case background and assessment - north carolina management...• jtt properties llc did not request...

AGENDA ITEM: __________

REQUEST FOR REMISSION OF CIVIL PENALTY ASSESSMENT

DWR Case Number: PC-2018-0033 Region: Raleigh County: Durham

Assessed Entity: JTT Properties LLC

CASE BACKGROUND AND ASSESSMENT • 4-10-18 DWR staff from RRO conducted an inspection/site visit (based on a

complaint) and observed removal of trees and grading in Zone 1 & 2 of the riparian buffer for approximately 600 linear feet; 750 linear feet stream segment impacted by ditching, excavation, grading, and the placement of large boulders/rip rap; approximately 1000 linear feet of stream impacted by sediment deposition; in excess of 250 feet of stream impacted by sediment depositions that ranged in depth from 4-6 inches to as much as 10 inches in places.

• 6-12-18 DWR issued a Notice of Violation and Recommendation for Enforcement. DWR RRO did not received a written response to the dated NOV prior to issuance of the CPA.

• 3-7-19 JTT Properties LLC was assessed a civil penalty of $22,133.16 ($22,000.00 civil penalty plus $ 133.16 investigative costs): • $7,500 for violation of Title 15A NCAC 02B .0211 (2) by impacting

approximately 750 linear feet of stream from ditching, excavating,grading, placement of large boulder/ rip rap fill, and deposition ofsediment

• $2,500 for violation of Title 15A NCAC 02B .0211 (12) by impactingapproximately 250 linear feet of stream from the deposition of 4-10inches of sediment

• $7,000 for violation of Title 15A NCAC 02B .0233 (4) by impactingZone 1 of the riparian buffer from the removal of vegetation and gradingalong approximately 600 linear feet of stream

• $2,000 for violation of Title 15A NCAC 02B .0231(b) by impactingapproximately 0.1 acres of wetlands from land clearing, grading,ditching, and riprap fill

• $3,000 for violation of Title 15A NCAC 02H .0501 and .0502 by theunauthorized impacts to streams and wetlands without first applying forand securing a 401 Water Quality Certification as required by Section401 of the Federal Water Pollution Control Act.

• 3-25-19 Green card indicated delivery of the assessment document.

REMISSION REQUEST • 4-4-19 Remission request signed by James E. Puryear on behalf of JTT Properties

LLC • On/near 4-16-19 DWR received the (hand-delivered) request for remission from JTT

Properties LLC. The request included a “Justification for Remission

CP19-10

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Request” and a “Waiver of Right to an Administrative Hearing and Stipulation of Facts.”

• 8-9-19 The Director of DWR considered the information contained in the remission request and did not find grounds to modify the civil penalty assessment.

• 8-21-19 Green card indicated delivery of the remission decision document. REQUEST FOR ORAL PRESENTATION • JTT Properties LLC did not request an oral presentation before the Environmental

Management Commission’s Committee on Civil Penalty Remissions.

• JTT Properties LLC has not been assessed civil penalties for any previous violations within the past 5 years.

DWR RECOMMENDATION • The Division of Water Resources opposes any remission or mitigation of the penalty and

recommends that the Director’s decision be upheld.

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DWR NOTICE OF VIOLATION

DWR Notice of Violation

Photographs from DWR

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RESPONSE TO NOTICE OF VIOLATION

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ENFORCEMENT CASE INFORMATION

Assessment Factors

Assessment Letter

Findings & Decision & Assessment of Civil Penalties

Regional Office Enforcement Recommendation and Case Factors

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REMISSION INFORMATION

Waiver of Right to an Administrative Hearing and Stipulation of Facts

Remission Request

Director’s Remission Consideration (Memo & Factors)

Director’s Decision Letter

(No oral request or new information submitted)

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Remission Request Summary and Recommendation To: Jeff Poupart Date: 8/9/19 From: Rick Bolich Region: RRO Through: Niki Maher, 401 & Buffer Permitting Branch Assessed Party: JTT Properties LLC County: Durham Case No.: PC-2018-0033 Permit No.: n/a Case Background and Assessment

• 4-10-18 DWR staff from RRO conducted an inspection/site visit (based on a complaint) and observed removal of trees and grading in Zone 1 & 2 of the riparian buffer for approximately 600 linear feet; 750 linear feet stream segment impacted by ditching, excavation, grading, and the placement of large boulders/rip rap; approximately 1000 linear feet of stream impacted by sediment deposition; in excess of 250 feet of stream impacted by sediment depositions that ranged in depth from 4-6 inches to as much as 10 inches in places.

• 6-12-18 Notice of Violation and Enforcement Recommendation issued. DWR RRO did not received a written response to the dated NOV prior to issuance of the CPA.

