(A) Civil penalties.
(1) Civil penalty for a violation. Any person who violates any of the provisions of this chapter, or any rule or order adopted or issued pursuant to this chapter, or who initiates or continues a land-disturbing activity for which a 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 amount that the county may assess per violation is $5,000. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation. When the person has not been assessed any civil penalty under this division for any previous violation, and that person abated continuing environmental damage resulting from the violation within 180 days from the date of the notice of violation, the maximum cumulative total civil penalty assessed under this division for all violations associated with the land-disturbing activity for which the erosion and sedimentation control plan is required is $25,000.
(2) Repeat violations. Repeat violators may be charged by a multiple of the base penalty determined herein. The penalty for a repeat violator may be doubled for each previous time that the repeat violator has been notified of a violation of this chapter, or any other soil erosion and sedimentation control ordinance within the state, within two years prior to the current violation. However, in no case may the penalty exceed the maximum allowed by this chapter.
(3) Civil penalty assessment factors. The County Soil and Water Department shall determine the amount of the civil penalty based upon the following factors:
(a) The degree and extent of harm caused by the violation;
(b) The cost of rectifying the damage;
(c) The amount of money the violator saved by noncompliance;
(d) Whether the violation was committed willfully; and
(e) The prior record of the violator in complying of failing to comply with this chapter.
(4) Notice of civil penalty assessment. The County Soil and Water Department shall provide notice of the civil penalty amount and the basis for assessment to the person assessed. The notice of assessment shall be served by any means authorized under G.S. § 1A-1, Rule 4. A notice of assessment by the county shall direct the violator to either pay the assessment, contest the assessment within 30 days by filing a petition for a hearing with the county (based upon the procedures herein), or file a request with the County Soil and Water Department for remission of the assessment within 30 days of receipt of the notice of assessment. A remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to G.S. Chapter 150B, and a stipulation of the facts on which the assessment was based.
(5) Final decision. The final decision on contested assessments shall be made by the County Environmental Review Board in accordance with this chapter.
(6) Appeal of final decision. Appeal of the final decision of the County Environmental Review Board shall be to the County Superior Court. Such appeals must be made within 30 days of the final decision of the County Environmental Review Board.
(7) Remission of civil penalties. A request for remission of a civil penalty imposed under G.S. § 113A-64 may be filed with the county Environmental Review Board within 30 days of receipt of the notice of assessment. A remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to G.S. Chapter 150B, and a stipulation of the facts on which the assessment was based. The following factors shall be considered in determining whether a civil penalty remission request will be approved:
(a) Whether one or more of the civil penalty assessment factors in G.S. § 113A-64(a)(3) were wrongly applied to the detriment of the petitioner;
(b) Whether the petitioner promptly abated continuing environmental damage resulting from the violation;
(c) Whether the violation was inadvertent or a result of an accident;
(d) Whether the petitioner had been assessed civil penalties for any previous violations;
(e) Whether payment of the civil penalty will prevent payment for necessary remedial actions or would otherwise create a significant financial hardship;
(f) The assessed property tax valuation of the petitioner’s property upon which the violation occurred, excluding the value of any structures located on the property.
(8) Collection. If payment is not received within 30 days after it is due, the county may institute a civil action to recover the amount of the assessment. The civil action may be brought in the superior court of the county where the violation occurred, or where the violator’s residence or principal place of business is located. Such civil actions must be filed within three years of the date the assessment was due. An assessment that is not contested and a remission that is not requested is due when the violator is served with a notice of assessment. An assessment that is contested or a remission that is requested is due at the conclusion of the administrative and judicial review of the assessment.
(9) Credit of civil penalties. The clear proceeds of civil penalties collected by the county under this division shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. § 115C-457.2. Penalties collected by the county may be diminished only by the actual costs of collection. The collection cost percentage to be used shall be established and approved by the State Office of State Budget and Management on an annual basis, based upon the computation of actual collection costs by the county for the prior fiscal year.
(B) Criminal penalties. Any person who knowingly or willfully violates any provision of this chapter, or any rule or order adopted or issued by the Commission or a local government, or who knowingly or willfully initiates or continues a land-disturbing activity for which a plan is required except in accordance with the terms, conditions, and provisions of an approved plan, shall be guilty of a Class 2 misdemeanor, which may include a fine not to exceed $5,000 as provided in G.S. § 113A-64.
(Ord. passed 1-22-2007; Ord. passed 12-18-2023)