STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WAKE 01 EHR 1518
Thomas Tilley, Trustee, )
Petitioner, )
)
v. ) DECISION
)
N.C. Dept. of Environment and Natural Resources, )
Division of Water Quality, )
Respondent. )
This matter came before Senior Administrative Law Judge Fred G. Morrison Jr., on January 28, 2002 in Raleigh, North Carolina. The case involved the appeal of a civil penalty assessment arising from a failure to submit required reports for the Riverview Mobile Home Park wastewater treatment facility.
APPEARANCES
For Petitioner: Thomas Tilley, Pro Se
For Respondent: Mary Penny Thompson, Assistant Attorney General
Margaret P. Eagles, Associate Attorney General
STATUTORY SECTIONS AND RULES IN QUESTION
N.C. Gen. Stat. § 143-215.1 (“Control of sources of water pollution; permits required”)
N.C. Gen. Stat. § 143-215.6A (“Enforcement procedures: civil penalties”)
N.C. Gen. Stat. §§ 143-215.63 through 143-215.69 (Article 21, Part 7 (“Water and Air Quality Reporting”)
N.C. Gen. Stat. § 143B-282.1 (“Environmental Management Commission - quasi-judicial powers; procedures”)
N.C. Gen. Stat. § 150B-1 (“Policy and Scope”)
N.C. Gen. Stat. § 150B-2 (“Definitions”)
N.C. Gen. Stat. § 150B-3 (“Special provisions on licensing”)
N.C. Admin. Code Title 15A, r. 2B.0506 (“Reporting Requirements”)
ISSUES
1. Whether Petitioner met its burden of proof in establishing that Respondent erred by assessing a civil penalty for late reporting?
WITNESSES
Petitioner: Thomas Tilley
Respondent: Edward Shannon Langley, Division of Water Quality
EXHIBITS RECEIVED INTO EVIDENCE
Petitioner: None
Respondent: R-1 N.C. Gen. Stat. §§ 150B-1 through 150B-3
R-2 N.C. Gen. Stat. § 143-215.1
R-3 N.C. Gen. Stat. § 143-215.6A
R-4 N.C. Gen. Stat. § 143B-282.1
R-5 N.C. Gen. Stat. § 143-215.63 through 143-215.69
R-6 N.C. Admin. Code tit. 15A, r. 2B.0506
R-7 Petitioner’s Response to Respondent’s Request for Admissions
R-8 E. Shannon Langley’s Resume
R-9 NPDES Permit dated May 7, 1993
R-10 NPDES Permit Modification dated July 28, 1993
R-11 Request for Renewal of NPDES Permit dated October 26, 1997
R-12 Printout from computer tracking system with attachments of 1993 permit cover sheet and Renewed Permit dated October 9, 2000
R-13 NPDES Permit Modification dated March 9, 2001
R-14 Notice of Violation dated May 25, 2001
R-15 Checklist for Civil Penalty Assessments dated August 21, 2001
R-16 Assessment of Civil Penalties for Violations of the Reporting Requirement for NPDES Permit dated August 23, 2001
R-17 Documents from the Secretary of State
R-18 Declaration of Trust of the Tilley Trust
R-19 Quitclaim Deed
BASED UPON careful consideration of the testimony and evidence presented at the hearing, the documents and exhibits received 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 the evidence and has assessed the credibility of the witnesses by taking into account the appropriate and traditional factors for judging credibility, such as the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the factors 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.
FINDINGS OF FACT
1. Petitioner is an individual residing at 4920 Farrington Road, Chapel Hill, NC, 27514, in Durham County. (Petition).
2. 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 protect the water quality of the State.
3. Respondent issued National Pollutant Discharge Elimination System (“NPDES”) Permit No. NC0038784 (“Permit”) to Thomas Tilley in order to discharge wastewater from a facility located at Riverview Mobile Home Park into the Neuse River, effective June 1, 1993. The Permit contained effluent limitations, monitoring requirements and other conditions set out within the Permit. (Ex. R-7, R-9; T.pp. 21-22).
