STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ONSLOW 06 EHR 1081

John Darlington
Petitioner
vs.
N. C. Division of Water Quality
Respondent / )
))
)))) / ORDER GRANTING
SUMMARY JUDGMENT
FOR RESPONDENT

A Motion For Summary Judgment In Favor of Respondent was filed by Respondent in this matter, DENR, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. That Motion came on for hearing before Administrative Law Judge Beecher R. Gray in Burgaw, North Carolina, on November 2, 2006. Prior to this hearing, Respondent had filed Requests for Admissions under Rule 36 of the Rules of Civil Procedure. Petitioner had not responded to the requests for admissions. Respondent also had filed a motion to have the Requests deemed admitted. The undersigned called Petitioner to the witness stand and allowed Petitioner to answer Respondent’s Requests for Admissions on the record under oath. Petitioner’s answers together with Respondent’s motion and supporting affidavits were considered in the determination of this motion.

APPEARANCES

Pro Se Petitioner: John Darlington

2012 Blue Creek Road

Onslow County, NC

Respondent: Nancy Reed Dunn

Assistant Attorney General

N.C. Department of Justice

Environmental Division

9001 Mail Service Center

Raleigh, NC 27699-9001

SUMMARY JUDGMENT ISSUES

Whether Petitioner properly was assessed a civil penalty of $4,000 plus enforcement costs for violating N.C. Gen. Stat. § 143-215.1 and 15A NCAC 2H .1003 by failing to obtain a Stormwater Management Permit prior to construction of the project known as J & E Salvage located at 2012 Blue Creek Road in Jacksonville, Onslow County, North Carolina.

STATUTES AND CASES

N.C. Gen. Stat. § 143-215.1, et seq.

15A NCAC 2

N.C. Gen. Stat. § 143B-10

N.C. Gen. Stat. § 143-282.1(b)

UNDISPUTED FACTS

  1. This contested case challenges a civil penalty assessed against Petitioner on May 10, 2006, by the Division of Water Quality (DWQ) of the North Carolina Department of Environment and Natural Resources (DENR) for violating N.C. Gen. Stat. § 143-215.1 and 15A NCAC 2H .1003, by failing to obtain a stormwater management permit from DWQ prior to engaging in development activity.
  1. Petitioner filed a Petition for Contested Case Hearing on June 14, 2006, against Respondent DWQ.
  1. Petitioner owns the property located at 2012 Blue Creek Road in Jacksonville, Onslow County, NC, and operates a business at that site known as J&E Salvage. (“the site,” or “J&E Salvage”)
  1. On December 2, 2004, in response to a phone call received from Petitioner, staff from the Land Quality Section of the Wilmington Regional Office of the Division of Land Resources (“DLR”) of DENR inspected the site. During this inspection staff discovered that Petitioner had initiated improvements to the land and buildings at the site, and as part of this project, Petitioner had graded and removed vegetation and changed the site’s topography over an area totaling more than eight acres.
  1. N.C. Gen. Stat. § 113A-57(4), requires anyone conducting land-disturbing activity to obtain approval of an erosion and sedimentation control plan prior to commencing the land-disturbing activity if more than one acre is to be disturbed. N.C. Gen. Stat. 113A-52(6) defines land-disturbing activity as “any use of the land by any person in residential, industrial, educational, institutional or commercial development, highway and road construction and maintenance that results in a change in the natural cover or topography and that may cause or contribute to sedimentation.”
  1. The activity conducted by Petitioner at the site constituted land-disturbing activity which disturbed more than one acre. Petitioner did not file an erosion and sedimentation control plan prior to commencing that activity.
  1. DLR sent Petitioner a Notice of Violation for conducting land-disturbing activity without an approved erosion and sedimentation control plan on December 6, 2004. Petitioner did not correct this violation within the specified time period. DLR assessed a civil penalty against Petitioner for conducting land-disturbing activity without an approved erosion and sedimentation control plan. Petitioner contested that penalty, and on May 10, 2006, Administrative Law Judge Sammie Chess, Jr. issued a Final Decision and Order of Dismissal, finding as fact that Petitioner had conducted land-disturbing activity without an approved erosion and sedimentation control plan upholding that Civil Penalty Assessment, and dismissing Petitioner’s case for failure to prosecute.
  1. DLR staff also notified DWQ of the unpermitted activities at the site by forwarding a copy of the December 6, 2004 Notice of Violation to DWQ’s Wilmington Regional Office Supervisor.

9. 15A NCAC 2H .1003 states that development activities in the 20 coastal counties listed in 15A NCAC 2H .1002(4) requiring an erosion and sedimentation control plan also require a State Stormwater Management Permit, which is issued by the Division of Water Quality. Onslow County, where the site is located, is one of the 20 coastal counties listed in 15A NCAC 2H .1002(4).

10. 15A NCAC 2H .1002(6) defines development as any land disturbing activity which increases the amount of built-upon area or which otherwise decreases the infiltration of precipitation into the soil.

11. 15A NCAC 2H .1002(1) defines built-upon area as “that portion of a development project that is covered by impervious or partially impervious cover including buildings, pavement, gravel roads and parking areas, recreation facilities (e.g., tennis courts), etc. (Note: Wooden slatted decks and the water area of a swimming pool are considered pervious).”

