GENERAL ASSEMBLY OF NORTH CAROLINA
1991 SESSION

CHAPTER 412
HOUSE BILL 448

AN ACT TO AUTHORIZE THE ISSUANCE OF STOP-WORK ORDERS FOR VIOLATIONS OF THE SEDIMENTATION POLLUTION CONTROL ACT OF 1973.

The General Assembly of North Carolina enacts:

Section 1.  Article 4 of Chapter 113A of the General Statutes is amended by adding a new section to read:
"§ 113A-65.1.  Stop-work orders.
(a)	The Secretary may issue a stop-work order if he finds that a land-disturbing activity is being conducted in violation of this Article or of any rule adopted or order issued pursuant to this Article, that the violation is knowing and willful, and that either:
(1)	Off-site sedimentation has eliminated or severely degraded a use in a lake or natural watercourse or that such degradation is imminent.
(2)	Off-site sedimentation has caused severe damage to adjacent land or that such damage is imminent.
(3)	The land-disturbing activity is being conducted without an approved plan.
(b)	The stop-work order shall be in writing and shall state what work is to be stopped and what measures are required to abate the violation.  The order shall include a statement of the findings made by the Secretary pursuant to subsection (a) of this section, and shall list the conditions under which work that has been stopped by the order may be resumed.  The delivery of equipment and materials which does not contribute to the violation may continue while the stop-work order is in effect.  A copy of this section shall be attached to the order.
(c)	The stop-work order shall be served by the sheriff of the county in which the land-disturbing activity is being conducted or by some other person duly authorized by law to serve process as provided by G.S. 1A-1, Rule 4, and shall be served on the person at the site of the land-disturbing activity who is in operational control of the land-disturbing activity.  The sheriff or other person duly authorized by law to serve process shall post a copy of the stop-work order in a conspicuous place at the site of the land-disturbing activity.  The Department shall also deliver a copy of the stop-work order to any person that the Department has reason to believe may be responsible for the violation.
(d)	The directives of a stop-work order become effective upon service of the order.  Thereafter, any person notified of the stop-work order who violates any of the directives set out in the order may be assessed a civil penalty as provided in G.S. 113A-64(a).  A stop-work order issued pursuant to this section may be issued for a period not to exceed three days.
(e)	The Secretary shall designate an employee of the Department to monitor compliance with the stop-work order.  The name of the employee so designated shall be included in the stop-work order.  The employee so designated, or the Secretary, shall rescind the stop-work order if all the violations for which the stop-work order are issued are corrected, no other violations have occurred, and all measures necessary to abate the violations have been taken.  The Secretary shall rescind a stop-work order that is issued in error.
(f)	The issuance of a stop-work order shall be a final agency decision subject to judicial review in the same manner as an order in a contested case pursuant to Article 4 of Chapter 150B of the General Statutes.  The petition for judicial review shall be filed in the superior court of the county in which the land-disturbing activity is being conducted.
(g)	As used in this section, days are computed as provided in G.S. 1A-1, Rule 6.  Except as otherwise provided, the Secretary may delegate any power or duty under this section to the Director of the Division of Land Resources of the Department or to any person who has supervisory authority over the Director.  The Director may delegate any power or duty so delegated only to a person who is designated as acting Director.
(h)	The Attorney General shall file a cause of action to abate the violations which resulted in the issuance of a stop-work order within two days of the service of the stop-work order.  The cause of action shall include a motion for an ex parte temporary restraining order to abate the violation and to effect necessary remedial measures.  The resident superior court judge, or any judge assigned to hear the motion for the temporary restraining order, shall hear and determine the motion within two days of the filing of the complaint.  The clerk of superior court shall accept complaints filed pursuant to this section without the payment of filing fees.  Filing fees shall be paid to the clerk of superior court within 30 days of the filing of the complaint."
Sec. 2.  G.S. 113A-64(a) reads as rewritten:
"(a)	Civil Penalties.
(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 control plan is required except in accordance with the terms, conditions, and provisions of an approved plan, shall be subject to a civil penalty of not more than five hundred dollars ($500.00), except that the penalty for failure to submit an erosion control plan shall be as provided in subdivision (4) of this subsection and the penalty for violating a stop-work order shall be as provided in subdivision (5) of this subsection.  No penalty shall be assessed until the person alleged to be in violation has been notified of the violation.  Each day of a continuing violation shall constitute a separate violation.
(2)	The Secretary, for violations under the Commission's jurisdiction, or the governing body of any local government having jurisdiction, shall determine the amount of the civil penalty to be assessed under this subsection and shall make written demand for payment upon the person responsible for the violation, and shall set forth in detail the violation for which the penalty has been invoked.  If payment is not received or equitable settlement reached within 30 days after demand for payment is made, the Secretary shall refer the matter to the Attorney General for the institution of a civil action in the name of the State in the superior court of the county in which the violation is alleged to have occurred to recover the amount of the penalty.  Local governments shall refer such matters to their respective attorneys for the institution of a civil action in the name of the local government in the appropriate division of the General Court of Justice of the county in which the violation is alleged to have occurred for recovery of the penalty.  Any sums recovered shall be used to carry out the purposes and requirements of this Article.
(3)	In determining the amount of the penalty, the Secretary shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount of money the violator saved by his noncompliance, whether the violation was committed willfully, and the prior record of the violator in complying or failing to comply with this Article.
(4)	Any person who fails to submit an erosion control plan for approval by the Commission pursuant to G.S. 113A-54(d)(4) or by a local government pursuant to G.S. 113A-61 shall be subject to a single, noncontinuing civil penalty of not more than one thousand dollars ($1,000).  Any penalty which is recovered pursuant to this subdivision shall be deposited in the General Fund.  Any person who is subject to a civil penalty under this subdivision may be subject to additional civil penalties for violation of any other provision of this Article or any ordinance, rule, or order adopted or issued pursuant to this Article by the Commission or a local government.
(5)	Any person who violates a stop-work order issued pursuant to G.S. 113A-65.1 shall be subject to a civil penalty of not more than five thousand dollars ($5,000).  No penalty shall be assessed until the person alleged to be in violation has been notified of the violation.  Each day of a continuing violation shall be a separate violation."
Sec. 3.  This act becomes effective 1 October 1991.
In the General Assembly read three times and ratified this the 26th day of June, 1991.

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James C. Gardner
President of the Senate

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Daniel Blue, Jr.
Speaker of the House of Representatives