna. [T Vol. 2 pp. 13-14; R Ex. 8]

28. The penalty was issued for violation of 15A N.C. Administrative Code 13B .0201(a), which requires a permit for a solid waste disposal facility or treatment or storage facility and prohibits the open dumping of solid waste. This rule is the rule prohibiting open dumping that the state is required to have in place by federal law under the Resource Conservation and Recovery Act. [T Vol. 2 pp. 8-10, pp. 14-15]

29. Prior to issuing the Compliance Order, Mr. Coffey talked with John Crowder and Ray Williams about their investigation of this matter. Mr. Coffey had their entire files before him, including their notes, records of communication, the five photographs taken by John Crowder, the two Notices of Violation and the Notice of Intent to Issue a Compliance Order, as well as some correspondence about difficulty in contacting Mr. Luna. [T Vol. 2 pp. 16-17]

30. N.C.G.S. 130A-22 authorizes administrative penalties of up to $5000 per day for each violation of the non-hazardous solid waste management rules. [T Vol. 2 pp. 13, 17; R Ex. 9]

31. In assessing a penalty of $4000, Mr. Coffey considered the degree and extent of harm caused by the violation and the cost to rectify the damage, as required by N.C.G.S. 130A-22(d), and the regulatory factors in 15A N.C. Administrative Code 13B .0702: the type of violation, type of waste involved, duration of the violation, cause, potential effect on public health and the environment, effectiveness of responsive measures taken by the violator, and damage to private property. [T Vol. 2 pp. 17-20; R Ex. 9, Ex.10]

32. In assessing the penalty, Mr. Coffey explained that operating a disposal site or open dump without a permit was considered a major violation. A permit is the heart of the solid waste management program, providing necessary protections for the public health and the environment in both the design and the operation of solid waste management facilities. A second major consideration was the type of waste involved. While construction and demolition waste such as sheetrock does not pose as great a potential harm as the open dumping of municipal solid waste, medical waste or septage, it does have the potential to harm the environment and get in the groundwater. The third main consideration was the lack of responsiveness from the violator. [T Vol. 2 pp. 21-23]

33. Using the penalty computation worksheet, Mr. Coffey calculated a base penalty of $4000. He explained how he used the matrix on the sheet to arrive at that figure. On the top of the matrix is “potential for harm to the environment and or public health”, and to the left is the “nature of the violation”, which includes deviation from the rules, cause and degree of control over the violation, and history of non-compliance. The matrix includes per-day penalty ranges, based upon the levels of severity of the violation. Mr. Coffey set the penalty for one violation for one day, although the agency could have assessed higher penalties for more days of a continuing violation. [T Vol. 2 pp. 24-28; R Ex. 11]

34. The purpose of assessing a penalty in an open dumping case is to encourage the violator to clean up the site, to discourage the violator from doing it again at another site, and to deter other, mostly commercial, operators from dumping illegally. A commercial operator who avoids the cost of legal waste disposal by unlawfully disposing of his waste obtains an unfair business advantage. Open dumps are also “attractive nuisances”, in that they may attract open dumping from others; they are also eye sores. [T Vol. 2 pp. 21-23, pp. 28-29]

35. Petitioner did not deny that he had disposed of the scrap sheetrock from his drywall contracting business on Mr. Cole’s property. His defense was that sheetrock, because it was primarily gypsum sulfate, was good for the soil and for crops. [T Vol. 1 pp. 162-165]

36. Ted Lyon, supervisor of the Composting and Land Application Branch of the Solid Waste Section for twelve years and a licensed soil scientist and registered sanitarian, was admitted as an expert witness in both soil science and management of waste through land application. [T Vol. 1 p. 127]

37. Mr. Lyon testified that gypsum wallboard (sheetrock) is 85-90 percent gypsum, which is calcium sulfate and water. The remainder of the wallboard is paper and glue. Calcium and sulfur are both considered plant nutrients, at proper rates. [T Vol. 1 pp. 127-128]

38. Mr. Lyon has issued permits for the land application of gypsum wallboard at agronomic rates. Necessary to said permitting is analysis of a soil sample which shows a need for sulfur or calcium in order to grow a particular crop on a particular site. Determination of how much be applied is based upon the soil analysis and the needs of the particular crop. Nutrient needs for particular crops are available through the N.C. Cooperative (Agricultural) Extension Service and the Natural Resource Conservation Service publications. In order to be permitted for land application, the gypsum wallboard must also be pulverized into particle sizes of about one-quarter inch so that it may be evenly distributed and available to the crop roots. [T Vol. 1 pp. 132-134]

39. The general rule of thumb for agronomic application rates in North Carolina soils is the addition of 200 pounds per acre of calcium and 50 pounds per acre of sulfur, somewhat higher for peanuts, depending upon the soil. Gypsum is approximately 23 percent calcium and 18-19 percent sulfur. Wallboard is 85 percent gypsum; thus one ton of wallboard is about 1700 pounds of gypsum. At 23 percent calcium, land application of one ton of wallboard will include 390 pounds of calcium. At 18 percent sulfur, application of one ton of wallboard will include about 300 pounds of sulfur. [T Vol. 1 pp. 134-138]

40. The normal application rate for pulverized wallboard in North Carolina soils would therefore be considerably less than one ton per acre. For peanuts on a calcium deficient field, it might be slightly more. [T Vol. 1 pp. 137-138]