12. Petitioner’s project was for the expansion of a salvage yard for the storage of piles of steel and scrap, as well as the construction of buildings and scales, and the installation of compacted roads.

13. As part of Petitioner’s project, he added an extensive system of compacted roads at the site, which are impervious. By Petitioner’s own admission, he intended to erect a building on the site, which also constitutes built-upon area preventing some precipitation from reaching the soil. While some rainwater may flow through the cars, they are semi-impervious, as they decrease the amount of precipitation that reaches the soil.

14. On January 12, 2005, February 15, 2005, and June 9, 2005, DWQ’s Wilmington Regional Office sent Petitioner requests for a Stormwater Management Permit application.

15. No Stormwater Management Permit application ever was received from Petitioner.

16. DWQ incurred expenses in the amount one hundred forty-nine dollars and forty-nine cents ($149.49) investigating the violations at the site.

17. In determining the amount of the civil penalty assessed against Petitioner, Edward Beck, an employee of Respondent and delegatee of the Secretary of the Department of Environment and Natural Resources, considered the factors set out in N.C. Gen. Stat. 143B-282.1(b).

CONCLUSIONS OF LAW

1. All parties properly are before the Office of Administrative Hearings, and the Office has jurisdiction over the parties and the subject matter.

2. All parties correctly have been designated, and there is no question as to misjoinder or nonjoinder.

3. Petitioner is a “person” within the meaning of N.C. Gen .Stat. § 143-215.6A, under N.C. Gen. Stat. § 143-212(4).

4. 15A NCAC 2H .1000 et seq., the Stormwater Management Policy, was promulgated under the authority granted to the EMC in N.C. Gen. Stat. §§ 143-214.1, which requires the EMC to develop classifications for waters of the state, and water quality standards applicable to those classifications, 143-214.7, which requires the EMC to develop and enforce a statewide stormwater management plan, 143-215.1(d), dealing with the permitting of activities which do not discharge into waters of the state, and 143-215.3(a)(1), which authorizes the EMC to make Rules to enforce N.C. Gen .Stat. § 143, Article 21.

5. Petitioner engaged in development activity at the site, under 15A NCAC 2H .1002(6). Petitioner was required to obtain an erosion and sedimentation control plan for that development activity, as it involved a land disturbance of more than one acre. 15A NCAC 2H .1003 requires a State Stormwater Management Permit for development activity in requiring an Erosion and Sedimentation Control Plan in the 20 coastal counties as defined in 15A NCAC 2H .1002(4).

6. Onslow County is a coastal county as defined by 15A NCAC 2H .1002(4).

7. Petitioner has raised no triable issue of material fact in this case. Petitioner does not dispute that he disturbed approximately eight acres of land for purposes of expanding his junkyard. Accordingly he was required to obtain an erosion and sedimentation control plan. Petitioner’s site is in a coastal county. Petitioner does not dispute that he graded and compacted roads, that he graded and compacted areas for the storage of large piles of steel and scrap, and that he intended to build a building on the site, and these facts establish the violation for which Petitioner was assessed the civil penalty.

8. Petitioner was required to obtain a State Stormwater Management Permit prior to conducting development activity at the site, and violated N.C. Gen .Stat. § 143-215.1 and 15A NCAC 2H .1003 by failing to do so.

9. Under N.C. Gen .Stat. § 143-215.6A(a)(2), Petitioner may be assessed a civil penalty not more than twenty-five thousand dollars ($25,000) per violation per day for the violation at the site. Under N.C. Gen .Stat. § 143-215.3(a)(9) and N.C. Gen. Stat. § 143B-282(b)(8), Respondent’s enforcement costs in this matter may be assessed against Petitioner.

10. Respondent correctly determined the amount of the civil penalty assessed against Petitioner using the factors set forth in N.C. Gen .Stat. § 143-215.

DECISION

Having reviewed the pleadings, briefs and affidavits submitted by Respondent, and the sworn answers given by Petitioner to Respondent’s Requests for Admissions, the undersigned administrative law judge decides as follows:

On the issue of whether Petitioner properly was assessed a civil penalty of $4,000 and enforcement costs of $149.49 for violating N.C. Gen .Stat. § 143-215.1 and 15A NCAC 2H .1003 by failing to obtain a State Stormwater Management Permit before conducting development activity at the site located at 2012 Blue Creek Road, Jacksonville, Onslow County, North Carolina, there is no genuine issue as to any material fact, and Respondent is entitled to judgment as a matter of law. Therefore, it is ORDERED, ADJUDGED, and DECREED that Respondent’s Motion for Summary Judgment should be, and the same hereby is, GRANTED.

ORDER

This Decision will be sent to the Environmental Management Commission. It hereby is ORDERED that the Environmental Management Commission serve a copy of its final agency decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6417, in accordance with N.C. Gen. Stat. § 150B-36(b).

NOTICE

The Environmental Management Commission, the agency making the final decision in this contested case, is required to give each party an opportunity to file exceptions to this Decision and the Decision made after an evidentiary hearing on the remaining issues. The Environmental Management Commission is also required to give each party an opportunity to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

The Environmental Management Commission is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties, furnish a copy to the parties’ attorneys of record, and furnish a copy to the Office of Administrative Hearings.

This the 1st day of February, 2007

______

Beecher R. Gray

Administrative Law Judge

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