North Carolina § 130A-22 - Administrative penalties.

§ 130A-22. Administrative penalties.

The Secretary of Environmental Quality may impose an administrative penalty on a person who violates Article 9 of this Chapter, rules adopted by the Environmental Management Commission pursuant to Article 9, or any term or condition of a permit or order issued under Article 9. Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed fifteen thousand dollars ($15,000) per day in the case of a violation involving nonhazardous waste. The penalty shall not exceed thirty-two thousand five hundred dollars ($32,500) per day in the case of a first violation involving hazardous waste as defined in G.S. 130A-290 or 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 thirty-two thousand five hundred dollars ($32,500) 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). For violations of Part 7 of Article 9 of this Chapter and G.S. 130A-309.10(m): (i) a warning shall be issued for a first violation; (ii) the penalty shall not exceed two hundred dollars ($200.00) for a second violation; and (iii) the penalty shall not exceed five hundred dollars ($500.00) for subsequent violations. 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 Environmental Quality 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. Part 5 of Article 21A of Chapter 143 of the General Statutes shall apply to the determination of civil liability or penalty pursuant to subsection (a) of this section. The Secretary of Environmental Quality may impose an administrative penalty on a person who violates G.S. 130A-325. Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed twenty-five thousand dollars ($25,000) for each day the violation continues. The Secretary may impose an administrative penalty on a person who violates Article 19 of this Chapter or a rule adopted pursuant to that Article. Except as provided in subsection (b2) of this section, the penalty shall not exceed one thousand dollars ($1,000) per day per violation. Until the Department has notified the person of the violation, a continuing violation shall be treated as one violation. Each day thereafter of a continuing violation shall be treated as a separate violation. The degree and extent of harm to the natural resources of the State, to the public health, or to private property resulting from the violation. The duration and gravity of the violation. The effect on air quality. The cost of rectifying the damage. The amount of money the violator saved by noncompliance. The prior record of the violator in complying or failing to comply with Article 19 of this Chapter or a rule adopted pursuant to that Article. The cost to the State of the enforcement procedures. If applicable, the size of the renovation and demolition involved in the violation. The penalty for violations of the asbestos NESHAP for demolition and renovation, as defined in G.S. 130A-444, shall not exceed ten thousand dollars ($10,000) per day per violation. Until the Department has provided the person with written notification of the violation of the asbestos NESHAP for demolition and renovation that describes the violation, recommends a general course of action, and establishes a time frame in which to correct the violations, a continuing violation shall be treated as one violation. Each day thereafter of a continuing violation shall be treated as a separate violation. A violation of the asbestos NESHAP for demolition and renovation is not considered to continue during the period a person who has received the notice of violation is following the general course of action and complying with the time frame set forth in the notice of violation. The Secretary may impose an administrative penalty on a person who violates Article 19A or 19B of this Chapter or any rules adopted pursuant to Article 19A or 19B of this Chapter. Each day of a continuing violation is a separate violation. The penalty shall not exceed five thousand dollars ($5,000) for each day the violation continues for Article 19A of this Chapter. The penalty shall not exceed five thousand dollars ($5,000) for each day the violation continues for Article 19B of this Chapter. The penalty authorized by this section does not apply to a person who is not required to be certified under Article 19A or 19B. The Secretary 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 fifty dollars ($50.00) per day 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 three hundred dollars ($300.00) per day 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. The Secretary may impose a monetary penalty on a vendor who violates rules adopted by the Commission pursuant to Article 13 of this Chapter when the Secretary determines that disqualification would result in hardship to participants in the Women, Infants, and Children (WIC) program. The penalty shall be calculated using the following formula: multiply five percent (5%) times the average dollar amount of the vendor's monthly redemptions