GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	3 

HOUSE BILL 25
Committee Substitute Favorable 4/11/91
Committee Substitute #2 Favorable 5/8/91

Short Title:  Comm. Serv. for Remitted Fines.	(Public)
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Sponsors: 
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Referred to:  
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February 6, 1991

A BILL TO BE ENTITLED
AN ACT TO REQUIRE THE ENVIRONMENTAL MANAGEMENT COMMISSION TO ESTABLISH A COMMUNITY SERVICE PROGRAM; AND TO REQUIRE THAT COMMUNITY SERVICE SHALL BE PERFORMED IN EXCHANGE FOR REMITTED FINES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143B-282.1 reads as rewritten:
"§ 143B-282.1.  Environmental Management Commission – quasi-judicial powers; procedures.
(a)	With respect to those matters within its jurisdiction, the Environmental Management Commission shall exercise quasi-judicial powers in accordance with the provisions of Chapter 150B of the General Statutes.  This section and any rules adopted by the Environmental Management Commission shall govern such proceedings:
(1)	Exceptions to recommended decisions in contested cases shall be filed with the Secretary within 30 days of the receipt by the Secretary of the official record from the Office of Administrative Hearings, unless additional time is allowed by the chairman of the Commission.
(2)	Oral arguments by the parties may be allowed by the chairman of the Commission upon request of the parties.
(3)	Deliberations of the Commission shall be conducted in its public meeting unless the Commission determines that consultation with its counsel should be held in an executive session pursuant to G.S. 143-318.11.
(b)	The final agency decision in contested cases that arise from civil penalty assessments shall be made by the Commission.  In the evaluation of each violation, the Commission shall recognize that harm to the natural resources of the State arising from the violation of standards or limitations established to protect those resources may be immediately observed through damaged resources or may be incremental or cumulative with no damage that can be immediately observed or documented.  Penalties up to the maximum authorized may be based on any one or combination of the following factors:
(1)	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;
(2)	The duration and gravity of the violation;
(3)	The effect on ground or surface water quantity or quality or on air quality;
(4)	The cost of rectifying the damage;
(5)	The amount of money saved by noncompliance;
(6)	Whether the violation was committed willfully or intentionally;
(7)	The prior record of the violator in complying or failing to comply with programs over which the Environmental Management Commission has regulatory authority; and
(8)	The cost to the State of the enforcement procedures.
(c)	The chairman shall appoint a Committee on Civil Penalty Remissions from the members of the Commission.  No member of the Committee on Civil Penalty Remissions may hear or vote on any matter in which he has an economic interest.  The Committee on Civil Penalty Remissions shall make the final agency decision on remission requests.  In determining whether a remission request will be approved, the Committee shall consider the recommendation of the Secretary and the following factors:
(1)	Whether one or more of the civil penalty assessment factors in subsection (b) of this section were wrongly applied to the detriment of the petitioner;
(2)	Whether the violator promptly abated continuing environmental damage resulting from the violation;
(3)	Whether the violation was inadvertent or a result of an accident;
(4)	Whether the violator had been assessed civil penalties for any previous violations;
(5)	Whether payment of the civil penalty will prevent payment for the remaining necessary remedial actions.
Notwithstanding the above, no portion of a fine shall be remitted unless payment of the fine would result in economic hardship on the violator and the violator has agreed to substitute a proportionate amount of community service as prescribed by the Environmental Management Commission in exchange for the remittance.
(d)	The Committee on Civil Penalty Remissions may remit the entire amount of the penalty only when the violator has not been assessed civil penalties for previous violations; when payment of the civil penalty will prevent payment for the remaining necessary remedial actions; and when the petitioner has agreed to substitute a proportionate amount of community service.  The Commission may waive the community service requirement for a person, who otherwise meets the criteria in this subsection for remittance of a fine, but who is physically unable to perform any community service.  The Commission shall establish, and the Division of Environmental Management of the Department shall monitor, a community service program with a primary focus on environmental projects, when possible.  The Commission shall use existing community service restitution program resources and the violator shall pay any required fee.  Community service programs shall emphasize governmental or nonprofit organizations, but may include environmental cleanup on private property of creeks, rivers, beaches, roads, or highways.  The program shall include, but not be limited to, reporting requirements, a formula for commuting dollars to hours of service, a system for validating community service programs, and a verification procedure upon completion of service.  The community service required of the violator shall be performed by the owner or owners of a noncorporate business; by the highest executive officer of a corporate entity; by the elected local officials of a unit of local government; or by the head of a State agency.  Under this program, a violator shall not be subject to perform community service for any portion of a fine which has been reduced due to departmental error when the initial fine was assessed.
(e)	If any civil penalty has not been paid within 30 days after the final agency decision or court order has been served on the violator, the Secretary 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.
(e1)	The civil penalty shall be suspended during the time allotted for completing the community service program described in subsection (d).  If the community service has not been completed and verified during the specified time, the full penalty shall be payable upon demand by the State.
(f)	As used in this section, 'Secretary' means the Secretary of Environment, Health, and Natural Resources.  The Secretary may delegate his powers and duties under this section to the Director of the Division of Environmental Management of the Department of Environment, Health, and Natural Resources."
Sec. 2.  G.S. 143B-475.1 is amended by adding a new subsection (d) to read:
"( d)	Immunity for Injury to Violator Performing Community Service.  A person is not liable for damages for any injury or loss sustained by a violator performing community or reparation service unless the injury is caused by the person's gross negligence or intentional wrongdoing. As used in this subsection, 'person' includes any governmental unit or agency, nonprofit corporation, or other nonprofit agency that is supervising the violator or for whom the violator is performing community service work, as well as any person employed by the agency or corporation while acting in the scope and course of his employment. This subsection does not affect the immunity from civil liability in tort available to local governmental units or agencies. Notice of the provisions of this subsection shall be furnished to the violator."
Sec. 3.  This act becomes effective October 1, 1991.