§ 143-215.6A. Enforcement procedures: civil penalties. - North Carolina Statutes

§ 143‑215.6A. Enforcement procedures: civil penalties.

(a)        A civil penalty ofnot more than twenty‑five thousand dollars ($25,000) may be assessed bythe Secretary against any person who:

(1)        Violates anyclassification, standard, limitation, or management practice establishedpursuant to G.S. 143‑214.1, 143‑214.2, or 143‑215.

(2)        Is required butfails to apply for or to secure a permit required by G.S. 143‑215.1, orwho violates or fails to act in accordance with the terms, conditions, orrequirements of such permit or any other permit or certification issuedpursuant to authority conferred by this Part, including pretreatment permitsissued by local governments and laboratory certifications.

(3)        Violates or fails toact in accordance with the terms, conditions, or requirements of any specialorder or other appropriate document issued pursuant to G.S. 143‑215.2.

(4)        Fails to file,submit, or make available, as the case may be, any documents, data, or reportsrequired by this Article or G.S. 143‑355(k) relating to water useinformation.

(5)        Refuses access tothe Commission or its duly designated representative to any premises for thepurpose of conducting a lawful inspection provided for in this Article.

(6)        Violates a rule ofthe Commission implementing this Part, Part 2A of this Article, or G.S. 143‑355(k).

(7)        Violates or fails toact in accordance with the statewide minimum water supply watershed managementrequirements adopted pursuant to G.S. 143‑214.5, whether enforced by theCommission or a local government.

(8)        Violates theoffenses set out in G.S. 143‑215.6B.

(9)        Is required, butfails, to apply for or to secure a certificate required by G.S. 143‑215.22L,or who violates or fails to act in accordance with the terms, conditions, orrequirements of the certificate.

(10)      Violates subsections(c1) through (c5) of G.S. 143‑215.1 or a rule adopted pursuant tosubsections (c1) through (c5) of G.S. 143‑215.1.

(11)      Violates or fails toact in accordance with G.S. 143‑214.7(d1).

(a1)      For purposes of thissection, the term "Part" includes Part 1A of this Article.

(b)        If any action orfailure to act for which a penalty may be assessed under this section iscontinuous, the Secretary may assess a penalty not to exceed twenty‑fivethousand dollars ($25,000) per day for so long as the violation continues,unless otherwise stipulated.

(b1)      The Secretary mayassess a civil penalty of more than ten thousand dollars ($10,000) or, in thecase of a continuing violation, more than ten thousand dollars ($10,000) perday, against a violator only if a civil penalty has been imposed against theviolator within the five years preceding the violation. The Secretary mayassess a civil penalty of more than ten thousand dollars ($10,000) or, in thecase of a continuing violation, more than ten thousand dollars ($10,000) perday for so long as the violation continues, for a violation of subdivision (4)of subsection (a) of this section only if the Secretary determines that theviolation is intentional.

(c)        In determining theamount of the penalty the Secretary shall consider the factors set out in G.S.143B‑282.1(b). The procedures set out in G.S. 143B‑282.1 shallapply to civil penalty assessments that are presented to the Commission forfinal agency decision.

(d)        The Secretary shallnotify any person assessed a civil penalty of the assessment and the specificreasons therefor by registered or certified mail, or by any means authorized byG.S. 1A‑1, Rule 4. Contested case petitions shall be filed within 30 daysof receipt of the notice of assessment.

(e)        Consistent withG.S. 143B‑282.1, a civil penalty of not more than ten thousand dollars($10,000) per month may be assessed by the Commission against any localgovernment that fails to adopt a local water supply watershed protectionprogram as required by G.S. 143‑214.5, or willfully fails to administeror enforce  the provisions of its program in substantial compliance with theminimum statewide water supply watershed management requirements. No suchpenalty shall be imposed against a local government until the Commission hasassumed the responsibility for administering and enforcing the local watersupply watershed protection program. Civil penalties shall be imposed pursuantto a uniform schedule adopted by the Commission. The schedule of civilpenalties shall be based on acreage and other relevant cost factors and shallbe designed to recoup the costs of administration and enforcement.

(f)         Requests forremission of civil penalties shall be filed with the Secretary. Remissionrequests shall not be considered unless made within 30 days of receipt of thenotice of assessment. Remission requests must be accompanied by a waiver of theright to a contested case hearing pursuant to Chapter 150B and a stipulation ofthe facts on which the assessment was based. Consistent with the limitations inG.S. 143B‑282.1(c) and (d), remission requests may be resolved by theSecretary and the violator. If the Secretary and the violator are unable toresolve the request, the Secretary shall deliver remission requests and hisrecommended action to the Committee on Civil Penalty Remissions of theEnvironmental Management Commission appointed pursuant to G.S. 143B‑282.1(c).