41. One potential problem with the over application of gypsum to soil is that too much calcium (in the gypsum) can displace the other essential plant nutrients in the soil of potassium, magnesium and manganese. Another problem from over application of gypsum is that calcium sulfate is very soluble in the soil, and sulfur will separate from the calcium and move vertically, resulting in sulfate contamination in the groundwater. [T Vol. 1 pp. 138-140]

42. Mr. Lyon examined the photographs of the sheetrock deposition on Mr. Cole’s property, admitted as R Ex. 1, and opined that they represented dumping of the sheetrock. There was far too much sheetrock and the particle sizes were far too big for the site to be an agricultural application of gypsum. [T Vol. 1 pp. 144-145]

43. Mr. Lyon learned from a manufacturer of gypsum wallboard that standard ½ inch wallboard weighs 1.6 pounds per square foot. Using the dimensions and the depths of the wallboard deposition on Mr. Cole’s property which had been measured by Kevin Turner, Mr. Lyon calculated, using a figure of 20 percent air space in the deposited wallboard, that the wallboard deposited on Mr. Cole’s property, at 85 percent gypsum (calcium sulfate), amounted to an application rate of 413 tons of gypsum per acre. Mr. Lyon testified that the calculated 413 tons of gypsum included about 95 tons of calcium per acre and 74 tons of sulfur per acre. [T Vol. 1 pp. 146-148, pp. 152-153. Note the typographical errors in line 16-17 of page 153, which should read “The average would be 827,000 pounds per acre, which equals 413 tons, approximately.”]

44. Mr. Lyon noted that his calculation was a conservative figure because he used an average depth of 9 inches for both of the sheetrock deposition areas, whereas the rear area which had an average depth of 12 inches of sheet rock was almost twice as large as the front area where an average depth of 6 inches of sheet rock had been measured. [T Vol. 1 pp. 162-165]

45. Mr. Lyon also calculated how much land it would take to apply this much gypsum at typical agronomic rates in North Carolina, assumed the wallboard were pulverized and land application was permitted. 74 tons of sulfur is about 148,000 pounds; at a typical application rate of 50 pounds per acre, nearly 3000 acres would be necessary for application of this much sulfur. Between seven and eight hundred acres would be needed for land application of this amount of calcium. [T Vol. 1 pp. 154]

46. Petitioner’s expert Pitt County Cooperative (Agricultural) Extension Agent Samuel Uzzell had experience with a study in which pulverized gypsum wallboard was applied to peanuts at 600 pounds per acre. Mr. Uzzell testified that the typical agronomic rates of application for calcium would be 200 pounds per acre, and 50 to 100 pounds per acre of sulfur. [T Vol. 1 pp. 169-175, pp. 177-178]

47. Petitioner’s expert examined the photographs in Respondent’s Exhibit 1, and testified that it did not look like agronomic or agricultural application of sheetrock to him. He agreed that over 400 tons per acre of large chunks of sheetrock did not sound like agricultural application to him. [T Vol. 1 pp. 177-180]

48. Dr. Albert R. Rubin, professor in the Biological and Agricultural Engineering Department of N.C. State University and a visiting scientist with the United States Environmental Protection Agency, was admitted as an expert in waste management and agricultural utilization of byproducts and waste materials. [T Vol. 1 p. 202, pp. 212-213]

49. Dr. Rubin had never heard of an agricultural application rate of calcium sulfate even approaching 400 tons per acre. Peanuts could use maybe a ton of gypsum per acre at pegging. Christmas trees might need six to eight hundred pounds of gypsum per acre. Those are the crops that are most sensitive to gypsum applications. [T Vol. 1 pp. 219-220]

50. Dr. Rubin confirmed that an application rate of approximately 400 tons per acre of gypsum (calcium sulfate) would be likely to displace some of the essential plant nutrients in the soil. At that rate of application, he would not be surprised to see elevated levels of dissolved solids and sulfate in shallow groundwater, both of which would violate drinking water standards. [T Vol. 1 pp. 221, 224]

51. Scrap sheetrock (gypsum wallboard) is a solid waste. [T Vol. 2 p. 44]

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, the undersigned makes the following Conclusion of Law:

1. The Office of Administrative Hearings has jurisdiction of this case, and the parties are properly before the court.

2. Petitioner has violated 15A N.C. Administrative Code 13B .0201(a), which provides:

(a) No person shall establish or allow to be established on his land, a solid waste management facility, or otherwise treat, store or dispose of solid waste unless a permit for the facility has been obtained from the Division.

3. Respondent issued the Compliance Order with Administrative Penalty in accordance with applicable law. Respondent has not exceeded its authority or jurisdiction, has not acted erroneously, has not failed to use proper procedure, has not acted arbitrarily and capriciously, and has not failed to act as required by law or rule in issuing the Compliance Order with Administrative Penalty of $4000 to Petitioner Ralph Luna.

DECISION

The Compliance Order with Administrative Penalty of $4000 issued to Ralph Luna should be upheld.

NOTICE

The Secretary of the Department of Environment and Natural Resources, or his designee, will make the final decision in this contested case.

The Agency is required to give each party an opportunity to file exceptions to the recommended decision and to present written arguments to those in the Agency who will make the final decision. N.C.G.S. § 150B-36(a). The Agency is required by N.C.G.S. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorneys and to the Office of Administrative Hearings.

In accordance with N.C.G.S. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.

This the 3rd day of January, 2005.

_____________________________

Beryl E. Wade

Administrative Law Judge

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