Statutory Construction; Clerical Errors

Subject:

Statutory Construction; Clerical Errors

Requested By:

Dr. Sarah T. Morrow, M.D., M.P.H., Secretary Department of Human Resources

Question:

Can the erroneous reference to G.S. 130-166.52 contained in the penalties section of G.S. 130-166.54 be construed to correctly cite G.S. 130-166.53?

Conclusion:

Yes.

G.S. 130-166.54(a) is that section of the North Carolina Drinking Water Act (Chapter 788, Session Laws of 1979) which provides for the assessment of administrative penalties. That section refers to violations of G.S. 130-166.42 as the occasion for assessing a penalty and does not cite G.S. 130-166.53 which defines prohibited acts under the statute.

In Fortune v. Buncombe County Commissioners, 140 N.C. 322, 52 S.E. 950 (1905), the Court dealt with the issue of clerical errors and misdescriptions contained in a statute. The opinion enumerated several cardinal rules to be used in statutory interpretation. A statute should be construed with reference to its general scope and the intent of the Legislature in enacting it. Further, in order to ascertain the purpose, the court must give effect to all clauses and provisions.

The count further stated:

"Clerical errors or misprisions, which if not corrected, would render the statute unmeaning or incapable of reasonable construction or would defeat or impair its intended operation, will not necessarily vitiate the act, for they will be corrected, if practicable."

This rule of construction was adopted from Black on Interpretation of Laws, § 58, and the same principle has been applied in State v. Woolard, 119 N.C. 779, 25 S.E. 719 (1896); Murphy v. Webb, 156 N.C. 402, 72 S.E. 460 (1911); and State v. Humphries, 210 N.C. 406, 183 S.E. 473 (1936).

The North Carolina Drinking Water Act, G.S. 130-166,39 et seq., was adopted with the stated purpose of regulating water systems within the state which supply drinking water to the public,

G.S. 130-166.40. The Act provides authority for the adoption of a comprehensive regulatory program. G.S. 130-166.43 states that regulations will be promulgated to establish contaminant levels, and to include monitoring and analysis provisions. The section also provides for regulations to be adopted controlling recordkeeping and inspection, and design and construction criteria. There are other sections dealing with various aspects of public water systems. The statute was enacted to parallel the requirements of the Federal Safe Drinking Water Act of 1974, P.L. 93-523.

G.S. 130-166.54 is that part of the Act which provides authority to enforce the regulatory scheme. Paragraph (a) deals specifically with the assessment of administrative penalties:

"The Department may impose an administrative, civil penalty in accordance with the Drinking Water Regulations, on any person who violates G.S. 130-166.52. Such penalty shall not exceed five thousand dollars ($5,000) for each day such violation continues."

The cited section, G.S. 130-166.52, deals with the notice required of water suppliers when a supplier fails to comply with particular regulatory requirements. This section is immediately followed by G.S. 130-166.53 which describes prohibited acts. The "prohibited acts" include, among others, any violations of Drinking Water Regulations and failure to provide notice upon such violations.

Limiting the assessment of administrative penalties to those occasions when a water supplier fails to provide notice pursuant to G.S. 130.166.52, would undermine the regulatory scheme which the Act seeks to establish. The intent to create such a scheme is evident from the overall text of the Act which addresses in detail may aspects of public water systems and their regulation. Construing the citation to G.S. 130-166.52 literally would be contrary to the direction established by the Act as a whole. A literal construction would also effectively invalidate G.S. 130-166.53; the power to prohibit acts is dependent upon a corresponding power to enforce. In this specific context the intent of the Act will also be defeated.

Furthermore, the Act provides its own internal guide for construction. It has been held that the Court must consider this guide in construing statutory language, In re Watson, 273 N.C. 629, 161

S.E. 2d 1 (1968). G.S. 130-166.56 provides:

"This Article shall be interpreted as giving the State the authority needed to assume primary enforcement responsibility under the federal act."

The administrative penalties section, as written, will not provide the necessary enforcement authority required by the Federal Safe Drinking Water Act, P.L. 93-523. Also, in Am Jur. 2d § 193 STATUTES it is stated:

"In construing the statute of a state the courts have, in determining the intention of the legislature in enacting the Statute, often considered the Acts of Congress upon same and kindred subjects."

The federal act specifically requires a state to adopt adequate enforcement procedures and regulations no less stringent than federal regulations, Sec. 1413, P.L. 93-523. Federal regulation 40 C.F.R. 142.10(b)(vi) requires the state to have authority to assess civil or criminal penalties for violation of the State’s Drinking Water Regulations.

On examining both the internal and external evidence, I conclude that the General Assembly intended to enact a program to govern public water systems, with extensive regulations and corresponding enforcement powers. The letter of G.S. 130-166.54(a) conflicts with that intent.

Therefore, I conclude: (1) under North Carolina law, State courts may enforce the intent of the (statutory) law if that intent conflicts with the letter of a particular provision of the law; (2) the legislative intent is for the penalty section to apply to violations of G.S. 130-166.53; and (3) further, a North Carolina court would be likely to enforce this legislative intent in construing

G.S. 130-166.54.

Rufus L. Edmisten Attorney General