GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

H	1 

HOUSE BILL 1098

Short Title:  Amend Sedimentation Act.	(Public)

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Sponsors: Representative Hackney.

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Referred to:  Environment and Natural Resources.

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April 15, 1999

A BILL TO BE ENTITLED
AN ACT TO AMEND THE SEDIMENTATION POLLUTION CONTROL ACT OF 1973. 
The General Assembly of North Carolina enacts:
Section 1.  G.S. 113A-54.1 reads as rewritten:
"§ 113A-54.1.  Approval of erosion control plans.
(a)	A draft erosion control plan must contain the applicant's address and, if the applicant is not a resident of North Carolina, designate a North Carolina agent for the purpose of receiving notice from the Commission or the Secretary of compliance or noncompliance with the plan, this Article, or any rules adopted pursuant to this Article.  The Commission shall approve, approve with modifications, or disapprove a draft erosion control plan for those land-disturbing activities for which prior plan approval is required within 30 days of receipt.  The Commission shall condition approval of a draft erosion control plan upon the plan's complying with State and federal water quality laws, rules, and regulations.  The Commission shall disapprove an erosion control plan if the plan, when implemented, would result in a violation of State or federal water quality laws, rules, or regulations.  The Commission shall disapprove an erosion control plan if the plan, when implemented, would result in a violation of rules adopted by the Environmental Management Commission to protect riparian buffers along surface waters.  Failure to approve, approve with modifications, or disapprove a completed draft erosion control plan within 30 days of receipt shall be deemed approval of the plan.  If the Commission disapproves a draft erosion control plan or a revised erosion control plan, it must state in writing the specific reasons that the plan was disapproved.  Failure to approve, approve with modifications or conditions, or disapprove a revised erosion control plan within 15 days of receipt shall be deemed approval of the plan.  The Commission may establish an expiration date for erosion control plans approved under this Article.
(b)	If, following commencement of a land-disturbing activity pursuant to an approved erosion control plan, the Commission determines that the plan is inadequate to meet the requirements of this Article, the Commission may require any revision of the plan that is necessary to comply with this Article.  Failure to approve, approve with modifications or conditions, or disapprove a revised erosion control plan within 15 days of receipt shall be deemed approval of the plan.
(c)	The Director of the Division of Land Resources may disapprove an erosion control plan upon finding that an applicant or a parent, subsidiary, or other affiliate of the applicant:
(1)	Is conducting or has conducted land-disturbing activity without an approved plan, or has received notice of violation of a plan previously approved by the Commission or a local government pursuant to this Article and has not complied with the notice within the time specified in the notice;
(2)	Has failed to pay a civil penalty assessed pursuant to this Article or a local ordinance adopted pursuant to this Article by the time the payment is due;
(3)	Has been convicted of a misdemeanor pursuant to G.S. 113A-64(b) or any criminal provision of a local ordinance adopted pursuant to this Article; or
(4)	Has failed to substantially comply with State rules or local ordinances and regulations adopted pursuant to this Article.
(d)	In the event that an erosion control plan is disapproved by the Director pursuant to subsection (c) of this section, the Director shall state in writing the specific reasons that the plan was disapproved.  The applicant may appeal the Director's disapproval of the plan to the Commission.  For purposes of this subsection and subsection (c) of this section, an applicant's record may be considered for only the two years prior to the application date."
Section 2.  G.S. 113A-57 is amended by adding two new subdivisions to read:
"(5)	No person shall initiate any land-disturbing activity on a tract comprised of more than one acre if the land-disturbing activity includes ditching or channelization that may increase the transport of sediment from the tract, unless, 30 or more days prior to initiating the activity, an erosion control plan for the activity is filed with the agency having jurisdiction.
(6)	No person shall initiate any land-disturbing activity on a tract if more than one-half acre and no more than one acre is to be uncovered unless, prior to obtaining a building permit and 30 or more days prior to initiating the activity, that person files an erosion control plan with the local government agency that issues building permits.  A building permit shall not be issued if an erosion control plan is not filed as required by this subdivision.  A building permit is not valid if the erosion control plan, when implemented, fails to comply with this Article.”
Section 3.  G.S. 113A-61(b1) reads as rewritten:
"(b1)	A local government shall disapprove an erosion control plan if the plan, when implemented, would result in a violation of State or federal water quality laws, rules, or regulations.  A local government shall disapprove an erosion control plan if the plan, when implemented, would result in a violation of rules adopted by the Environmental Management Commission to protect riparian buffers along surface waters.  A local government may disapprove an erosion control plan upon finding that an applicant or a parent, subsidiary, or other affiliate of the applicant:
(1)	Is conducting or has conducted land-disturbing activity without an approved plan, or has received notice of violation of a plan previously approved by the Commission or a local government pursuant to this Article and has not complied with the notice within the time specified in the notice;
(2)	Has failed to pay a civil penalty assessed pursuant to this Article or a local ordinance adopted pursuant to this Article by the time the payment is due;
(3)	Has been convicted of a misdemeanor pursuant to G.S. 113A-64(b) or any criminal provision of a local ordinance adopted pursuant to this Article; or
(4)	Has failed to substantially comply with State rules or local ordinances and regulations adopted pursuant to this Article."
Section 4.  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, is subject to a civil penalty. The maximum civil penalty for a violation is five thousand dollars ($5,000). A civil penalty may be assessed from the date the violation is documented.  Each day of a continuing violation shall constitute a separate violation.
(2)	The Secretary or a local government that administers an erosion and sediment control program approved under G.S. 113A-60 shall determine the amount of the civil penalty and shall notify the person who is assessed the civil penalty of the amount of the penalty and the reason for assessing the penalty. The notice of assessment shall be served by any means authorized under G.S. 1A-1, Rule 4, and shall direct the violator to either pay the assessment or contest the assessment within 30 days by filing a petition for a contested case under Article 3 of Chapter 150B of the General Statutes. If a violator does not pay a civil penalty assessed by the Secretary within 30 days after it is due, the Department shall request the Attorney General to institute a civil action to recover the amount of the assessment. If a violator does not pay a civil penalty assessed by a local government within 30 days after it is due, the local government may institute a civil action to recover the amount of the assessment. The civil action may be brought in the superior court of any county where the violation occurred or the violator's residence or principal place of business is located. A civil action must be filed within three years of the date the assessment was due. An assessment that is not contested is due when the violator is served with a notice of assessment. An assessment that is contested is due at the conclusion of the administrative and judicial review of the assessment.
(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 noncompliance, whether the violation was committed willfully and the prior record of the violator in complying or failing to comply with this Article.
(4)	Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 776, s. 11.
(5)	The clear proceeds of civil penalties collected by the Department or other State agency under this subsection shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.  Civil penalties collected by a local government under this subsection shall be credited to the general fund of the local government as nontax revenue."
Section 5.  G.S. 113A-61.1(c) reads as rewritten:
"(c)	If the Secretary, a local government that administers an erosion and sediment control program approved under G.S. 113A-60, or other approving authority determines that the person engaged in the land-disturbing activity has failed to comply with this Article, the Secretary, local government, or other approving authority shall immediately serve a notice of violation upon that person. The notice may be served by any means authorized under G.S. 1A-1, Rule 4. A notice of violation shall specify a date by which the person must comply with this Article and inform the person of the actions that need to be taken to comply with this Article. Any person who fails to comply within the time specified is subject to the additional civil and criminal penalties for continuing violations provided in G.S. 113A-64."
Section 6.  G.S. 113A-54.2(a) reads as rewritten:
"(a)	The Commission may establish a fee schedule for the review and approval of erosion control plans under this Article.  In establishing the fee schedule, the Commission shall consider the administrative and personnel costs incurred by the Department for reviewing the plans and for related compliance activities.  An application fee may not exceed fifty dollars ($50.00) per acre of disturbed land shown on an erosion control plan or of land actually disturbed during the life of the project."
Section 7.  This act becomes effective October 1, 1999, and applies to land-disturbing activity that occurs on or after that date.