GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 921

Short Title:  Repeal Watershed Protection Act.	(Public)

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Sponsors: Representatives Cansler, Sherrill, Linney; Baker, Brawley, J. Brown, Buchanan, Hayes, Kiser, Rayfield, and Thompson.

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Referred to:  Health & Environment.

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April 12, 1995

A BILL TO BE ENTITLED
AN ACT TO REPEAL THE WATERSHED PROTECTION ACT AND TO MAKE CONFORMING STATUTORY CHANGES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 143-214.5 and G.S. 143-214.6 are repealed.
Sec. 2.  G.S. 143-215.2(a) reads as rewritten:
"(a)	Issuance. – The Commission is hereby empowered, after the effective date of classifications, standards and limitations adopted pursuant to G.S. 143-214.1 or G.S. 143-215 to issue (and from time to time to modify or revoke) a special order, or other appropriate instrument, to any person whom it finds responsible for causing or contributing to any pollution of the waters of the State within the area for which standards have been established.  Such an order or instrument may direct such person to take, or refrain from taking such action, or to achieve such results, within a period of time specified by such special order, as the Commission deems necessary and feasible in order to alleviate or eliminate such pollution.  The Commission is authorized to enter into consent special orders, assurances of voluntary compliance or other similar documents by agreement with the person responsible for pollution of the water, subject to the provisions of subsection (a1) of this section regarding proposed orders, and such consent order, when entered into by the Commission after public review, shall have the same force and effect as a special order of the Commission issued pursuant to hearing.  Provided, however, that the provisions of this section shall not apply to any agricultural operation, such as the use or preparation of any land for the purposes of planting, growing, or harvesting plants, crops, trees or other agricultural products, or raising livestock or poultry."
Sec. 3.  G.S. 143-215.6A reads as rewritten:
"§ 143-215.6A.  Enforcement procedures: civil penalties.
(a)	A civil penalty of not more than ten thousand dollars ($10,000) may be assessed by the Secretary against any person who:
(1)	Violates any classification, standard, limitation, or management practice established pursuant to G.S. 143-214.1, 143-214.2, or 143-215.
(2)	Is required but fails to apply for or to secure a permit required by G.S. 143-215.1, or who violates or fails to act in accordance with the terms, conditions, or requirements of such permit or any other permit or certification issued pursuant to authority conferred by this Part, including pretreatment permits issued by local governments and laboratory certifications.
(3)	Violates or fails to act in accordance with the terms, conditions, or requirements of any special order or other appropriate document issued pursuant to G.S. 143-215.2.
(4)	Fails to file, submit, or make available, as the case may be, any documents, data, or reports required by this Article or G.S. 143-355(k) relating to water use information.
(5)	Refuses access to the Commission or its duly designated representative to any premises for the purpose of conducting a lawful inspection provided for in this Article.
(6)	Violates a rule of the Commission implementing this Part, Part 2A of this Article, or G.S. 143-355(k).
	(8)	Violates the offenses set out in G.S. 143-215.6B.
(9)	Is required, but fails, to apply for or to secure a certificate required by G.S. 143-215.22I, or who violates or fails to act in accordance with the terms, conditions, or requirements of the certificate.
(b)	If any action or failure to act for which a penalty may be assessed under this section is continuous, the Secretary may assess a penalty not to exceed ten thousand dollars ($10,000) per day for so long as the violation continues, unless otherwise stipulated.
(c)	In determining the amount of the penalty the Secretary shall consider the factors set out in G.S. 143B-282.1(b).  The procedures set out in G.S. 143B-282.1 shall apply to civil penalty assessments that are presented to the Commission for final agency decision.
(d)	The Secretary shall notify any person assessed a civil penalty of the assessment and the specific reasons therefor by registered or certified mail, or by any means authorized by G.S. 1A-1, Rule 4.  Contested case petitions shall be filed within 30 days of receipt of the notice of assessment.
	(f)	Requests for remission of civil penalties shall be filed with the Secretary.  Remission requests shall not be considered unless made within 30 days of receipt of the notice of assessment.  Remission requests must be accompanied by a waiver of the right to a contested case hearing pursuant to Chapter 150B and a stipulation of the facts on which the assessment was based.  Consistent with the limitations in G.S. 143B-282.1(c) and (d), remission requests may be resolved by the Secretary and the violator.  If the Secretary and the violator are unable to resolve the request, the Secretary shall deliver remission requests and his recommended action to the Committee on Civil Penalty Remissions of the Environmental Management Commission appointed pursuant to G.S. 143B-282.1(c).
(g)	If any civil penalty has not been paid within 30 days after notice of assessment 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, unless the violator contests the assessment as provided in subsection (d) of this section, or requests remission of the assessment in whole or in part as provided in subsection (f) of this section.  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.  Such civil actions must be filed within three years of the date the final agency decision or court order was served on the violator.
(h)	The Secretary may delegate his powers and duties under this section to the Director of the Division of Environmental Management of the Department.