4. Pursuant to the 1993 transmittal cover letter for the permit, Respondent notified Petitioner of his right to adjudicate any parts of the permit unacceptable to him. (Ex. R-9).
5. Part II.B, entitled General Conditions, sets out the standard conditions of an NPDES permit. Part II.B.1 of the Permit requires compliance with all permit terms and conditions and describes civil penalties which may be assessed for noncompliance with permit requirements. (Ex. R-9). Part II.B.8 outlines a duty to provide information. (Ex. R-9). Part II.B.10 allows automatic authorization to continue discharging after permit expiration upon submission of certain documents and fees. Part II.B.11 requires reports to be signed and certified by a responsible party. (Ex. R-9).
6. Part II.D, entitled Monitoring and Records, describes the Discharge Monitoring Report (“DMR”) and the timeline for submitting DMRs to Respondent. (Ex. R-9; T.pp. 22-23).
7. Part II.E, entitled Reporting Requirements, requires the permittee to report any plant changes or anticipated noncompliance. (Ex. R-9).
8. On July 28, 1993, Respondent modified the permit to change the flow monitoring from weekly to continuous measurements. (Ex. R-10; T.p. 24). Again, by cover letter, Respondent notified Petitioner of his right to adjudicate the modification. (Ex. R-10).
9. Petitioner did not appeal the 1993 permit, its conditions, or its later modification that same year. (T.p. 24).
10. Petitioner timely applied for renewal of the 1993 Permit by letter dated October 26, 1997. (Ex. R-11; T.p. 25).
11. Respondent delayed issuing a renewed Permit due to nutrient problems within the Neuse River Basin which is where Petitioner’s facility is located. (T.p. 47).
12. The renewal of the 1993 Permit is currently under appeal in Tilley v. N.C. Department of Environment and Natural Resources, 00 EHR 1668. (T.pp. 7-9).
13. The reporting conditions in the 1993 Permit are identical to the ones included in the 2000 renewed Permit. (Ex. R-9, R-12; T.pp. 27-28).
14. During the appeal of the renewal permit, a typographical error was found and corrected on the permit. The correction changed the permittee from the incorrect name of Thomas Tilley, Jr. to Thomas Tilley. (Ex. R-13; T.pp. 28-29).
15. Petitioner failed to timely submit the Discharge Monitoring Report (“DMR”) for March 2001. (T.p. 29).
16. On May 25, 2001, Respondent issued Petitioner a Notice of Violation for not submitting a monthly monitoring report for March 2001. (Ex. R-14; T.pp. 30-31). Petitioner was notified that another violation within twelve months would result in a civil penalty of five hundred dollars. (Ex. R-14; T.p. 32).
17. Petitioner did not submit the June 2001 Discharge Monitoring Report. (T.p. 32).
18. On August 23, 2001, Respondent issued Petitioner an Assessment of Civil Penalties for Violations of the Reporting Requirement, Case No. LR 01-006, for failure to submit the June 2001 DMR within the thirty-day reporting period. (Ex. R-16; T.pp. 33, 38-39).
19. Respondent reviewed the eight statutory factors necessary to assess an appropriate penalty. (Ex. R-15; T.pp. 34-38, 55-56).
20. Respondent assessed Petitioner $500.00 for the late reporting violation. (Ex. R-16; T.pp. 33, 38).
21. The civil penalty assessment for Petitioner’s failure to report violation is consistent with other assessments based on failure to report violations. (T.pp. 33, 39, 42).
22. Petitioner received a copy of the Assessment of Civil Penalties for Violations of the Reporting Requirement dated August 23, 2001. (T.pp. 45-46, 53-55).
23. Petitioner filed a petition which initiated case number 01 EHR 1518 on September 24, 2001.
24. A Notice of Hearing was sent to the parties on December 12, 2001, giving notice of the hearing date, time and place.
25. Respondent’s witness, E. Shannon Langley, is an expert in NPDES Permitting. (T.pp. 20-21). For a first offense of failing to timely report, Mr. Langley will only send a notice of violation. (T.pp. 19-20, 30). If another offense of failing to timely report occurs within twelve months, Mr. Langley will assess a civil penalty. (T.p. 20).
