42-268. Penalties

  1. Civil Penalties

    1. Civil Penalty for a Violation. Any Person who violates any of the provisions of this subpart, or rule or order adopted or issued pursuant to this subpart, 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 Henderson County Soil Erosion and Sedimentation Control Administrator may assess per violation is 5,000 dollars. 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 subsection 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 subsection for all violations associated with the land-disturbing activity for which the erosion and sedimentation control plan is required is twenty-five thousand dollars ($25,000).]

    2. Damage or Destruction of a silt fence occurring during land-disturbance activities or construction on a development project shall not be assessed a civil penalty provided that the silt fence is repaired or replaced within the compliance period/deadline noted in the inspection report or notice of violation.  This will ensure violators have an opportunity to correct these violations.  G.S. §113A-61.1(d) does not apply to off-site sediment that occurs due to the silt fence not being in place, but merely damage to the silt fence itself.
    3. Civil Penalty Assessment Factors. The Henderson County Soil Erosion and Sedimentation Control Administrator shall determine the amount of the civil penalty based upon the following factors:
      1. the degree and extent of harm caused by the violation,
      2. the cost of rectifying the damage,
      3. the amount of money the violator saved by noncompliance,
      4. whether the violation was committed willfully, and
      5. the prior record of the violator in complying or failing to comply with this subpart. 
      • Notice of Civil Penalty Assessment. The Henderson County Soil Erosion and Sedimentation Control Administrator shall provide notice of the civil penalty amount and 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 Henderson County Soil Erosion and Sedimentation Control Administrator shall direct the violator to either pay the assessment, contest the assessment, within 30 days by filing a petition for hearing with the Henderson County Zoning Board of Adjustment, or file a request with the Henderson County Board of Commissioners 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 Chapter 150B of the North Carolina General Statutes and a stipulation of the facts on which the assessment was based.    
    4. Final Decision. The final decision on contested assessments shall be made by the Henderson County Zoning Board of Adjustment within 45 days of receipt of the assessment.
    5. Appeal of Final Decision. Appeal from the final decision of the Henderson County Board of Adjustment shall be to the Superior Court of the county, where the violation occurred. Such appeals must be made within 30 days of the final decision of the Henderson County Zoning Board of Adjustment.
    6. Remission of Civil Penalties.   A request for remission of a civil penalty imposed under G.S. 113A-64 may be filed with the Henderson County Board of Commissioners 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 Chapter 150B of the General Statutes 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:   
      1. Whether one of more of the civil penalty assessment factors in G.S. 113A-64(a)(3) were wrongly applied to the detriment of the petitioner.
      2. Whether the petitioner promptly abated continuing environmental damage resulting from the violation.
      3. Whether the violation wa inadvertent or a result of an accident.
      4. Whether the petitioner had been assessed civil penalties for any previous violations.
      5. Whether payment of the civil penalty will prevent payment for necessary remedial actions or would otherwise create a significant financial hardship.
      6. The assessed property tax valuation fo the petitioners' property upon which the violation occurred, excluding the value of any structures located on the property.
    7. Collection. If payment is not received within 30 days after it is due, Henderson 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 the violator’s residence or where the violator’s principal place of business is located. Such civil actions must be filed within three (3) 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.
    8. Credit of Civil Penalties. Civil penalties collected pursuant to this subpart shall be credited to the Civil Penalty and Forfeiture Fund. Penalties collected by Henderson 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 North Carolina Office of State Budget and Management on an annual basis, based upon the computation of actual collection costs by Henderson County for the prior fiscal year. 
    • [In any event, the cost percentage shall not exceed twenty percent (20%) of penalties collected.]

B.  Criminal Penalties. Any Person who knowingly or willfully violates any provision of this subpart, or rule or order adopted or issued by the Commission or 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 Erosion and Sedimentation Control Plan, shall be guilty of a Class 2 misdemeanor which may included a fine not to exceed 5,000 dollars as provided in NCGS §113A-64.