§ 143-214.2A. Prohibited disposal of medical waste.
§ 143‑214.2A. Prohibited disposal of medical waste.
(a) Violation. It is unlawful for any person to engage inconduct which causes or results in the dumping, discharging, or disposaldirectly or indirectly, of any medical waste as defined in G.S. 130A‑290to the open waters of the Atlantic Ocean over which the State has jurisdictionor to any waters of the State.
(b) Civil Penalty.
(1) A civil penalty of not more than twenty‑five thousanddollars ($25,000) may be assessed by the Secretary against any person for afirst violation of this section and an additional penalty of twenty‑fivethousand dollars ($25,000) may be assessed for each day during which theviolation continues. A civil penalty of not more than fifty thousand dollars($50,000) may be assessed by the Secretary for a second or further violationand an additional penalty of fifty thousand dollars ($50,000) may be assessedfor each day during which the violation continues.
(2) In determining the amount of the penalty the Secretary shallconsider the factors set out in G.S. 143B‑282.1(b). The procedures setout in G.S. 143B‑282.1 shall apply to civil penalty assessments that arepresented to the Commission for final agency decision.
(3) The Secretary shall notify any person assessed a civil penaltyof the assessment and the specific reasons therefor by registered or certifiedmail, or by any means authorized by G.S. 1A‑1, Rule 4. Contested casepetitions shall be filed within 30 days of receipt of the notice of assessment.
(4) Requests for remission of civil penalties shall be filedwith the Secretary. Remission requests shall not be considered unless madewithin 30 days of receipt of the notice of assessment. Remission requests mustbe accompanied by a waiver of the right to a contested case hearing pursuant toChapter 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), remissionrequests may be resolved by the Secretary and the violator. If the Secretaryand the violator are unable to resolve the request, the Secretary shall deliverremission requests and his recommended action to the Committee on Civil PenaltyRemissions of the Environmental Management Commission appointed pursuant toG.S. 143B‑282.1(c).
(5) If any civil penalty has not been paid within 30 days afternotice of assessment has been served on the violator, the Secretary shallrequest the Attorney General to institute a civil action in the Superior Courtof any county in which the violator resides or has his or its principal placeof business to recover the amount of the assessment, unless the violatorcontests the assessment as provided in subdivision (3) of this subsection, orrequests remission of the assessment in whole or in part as provided in subdivision(4) of this subsection. If any civil penalty has not been paid within 30 daysafter 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 inthe Superior Court of any county in which the violator resides or has his orits principal place of business to recover the amount of the assessment.
(6) Repealed by Session Laws 1995 (Regular Session, 1996).
(7) The clear proceeds of civil penalties assessed pursuant tothis subsection shall be remitted to the Civil Penalty and Forfeiture Fund inaccordance with G.S. 115C‑457.2.
(c) Criminal Penalties.
(1) A person who willfully violates this section is guilty of aClass 1 misdemeanor.
(2) A person who willfully violates this section and in so doingreleases medical waste that creates a substantial risk of physical injury toany person who is not a participant in the offense is guilty of a Class Ffelony which may include a fine not to exceed fifty thousand dollars ($50,000)per day of violation.
(d) Restoration.
(1) Any person having control over medical waste discharged inviolation of this section shall immediately undertake to collect, remove, anddispose of the medical waste discharged and to restore the area affected by thedischarge as nearly as may be to the condition existing prior to the discharge.If it is not feasible to collect and remove the medical waste, the personresponsible shall take all practicable actions and measures to otherwisecontain, treat, and disperse the medical waste; but no chemical or otherdispersants or treatment materials shall be used for such purposes unless theyshall have been previously approved by the Department.
(2) Notwithstanding the requirements of subdivision (1), theDepartment is authorized and empowered to utilize any staff, equipment andmaterials under its control or supplied by other cooperating State or localagencies, and to contract with any agent or contractor that it deemsappropriate to take such actions as are necessary, to collect, investigate,perform surveillance over, remove, contain, treat or disperse or dispose ofmedical waste discharged into the waters of the State in violation of thissection, and to perform any necessary restoration. The Secretary shall keep arecord of all expenses incurred in carrying out any project or activityauthorized under this section, including actual expenses incurred for servicesperformed by the State's personnel and for use of the State's equipment andmaterial.
(3) Every person owning or having control over medical wastedischarged in violation of, or in circumstances likely to constitute aviolation of this section, upon discovery that the discharge of medical wastehas occurred, shall immediately notify the Department, or any of its agents oremployees, of the nature, location and time of the discharge and of themeasures which are being taken or are proposed to be taken to contain, remove,treat and dispose of the medical waste. The agent or employee of the departmentreceiving the notification shall immediately notify the Secretary or suchmember of the permanent staff of the Department as the Secretary may designate.
(4) Any person who discharges medical waste in violation of thissection or violates any order or rule of the Commission regarding theprohibitions concerning medical waste, or fails to perform any duty imposedregarding medical waste, and in the course thereof causes the death of, orinjury to fish, animals, vegetation or other resources of the State, orotherwise causes a reduction in the quality of the waters of the State belowthe standards set by the Commission, or causes the incurring of costs by theState for the containment, removal, treatment, or dispersal, or disposal ofsuch medical waste, shall be liable to pay the State damages. Such damagesshall be an amount equal to the cost of all reasonable and necessaryinvestigations made or caused to be made by the State in connection with suchviolation and the sum of money necessary to restock such waters, replenish suchresources, contain, remove, treat, or disperse, or dispose of such medicalwaste, or otherwise restore such waters and adjacent lands prior to the injuryas such condition is determined by the Commission in conference with the WildlifeResources Commission, the Marine Fisheries Commission, and any other Stateagencies having an interest affected by such violation (or by the designees ofany such boards, commissions, and agencies).
(5) Upon receipt of the estimate of damages caused, theDepartment shall give written notice by registered or certified mail to theperson responsible for the death, killing, or injury to fish, animals,vegetation, or other resources of the State, or any reduction in quality of thewaters of the State, or the costs of the removal, treatment or disposal of suchdischarge, describing the damages and their causes with reasonable specificity,and shall request payment from such person. Damages shall become due andpayable upon receipt of such notice. The Environmental Management Commission,if collection or other settlement of the damages is not obtained within areasonable time, shall bring a civil action to recover such damages in thesuperior court in the county in which the discharge of waste or the damages toresources occurred, or in Wake County if the discharge or resource damageoccurs in the open waters of the Atlantic Ocean. The assessment of damages isnot a contested case under G.S. 150B‑23.
(6) "Person having control over medical waste" shallmean, but shall not be limited to, any person using, storing, or transportingmedical waste immediately prior to a discharge of such waste into the waters ofthe State, and specifically shall include carriers and bailees of such medicalwaste. (1989, c. 742, s. 8; 1989(Reg. Sess., 1990), c. 1036, s. 9; 1993, c. 539, ss. 1016, 1312; 1994, Ex.Sess., c. 24, s. 14(c); 1995 (Reg. Sess., 1996), c. 743, s. 12; 1998‑215,s. 60.)