STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF FRANKLIN 07 EHR 2082
SENIA I. PARKER )
Petitioner, )
)
v . ) DECISION
NORTH CAROLINA ENVIRONMENTAL )
MANAGEMENT COMMISSION )
Respondent. )
______
The above entitled matter was heard before the Honorable Joe L. Webster, Administrative Law Judge, on August 22, 2008 in Raleigh, North Carolina.
APPEARANCES
The Petitioner, Senia I. Parker, appeared pro se.
The Respondent, North Carolina Department of Environment and Natural Resources, Division of Waste Management, was represented by Jay L. Osborne, Assistant Attorney General.
ISSUE
Whether Petitioner has met its burden of proof by establishing that Respondent acted erroneously or otherwise violated N.C. Gen. Stat. § 150B-23 when Respondent assessed Petitioner a civil penalty and investigative costs in the total amount of $4,128.65 for violation of 15A NCAC 2L .0115(c)(4) for failure to submit a Limited Site Assessment (LSA) report?
TESTIFYING WITNESSES
For Petitioner: Senia I. Parker
For Respondent: Mickey Roberts
Robert Davies
EXHIBITS RECEIVED INTO EVIDENCE
For Petitioner:
No exhibits were offered by petitioner.
For Respondent:
January 26, 1983 Warranty Deed, Roland and Senia Parker, Grantees Exhibit 1
December 30, 1988 Notification for Underground Storage Tanks Exhibit 2
January 25, 1985 Memo To DENR File Exhibit 3
April 30, 1985 Groundwater Pollution Source Inventory Exhibit 4
April 30, 1985 Letter from Tom Arrington to Roland Parker Exhibit 5
April 10, 1985 Groundwater Field/Lab Form and Results Exhibit 6
June 14, 1988 Notice of Noncompliance Letter to Roland Parker Exhibit 7
May 4, 1988 Laboratory Evaluation Form and Sample Results Exhibit 8
Petroleum Underground Storage Tank Annual Fee Exhibit 9
November 21, 2003 Notice of Regulatory Requirements Exhibit 10
October 4, 2004 North Carolina Underground Storage Tank Section Risk,
Rank and Abatement Rating Form Exhibit 11
May, 30, 2006 Notice of Regulatory Requirements Exhibit 12
June 2, 2006 Letter from Mickey Roberts to Senia Parker Exhibit 13
January 2, 2007 Notice of Regulatory Requirements Exhibit 14
January 24, 2007 Notice of Violation Exhibit 15
March 1, 2007 Recommendation for Enforcement Action Exhibit 16
March 14, 2007 Affidavit of Senia Parker Exhibit 17
July 13, 2007 UST Section Corrective Action Branch Enforcement Case
Cover Memo, Checklist, and Assessment Factors Exhibit 18
October 2007 Transmittal Letter, Civil Penalty Assessment and Penalty Matrix Exhibit 19
February 11, 1991 Verified Complaint and Answer in Parker v. Little River Corp Exhibit 20
May 28, 1992 Portions of Deposition of Roland Parker...... Exhibit 21
May 28 1992 Deposition of Senia Parker...... Exhibit 22
BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interest, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case. Wherefore, the undersigned makes the following Findings of Fact, Conclusions of Law and Decision, which is tendered to the North Carolina Environment and Natural Resources for a final decision.
