-2-

STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF CUMBERLAND 07 EHR 1397

Greg Simpkins, )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA DEPARTMENT OF )

ENVIRONMENT AND NATURAL )

RESOURCES, DIVISION )

OF AIR QUALITY, )

Respondent. )

______

STATEMENT OF CASE

The above entitled contested case was heard before Beecher R. Gray, Administrative Law Judge, on December 12, 2007 in Fayetteville, North Carolina. This case involves the appeal of an assessment of a civil penalty against Petitioner for causing, allowing, or permitting open burning of synthetic material in violation of the regulations found in 15A NCAC 2D .1900 et seq.

APPEARANCES

Greg Simpkins, Petitioner, appeared pro se. The Department of Environment and Natural Resources, Respondent, was represented by Elizabeth J. Weese, Assistant Attorney General, N.C. Department of Justice.

ISSUE

Whether, based on the facts and circumstances of this case, Respondent's assessment of a civil penalty totaling $5,000.00, plus investigative costs of $687.00, for a violation of 15A NCAC 2D .1901, was proper.

FINDINGS OF FACT

1. Richard Morris is an environmental specialist with the Division of Air Quality (DAQ) based in the Fayetteville Regional Office (“FRO”). On February 20, 2007 the Cumberland County Emergency Management Center contacted the FRO about a large fire in progress at 7857 Camden Road in Cumberland County. Mr. Morris was assigned to investigate whether the fire violated air pollution control regulations.

2. When Mr. Morris arrived at the Camden Road site that afternoon, the North Carolina Forest Service, the lead arson investigator for the Cumberland County Sheriff's Department, and local firefighters still were on the scene. After confirming that his investigation of open burning would not interfere with their work, Mr. Morris went onto the site and knocked on the door of the main house. No one answered the door. Mr. Morris later learned that the person who had lived in the house, Phyllis Simpkins, had moved.

3. Using pictures he took at the scene, Mr. Morris described the property and the debris that was burned. To the left of a garage behind the house were two burn barrels surrounded by a large burn area covered with partially burned debris. The debris included tires, some of which were burned while still on their rims, household garbage, and other synthetic material. The amount of tire wire indicated that a large number of tires had been burned. (Respondent's Exhibits 1 through 5) The burn barrels were rusted through and there was a buildup of ash around the barrels. The burn pile next to the burn barrels is listed as Pile #1 in Mr. Morris’ investigation report. (Respondent’s Exhibit 16)

4. There was a second burn pile farther back on the property near a barn This pile contained a metal frame, which resembled the remains of a burned-out truck camper, as well as the charred remains of other synthetic material. (Respondent’s Exhibits 6, 7 and 16) This pile corresponds to Pile #2 in Mr. Morris’ investigation report. (Respondent’s Exhibit 16)

5. A third large pile of partially burned debris was visible beyond the barn. This pile consisted of tire rims and wire, asphalt shingles, a mattress and box springs, and construction debris such as scrap lumber, plywood and insulation. The sheer volume of material burned, especially given the difficulty of burning asphalt shingles, was notable. (Respondent’s Exhibits 8 through 11) It was apparent that tires were used as an accelerant at this burn pile. This pile corresponds to Pile #3 in Mr. Morris’ investigation report. (Respondent’s Exhibit 16)

6. Debris piles 1, 2, and 3 were not burning or smoldering on February 20, 2007; however, it was apparent from the amount of ash, tire wire, and other partially burned debris that burning had occurred over time and on multiple occasions at these burn sites.

7. The burn pile which started the fire on February 20th was located beyond the barn next to a pasture. In his report, Mr. Morris referred to this as Pile #4. (Respondent’s Exhibit 16) The fire spread to the surrounding pasture and woods and onto neighboring properties. (Exhibits 12, 13 and 14) Tire rims with steel wire still wrapped around them were visible as well another large amount of partially burned asphalt shingles.

8. Based on his observation of the burn sites, Mr. Morris concluded that the open burning had occurred over a period of time--as opposed to one time only--at sites one, two and three. Based on the type of materials open burned at the Camden Road property, hazardous and toxic pollutants which are hazardous to human health were emitted directly into the air. There were a number of occupied houses within two acres of these burn sites.

9. By searching real estate records at the Cumberland County Courthouse, Mr.Morris discovered that the Department of Transportation owned the property where the fire started. He met with representatives of the DOT and learned of the agreement Petitioner had negotiated with DOT to be paid $6,000.00 for cleaning up the property formerly owned by his mother.

10. Mr. Morris met Petitioner two days later at his mother’s new home on Bittersweet Lane. Petitioner denied burning at the Camden Road property, but he admitted that he gave at least one person--a man called Manuel -- permission to come onto the property to collect anything that was salvageable for sale or use and to help Petitioner clean up the property. Petitioner intended to pay Manuel for his work after the DOT paid Petitioner for cleaning up the property. Petitioner did not provide a last name, phone number or address for Manuel.

11. Mr. Morris explained that under the open burning rules, not only were all of the fires at the Camden Road property illegal, but because he was a person in possession and control of the property on which the burning took place and because he allowed Manuel to go onto the property with the express purpose of cleaning up the property Petitioner could be held responsible for violations of the air pollution control laws.

12. As a result of his investigation, Mr. Morris concluded that Petitioner was the party responsible for the illegal open burning on the Camden Road property.

13. In addition to the photographs taken at the scene, Mr. Morris prepared an Investigation Report, a cost of enforcement document, and drafted a Notice of Violation/Recommendation for Enforcement letter for the Fayetteville DAQ Regional Supervisor’s signature. These documents were admitted as Respondent’s Exhibits 16, 17, and 18.

