§ 143-215.90. Liability for damage to public resources. - North Carolina Statutes

§ 143‑215.90. Liability for damage to public resources.

(a)        Any person who discharges oil or other hazardous substancesin violation of this Article or violates any order or rule of the Commissionadopted pursuant to this Article, or fails to perform any duty imposed by thisArticle, or violates an order or other determination of the Commission madepursuant to the provisions of this Article, including the provisions of adischarge permit issued pursuant to G.S. 143‑215.1, and in the coursethereof causes the death of, or injury to fish, animals, vegetation or otherresources of the State or otherwise causes a reduction in the quality of thewaters of the State below the standards set by the Commission, shall be liableto pay the State damages. Such damages shall be an amount equal to the cost ofall reasonable and necessary investigations made or caused to be made by theCommission in connection with such violation and the sum of money necessary torestock such waters, replenish such resources, or otherwise restore the rivers,streams, bays, tidal flats, beaches, estuaries or coastal waters and publiclands adjoining the seacoast to their condition prior to the injury as suchcondition is determined by the Commission in conference with the WildlifeResources Commission, and any other State agencies having an interest affectedby such violation (or by the designees of any such boards, commissions, andagencies).

(b)        Upon receipt of the estimate of damages caused, theDepartment  shall give written notice by registered or certified mail to theperson responsible for the death, killing, or injury to fish, animals,vegetation, or other resources of the State, or any reduction in quality of thewaters of the State, describing the damages and their causes with reasonablespecificity, and shall request payment from such person. Damages shall becomedue and payable upon receipt of such notice. A person may contest an assessmentof damages by filing a petition for a contested case under G.S. 150B‑23within 30 days after receiving notice of the damages. In a contested casehearing, the estimate of the replacement cost of fish or animals or vegetationdestroyed, and the estimate of costs of replacing or restoring other resourcesof the State, and the estimate of the cost of restoring the quality of watersof the State shall be prima facieevidence of the actual replacement of cost of fish, animals, vegetation orother resources of the State, and of the actual cost of restoring the qualityof the waters of the State; provided, that such evidence is rebuttable. Inarriving at such estimate, any reasonably accurate method may be used and itshall not be necessary for any agent of the Department or Wildlife ResourcesCommission to collect, handle, or weigh numerous specimens of dead or injuredfish, animals, vegetation or other resources of the State, or to calculate thecosts of restoring the quality of the waters using any technology other thanthat which is existing and practicable, as found to be such by the Secretary.Provided, that the Department may effect such mitigation of the amount ofdamages as the Commission may deem proper and reasonable. If a person fails topay damages assessed against him, the Commission shall refer the matter to theAttorney General for collection. Any money recovered by the Attorney General orby payment of damages by the person charged therewith by the Department shallbe transferred by the Commission to appropriate funds administered by the Stateagencies affected by the violation for use in such activities as food fish orshellfish management programs, wildlife and waterfowl management programs,water quality improvement programs and such other uses as may best mitigate thedamage incurred as a result of the violation. No action shall be authorizedunder the provisions of this section against any person operating in compliancewith the conditions of a waste discharge permit issued pursuant to G.S. 143‑215.1and the provisions of this Part.

(c)        For the purpose of carrying out its duties under thisArticle,  the Commission shall have the power to direct the investigation ofany death, killing, or injury to fish, animals, vegetation or other resourcesof the State, or any reduction in quality of the waters of the State, which inthe opinion of the Commission is of sufficient magnitude to justifyinvestigation. (1973, c. 534, s.1; c. 1262, s. 23; 1979, c. 535, s. 24; 1987, c. 827, ss. 154, 196.)