§ 143-215.88B. Enforcement procedures: criminal penalties. - North Carolina Statutes

§ 143‑215.88B. Enforcement procedures: criminal penalties.

(a)        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.

(b)        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.

(c)        For the purposes of the felony provisions of this section, aperson'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 which 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 the 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 of permit limitations causing no significant harmto the environment or risk to the public health, safety, or welfare for whichno enforcement action or civil penalty could have been imposed under anywritten civil enforcement guidelines in use by the Department at the time,including but not limited to, guidelines for the pretreatment permit civilpenalties. This subdivision shall not be construed to require the Department todevelop or use written civil enforcement guidelines.

(d)        All general defenses, affirmative defenses, and bars toprosecution that may apply with respect to other criminal offenses under Statecriminal offenses may apply to prosecutions brought under this section or othercriminal statutes that refer to this section and shall be determined by thecourts of this State according to the principles of common law as they may beapplied in the light of reason and experience. Concepts of justification andexcuse applicable under this section may be developed in the light of reasonand experience.

(e)        Any person who knowingly and willfully discharges or causesor permits the discharge of oil or other hazardous substances in violation ofthis Part shall be guilty of a Class H felony which may include a fine to benot more than one hundred thousand dollars ($100,000) per day of violation,provided that this fine shall not exceed a cumulative total of five hundredthousand dollars ($500,000) for each period of 30 days during which a violationcontinues. For the purposes of this subsection, the phrase "knowingly andwillfully" 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.

(f)         (1) Any person who knowingly discharges or causes orpermits the discharge of oil or other hazardous substances in violation of thisPart, and who knows at that time that he places another person in imminentdanger of death or serious bodily injury shall be guilty of a Class C felonywhich 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 a 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; or

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, in determining whether a defendantwho is a natural person knew that his conduct placed another person in imminentdanger 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 a profession; or of medical treatmentor medical or scientific experimentation conducted by professionally approvedmethods and such other person had been made aware of the risks involved priorto giving consent. The defendant may establish an affirmative defense underthis subdivision by a preponderance of the evidence.

(g)        The criminal penalties provided by this section shall notapply to the discharge of a pesticide regulated by the North Carolina PesticideBoard, if such discharge would constitute a violation of the North CarolinaPesticide Law and if such discharge has not entered the surface waters of theState.

(h)        Any person who knowingly and willfully makes any falsestatement, representation, or certification in any application, record, report,plan, or other document filed or required to be maintained under this Articleor rules adopted under this Article; or who knowingly and willfully makes afalse statement of a material fact in a rule‑making proceeding orcontested case under this Article; or who falsifies, tampers with, or knowinglyand willfully renders inaccurate any recording or monitoring device or methodrequired to be operated or maintained under this Article or rules adopted underthis Article is guilty of a Class I felony, which may include a fine not toexceed one hundred thousand dollars ($100,000) per day of violation, providedthat the fine shall not exceed a cumulative total of five hundred thousanddollars ($500,000) for each period of 30 days during which a violationcontinues. (1973, c. 534, s.1; 1973, c. 1262, s. 23; 1979, c. 535, ss. 25, 26; 1987, c. 270; c. 827, ss.154, 197; 1989 (Reg. Sess., 1990), c. 1045, s. 8; 1993, c. 539, ss. 1316, 1317;1994, Ex. Sess., c. 24, s. 14(c); 1997‑394, s. 6.)