(g)        If any civilpenalty has not been paid within 30 days after notice of assessment has been servedon the violator, the Secretary shall request the Attorney General to institutea civil action in the Superior Court of any county in which the violatorresides or has his or its principal place of business to recover the amount ofthe assessment, unless the violator contests the assessment as provided insubsection (d) of this section, or requests remission of the assessment inwhole or in part as provided in subsection (f) of this section. If any civilpenalty has not been paid within 30 days after the final agency decision orcourt order has been served on the violator, the Secretary shall request theAttorney General to institute a civil action in the Superior Court of anycounty in which the violator resides or has his or its principal place of businessto recover the amount of the assessment. Such civil actions must be filedwithin three years of the date the final agency decision or court order wasserved on the violator.

(h)        Repealed by SessionLaws 1995 (Regular Session, 1996), c. 743, s. 14.

(h1)      The clear proceedsof civil penalties assessed by the Secretary or the Commission pursuant to thissection shall be remitted to the Civil Penalty and Forfeiture Fund inaccordance with G.S. 115C‑457.2.

(i)         As used in thissubsection, "municipality" refers to any unit of local governmentwhich operates a wastewater treatment plant. As used in this subsection,"unit of local government" has the same meaning as in G.S. 130A‑290.The provisions of this subsection shall apply whenever a municipality that operatesa wastewater treatment plant with an influent bypass diversion structure andwith a permitted discharge of 10 million gallons per day or more into any ofthe surface waters of the State that have been classified as nutrient sensitivewaters (NSW) under rules adopted by the Commission is subject to a court orderwhich specifies (i) a schedule of activities with respect to the treatment ofwastewater by the municipality; (ii) deadlines for the completion of scheduledactivities; and (iii) stipulated penalties for failure to meet such deadlines.A municipality as specified herein that violates any provision of such orderfor which a penalty is stipulated shall pay the full amount of such penalty asprovided in the order unless such penalty is modified, remitted, or reduced bythe court.

(j)         Local governmentscertified and approved by the Commission to administer and enforce pretreatmentprograms pursuant to G.S. 143‑215.3(a)(14), stormwater programs pursuantto G.S. 143‑214.7, or riparian buffer protection programs pursuant toG.S. 143‑214.23 may assess civil penalties for violations of theirrespective programs in accordance with the powers conferred upon the Commissionand the Secretary in this section, except that actions for collection of unpaidcivil penalties shall be referred to the attorney representing the assessinglocal government. The total of the civil penalty assessed by a local governmentand the civil penalty assessed by the Secretary for any violation may notexceed the maximum civil penalty for such violation under this section.

(k)        A person who hasbeen assessed a civil penalty by a local government as provided by subsection(j) of this section may request a review of the assessment by filing a requestfor review with the local government within 30 days of the date the notice ofassessment is received. If a local ordinance provides for a localadministrative hearing, the hearing shall afford minimum due process includingan unbiased hearing official. The local government shall make a final decisionon the request for review within 90 days of the date the request for review isfiled. The final decision on a request for review shall be subject to review bythe superior court pursuant to Article 27 of Chapter 1 of the General Statutes.If the local ordinance does not provide for a local administrative hearing, aperson who has been assessed a civil penalty by a local government as providedby subsection (j) of this section may contest the assessment by filing a civilaction in superior court within 60 days of the date the notice of assessment isreceived. (1951,c. 606; 1967, c. 892, s. 1; 1973, c. 698, s. 12; c. 712, s. 2; c. 1262, s. 23;c. 1331, s. 3; 1975, c. 583, s. 7; c. 842, ss. 6, 7; 1977, c. 771, s. 4; 1979,c. 633, ss. 9‑11; 1981, c. 514, s. 1; c. 585, s. 13; 1987, c. 271; c.827, ss. 154, 164; 1989, c. 426, s. 4; 1989 (Reg. Sess., 1990), c. 951, s. 1;c. 1036, s. 3; c. 1045, s. 1; c. 1075, s. 6; 1991, c. 579, s. 2; c. 725, s. 3;1993, c. 348, s. 2; 1995 (Reg. Sess., 1996), c. 743, s. 14; 1997‑458, s.6.2; 1998‑215, s. 63; 1999‑329, ss. 5.1, 5.3, 5.5, 5.7; 2004‑124,s. 6.29(b); 2006‑250, s. 6; 2007‑484, s. 43.7C; 2007‑518, s.5; 2007‑536, s. 3.)