State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_143B > GS_143B-282_1

§ 143B‑282.1. Environmental Management Commission – quasi‑judicial powers; procedures.

(a)        With respect to those matters within its jurisdiction, theEnvironmental Management Commission shall exercise quasi‑judicial powersin accordance with the provisions of Chapter 150B of the General Statutes. Thissection and any rules adopted by the Environmental Management Commission shallgovern such proceedings:

(1)        Exceptions to recommended decisions in contested cases shallbe filed with the Secretary within 30 days of the receipt by the Secretary ofthe official record from the Office of Administrative Hearings, unlessadditional time is allowed by the chairman of the Commission.

(2)        Oral arguments by the parties may be allowed by the chairmanof the Commission upon request of the parties.

(3)        Deliberations of the Commission shall be conducted in itspublic meeting unless the Commission determines that consultation with itscounsel should be held in a closed session pursuant to G.S. 143‑318.11.

(b)        The final agency decision in contested cases that arise fromcivil penalty assessments shall be made by the Commission. In the evaluation ofeach violation, the Commission shall recognize that harm to the naturalresources of the State arising from the violation of standards or limitationsestablished to protect those resources may be immediately observed throughdamaged resources or may be incremental or cumulative with no damage that canbe immediately observed or documented. Penalties up to the maximum authorizedmay be based on any one or combination of the following factors:

(1)        The degree and extent of harm to the natural resources ofthe State, to the public health, or to private property resulting from theviolation;

(2)        The duration and gravity of the violation;

(3)        The effect on ground or surface water quantity or quality oron air quality;

(4)        The cost of rectifying the damage;

(5)        The amount of money saved by noncompliance;

(6)        Whether the violation was committed willfully orintentionally;

(7)        The prior record of the violator in complying or failing tocomply with programs over which the Environmental Management Commission hasregulatory authority; and

(8)        The cost to the State of the enforcement procedures.

(c)        The chairman shall appoint a Committee on Civil PenaltyRemissions from the members of the Commission. No member of the Committee onCivil Penalty Remissions may hear or vote on any matter in which he has aneconomic interest. The Committee on Civil Penalty Remissions shall make thefinal agency decision on remission requests. In determining whether a remissionrequest will be approved, the Committee shall consider the recommendation ofthe Secretary and the following factors:

(1)        Whether one or more of the civil penalty assessment factorsin subsection (b) of this section were wrongly applied to the detriment of thepetitioner;

(2)        Whether the violator promptly abated continuingenvironmental damage resulting from the violation;

(3)        Whether the violation was inadvertent or a result of anaccident;

(4)        Whether the violator had been assessed civil penalties forany previous violations;

(5)        Whether payment of the civil penalty will prevent paymentfor the remaining necessary remedial actions.

(d)        The Committee on Civil Penalty Remissions may remit theentire amount of the penalty only when the violator has not been assessed civilpenalties for previous violations, and when payment of the civil penalty willprevent payment for the remaining necessary remedial actions.

(e)        If any civil penalty has not been paid within 30 days afterthe final agency decision or court order has been served on the violator, theSecretary of Environment and Natural Resources shall request the AttorneyGeneral to institute a civil action in the Superior Court of any county inwhich the violator resides or has his or its principal place of business torecover the amount of the assessment.

(f)         As used in this section, "Secretary" means theSecretary of Environment and Natural Resources. (1989 (Reg. Sess., 1990), c. 1036, s. 2; 1993 (Reg. Sess.,1994), c. 570, s. 5; 1995 (Reg. Sess., 1996), c. 743, s. 21; 1997‑443, s.11A.119(a).)