FINDINGS OF FACT
1. Petitioner owned and operated two petroleum underground storage tank systems (USTs) formerly located at Parker’s Trading Post, 1001 Pearces Road, Zebulon, Franklin County, North Carolina (site). Petitioner, along with her husband Roland Parker (deceased), owned these UST systems from the time of their installation in 1983 until approximately 1994 when petitioner sold the two UST systems. Petitioner certified that she was owner of these UST systems on December 30, 1988. (See Resp. Exh. 2) Petroleum Underground Storage Tank Annual Fees (Annual Fees) were required to be submitted by state law beginning in 1988. See N.C. Gen. Stat. § 143-215.94C. On the Annual Fee forms submitted for the two UST systems at the site between 1988 and 1993, petitioner signed as the owner of the UST systems. (See Resp. Exh. 9) In a March 14, 2007 notarized affidavit, petitioner stated under oath that she owned and operated the UST systems from 1983 to 1994. (See Resp. Exh. 17)
2. Samples taken at the site on February 26, 1985 and again on April 24, 1985 confirmed gasoline contamination from petitioner’s USTs in the soil and groundwater at the site. (See Resp. Exh. 6) On April 30, 1985, Petitioner’s husband was notified by the respondent that gasoline contamination had been released from the USTs into the soil and the groundwater at the site. Respondent requested petitioner’s cleanup response not later than May 15, 1985. (See Resp. Exhs. 4-6)
3. Neither petitioner nor her husband assessed or remediated the site as required by the respondent. Respondent sampled the water supply at the site on February 17, 1988 by taking a water sample from a water spigot near the on-site water supply well. (See Resp. Exh. 9) The results of the sample indicated that the site’s water supply was highly contaminated and not suitable for drinking, cooking or bathing. (See Resp. Exh. 8) The sample results further indicated, among other things, that benzene was present in substantial excess of allowed levels. Benzene is known to cause cancer in humans. (See Resp. Exhs. 8-9)
4. On June 14, 1988, respondent sent to petitioner’s husband, Roland Parker, a Notice of Noncompliance. The Notice again requested petitioner and her husband to submit to respondent petitioner’s plans to achieve compliance with relevant state laws and regulations requiring remediation of the site. (Resp. Exh. 7)
5. The loss of gasoline from the UST systems was due to a leaking underground line connecting the UST to the pump. (See Resp. Exh. 21, p. 67, lines 1-10; Resp. Exh. 7; Resp. Exh. 20, ¶¶s 5 &6; Resp. Exh. 22, p. 4, lines 18-25 to p. 5, lines 1-4)
6. Petitioner continued to disregard environmental requirements by not remediating the site. Petitioner sued Little River Corporation, the installer of the UST systems, for negligent installation of the UST systems. (See Resp. Exh. 20) Petitioner verified the complaint. (Id.)
7. Approximately 4,644 gallons of gasoline leaked out of the UST systems from the underground leak. (See Resp. Exh. 20, ¶ 6) Petitioner verified in the complaint that petitioner had entered an agreement for the installation of the UST systems on May 4, 1983. The UST system leak began on June 23, 1983 (the date UST installation was completed) and the leak ended on June 27, 1985, the date the defendant Little River Corporation repaired the leak. (See Id. at ¶¶s 3 & 5) The leaking gasoline had contaminated the property and also the site’s water supply well. (See Id. at ¶¶s 7 & 9)
8. Petitioner sought damages in excess of $10,000.00 for damages associated with, among other things, the loss of gasoline, environmental damage to the property and loss of water supply. (See Id.) Petitioner was aware of her cleanup requirements at the site and the damages sought against Little River Corporation were based in part on damages associated with environmental remediation required at the site. (See Resp. Exh. 21, p. 73, lines 4-15; p. 98, line 4 through p. 100, line 23; Resp. Exh. 22, p. 4, line 18 through p. 5, line 4) At the August 22, 2008 contested case hearing, petitioner admitted to settling the case against Little River Corporation but did not disclose the terms or offer evidence of the settlement agreement. (August 22, 2008 testimony of Senia Parker)
9. On November 21, 2003, May 30, 2006 and January 2, 2007, respondent repeatedly sent to petitioner Notices of Regulatory Requirements (NORRs) informing petitioner of required actions at the site and warning petitioner of the possible assessment of civil penalties in the event compliance was not achieved. (See Resp. Exhs. 10, 12 & 14) On October 4, 2004, the site was evaluated by respondent and ranked a high risk site pursuant to former rule 15A NCAC 2L .0115. (recodified at 15A NCAC 2L .0400, et seq.) “High” risk is the highest risk category pursuant to the state’s UST risk based cleanup rules. (See 15A NCAC 2L .0400, et seq.)
10. The site remained unremediated. On January 24, 2007, respondent sent to petitioner a Notice of Violation (NOV) for failure to assess the site. On March 1, 2007, enforcement was recommended against petitioner. (See Resp. Exhs. 15-16)
11. On October 4, 2007, respondent assessed petitioner a civil penalty and investigative costs totaling $4,128.65. The civil penalty was assessed for failing to submit an LSA from January 29, 2007 through August 14, 2007. (See Resp. Exh. 19)
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I make the following Conclusions of Law:
1. This matter is properly before the Office of Administrative Hearings and the Office of Administrative Hearings has jurisdiction of the subject matter and the parties herein.
