Title: House Bill 1283-First Edition
Category: Introduced Bill 2005

General Assembly of North Carolina	Session 2005

GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2005
H	1
HOUSE BILL 1283

Short Title:	Improve Environmental Enforcement. | (Public)
Sponsors: | Representatives Culpepper;  Farmer‑Butterfield, Fisher, Harrison, Luebke, Underhill, and Weiss.
Referred to: | Finance.
April 19, 2005

A BILL TO BE ENTITLED
AN ACT to improve the enforcement of various environmental laws, to authorize the secretary of environment and natural resources to issue administrative orders, and to establish a pilot program that allows the department of environment and natural resources to determine and retain the actual costs of collecting civil penalties, fines, and forfeitures.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 113A‑64(a)(1) reads as rewritten:
"(1)	Any person who violates any of the provisions of this Article or any ordinance, rule, or order adopted or issued pursuant to this Article by the Commission or by a local government, or who initiates or continues a land‑disturbing activity for which an erosion and sedimentation control plan is required except in accordance with the terms, conditions, and provisions of an approved plan, is subject to a civil penalty. The maximum civil penalty for a violation is five thousand dollars ($5,000), except that, in order to deter violations, the Secretary may assess a civil penalty of up to ten thousand dollars ($10,000) for the first day of a violation. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation."
SECTION 2.  G.S. 113A‑126(d) reads as rewritten:
"(d)	(1)	A civil penalty of not more than one thousand dollars ($1,000) for a minor development violation and ten thousand dollars ($10,000) for a major development violation may be assessed by the Commission against any person who:
a.	Is required but fails to apply for or to secure a permit required by G.S. 113A‑118, or who violates or fails to act in accordance with the terms, conditions, or requirements of such permit.
b.	Fails to file, submit, or make available, as the case may be, any documents, data or reports required by the Commission pursuant to this Article.
c.	Refuses access to the Commission or its duly designated representative, who has sufficiently identified himself by displaying official credentials, to any premises, not including any occupied dwelling house or curtilage, for the purpose of conducting any investigations provided for in this Article.
d.	Violates a rule of the Commission implementing this Article.
(2)	For each willful action or failure to act for which a penalty may be assessed under this subsection, the Commission may consider each day the action or inaction continues after notice is given of the violation as a separate violation; a separate penalty may be assessed for each such separate violation.
(3)	The Commission shall notify a person who is assessed a penalty or investigative costs by registered or certified mail. The notice shall state the reasons for the penalty. A person may contest the assessment of a penalty or investigative costs by filing a petition for a contested case under G.S. 150B‑23 within 20 days after receiving the notice of assessment. If a person fails to pay any civil penalty or investigative cost assessed under this subsection, the Commission shall refer the matter to the Attorney General for collection. An action to collect a penalty must be filed within three years after the date the final agency decision was served on the violator.
(4)	In determining the amount of the civil penalty, the Commission shall consider the following factors:
a.	The degree and extent of harm, including, but not limited to, harm to the natural resources of the State, to the public health, or to private property resulting from the violation;
b.	The duration and gravity of the violation;
c.	The effect on water quality, coastal resources, or public trust uses;
d.	The cost of rectifying the damage;
e.	The amount of money saved by noncompliance;
f.	Whether the violation was committed willfully or intentionally;
g.	The prior record of the violator in complying or failing to comply with programs over which the Commission has regulatory authority; and
h.	The cost to the State of the enforcement procedures.
(4a)	The Commission may also assess a person who is assessed a civil penalty under this subsection the reasonable costs of any investigation, inspection, or monitoring that results in the assessment of the civil penalty. For a minor development violation, the amount of an assessment of investigative costs shall not exceed one‑half of the amount of the civil penalty assessed or one thousand dollars ($1,000), whichever is less. For a major development violation, the amount of an assessment of investigative costs shall not exceed one‑half of the amount of the civil penalty assessed or two thousand five hundred dollars ($2,500), whichever is less.
(5)	The clear proceeds of penalties assessed pursuant to this subsection shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2."
SECTION 3.  G.S. 130A‑18(a) reads as rewritten:
"(a)	If a person violates any provision of this Chapter, any rule adopted by the Commission, any rule adopted by a local board of health, any order issued pursuant to this Chapter, or any order issued pursuant to rules adopted by the Commission, the Secretary or a local health director may institute an action for injunctive relief, irrespective of all other remedies at law, in the superior court of the county where the violation occurred or where a defendant resides."
SECTION 4.  G.S. 130A‑22(a) reads as rewritten:
"(a)	The Secretary of Environment and Natural Resources may impose an administrative penalty on a person who violates Article 9 of this Chapter, rules adopted by the Commission pursuant to Article 9, or any order issued under Article 9. Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed ten thousand dollars ($10,000) per day in the case of a violation involving nonhazardous waste. The penalty shall not exceed twenty‑seven thousand five hundred dollars ($27,500) per day in the case of a violation involving hazardous waste, as defined in G.S. 130A‑290, or for a failure to make a determination whether a solid waste is a hazardous waste. The penalty shall not exceed twenty‑five thousand dollars ($25,000) per day for a first violation involving the disposal of medical waste as defined in G.S. 130A‑290 in or upon water in a manner that results in medical waste entering waters or lands of the State; and shall not exceed fifty thousand dollars ($50,000) per day for a second or further violation involving the disposal of medical waste as defined in G.S. 130A‑290 in or upon water in a manner that results in medical waste entering waters or lands of the State. The penalty shall not exceed twenty‑five thousand dollars ($25,000) per day for a violation involving a voluntary remedial action implemented pursuant to G.S. 130A‑310.9(c) or a violation of the rules adopted pursuant to G.S. 130A‑310.12(b). If a person fails to pay a civil penalty within 60 days after the final agency decision or court order has been served on the violator, the Secretary of Environment and Natural Resources shall request the Attorney General to institute a civil action in the superior court of any county in which the violator resides or has his or its principal place of business to recover the amount of the assessment. Such civil actions must be filed within three years of the date the final agency decision or court order was served on the violator."
