NORTH CAROLINA GENERAL ASSEMBLY

1975 SESSION

 

 

CHAPTER 842

SENATE BILL 250

 

 

AN ACT TO AMEND THE WELL CONSTRUCTION ACT, G.S. 87-83 ET SEQ.; THE WATER USE ACT, G.S. 143‑215.11 ET SEQ.; THE DAM SAFETY LAW, G.S. 143‑215.23 ET SEQ.; AND THE WATER AND AIR QUALITY REPORTING ACT, G.S. 143-215.63 ET SEQ.; AND THE CIVIL PENALTY PROVISIONS OF ARTICLES 21 AND 21B, CHAPTER 143, N.C.G.S. IN ORDER TO PROVIDE ENFORCEMENT AND JUDICIAL REVIEW PROCEDURES SIMILAR TO AND CONSISTENT WITH OTHER PARTS OF ARTICLE 21, CHAPTER 143 OF THE NORTH CAROLINA GENERAL STATUTES ADMINISTERED BY THE ENVIRONMENTAL MANAGEMENT COMMISSION.

 

The General Assembly of North Carolina enacts:

 

Section 1.  G.S. 87-95 is amended by rewriting it to read as follows:

"§ 87-95.  Injunctive relief. — Upon violation of any of the provisions of or any order issued pursuant to this Article, or duly adopted regulation of the Commission implementing the provisions of this Article, the Secretary of the Department of Natural and Economic Resources may, either before or after the institution of proceedings for the collection of the penalty imposed by this Article for such violations, request the Attorney General to institute a civil action in the superior court in the name of the State upon the relation of the Department of Natural and Economic Resources for injunctive relief to restrain the violation or require corrective action, and for such other or further relief in the premises as said court shall deem proper. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from the penalty prescribed by this Article for any violation of same."

Sec. 2.  G.S. 143-215.17 is amended by rewriting the catch line to read "Enforcement procedures."; by deleting in the first line of subsection (a) the phrase "Penalties for Violations" by inserting the words "Criminal penalties"; and by rewriting subsection (b) and adding a new subsection (c), both to read as follows:

"(b)      Civil penalties.

(1)        The Environmental Management Commission may assess a civil penalty of not less than one hundred dollars ($100.00) nor more than two hundred fifty dollars ($250.00) against any person who violates any provisions of, or any order issued pursuant to this Part, or who violates any duly adopted regulations of the Commission implementing the provisions of this Part.

(2)        If any action or failure to act for which a penalty may be assessed under this Part is willful, the Commission may assess a penalty not to exceed two hundred fifty dollars ($250.00) per day for each day of violation.

(3)        In determining the amount of the penalty the Commission shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage.

(4)        Any person assessed shall be notified of the assessment by registered or certified mail, and the notice shall specify the reasons for the assessment. If the person assessed fails to pay the amount of the assessment to the Department of Natural and Economic Resources within 30 days after receipt of notice, the Commission may request the Attorney General to institute a civil action in the Superior Court of the county or counties in which the person assessed resides or has his or its principal place of business, to recover the amount of the assessment. In any such civil action, the scope of the court's review of the Commission's action (which shall include a review of the amount of the assessment) shall be as provided in G.S. 150A-51.

(c)        Injunctive relief. Upon violation of any of the provisions of, or any order issued pursuant to this Part, or duly adopted regulation of the Commission or its predecessor implementing the provisions of this Part, the Secretary of the Department of Natural and Economic Resources may, either before or after the institution of proceedings for the collection of the penalty imposed by this Part for such violations, request the Attorney General to institute a civil action in the Superior Court of the county or counties where the violation occurred in the name of the State upon the relation of the Department of Natural and Economic Resources for injunctive relief to restrain the violation or require corrective action, and for such other or further relief in the premises as said court shall deem proper. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from the penalty prescribed by this Part for any violation of same."

Sec. 3.  G.S. 143-215.36 is amended by rewriting the catch line to read "Enforcement procedures."; by deleting in the first line of subsection (a) the words "Penalties for Violations" and inserting the words "Criminal penalties"; and by rewriting subsection (b) and adding a subsection (c), both to read as follows:

"(b)      Civil penalties.

(1)        The Environmental Management Commission may assess a civil penalty of not less than one hundred dollars ($100.00) nor more than two hundred fifty dollars ($250.00) against any person who violates any provisions of, or any order issued pursuant to this Part, or who violates any duly adopted regulation of the Commission or its predecessor implementing the provisions of this Part.

(2)        If any action or failure to act for which a penalty may be assessed under this Part is willful, the Commission may assess a penalty not to exceed two hundred fifty dollars ($250.00) per day for each day of violation.

