STATE OF NORTH CAROLINA IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
COUNTY OF WATAUGA 04 EHR 0566
JOSEPH GLENN HENSON, )
Petitioner, )
)
v. ) DECISION
)
NC DENR - Division of )
Air Quality, )
Respondent, )
______)
This contested case was heard on 6 August 2004, in Newland, North Carolina, by Administrative Law Judge James L. Conner, II.
APPEARANCES
Petitioner appeared in this matter pro se. Respondent was represented by Sueanna P. Sumpter, Assistant Attorney General.
ISSUES
1. Did the petitioner violate 15A N.C. Admin. Code 2D .1900 (“Open Burning”) as alleged in the Director’s civil penalty assessment dated 1 March 2004, made in enforcement case DAQ 2004-015?
2. Was the total amount of the assessment, $1,775, reasonable and appropriate?
PRE-TRIAL MOTIONS
When this case was called for hearing, the petitioner made an oral motion for continuance. The motion was denied.
WITNESSES
The following witnesses were called by the respondent:
Stephen Sudderth,
Myron Whitley, and
B. Keith Overcash.
The petitioner testified on his own behalf and also called the following witnesses:
Fred Arnette,
Steven Arnette, and
Bryan Miller.
EXHIBITS
The following exhibits were offered by the respondent and received into evidence: R1 through R8, R9A and R9B, R10-11. Respondent’s exhibit R4 was offered for the limited purpose of introducing admissions of the petitioner contained therein and the scope and contents of the burn permit.
The following exhibits were offered by the petitioner and received into evidence: P1, being the original burn permit, and P2, being a notarized written statement of Michael D. Davis.
FINDINGS OF FACT
The undersigned finds the following to be the facts:
1. Stephen Sudderth was, at all times relevant herein, employed by the Office of the Fire Marshall for Watauga County, North Carolina. Mr. Sudderth has 26 years’ experience as a firefighter, 24 years’ experience in the field of fire investigation, has received training in fire investigation from the national fire academy and the North Carolina Department of Insurance (“DOI”), among others, and has been certified by the DOI as a fire inspector instructor. By virtue of his training and experience, Mr. Sudderth is an expert in firefighting and fire investigation.
2. On 7 April 2003, at about 8:00 p.m., Mr. Sudderth received a call from the Zionville Fire Department and, as a result, traveled to a piece of property owned by the petitioner and located on Slabtown Road in Watauga County. Mr. Sudderth arrived at the scene at approximately 8:30 p.m.
3. A rental house had previously stood on the property but had been damaged by an earlier fire. After that fire, some parts of the house were still standing and a significant amount of debris was still present on the site.
4. Upon arriving at the site on 7 April 2003, Mr. Sudderth observed a smoldering pile of partially-burned debris, consisting in part of combustible materials from the damaged rental house. The debris pile was about 3 feet high, covered an area approximately ten feet by ten feet, was located on the remains of the house, and contained the following materials: metal, romex wiring, “two-by” lumber, partially-burned subflooring, paint cans, and glass.
5. The petitioner’s employee, Charles Morefield, was on the scene when Mr. Sudderth arrived. According to Mr. Morefield, the petitioner had instructed him to conduct the burning. The fire was set at 2:00 p.m. and had been extinguished by the fire department before Mr. Sudderth arrived.
6. An open burning permit had been issued to the petitioner on 3 April 2003. On its face, the permit authorized the burning of “brush” and indicated that the permitee was not relieved of his responsibility to comply with the open burning rules of the Environmental Management Commission codified at 15A N.C. Admin. Code 2D .l900. Mr. Morefield had signed the permit, signifying that he had read and understood the material printed on the document’s reverse side. This included, among other things, the following statement: “NOTE: UNDER NO CIRCUMSTANCES SHALL ANYTHING OTHER THAN PLANT GROWTH BE BURNED. (See Regulation 15A NCAC 2D .1900 “Open Burning” for details).”
7. Mr. Sudderth referred the matter of the petitioner’s open burning to the respondent’s Winston-Salem Regional Office.
8. On 7 May 2003, the respondent issued to the petitioner a Notice of Violation and Notice of Recommendation for Enforcement (NOV/NRE), informing the petitioner that the burning of the house debris was in violation of 15A N.C. Admin. Code 2D .1900 (“Open Burning”).
9. By letter received in respondent’s offices on 20 May 2003, the petitioner responded to the NOV/NRE. In that correspondence, the petitioner indicated, among other things, that the rental house had been “totally destroyed” in a previous fire, leaving debris on the property, Mr. Morefield was in the employ of the petitioner, and Mr. Morefield had cleaned limbs, brush and Christmas trees from the property, which were thrown onto the house site. The petitioner denied that “synthetic materials” were involved in the fire and noted that he had obtained an open burning permit from the local fire department. The petitioner apologized for his “ignorance of breaking any rules or regulations. . . .”
