§ 143-215.104Q. (Repealed effective January 1, 2012 - see notes) Enforcement procedures; criminal penalties. - North Carolina Statutes

§ 143‑215.104Q. (Repealed effective January 1, 2012 – see notes) Enforcement procedures;criminal penalties.

(a)        Any person who negligently commits any of the offenses setout in subdivisions (1) through (10) of G.S. 143‑215.104P(a) shall beguilty of a Class 2 misdemeanor, which may include a fine not to exceed fifteenthousand dollars ($15,000) per day of violation, provided that the fine shallnot exceed a cumulative total of two hundred thousand dollars ($200,000) foreach period of 30 days during which a violation continues.

(b)        Any person who knowingly and willfully commits any of theoffenses set out in subdivisions (1) through (10) of G.S. 143‑215.104P(a)shall be guilty of a Class I felony, which may include a fine not to exceed onehundred thousand dollars ($100,000) per day of violation, provided that thisfine shall not exceed a cumulative total of five hundred thousand dollars($500,000) for each period of 30 days during which the violation continues. Forthe purposes of this subsection, the phrase "knowingly and willfully"shall mean "intentionally and consciously" as the courts of thisState, according to the principles of common law, interpret the phrase in thelight of reason and experience.

(c)        (1)        Any person who knowingly commitsany of the offenses set out in subdivisions (3) through (10) of G.S. 143‑215.104P(a)and who knows at that time that he thereby places another person in imminentdanger of death or serious bodily injury shall be guilty of a Class C felony,which may include a fine not to exceed two hundred fifty thousand dollars($250,000) per day of violation, provided that this fine shall not exceed acumulative total of one million dollars ($1,000,000) for each period of 30 daysduring which the violation continues.

(2)        For the purposes of this subsection, a person's state ofmind is knowing with respect to:

a.         His conduct, if he is aware of the nature of his conduct.

b.         An existing circumstance, if he is aware or believes thatthe circumstance exists.

c.         A result of his conduct, if he is aware or believes that hisconduct is substantially certain to cause danger of death or serious bodilyinjury.

(3)        Under this subsection, the following should be considered indetermining whether a defendant who is a natural person knew that his conductplaced another person in imminent danger of death or serious bodily injury:

a.         The person is responsible only for actual awareness oractual belief that he possessed, and

b.         Knowledge possessed by a person other than the defendant butnot by the defendant himself may not be attributed to the defendant.

(4)        It is an affirmative defense to a prosecution under thissubsection that the conduct charged was conduct consented to by the personendangered and that the danger and conduct charged were reasonably foreseeablehazards of an occupation, a business or profession, or of medical treatment ormedical or scientific experimentation conducted by professionally approvedmethods, and the person had been made aware of the risks involved prior togiving consent. The defendant may establish an affirmative defense under thissubdivision by a preponderance of the evidence.

(d)        No proceeding shall be brought or continued under thissection for or on account of a violation by any person who has previously beenconvicted of a federal violation based upon the same set of facts.

(e)        In proving the defendant's possession of actual knowledge,circumstantial evidence may be used, including evidence that the defendant tookaffirmative steps to shield himself from relevant information. Consistent withthe principles of common law, the subjective mental state of defendants may beinferred from their conduct.

(f)         For the purposes of the felony provisions of this section,a person's state of mind shall not be found "knowingly and willfully"or "knowingly" if the conduct that is the subject of the prosecutionis the result of any of the following occurrences or circumstances:

(1)        A natural disaster or other act of God that could not havebeen prevented or avoided by the exercise of due care or foresight.

(2)        An act of third parties other than agents, employees,contractors, or subcontractors of the defendant.

(3)        An act done in reliance on the written advice or emergencyon‑site direction of an employee of the Department. In emergencies, oraladvice may be relied upon if written confirmation is delivered to the employeeas soon as practicable after receiving and relying on the advice.

(4)        An act causing no significant harm to the environment orrisk to public health, safety, or welfare and done in compliance with otherconflicting environmental requirements or other constraints imposed in writingby environmental agencies or officials after written notice is delivered to allrelevant agencies that the conflict exists and will cause a violation of theidentified standard.

(5)        Violations causing no significant harm to the environment orrisk to public health, safety, or welfare for which no enforcement action orcivil penalty could have been imposed under any written civil enforcement guidelinesin use by the Department at the time. This subdivision shall not be construedto require the Department to develop or use written civil enforcementguidelines.

(6)        Occasional, inadvertent, short‑term violations causingno significant harm to the environment or risk to public health, safety, orwelfare. If the violation occurs within 30 days of a prior violation or lastsfor more than 24 hours, it is not an occasional, short‑term violation.

(g)        All general defenses, affirmative defenses, and bars toprosecution that may apply with respect to other criminal offenses under lawmay apply to prosecutions brought under this section or other criminal statutesthat refer to this section and shall be determined by the courts of this Stateaccording to the principles of common law as they may be applied in light ofreason and experience. Concepts of justification and excuse applicable underthis section may be developed in light of reason and experience.

(h)        All general defenses, affirmative defenses, and bars toprosecution that may apply with respect to other criminal offenses under lawmay apply to prosecutions brought under this section or other criminal statutesthat refer to this section and shall be determined by the courts of this Stateaccording to the principles of common law as they may be applied in light ofreason and experience. Concepts of justification and excuse applicable underthis section may be developed in light of reason and experience.

(i)         For purposes of this section, the term "person" means,in addition to the definition contained in G.S. 143‑212, any responsiblecorporate or public office or employee. If a vote of the people is required toeffectuate the intent and purpose of this Article by a county, city, town, orother political subdivision of the State and the vote on the referendum isagainst the means or machinery for carrying out the intent and purpose, thenthis section shall not apply to elected officials or to any responsibleappointed officials or employees of the county, city, town, or other politicalsubdivision. (1997‑392, s.1.)