2. All parties have been correctly designated, and there is no question as to misjoinder or nonjoinder.
3. The burden of proof is upon the petitioner to show that the respondent either acted erroneously or otherwise violated N.C. Gen. Stat. § 150B-23 when respondent assessed civil penalties against petitioner.
4. Petitioner is a “person” within the meaning of N.C. Gen. Stat. § 143-215.6A and § 143-215.94W pursuant to N.C. Gen. Stat. § 143-212(4).
5. Respondent is a State agency established pursuant to N.C. Gen. Stat. § 143B-275 et. seq. and vested with the statutory authority to enforce the State’s environmental pollution laws, including laws enacted to regulate underground storage tank systems and to protect the groundwater quality of the State.
6. The UST rules at 15A NCAC 2N and 2L have been adopted by the Environmental Management Commission pursuant to N.C. Gen. Stat. § 143-215.3(a)(15).
7. Pursuant to N.C. Gen. Stat. § 143-215.94A(9) and 15A NCAC 2N .0203, incorporating 40 CFR § 280.12, an UST “owner” means any person who owns a UST system for storage, use or dispensing of regulating substances. Pursuant to N.C. Gen. Stat. § 143-215.94A(8) and 15A NCAC 2N .0203, incorporating 40 CFR § 280.12, an UST “operator” means any person in control of, or having responsibility for, the daily operation of the UST system.
8. Pursuant to N.C. Gen. Stat. § 143-215.9A(2) and 15A NCAC 2N .0203, incorporating 40 CFR § 280.12, a commercial underground storage tank system includes, among other things, all underground piping and other underground ancillary equipment.
9. Respondent has the discretion and authority to assess a civil penalty against petitioner in this matter pursuant to N.C. Gen. Stat. § 143-215.6A and § 143-215.94W, which provides (as of the date of violation and assessment) that a civil penalty of not more than ten thousand dollars ($10,000) per violation may be assessed against any person who fails to act in accordance with the applicable law and regulations.
10. Pursuant to N.C. Gen. Stat. § 143-215.6A and § 143-215.94W, each day that a violation continues is a separate violation.
11. Respondent has the authority to assess enforcement costs against petitioner in this matter pursuant to N.C. Gen. Stat. § 143-215.3(a)(9) and N.C. Gen. Stat. § 143B-282.1(b)(8).
12. Petitioner was the owner and operator of the UST systems located at the site during the time period that petroleum contamination leaked out of the UST systems’ underground pipe or line into the site’s soil and groundwater. By petitioner’s own admission, the duration of the underground petroleum leak out took place entirely during petitioner’s ownership and operation of the UST systems. Because Petitioner was the owner and operator of the UST systems during the time period that the UST systems’ underground line leaked petroleum contamination into the soil and groundwater, it must comply with, among other laws and regulations, the requirements of Risk-Based Assessment and Corrective Action For Petroleum Underground Storage Tanks, 15A NCAC 2L .0400, et seq. (recodified from 15A NCAC 2L .0115).
13. 15A NCAC 2L .0115 (recodified to 15A NCAC 2L .0400 et seq.) applies to any discharge or release from a UST system. 15A NCAC 2L .0115 is required to be applied in a manner consistent with the rules found in 15A NCAC 2N in order to assure that the State’s requirements regarding assessment and cleanup from underground storage tanks are no less stringent than Federal requirements. See 15A NCAC 2L .0115(b). 15A NCAC 2N .0603 (incorporating, among other things, 40 C.F.R. § 280.52(b)) requires UST owners or operators to begin corrective action if test results indicate that a release of contaminants is present at the site. Contaminants are present at the site formerly owned and operated by petitioner.
14. Soil and groundwater contamination remain at the site and petitioner must complete a LSA in accordance with the requirements of 15A NCAC 2L .0115(c)(4) (recodified to 15A NCAC 2L .0400 et seq). Respondent has provided sufficient evidence of violations by petitioner of this rule.
15. Claims of financial inability do not relieve liability or responsibility to comply with UST statutes and regulations. The UST statutes and regulations do not contain any type of financial inability exception to their compliance requirements. Furthermore, petitioner offered no evidence of financial inability.