EPA v. DUVALL, JEFFREY H., DUVALL DEVELOPMENT CO., INC., AND DUVALL & SON LIVESTOCK, INC.

Case summary

3/14/2012 - CONSENT AGREEMENT AND COMPLIANCE ORDER ISSUED. ORDER STATES: COMMENTCING ON OR ABOUT APPROXIMATELY JANUARY 2005, TO THE PRESENT, RESPONDENTS, OR THOSE ACTING ON BEHALF OF RESPONDENTS, DISCHARGED DREDGED AND/OR FILL MATERIAL INTO FOUR TRIBUTARIES FLOWING ACROSS THE SITE USING EARTH MOVING MACHINERY OWNED BY DUVALL DEVELOPMENT AND/OR DUVALL LIVESTOCK, DURING ACTIVITIES ASSOCIATED WITH THE CLEARING AND LEVELING OF THE SITE AND THE INSTALLATION OF 48-INCH DIAMETER CEMENT PIPES INTO THE STREAMS. RESPONDENTS IMPACTED APPROXIMATELY 1,500 LINEAR FEET OF FOUR UNNAMED TRIBUTARIES STEKOA CREEK, A NAVIGABLE WATER OF THE UNITED STATES, BY PLACING PORTIONS OF THE FOUR TRIBUTARIES INTO THE CONCRETE PIPES. AT NO TIME DURING THE DISCHARGE OF DREDGED AND/OR FILL MATERIAL AT THE SITE FROM APPROXIMATELY JANUARY 2005 TO THE PRESENT, DID RESPONDENTS POSSESS A PERMIT UNDER SECTION 404 OF THE CWA, AUTHORIZING THE ACTIVITIES PERFORMED BY RESPONDENTS. EPA FINDS THAT EACH DISCHARGE BY BY RESPONDENTS OF POLLUTANTS INTO NAVIGABLE WATERS WITHOUT A PERMIT ISSUED UNDER SECTION 404 OF THE CWA, 33 U.S.C. SECTION 1344, IS A VIOLATION OF SECTION 301(a) OF THE CWA. ORDER REQUIRES: a) WITHIN THIRTY (30) DAYS AFTER THE EFFECTIVE DATE OF THIS CACO, RESPONDENTS SHALL APPLY TO THE U.S. ARMY CORPS OF ENGINEERS ( COE ) FOR AUTHORIZATION UNDER NATIONWIDE PERMIT 32 (NWP 32 ), FOUND AT FEDERAL REGISTER 11092 (MARCH 12, 2007), FOR FILL MATERIAL TO REMAIN IN PLACE ON THE SITE. RESPONDENTS SHALL COMPLY WITH ALL REQUIREMENTS AND CONDITIONS OF THE NWP 32 SET FORTH BY THE COE. b) AS PART OF THE APPLICATION, RESPONDENTS SHALL PROPOSE MITIGATING FOR THE ALLEGED UNAUTHORIZED IMPACTS TO THE FOUR STREAMS THROUGH THE DONATION OF A FIVE-ACRE PARCEL OF PROPERTY ( PROPERTY ) TO THE UNITED STATES FOREST SERVICE. THE PROPERTY IS LOCATED IN TIGER, GEORGIA, AND WAS PURCHASED BY RESPONDENT DUVALL DEVELOPMENT COMPANY IN NOVEMBER 2, 2011. THE PROPERTY IS DEPICTED ON THE THE SURVEY ATTACHED HERETO AS EXHIBIT D . c) IF THE COE NOTIFIES RESPONDENTS THAT IS HAS CONDITIONALLY APPROVED THE RESPONDENTS' APPLICATION FOR A PERMIT, THEN WITHIN THIRTY (30) DAYS AFTER THEIR RECEIPT OF SUCH CONDITIONAL APPROVAL, RESPONDENTS SHALL CLOSE THE REAL ESTATE TRANSACTION WITH THE UNITED STATES FOREST SERVICE ( USFS ) THAT WILL EFFECTUATE THE DONATION OF THE PROPERTY AND TRANSFER OF FREE AND CLEAR TITLE ON THE PROPERTY TO THE USFS. d) IF THE CLOSING TRANSACTION IS NOT COMPLETED WITHIN THE TIMEFRAME SPECIFIED IN ITEM (c) ABOVE (INCLUDING ANY EXTENSIONS AGREED TO IN WRITING BY EPA), RESPONDENTS AGREE TO PURCHASE STREAM MITIGATION CREDITS FROM A COE APPROVED COMMERCIAL MITIGATION BANK IN THE AMOUNT OF $52,000 OR AS OTHERWISE REQUIRED BY THE COE AS PART OF THE NEW 32 APPROVAL PROCESS. RESPONDENT SHALL COMPLETE THE PURCHASE OF THE STREAM MITIGATION CREDITS WITHIN FIFTEEN (15) CALENDAR DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM EPA THAT RESPONDENTS SHOULD PROCEEED TO PURCHASE THE CREDITS. e) WITHIN SEVEN (7) DAYS AFTER COMPLETION OF EACH SPECIFIED TASK AGREED TO IN ITEMS (a-d) ABOVE, RESPONDENTS SHALL SUBMIT TO EPA PROOF OF COMPLETION WHICH SHALL INCLUDE, BUT NOT BE LIMITED: CLOSING DOCUMENTS AND RELATED CORRESPONDENCE, OR PROOF OF PURCHASE OF MITIGATION CREDITS. f) PROOF OF COMPLETION AS REQUIRED IN ITEM (e) ABOVE SHALL BE ACCOMPANIED BY A CERTIFICATION SIGNED BY RESPONDENTS AS SPECIFIED BY 40 C.F.R. SECTIONS 122.22(b)(2) AND (d) AND SHALL INCLUDE THE FOLLOWING STATEMENT: I CERTIFY UNDER THE PENALTY OF LAW THAT THIS DOCUMENT AND ALL ATTACHMENTS WERE PREPARED UNDER MY DIRECTION OR SUPERVISION IN ACCORDANCE WITH A SYSTEM DESIGNED TO ASSURE THAT QUALIFIED PERSONNEL PROPERLY GATHER AND EVALUATE THE INFORMATION SUBMITTED. BASED ON MY INQUIRY OF THE PERSON OR PERSONS WHO MANAGE THE SYSTEM, OR THOSE PEROSNS DIRECTLY RESPONSIBLE FOR GATHERING THE INFORMATION, THE INFORMATION SUBMITTED IS, TO THE BEST OF MY KNOWLEDGE AND BELIEF, TRUE, ACCURATE, AND COMPLETE.

Defendants (3)

• DUVALL & SON LIVESTOCK, INC.Named in settlement
• JEFFREY H. DUVALLNamed in settlement
• DUVALL DEVELOPMENT CO., INC.,Named in settlement

Facilities (1)

• WETLANDS (JEFF DUVALL)

  OLD HIGHWAY 441, CLAYTON, GA, 30525

  Registry ID: 110041209215

Statutes cited

• CWA 404 — Permits for Dredge and Fill Material

Enforcement conclusions (1)

• DUVALL, JEFFREY H., DUVALL DEVELOPMENT CO., INC., AND DUVALL & SON LIVESTOCK, INC.entered 2012-03-14

  Primary law: CWA

Timeline (2 milestones)

• 2012-03-14Final Order Issued
• 2012-03-16Enforcement Action Data Entered