26. The Riverview Mobile Home Park property was transferred from Tilley-Chan, Inc. to the Tilley Trust. The officers of Tilley-Chan, Inc. are the same as the grantors, trustees and beneficiaries of the Tilley Trust, namely Thomas Tilley and Iris Tilley. (Ex. R-17, R-18, and R-19; T.pp. 66, 68, 70). Petitioner visits the mobile home park once a month, pays bills, writes checks for commissions on rent collections, pays the operators of the wastewater treatment plant, takes actions in accordance with the operators’ advice to keep the plant running, signs Permit renewal letters, and signs Discharge Monitoring Reports. (T.pp. 74-75).
BASED UPON the foregoing Findings of Fact, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Office of Administrative Hearings has jurisdiction to hear this case pursuant to N.C. Gen. Stat. §§ 150B23 and 143215.1(e).
2. The Petitioner is a "person aggrieved" by the civil penalty assessment within the meaning of the Administrative Procedure Act, N.C. Gen. Stat. §§ 150B-1 et seq.
3. All parties have been correctly designated and are properly before the Office of Administrative Hearings. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter.
4. The Petitioner bears the burden of proof on the issues.
5. Pursuant to N.C. Gen. Stat. § 143-215.1, a permit is required for the Riverview Mobile Home Park to cause or permit any waste, directly or indirectly, to be discharged to waters of the State. It is proper for Respondent to require the Permit to be held in an individual’s name and Petitioner is that individual.
6. The Permit issued in 1993 remains in effect as an administrative extension of the permit pending administrative appeal pursuant to N.C. Gen. Stat. § 150B-3.
7. Petitioner is a “person” within the meaning of N.C. Gen. Stat. § 143-215.6A.
8. As the permittee of NPDES Permit No. NC0038784, Petitioner was responsible for the operation of the wastewater facility at Riverview Mobile Home Park.
9. Petitioner’s use of the trustee designation does not excuse his responsibility as permittee for statutory, regulatory, or Permit violations.
10. Pursuant to N.C. Gen. Stat. § 143-215.65 and NPDES Permit No. NC0038784, Petitioner was required to submit monthly discharge monitoring reports.
11. Petitioner violated both the statute and the Permit by not submitting the June 2001 Discharge Monitoring Report within the prescribed 30-day reporting period.
12. Respondent had authority to assess civil penalties against Petitioner in this matter pursuant to N.C. Gen. Stat. § 143-215.6A, which provides that a civil penalty of not more than $10,000.00 per violation may be assessed against a person who is required but fails to secure a permit required by N.C. Gen. Stat. § 143-215.1 or fails to act in accordance with such permit. The authority to assess civil penalties for reporting violations is reiterated in N.C. Gen. Stat. § 143-215.69.
13. In assessing the civil penalty, Respondent did not exceed its authority or jurisdiction, did not act erroneously, used proper procedure, did not act arbitrarily or capriciously, and acted as required by law or rule.
14. The Petitioner has failed to overcome by a preponderance of the evidence the presumption set forth by law that the Respondent’s decision to assess a civil penalty was lawful and correct. As such, the presumption granted by law remains, that Respondent did not exceed its statutory authority or jurisdiction, did not act erroneously, did not act arbitrarily or capriciously, and acted as required by law or rule.
BASED UPON the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the following:
DECISION
That the Environmental Management Commission uphold the civil penalty assessment.
NOTICE
Before making its FINAL DECISION, 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 to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).
The agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a copy to the parties’ attorneys of record and to the Office of Administrative Hearings. The agency that will make the final decision in this contested case is the Environmental Management Commission.
This the 27th day of March 2002.
______
Fred G. Morrison Jr.
Senior Administrative Law Judge
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