§ 113A-126. Injunctive relief and penalties.
§ 113A‑126. Injunctiverelief and penalties.
(a) Upon violation ofany of the provisions of this Article or of any rule or order adopted under theauthority of this Article the Secretary may, either before or after theinstitution of proceedings for the collection of any penalty imposed by thisArticle for such violation, institute a civil action in the General Court ofJustice in the name of the State upon the relation of the Secretary forinjunctive relief to restrain the violation and for a preliminary and permanentmandatory injunction to restore the resources consistent with this Article andrules of the Commission. If the court finds that a violation is threatened orhas occurred, the court shall, at a minimum, order the relief necessary toprevent the threatened violation or to abate the violation consistent with thisArticle and rules of the Commission. Neither the institution of the action norany of the proceedings thereon shall relieve any party to such proceedings fromany penalty prescribed by this Article for any violation of same.
(b) Upon violation ofany of the provisions of this Article relating to permits for minordevelopments issued by a local government, or of any rule or order adoptedunder the authority of this Article relating to such permits, the designatedlocal official may, either before or after the institution of proceedings forthe collection of any penalty imposed by this Article for such violation,institute a civil action in the General Court of Justice in the name of the affectedlocal government upon the relation of the designated local official forinjunctive relief to restrain the violation and for a preliminary and permanentmandatory injunction to restore the resources consistent with this Article andrules of the Commission. If the court finds that a violation is threatened orhas occurred, the court shall, at a minimum, order the relief necessary toprevent the threatened violation or to abate the violation consistent with thisArticle and rules of the Commission. Neither the institution of the action norany of the proceedings thereon shall relieve any party to such proceedings fromany penalty prescribed by this Article for any violation of same.
(c) Any person whoshall be adjudged to have knowingly or willfully violated any provision of thisArticle, or any rule or order adopted pursuant to this Article, shall be guiltyof a Class 2 misdemeanor. In addition, if any person continues to violate orfurther violates, any such provision, rule or order after written notice fromthe Secretary or (in the case of a permit for a minor development issued by alocal government) written notice from the designated local official, the courtmay determine that each day during which the violation continues or is repeatedconstitutes a separate violation subject to the foregoing penalties.
(d) (1) Acivil penalty of not more than one thousand dollars ($1,000) for a minordevelopment violation and ten thousand dollars ($10,000) for a majordevelopment violation may be assessed by the Commission against any person who:
a. Is required butfails to apply for or to secure a permit required by G.S. 113A‑118, orwho violates or fails to act in accordance with the terms, conditions, orrequirements of such permit.
b. Fails to file,submit, or make available, as the case may be, any documents, data or reportsrequired by the Commission pursuant to this Article.
c. Refuses access tothe Commission or its duly designated representative, who has sufficientlyidentified himself by displaying official credentials, to any premises, notincluding any occupied dwelling house or curtilage, for the purpose ofconducting any investigations provided for in this Article.
d. Violates a rule ofthe Commission implementing this Article.
(2) For each willfulaction or failure to act for which a penalty may be assessed under thissubsection, the Commission may consider each day the action or inactioncontinues after notice is given of the violation as a separate violation; aseparate penalty may be assessed for each such separate violation.
(3) The Commission shallnotify a person who is assessed a penalty or investigative costs by registeredor certified mail. The notice shall state the reasons for the penalty. A personmay contest the assessment of a penalty or investigative costs by filing apetition for a contested case under G.S. 150B‑23 within 20 days afterreceiving the notice of assessment. If a person fails to pay any civil penaltyor investigative cost assessed under this subsection, the Commission shallrefer the matter to the Attorney General for collection. An action to collect apenalty must be filed within three years after the date the final agencydecision was served on the violator.
(4) In determining theamount of the civil penalty, the Commission shall consider the followingfactors:
a. The degree andextent of harm, including, but not limited to, harm to the natural resources ofthe State, to the public health, or to private property resulting from theviolation;
b. The duration andgravity of the violation;
c. The effect on waterquality, coastal resources, or public trust uses;
d. The cost ofrectifying the damage;
e. The amount of moneysaved by noncompliance;
f. Whether theviolation was committed willfully or intentionally;
g. The prior record of theviolator in complying or failing to comply with programs over which theCommission has regulatory authority; and
h. The cost to theState of the enforcement procedures.
(4a) The Commission mayalso assess a person who is assessed a civil penalty under this subsection thereasonable costs of any investigation, inspection, or monitoring that resultsin the assessment of the civil penalty. For a minor development violation, theamount of an assessment of investigative costs shall not exceed one‑halfof the amount of the civil penalty assessed or one thousand dollars ($1,000),whichever is less. For a major development violation, the amount of anassessment of investigative costs shall not exceed one‑half of the amountof the civil penalty assessed or two thousand five hundred dollars ($2,500),whichever is less.
(5) The clear proceedsof penalties assessed pursuant to this subsection shall be remitted to theCivil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2. (1973, c. 1284, s. 1; 1975,c. 452, s. 5; 1977, c. 771, s. 4; 1981, c. 932, s. 2.1; 1983, c. 485, ss. 1‑3;c. 518, s. 6; 1987, c. 827, ss. 11, 143; 1991, c. 725, s. 6; 1991 (Reg. Sess.,1992), c. 839, s. 3; c. 890, s. 8; 1993, c. 539, s. 874; 1994, Ex. Sess., c.24, s. 14(c); 1998‑215, s. 53(a); 2006‑229, s. 1.)