of WIC food instruments for the 12-month period immediately preceding disqualification, then multiply that product by the number of months of the disqualification period determined by the Secretary. In determining the amount of the penalty in subsections (a), (b) and (c), the Secretary and the Secretary of Environmental Quality shall consider all of the following factors: Type of violation. Type of waste involved. Duration of the violation. Cause (whether resulting from a negligent, reckless, or intentional act or omission). Potential effect on public health and the environment. Effectiveness of responsive measures taken by the violator. Damage to private property. The degree and extent of harm caused by the violation. Cost of rectifying any damage. The amount of money the violator saved by noncompliance. The violator's previous record in complying or not complying with the provisions of Article 9 of this Chapter, Article 11 of this Chapter, or G.S. 130A-325, and any regulations adopted thereunder, as applicable to the violation in question. A person contesting a penalty shall, by filing a petition pursuant to G.S. 150B-23(a) not later than 30 days after receipt by the petitioner of the document which constitutes agency action, be entitled to an administrative hearing and judicial review in accordance with Chapter 150B of the General Statutes, the Administrative Procedure Act. The Commission shall adopt rules concerning the imposition of administrative penalties pursuant to this section that are under authority of the Secretary, and the Environmental Management Commission shall adopt rules concerning the imposition of administrative penalties pursuant to this section that are under authority of the Secretary of Environmental Quality. The Secretary or the Secretary of Environmental Quality may bring a civil action in the superior court of the county where the violation occurred or where the defendant resides to recover the amount of an administrative penalty authorized under this section whenever a person: Who has not requested an administrative hearing in accordance with subsection (e) of this section fails to pay the penalty within 60 days after being notified of the penalty; or Who has requested an administrative hearing fails to pay the penalty within 60 days after service of a written copy of the final agency decision. A local health director may impose an administrative penalty on any person who willfully violates the wastewater collection, treatment, and disposal rules of the local board of health adopted pursuant to G.S. 130A-335(c) or who willfully violates a condition imposed upon a permit issued under the approved local rules. 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. The local health director shall establish and recover the amount of the administrative penalty in accordance with subsections (d) and (g). Each day of a continuing violation shall constitute a separate violation. The penalty shall not exceed fifty dollars ($50.00) per day 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 three hundred dollars ($300.00) per day 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. A person contesting a penalty imposed under this subsection shall be entitled to an administrative hearing and judicial review in accordance with G.S. 130A-24. A local board of health shall adopt rules concerning the imposition of administrative penalties under this subsection. A local health director may take the following actions and may impose the following administrative penalty on a person who manages, operates, or controls a public place or place of employment and fails to comply with the provisions of Part 1C of Article 23 of this Chapter or with rules adopted thereunder or with local ordinances, rules, laws, or policies adopted pursuant to Part 2 of Article 23 of this Chapter: First violation. - Provide the person in violation with written notice of the person's first violation and notification of action to be taken in the event of subsequent violations. Second violation. - Provide the person in violation with written notice of the person's second violation and notification of administrative penalties to be imposed for subsequent violations. Subsequent violations. - Impose on the person in violation an administrative penalty of not more than two hundred dollars ($200.00) for the third and subsequent violations. The clear proceeds of penalties assessed pursuant to this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2. The Secretary of Environmental Quality may also assess the reasonable costs of any investigation, inspection, or monitoring associated with the assessment of the civil penalty against any person who is assessed a civil penalty under this section. In determining the amount of a penalty under this subsection or subsection (b2) of this section, the Secretary shall consider all of the following factors: Each day on which a violation of this Article or rules adopted pursuant to this Article