SECTION 5.  G.S. 130A‑22(c) reads as rewritten:
"(c)	The Secretary of Environment and Natural Resources may impose an administrative penalty on a person who willfully violates Article 11 of this Chapter, rules adopted by the Commission pursuant to Article 11 or any condition imposed upon a permit issued under Article 11. An administrative penalty may not be imposed upon a person who establishes that neither the site nor the system may be improved or a new system installed so as to comply with Article 11 of this Chapter. Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed one hundred dollars ($100.00) per day per violation in the case of a wastewater collection, treatment and disposal system with a design daily flow of no more than 480 gallons or in the case of any system serving a single one‑family dwelling. The penalty shall not exceed five thousand dollars ($5,000) per day per violation in the case of a wastewater collection, treatment and disposal system with a design daily flow of more than 480 gallons which does not serve a single one‑family dwelling."
SECTION 6.  G.S. 130A‑26.2 reads as rewritten:
"§ 130A‑26.2.  Penalty for false reporting under Article 9 and Article 10.
Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under Article 9 or Article 10 of this Chapter or rules adopted under Article 9 or Article 10 of this Chapter; or who knowingly makes a false statement of a material fact in a rule‑making proceeding or contested case under Article 9 or Article 10 of this Chapter; or who falsifies, tampers with, or knowingly renders inaccurate any recording or monitoring device or method required to be operated or maintained under Article 9 or Article 10 of this Chapter or rules adopted under Article 9 or Article 10 of this Chapter is guilty of a Class 2 misdemeanor. The maximum fine that may be imposed for an offense under this section is ten thousand dollars ($10,000)."
SECTION 7.  Part 1 of Article 21 of Chapter 143 of the General Statutes is amended by adding a new section to read:
"§ 143‑215.6F.  Enforcement procedures:  administrative orders.
(a)	The Secretary may issue an administrative order directing any person who has committed a violation described in G.S. 143‑215.6A to do any of the following:
(1)	Attend an environmental education course.
(2)	Publish notice of the violation.
(3)	Perform community service related to protection or restoration of the environment and natural resources.
(b)	The Secretary may issue an administrative order pursuant to this section in addition to any other action or proceeding under this Part.
(c)	The Secretary shall serve a copy of the administrative order and the specific reasons for issuing the administrative order by registered or certified mail, or by any means authorized by G.S. 1A‑1, Rule 4. A contested case petition shall be filed within 30 days of receipt of the order.
(d)	A person may comply with an administrative order issued pursuant to this section by attending an environmental education or community service program offered by the Department or a program certified by the Department. The Secretary may establish minimum standards for certification of environmental education or community service programs.
(e)	The Department may charge a fee, not to exceed one hundred dollars ($100.00), to compensate for the reasonable cost of attending any environmental education course or community service program offered by the Department.
(f)	The Secretary may assess a civil penalty for failure to comply with an order issued pursuant to this section as provided in G.S. 143‑215.6A."
SECTION 8.  The Department of Environment and Natural Resources, in consultation with the North Carolina School Boards Association, shall develop and implement a pilot program to begin no later than October 1, 2005, and to expire April 1, 2008, to determine the amount and retain the actual costs of collecting civil penalties, fines, and forfeitures assessed by the Department and by commissions organized under the Department to improve the assessment and collection of civil penalties, fines, and forfeitures. The clear proceeds of all civil penalties, fines, and forfeitures that are collected by the Department and payable to the counties for the support of public schools pursuant to Article IX, Section 7 of the Constitution of North Carolina shall be remitted to the Office of State Budget and Management by the officer having custody of the funds within 10 days after the close of the calendar month in which the funds were received or collected.  During this pilot program, the clear proceeds of all civil penalties, fines, and forfeitures collected by the Department shall be diminished only by the actual costs of collecting the civil penalties, fines, and forfeitures. Actual costs may include time spent on collection‑related matters by personnel of the Department, legal services related to collection provided by the Department of Justice, collection agency fees, and court costs. The Department shall not enter into a contract that would require the Department to pay more than twenty percent (20%) of the civil penalty, fine, or forfeiture amount to a collection agency as a fee for collection of civil penalties, fines, and forfeitures.  Additional items may be included in costs by agreement of the Department and the School Boards Association. Costs shall be itemized in an accounting to be provided when the funds are remitted by the Department.
SECTION 9.  The Department of Environment and Natural Resources shall submit an interim report on the civil penalty, fine, and forfeiture collection pilot program no later than March 1, 2007, and shall submit a final report no later than April 1, 2008, to the Environmental Review Commission, the Fiscal Research Division of the North Carolina General Assembly, and the North Carolina School Boards Association.  The Department shall report the total amount of civil penalties, fines, and forfeitures collected, the amount paid to the counties in support of public schools, and the effect of the pilot program on collection of civil penalties, fines, and forfeitures by the Department.
SECTION 10.  Sections 1 through 7 of this act become effective December 1, 2005, and apply to violations and offenses committed on or after that date.  Sections 8 through 10 of this act are effective when it becomes law.

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