10. By memorandum dated 23 January 2004, Myron Whitley, Regional Air Quality Supervisor in the Winston-Salem Regional Office, referred the matter of petitioner’s violation for assessment of a civil penalty.
11. In the referral, Mr. Whitley noted that the petitioner had previously been assessed a civil penalty in enforcement case DAQ 2002-050 for violation of the open burning rules. He also noted that the agency’s investigative costs in the present matter totaled $275.
12. On 1 March 2004, B. Keith Overcash, Director of the Division of Air Quality, assessed a civil penalty against the petitioner in the amount of $1,500 for one violation of the open burning rule and investigative costs in the amount of $275. The total amount of the assessment was, therefore, $1,775.
13. Mr. Overcash arrived at the penalty amount after reviewing the file and considering those factors set forth in N.C.G.S. § 143B-282.1(B).
14. Mr. Overcash found the following factors to be significant: the degree and extent of harm to the natural resources of the State, to the public health, or private property; the duration and gravity of the violation; and the effect on air quality. Mr. Overcash noted on his worksheet that the violation consisted of the open burning of materials from the demolished house. Open burning of such materials results in harmful emissions into the environment.
15. Mr. Overcash found the following factors to be moderately significant: the amount of money saved by noncompliance; whether the violation was committed willfully or intentionally; and the prior record of the violator in failing to comply with the open burning rules. Mr. Overcash noted on his worksheet that an assessment for an open burning violation had previously been made against the petitioner.
16. Mr. Overcash found that the costs to the State of the enforcement procedures and the effectiveness of action taken by the violator to cease the violation were not significant factors.
17. Upon consideration of the required factors, Mr. Overcash arrived at a penalty amount of $1,500. The maximum penalty which could have been assessed under N.C.G.S. § 143-215.114A was $10,000. The enforcement costs associated with this matter were set forth in Mr. Whitley’s referral.
18. At the hearing in this matter, petitioner’s witnesses testified that, in addition to Mr. Morefield, the petitioner hired Bryan Miller to clean up the subject property. Mr. Miller indicated that he worked on the property for one day, during which he knocked down the remains of the house, cut down and trimmed several trees damaged in the first fire, and hauled two truckloads of the house debris to the landfill. While he denied that substantial amounts of the house debris were left when he finished his work, Mr. Miller acknowledged that “slabs,” pieces of lumber used by the former tenants for firewood, and some “two-by” materials were thrown onto the house site and left for burning by Mr. Morefield. Petitioner’s witnesses Fred and Steven Arnette estimated the size of the debris pile left after Mr. Miller had finished his work to be four to six feet tall and covering an area approximately ten feet by ten feet.
19. Respondent’s witness, Mr. Sudderth, as an expert trained in the fields of firefighting and fire investigation, was well qualified to evaluate the char pile and identify those materials burned in the fire on 7 April 2003. Mr. Sudderth and Mr. Miller were evaluating the debris pile from different perspectives and for different purposes. Accordingly, Mr. Sudderth’s testimony is more persuasive on the issue of the nature and amount of combustible materials from the rental house that were burned in the fire on 7 April 2003.
CONCLUSIONS OF LAW
Based upon the findings of fact, the undersigned concludes as follows:
1. The petitioner violated 15A N.C. Admin. Code 2D .1900 “Open Burning” in that he caused, allowed and permitted the unlawful open burning of debris, consisting of certain remains of his rental house, on 7 April 2003.
2. However, the petitioner did obtain a burning permit and did hire Mr. Miller to properly dispose of some portion of the remains of the house. These matters are relevant to the assessment factors addressing the petitioner’s past record of violating the open burning rules, the willful or intentional nature of the violation, and the amount of money saved by his noncompliance.
3. The amount of the subject civil penalty should be reduced from $1,500 to $1,000. That part of the assessment made for the respondent’s investigative costs, in the amount of $275, is reasonable and appropriate and should be upheld.
DECISION
The respondent’s 1 March 2004 assessment of civil penalties and investigative costs against the petitioner should be upheld, but reduced in amount to $1,275.
ORDER
It is hereby ordered that the North Carolina Environmental Management Commission serve a copy of the final agency decision on the Office of Administrative Hearings in accordance with N.C.G.S. § 150B-36(b).
NOTICE
The Agency that will make the final decision in this contested case is the North Carolina Department of Environment and Natural Resources, Division of Air Quality.
The Agency is required to give each party an opportunity to file exceptions to the decision and to present written arguments to those in the Agency who will make the final decision. N.C. Gen. Stat. § 150-36(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’ attorney of record and to the Office of Administrative Hearings.
In accordance with N.C. Gen. Stat. § 150B-36 the Agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.
This the 4th day of October, 2004.
______
James. L. Conner, II
Administrative Law Judge
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