(i)	As used in this subsection, 'municipality' refers to any unit of local government which operates a wastewater treatment plant.  As used in this subsection, 'unit of local government' has the same meaning as in G.S. 130A-290.  The provisions of this subsection shall apply whenever a municipality that operates a wastewater treatment plant with an influent bypass diversion structure and with a permitted discharge of 10 million gallons per day or more into any of the surface waters of the State that have been classified as nutrient sensitive waters (NSW) under rules adopted by the Commission is subject to a court order which specifies (i) a schedule of activities with respect to the treatment of wastewater by the municipality; (ii) deadlines for the completion of scheduled activities; and (iii) stipulated penalties for failure to meet such deadlines.  A municipality as specified herein that violates any provision of such order for which a penalty is stipulated shall pay the full amount of such penalty as provided in the order unless such penalty is modified, remitted, or reduced by the court.
(j)	Local governments certified and approved to administer and enforce pretreatment programs by the Commission pursuant to G.S. 143-215.3(a)(14) may assess civil penalties for violations of their respective programs in accordance with the powers conferred upon the Commission and the Secretary in this section, except that actions for collection of unpaid civil penalties shall be referred to the attorney representing the assessing local government.  The total of the civil penalty assessed by a local government and the civil penalty assessed by the Secretary for any violation may not exceed the maximum civil penalty for such violation under this section.
(k)	A person who has been assessed a civil penalty by a local government as provided by subsection (j) of this section may request a review of the assessment by filing a request for review with the local government within 30 days of the date the notice of assessment is received.  If a local ordinance provides for a local administrative hearing, the hearing shall afford minimum due process including an unbiased hearing official.  The local government shall make a final decision on the request for review within 90 days of the date the request for review is filed.  The final decision on a request for review shall be subject to review by the superior court pursuant to Article 27 of Chapter 1 of the General Statutes.  If the local ordinance does not provide for a local administrative hearing, a person who has been assessed a civil penalty by a local government as provided by subsection (j) of this section may contest the assessment by filing a civil action in superior court within 60 days of the date the notice of assessment is received."
Sec. 4.  G.S. 153A-343(b) reads as rewritten:
"(b)	The first class mail notice required under subsection (a) of this section shall not be required in the following situations:
(1)	The total rezoning of all property within the boundaries of a county or a zoning area as defined in G.S. 153A-342 unless rezoning involves zoning of parcels of land to less intense or more restrictive uses.  If rezoning involves zoning of parcels of land to less intense or more restrictive uses, notification to owners of these parcels shall be made by mail in accordance with subsection (a) of this section;
(2)	The zoning is an initial zoning of the entire zoning jurisdiction area;
(3)	The zoning reclassification action directly affects more than 50 properties, owned by a total of at least 50 different property owners; or
(4)	The reclassification is an amendment to the zoning text.
	In any case where this subsection eliminates the notice required by subsection (a) of this section, a county shall publish once a week for four successive calendar weeks in a newspaper having general circulation in the area maps showing the boundaries of the area affected by the proposed ordinance or amendment.  The map shall not be less than one-half of a newspaper page in size.  The notice shall only be effective for property owners who reside in the area of general circulation of the newspaper which publishes the notice.  Property owners who reside outside of the county's jurisdiction or outside of the newspaper circulation area, according to the address listed on the most recent property tax listing for the affected property, shall be notified by mail pursuant to this section.  The person or persons mailing the notices shall certify to the board of commissioners that fact, and the certificates shall be deemed conclusive in the absence of fraud.  In addition to the published notice, a county shall post one or more prominent signs immediately adjacent to the subject area reasonably calculated to give public notice of the proposed rezoning."
Sec. 5.  G.S. 160A-384(b) reads as rewritten:
"(b)	The first class mail notice required under subsection (a) of this section shall not be required in the following situations:
(1)	The total rezoning of all property within the corporate boundaries of a municipality unless rezoning involves zoning of parcels of land to less intense or more restrictive uses.  If rezoning involves zoning of parcels of land to less intense or more restrictive uses, notification to owners of these parcels shall be made by mail in accordance with subsection (a) of this section;
(2)	The zoning is an initial zoning of the entire zoning jurisdiction area;
(3)	The zoning reclassification action directly affects more than 50 properties, owned by a total of at least 50 different property owners; or
(4)	The reclassification is an amendment to the zoning text.
	In any case where this subsection eliminates the notice required by subsection (a) of this section, a city shall publish once a week for four successive calendar weeks in a newspaper having general circulation in the area maps showing the boundaries of the area affected by the proposed ordinance or amendment.  The map shall not be less than one-half of a newspaper page in size.  The notice shall only be effective for property owners who reside in the area of general circulation of the newspaper which publishes the notice.  Property owners who reside outside of the city's jurisdiction or outside of the newspaper circulation area, according to the address listed on the most recent property tax listing for the affected property, shall be notified by mail pursuant to this section.  The person or persons mailing the notices shall certify to the city council that fact, and the certificates shall be deemed conclusive in the absence of fraud.  In addition to the published notice, a city shall post one or more prominent signs immediately adjacent to the subject area reasonably calculated to give public notice of the proposed rezoning."
Sec. 6.  All rules adopted pursuant to G.S. 143-214.5 and G.S. 143-214.6 are repealed.
Sec. 7.  This act is effective upon ratification.