(3)        In determining the amount of the penalty, the Commission shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage.

(4)        Any person assessed shall be notified of the assessment by registered or certified mail, and the notice shall specify the reasons for the assessment. If the person assessed fails to pay the amount of the assessment to the Department of Natural and Economic Resources within 30 days after receipt of notice, the Commission may request the Attorney General to institute a civil action in the Superior Court of the county or counties in which the person assessed resides or has his or its principal place of business, to recover the amount of the assessment. In any such civil action, the scope of the court's review of the Commission's action (which shall include a review of the amount of the assessment) shall be as provided in G.S. 150A-51.

(c)        Injunctive relief. Upon violation of any of the provisions of, or any order issued pursuant to this Part, or duly adopted regulation of the Commission or its predecessor implementing the provisions of this Part, the Secretary of the Department of Natural and Economic Resources may, either before or after the institution of proceedings for the collection of the penalty imposed by this Part for such violations, request the Attorney General to institute a civil action in the Superior Court of the county or counties where the violation occurred in the name of the State upon the relation of the Department of Natural and Economic Resources for injunctive relief to restrain the violation or require corrective action, and for such other or further relief in the premises as said court shall deem proper. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from the penalty prescribed by this Part for any violation of the same."

Sec. 4.  G.S. 143-215.33 is amended by renumbering it to read G.S. 143-215.33(b) and by adding a new subsection G.S. 143-215.33(a) to read as follows:

"§ 143-215.33.  Judicial review. — (a) Any person against whom a final order or decision has been entered by a hearing officer pursuant to G.S. 143-215.23 et seq., shall be entitled to a review of the order or decision by the full Commission upon written demand by such person within 10 days following notice of the order or decision given by registered or certified mail. The Commission shall review the order or decision, the transcript of evidence and exhibits submitted at hearing, and other pertinent matters, and, if good ground be shown therefor, shall reconsider the evidence, receive further evidence, rehear the parties or their representatives, and affirm, modify, or vacate the order or decision. If the order or decision was entered pursuant to a hearing conducted by a member or members of the Commission, such member or members shall be disqualified from sitting in review of the order or decision. A majority of the members of the Commission shall constitute the full Commission on review."

Sec. 5.  G.S. 143-215.69 is amended by rewriting the catch phrase to read "Enforcement procedures."; by inserting the words "Criminal penalties." in line 1 of the present paragraph and renumbering it as subparagraph (a); and by adding new subsections (b), (c) and (d), to read as follows:

"(b)      Civil penalties. The Environmental Management Commission may assess civil penalties as provided in G.S. 143-215.6 and G.S. 143-215.114.

(c)        Injunctive relief. Upon violation of any of the provisions of, or any order issued pursuant to this Part, or duly adopted regulation of the Commission or its predecessor implementing the provisions of this Part, the Secretary of the Department of Natural and Economic Resources may, either before or after the institution of proceedings for the collection of the penalty imposed by this Part for such violations, request the Attorney General to institute a civil action in the Superior Court of the county or counties where the violation occurred in the name of the State upon the relation of the Department of Natural and Economic Resources for injunctive relief to restrain the violation or require corrective action, and for such other or further relief in the premises as said court shall deem proper. Neither the institution of the action nor any of the proceedings thereon shall relieve any party to such proceedings from the penalty prescribed by this Part for any violation of same.

(d)        Judicial review. Appeal from a final order or decision of a hearing officer or the Commission shall be as provided in G.S. 143-215.5."

Sec. 6.  G.S. 143-215.6(a) and G.S. 143-215.114(a) are hereby amended by renumbering paragraph (3) of each subsection as paragraph (4), and by inserting before each said paragraph a new paragraph (3) to read as follows:

"(3)      In determining the amount of the penalty the Commission shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage."

Sec. 7.  Line 8 of G.S. 143-215.6(b)(1) is hereby amended by striking "twenty-five thousand dollars ($25,000) per day of violation" and substituting therefor "fifteen thousand dollars ($15,000) per day of violation, provided that such fine shall not exceed a cumulative total of two hundred thousand dollars ($200,000) for each period of thirty (30) days during which a violation continues". Lines 7 and 8 of G.S. 143-215.114(b)(1) are amended by striking "twenty-five thousand dollars ($25,000) per day of violation", and substituting therefor "fifteen thousand dollars ($15,000) per day of violation, provided that such fine shall not exceed a cumulative total of two hundred thousand dollars ($200,000) for each period of thirty (30) days during which a violation continues".

Sec. 8.  This act shall become effective upon ratification.

In the General Assembly read three times and ratified, this the 25th day of June, 1975.