14. Steven Vozzo, the DAQ supervisor for the Fayetteville Regional Office, concurred with Mr. Morris’ recommendation that the facts and circumstances of this case merited enforcement action against Petitioner, rather than the Department of Transportation.

15. Mr. Vozzo explained that in investigating illegal open burning incidents the Division tries to determine who benefits from burning. There are times when the person who performs the burning is working at the direction of someone else. In those situations the Division typically views the employer as being responsible for the actions of his employee.

16. Glen Carter is a Right-of-Way Agent with the North Carolina Department of Transportation (“DOT”). As part of his job, he arranges for the acquisition of real property for State highway projects. Depending on the circumstances, persons whose property has been purchased by the DOT may be entitled to various relocation benefits. Part of Mr. Carter’s job is determining whether former property owners and tenants are entitled to relocation benefits. Right-of-Way agents are also responsible for arranging for the removal of personal property left on real property acquired by the State.

17. Phyllis Simpkins, Petitioner’s mother, contacted Mr. Carter on several occasions about purchasing property she owned at 7857 Camden Road in Fayetteville. The property, which was approximately 30 acres in size, would eventually be needed for the Fayetteville outer loop project. She first contacted Mr. Carter about buying her property in the late 1990's; however, the State was not interested in purchasing the property that far in advance of the proposed construction. Mrs. Simpkins continued to contact Mr. Carter about buying her property and, eventually, following negotiations over most of 2006, the DOT closed on the sale of the Simpkins property in November 2006. According to separate agreements with Phyllis Simpkins, as owner, and Greg Simpkins, as a tenant living rent-free on his mother’s property, the Simpkins (mother and son and son’s family) retained possession and control of the property through March 13, 2007. During this time period, they were not obligated to pay rent to the DOT.

18. There was an extensive amount of personal property (not including household goods) remaining on the property which had to be removed and disposed of after the DOT purchased the property. The items needing removal included vehicles, tractors, motors, a single-wide mobile home, tires, batteries, a gazebo, patio furniture, benches, and a fountain. The DOT, which pays for the removal of such property, contracted with J&D Towing, Inc. of Fayetteville for removal and disposal of these items.

19. In early December 2007, Phyllis Simpkins contacted Mr. Carter to ask that J&D Towing be paid in advance for the removal and clean-up. Mr. Carter explained that the DOT only pays after the work is performed. Mrs. Simpkins next contacted Mr. Carter to say that J&D Towing would not complete the removal and clean-up of the personal property and trash but that her son, Petitioner, wanted to perform the remaining clean-up and removal if he would be compensated for his work. This compensation would be in addition to the other relocation benefits he received. The DOT agreed to pay Petitioner $6,000.00 for removal and disposal of the personal property. As of February 14, 2007 the personal property had not been removed from the Camden Road property; however, both Phyllis Simpkins and Petitioner had relocated.

20. Mr. Carter learned about the fire at the former Simpkins property from Mr. Morris and Mr. Vozzo three days after it happened. Before going onto the property, Mr. Carter contacted the Stoney Point Fire Department to make sure it would not interfere with the on-going arson investigation. When Mr. Carter went to 7857 Camden Road later that same day he saw four separate burn piles. On his previous trips to the Camden Road property he had seen a burn barrel but there was no evidence of burning on the ground around it. On this occasion he saw a burn pile in the area of the burn barrel for the first time. Mr. Carter determined that some of the personal property and trash that Petitioner would have been paid to remove was destroyed by the fires.

21. Petitioner did not complete the removal and clean up of the Camden Road property. On March 20, 2007 the DOT took possession and control of the site and subsequently hired a contractor to complete the removal and clean up.

22. Petitioner admitted giving Manuel permission to come onto the Camden Road property while he and his mother maintained possession and control of the property. Petitioner wanted Manuel to clean up the property and Petitioner intended to pay him out of the $6,000.00 Petitioner expected to receive from the DOT.

23. Petitioner knew that it was against the law to burn rubber and plastic.

24. Bennett Keith Overcash, Director of the Division of Air Quality, assesses civil penalties in cases in which air pollution control regulations are violated. Mr. Overcash has reviewed hundreds of open burning cases in his tenure as Director.

25. Mr. Overcash reviewed Respondent’s Exhibits 1 through 20 and decided that a penalty should be assessed against Petitioner. He knew that Petitioner denied burning; however, since he had access to the property, was responsible for cleaning up the property, and was going to be paid by the DOT for his efforts, Petitioner was a responsible party.

26. In deciding what penalty amount to assess against Petitioner, Mr. Overcash considered the statutory factors set out in N.C.G.S. §143-215.114(a)(c), making hand-written notes on the Civil Penalty Assessment Factor Worksheet. (Respondent’s Exhibit 22) Factors of particular significance included the degree and extent of harm to public health that smoke, particulate and toxic chemicals have, as well as the high negative impact on the air quality nearby that results from this type of uncontrolled emission of air pollutants. He also noted that there was potential for financial gain from noncompliance with the regulation in that Mr. Simpkins expected to be paid by DOT for cleaning up the property. Proper clean-up would have required him to pay landfill disposal fees and possibly other fees for hauling, equipment rental and the like.

27. Mr. Overcash made the decision to assess a civil penalty of $5,000.00 against Petitioner for the open burning violations documented on February 20, 2007. This amount is consistent with other assessments for similar violations of the open burning rules. The Notice of Civil Penalty was issued on August 2, 2007. (Respondent’s Exhibit 21)

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, I make the following Conclusions of Law:

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

2. The evidence shows that open burning regulation 15A NCAC 2D .1901 was violated in that large quantities of synthetic materials--tires, asphalt shingles, bedsprings, mattresses, as well as household trash-- were open burned on property located at 7857 Camden Road.