Much like a basketball coach working a referee on the sidelines, all former CBS sportscaster Billy Packer wants from state environmental officials is consistency.
Packer says the N.C. Department of Environment and Natural Resources was wrong to fine him $19,110 in 2008 for alleged soil sedimentation violations at property he owns in Alleghany County. While he was challenging DENR’s actions, Packer subsequently learned that a DENR project not far from his property was causing significant sedimentation violations in a nearby trout stream.
Packer is frustrated with the process. “I want to change their system — the way inspections are done, the way that NOVs (notice of violations) are written, the way that people have to respond to NOVs,” he told Carolina Journal.
The system, established by the General Assembly, gives DENR — an executive branch agency — judicial powers when its decisions are challenged by property owners. When an administrative law judge rules against DENR after it has fined a landowner, the next appeal is not to another court but instead to the agency itself.
DENR has the power to overrule a judge when it loses. That’s what happened to Packer.
“You shouldn’t have the person that can overrule a judge be the boss of the man that leveled the fine,” Packer told CJ.
Packer, who lives in Charlotte, has been fighting DENR for more than four years over the alleged violations at Olde Beau, an 840-acre residential and golf community on U. S. Highway 21 at Roaring Gap. He told CJ that he complied with everything DENR inspectors asked him to do when in 2005 he began building about a mile of roads in a new 80-acre section at Olde Beau.
DENR’s basic argument is that Old Beau did not follow the approved erosion control plan and sedimentation eventually could have made its way to the headwaters of the nearby Mitchell River.
Until a year ago Packer, who is not an attorney, represented Olde Beau at two administrative hearings. Last year, he hired Charlotte attorney Kevin Byrnes to continue his battle in Superior Court.
At an April hearing in Mecklenburg County Superior Court, a judge ordered a new administrative hearing based on new evidence submitted by Packer. The new evidence involved a troubled DENR project that resulted in significant sedimentation violations in a nearby trout stream.
Three lawyers from representing DENR from Attorney General Roy Cooper’s office argued that the Olde Beau and Glade Creek situations were unrelated. Packer’s attorney successfully argued that DENR’s treatment of one of its own programs was inconsistent with the way Olde Beau was treated.
Just six miles from Old Beau is a DENR stream restoration project called Glade Creek. Packer became aware of the project last fall when someone pointed out significant sedimentation and erosion problems in the project managed by DENR’s Environmental Enhancement Program. In December, DENR’s Land Quality Section headed by Francis M. Nevils cited the EEP program for violations at Glade Creek. Nevils is the same DENR official who has sought fines from Packer.
Both DENR sections decided the problems were due to severe cold and a “greater than 10-year storm.” Fines never were issued, and the site was brought back into compliance in March.
In an affidavit, Nevils stated that other EEP projects have received violation notices, but he never has issued a civil penalty.
The EEP program is intended to offset environmental damage from development. A recent News & Observer series about the program revealed the state has “spent roughly $140 million on work that is failing, needs significant repair or is too far away from distressed sources of drinking water.”
Dozens of projects “have not produced the expected improvements for streams and wetlands, which filter water on its way to lakes and reservoirs. Some projects have damaged water quality by dumping sediment into waterways,” according to the newspaper.
DENR overruled judge
In December 2008 Nevils filed a Notice of Violation in Alleghany County Court against Olde Beau, assessing a civil penalty of $130 day for a 147-day period for a total fine of $19,110. Packer objected and asked for the next step — a hearing in front of a state administrative law judge.
In August 2009, an administrative law judge concluded that while Packer sometimes failed to follow an approved erosion control plan, his development activities resulted in “the complete lack of any off-site sedimentation or harm to the property of any other entity, including the state,” and recommended a lesser fine of $6,615.
Assistant Secretary for Environment Robin Smith conducted a subsequent hearing for a “Final Agency Decision.” Smith overruled the administrative law judge’s findings and set Packer’s fine at $14,700.
Packer said the final agency review process was hardly impartial, because Land Resources Section Chief Nevils reports to Land Resources Division Director James D. Simmons, who reports to Smith.
Very few contested cases like Packer’s end up in Superior Court. Companies or individuals unhappy with a DENR fine can take the next step of filing a petition for a review by the North Carolina Office of Administrative Hearings. Petitioners filed 247 DENR cases with the office in 2009.
The filing and actual hearing often take place in different years. There were only 31 DENR administrative law judge decisions in 2009, because most cases get settled prior to the hearing. A judge’s decision at the administrative hearing is not final. The case goes back to DENR for a final ruling. Six of those, including the Olde Beau case, were appealed to Superior Court by either the state or the petitioners.
The North Carolina General Assembly passed a Sedimentation Pollution Control Act in 1973 to address pollution problems associated with sedimentation entering streams, lakes, and other waters.
The purpose of the act was to create a program and minimal standards to permit the continued development of the state with the least detrimental effects from pollution by sedimentation.
The act established the Sedimentation Control Commission and made it responsible for developing the rules and regulations of a comprehensive erosion and sedimentation control program. The governor appoints the commission members. The DENR secretary administers the program through seven regional offices.
The current rules require anyone involved in land-disturbing activity of a parcel one acre or more to develop a site-specific sedimentation control plan and have that plan approved by DENR. DENR officials routinely inspect construction sites to ensure the land disturbing activity is in compliance with the law. They work to resolve problems and may issue an official Notice of Violation and impose fines on the violator.
When a developer objects to a NOV or fine and he petitions the Office of Administrative Hearings for review, DENR classifies the situation as a contested case.
The General Assembly established the administrative law process, a rule making and adjudicatory procedures for state agencies. The procedures “ensure that the functions of rule making, investigation, advocacy, and adjudication are not all performed by the same person in the administration process.”
But since the final decision rests with the agency, an administrative law judge’s ruling may be overruled, as happened in Packer’s case.
Don Carrington is executive editor of Carolina Journal.