• 3-7-19 JTT Properties LLC was assessed a civil penalty of $22,133.16 ($22,000.00 civil penalty plus $ 133.16 investigative costs): • $7,500 for violation of Title 15A NCAC 02B .0211 (2) by impacting

approximately 750 linear feet of stream from ditching, excavating, grading, placement of large boulder/ rip rap fill, and deposition of sediment

• $2,500 for violation of Title 15A NCAC 02B .0211 (12) by impacting approximately 250 linear feet of stream from the deposition of 4-10 inches of sediment

• $7,000 for violation of Title 15A NCAC 02B .0233 (4) by impacting Zone 1 of the riparian buffer from the removal of vegetation and grading along approximately 600 linear feet of stream

• $2,000 for violation of Title 15A NCAC 02B .0231(b) by impacting approximately 0.1 acres of wetlands from land clearing, grading, ditching, and riprap fill

• $3,000 for violation of Title 15A NCAC 02H .0501 and .0502 by the unauthorized impacts to streams and wetlands without first applying for and securing a 401 Water Quality Certification as required by Section 401 of the Federal Water Pollution Control Act.

• 3-25-19 Green card indicated delivery of the assessment document Remission Request (Summary)

• 4-2-19 DWR RRO received email correspondence from violator • 4-4-19 Remission request signed • On/ near 4-16-19

Remission request received (hand-delivered)

• 4-22-19 DWR RRO received a response to the 6-12-18 NOV via e-mail from Sean Clark with Sage Ecological Services (after having assessed the CPA)

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Mr. Puryear, registered Agent for JTT Properties LLC states that JTT Properties is a small property management LLC that he runs, himself, on a small budget for his family. He states that they were trying to improve the property by evening it out. He explains that he had done this once before in conjunction with a tenant who rents the property without issue, but the second (most recent) time, he had involved another individual whom he trusted to know the rules and regulations in hauling fill onto and grading the site. He states he would have not been working in the stream if he had known better about it, that he has since understood that this second person may have not followed regulations at other sites, but he and his tenant were unaware of this second person’s ethics at the time. He explains the stream area had alternated between being totally dry for periods of time and running when the pond was running over the years they have owned the property. Mr. Puryear explains he was emailing regularly with the Corps of Engineers (as requested in the first site visit with DWR and the Corps), so did not respond to the NOV, an oversight due to his unfamiliarity with the process. He states that he hired Sage Ecological Services to assist them with timely repairs and have followed their instruction as well as those offered by the Corps. They have removed instream sediment by hand with buckets, and are continuing with repairs, though work has been hampered by weather and lack of equipment. Stream and buffer work (including removal of sediment, repair of banks, buffer planting, and installation of silt fence) resumed 4-3-2019, he said. He also explained that the contractor is conducting other site improvements away from the stream, but that work is secondary to stream and buffer repair. Mr. Puryear explains that the penalties would financially cripple his small organization, costing $5-10,000 for consulting fees. He reiterates that they were misdirected about activates on the site and have never been involved in environmental troubles. Please see the attached provided remission request information for more details.

JTT Properties LLC requests remission based on the following remission factors:

(a) one or more of the civil penalty assessment factors in G.S. 143B-282.1(b) were wrongfully applied to the detriment of the petitioner

(not indicated by the assessed party)

(b) the violator promptly abated continuing environmental damage resulting from the violation

(not indicated by the assessed party)

(c) the violation was inadvertent or a result of an accident (not indicated by the assessed party)

(d) the violator had not been assessed civil penalties for any previous violations; JTT Properties LLC states: “We have never been involved in any kind of trouble and certainly not any harmful environmental situations.”

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(e) payment of the civil penalty will prevent payment for the remaining necessary remedial actions.

JTT Properties LLC states: “We are a small organization and the penalties that have been laid upon us would cripple us financially. The bills alone from Sage will cost us 5 to $10,000.00 alone.”

Enforcement History

• No record of prior enforcement Notes

DWR RRO performed a follow-up inspection on 7/11/19 and made the following observations: • Bare root trees that appeared to be ample in number and size/age had been planted in the

riparian area, but were planted in June, outside the window of time recommended for optimal survival.

• Riparian matting was in place, but rilling had occurred underneath, contributing additional instream sedimentation.

• The steep slope on the dam below the pond had been rilling/gullying, causing sediment to enter the stream after significant rainfall despite the silt fence. One attempt to seed the slope failed due to the poor quality of the fill, and efforts are continuously needed to remove instream sediment downstream of the dam.

• It appeared that though off-property sediment had been removed from the stream by hand, a bucket loader had been used to remove instream sediment on the subject property from recent deposition, further impacting streambed and banks.

• Some of the rock placed instream had been removed, but a significant amount remained. • To date, DWR RRO has still not received required documentation (planting plan, monitoring

plan) for review/ approval. Remission Recommendation from Regional Office and Central Office

• DWR RRO Regional Office Recommendation (check one) Request Denied Full Remission Retain Enforcement Costs? Yes No Partial Remission %_____________ $_____________ (enter amount remitted) Comment:

The overall status of the site is unstable. Though remedial work has occurred, it was attempted only recently (outside the optimal planting season), and it is anticipated that repeated efforts will be necessary for any success at stabilization/recovery. In addition, communication from the violator has only occurred after having been assessed a civil penalty, and DWR has yet to receive any of the required written documentation. For these reasons, DWR RRO recommends no remittance.

• DWR Central Office Recommendation (check one) Request Denied Full Remission Retain Enforcement Costs? Yes No Partial Remission %_____________ $_____________ (enter amount remitted)

Comment: DWR CO concurs with RRO’s recommendation.

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Supporting Case Documentation

Proof of Ownership

Additional Correspondence (USACE)

Additional photos

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