April 22, 1997
The Honorable Charles W. Albertson North Carolina Senate North Carolina General Assembly Raleigh, North Carolina 27602
RE:Advisory Opinion: Senate Bill 194, Amend Environmental Laws; N.C.G.S. §
143-215.114A(b)
Dear Senator Albertson:
This responds to a question raised today in the Senate Committee on Agriculture, Environment, and Natural Resources regarding the provision of Senate Bill 194 (Amend Environmental Laws) which would amend N.C.G.S. § 143-215.114A(b), governing the assessment of continuing penalties for air quality violations. The statute at subsection (a) presently provides for a maximum penalty of $10,000 for various enumerated types of violations. The purpose of the amendment is to clarify that subsection (b) allows continuing violations to be assessed from date the violation begins, not from the date that the violator actually receives a written notice of violation, which could be a significant time after the violation, depending on when it is discovered.
Although DEHNR and this office have consistently construed the air statute, like the water and groundwater statutes, to allow the assessment of up to $10,000 per day for continuing violations from the date of violation, some air quality violators have recently contested continuing penalties by arguing that the air statute only authorizes the assessment of continuing penalties from the date the notice of violation was received, as opposed to the date that the continuing violation began. Their argument relied largely on this inadvertent difference between these provisions. The inconsistency originated in early versions of the air statute, and was carried forward in the 1990 amendments which consolidated, clarified and recodified the Environmental Management Commission’s civil penalty powers, and in the 1991 bill to comply with the federal 1990 Clean Air Act Amendments. 1989 Sess. Laws (Reg. Sess., 1990), chapters 1036 and 1045; Sess. Laws 1991, ch. 552, sec. 4.
The State must have "authority to recover civil penalties in a maximum amount of not less than $10,000 per day for each violation," in order to comply with section 502(b)(5)(E) of the federal 1990 Clean Air Act Amendments. This is a mandatory requirement for approval of the State’s Title V Operating Permits Program. 40 C.F.R. § 70.11(a)(3)(i). The U.S. Environmental Protection Agency has previously advised the State that the inability to assess continuing violations from the date of violation will result in disapproval of that part of the State’s Title V permitting program. EPA has the authority to sanction the State for such noncompliance, including the loss of federal highway funds and additional requirements on industries located in nonatttainment areas. EPA would also be able to assess the penalties itself, which would then be litigated in federal, rather than State court.
We hope this information is useful to you. Please advise if we may be of further assistance.
Very truly yours,
Daniel C. Oakley
Senior Deputy Attorney General
J. Allen Jernigan Special Deputy Attorney General