occurs may be considered a separate and distinct violation. Notwithstanding G.S. 130A-25 , a violation of Article 23 of this Chapter shall not be punishable as a criminal violation. History (1983, c. 891, s. 2; 1987, c. 269, s. 2; c. 656; c. 704, s. 1; c. 827, s. 247; 1989, c. 742, s. 4; 1991, c. 691, s. 1; c. 725, s. 8; 1991 (Reg. Sess., 1992), c. 944, s. 11; 1993 (Reg. Sess., 1994), c. 686, s. 1; 1995, c. 504, s. 8; 1997-443, s. 11A.64; 1997-523, s. 2; 1998-215, s. 54(a); 2001-474, s. 21; 2002-154, s. 1; 2007-550, ss. 3(a), 4(a); 2009-27, s. 2; 2009-163, s. 2; 2009-488, s. 2; 2010-180, s. 14(c); 2011-145, s. 13.3(xx); 2013-378, s. 7; 2013-413, s. 49; 2015-241, s. 14.30(v); 2017-209, s. 19(b); 2020-74, s. 12(b).) Editor's Note. - Session Laws 1997-523, s. 3 provides that G.S. 130A-453.11 , as enacted by that act, and section 3 of the act are effective when they become law. The remainder of that act becomes effective 1 July 1998 unless, as of that date, Subpart L of Part 745 of Title 40 of the Code of Federal Regulations (40 C.F.R. G.S. 745.220, et seq., as set out in the Federal Register of 29 August 1996) is scheduled to become effective later than 1 September 1998, in which case the remainder of the act becomes effective when Subpart L of Part 745 of Title 40 of the Code of Federal Regulations becomes effective. Subpart L of Part 745 of Title 40 of the Code of Federal Regulations became effective August 29, 1996, and thus subsection (b3) became effective July 1, 1998. Session Laws 2013-413, s. 61(b), provides: "Except as otherwise provided, this act is effective when it becomes law [August 23, 2013]." Session Laws 2013-413, s. 60(c), had provided that: "This act becomes effective July 1, 2015." Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to "This act" with the words "This Part." Session Laws 2013-413, s. 61(a), is a severability clause. Effect of Amendments. - Session Laws 2007-550, ss. 3(a) and 4(a), effective August 1, 2007, and applicable to violations that occur on or after that date, in subsection (a), inserted "term or condition of a permit or" in the first sentence, substituted "fifteen thousand dollars ($15,000)" for "five thousand dollars ($5,000)" in the third sentence, substituted "thirty-two thousand five hundred dollars ($32,500)" for "twenty five thousand dollars ($25,000)" in the fourth and fifth sentences; and added subsection (j). Session Laws 2009-27, s. 2, effective January 2, 2010, added subsection (h1). Session Laws 2009-163, s. 2, effective September 1, 2009, and applicable to retail sales made on or after that date, added the sixth sentence in subsection (a). Session Laws 2009-488, s. 2, effective January 1, 2010, in subsection (b3), inserted both uses of "or 19B" in the first sentence, added "for Article 19A of this Chapter" at the end of the third sentence, added the present fourth sentence, and substituted "Article 19A or 19B" for "this article" at the end of the present last sentence. Session Laws 2010-180, s. 14(c), effective July 1, 2011, added the next-to-last sentence in subsection (a). Session Laws 2011-145, s. 13.3(xx), effective July 1, 2011, deleted "of Environment and Natural Resources" following "Secretary" in the first sentence of subsection (c). Session Laws 2013-378, s. 7, effective October 1, 2013, in subsection (b3), substituted "five thousand dollars ($5,000)" for "one thousand dollars ($1,000)" in the third sentence, and "five thousand dollars ($5,000)" for "seven hundred fifty dollars ($750.00)" in the fourth sentence. Session Laws 2013-413, s. 49, rewrote subsection (d), which formerly read "In determining the amount of the penalty in subsections (a), (b) and (c), the Secretary and the Secretary of Environment and Natural Resources shall consider the degree and extent of the harm caused by the violation and the cost of rectifying the damage." For effective date, see Editor's note. Session Laws 2015-241, s. 14.30(v), effective July 1, 2015, substituted "Secretary of Environmental Quality" for "Secretary of Environment and Natural Resources" throughout the section. Session Laws 2017-209, s. 19(b), effective September 1, 2017, deleted the former sixth sentence of subsection (a), which read: "The penalty shall not exceed one hundred dollars ($100.00) for a first violation; two hundred dollars ($200.00) for a second violation within any 12 month period; and five hundred dollars ($500.00) for each additional violation within any 12 month period for any violation of Part 2G of Article 9 of this Chapter." Session Laws 2020-74, s. 12(b), effective July 1, 2020, inserted "Environmental Management" in the first sentence of subsection (a); and rewrote subsection (f)., which read "The Commission shall adopt rules concerning the imposition of administrative penalties under this section.” Legal Periodicals. - For article, "Coastal Management Law in North Carolina: 1974-1994," see 72 N.C.L. Rev. 1413 (1994). For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).