SECTION .0700 - ADMINISTRATIVE PENALTY PROCEDURES

Rules .0701 - .0707 of Title 15A Subchapter 13B of the North Carolina Administrative Code (T15A.13B .0701 - .0707); have been transferred and recodified from Rules .0701 - .0707 of Title 10 Subchapter 10G of the North Carolina Administrative Code (T10.10G .0701 - .0707), effective April 4, 1990.
 
 

.0701 ADMINISTRATIVE PENALTIES

The following rules shall govern the assessment, remission, mitigation and appeal of administrative penalties imposed by the Division under the Solid Waste Management Act, Article 9 of Chapter 130A of the North Carolina General Statutes.
 
 

History Note: Statutory Authority G.S. 130A-22(f); Eff. April 1, 1982; Amended Eff. September 1, 1990; October 1, 1984.
 
 
 
 

.0702 STANDARDS

In determining the amount of the administrative penalty, the Division shall consider the following standards:

(1) Nature of the violation and the degree and extent of the harm, including at least the following: (a) For a violation of the Solid Waste Management Act, Article 9 of Chapter 130A of the North Carolina General Statures, and the rules adopted thereunder: (i) type of violation;

(ii) type of waste involved;

(iii) duration of the violation;

(iv) cause (whether resulting from a negligent, reckless or intentional act or omission);

(v) potential effect on public health and the environment;

(vi) effectiveness of responsive measures taken by the violator;

(vii) damage to private property.

 (b) For a violation of an order issued under the Solid Waste Management Act, Article 9 of Chapter 130A of the North Carolina General statutes: (i) subject matter of order;

(ii) duration of the violation;

(iii) cause (whether resulting from a negligent, reckless or intentional act or omission);

(iv) type of violation, if any;

(v) potential effect on public health and the environment;

(vi) effectiveness of responsive measures taken by violator.

 (c) For refusing to allow an authorized representative of the Commission for Health Services, any local board of health, or the Department a right of entry as provided for in G.S. 130A-17: (i) type of previous violation or other violation found after entry, if any;

(ii) duration of refusal;

(iii) potential effect on public health and the environment;

(iv) type of waste handled by violator at the solid waste management facility.

 (2) Cost of rectifying any damage.

(3) The violator's previous record in complying or not complying with the Solid Waste Management Act and the regulations promulgated thereunder.
 
 

 History Note: Statutory Authority G.S. 130A-22(f); Eff. April 1, 1982; Amended Eff. September 1, 1990; October 1, 1984.
 
 
 
 

.0703 PROCEDURE FOR ASSESSMENT: REVOCATION OF PERMIT

(a) Depending on the violation involved, the Division may issue a notice of penalty assessment immediately or grant the violator a period of time within which to cease the violation.

(b) For all violations for which a penalty is assessed a notice of such action shall be sent the respondent by registered or certified mail. The notice shall describe the nature of the violation with reasonable particularity, the amount of the penalty for each violation, that each day of a continuing violation constitutes a separate violation, advise that the penalty is now due or that it will become due at the end of a specified time, and advise the respondent of his rights of appeal.

(c) In addition to any assessment that might be appropriate, the Division may suspend or revoke the permit of any facility in accordance with G.S. 130A-23.

(d) The Division or its delegates may modify a penalty upon finding that additional or different facts should have been considered in determining the amount of the assessment or upon finding that the respondent has corrected or mitigated the harm cause by the violation.

History Note: Statutory Authority G.S. 130A-22(f); Eff. April 1, 1982; Amended Eff. May 1, 1987.
 
 
 
 

.0704 PAYMENTS: HEARING

(a) Within 60 days after receipt of notification of a penalty assessment, payment must be tendered unless a written request for an administrative hearing has been filed pursuant to G.S. 130A-22. All written requests for a hearing shall be made in accordance with G.S. 150B.

(b) Payment may be tendered in conjunction with a hearing request and in such case, the payment shall be accepted as conditional upon final action.

(c) This Rule shall not preclude informal conferences concerning the penalty assessed.

(d) The Division shall acknowledge the receipt of all payments.
 
 

History Note: Statutory Authority G.S. 130A-22(f); Eff. April 1, 1982;Amended Eff. Sep.1, 1990

.0705 STAY OF PENALTY ASSESSMENT

When an administrative hearing is requested for a purpose other than remission or reduction of the penalty assessed, the penalty will be stayed as of the date of receipt of the request by the Office of Administrative Hearings until service of the final decision or other settlement of the matter.
 
 

History Note: Statutory Authority G.S. 130A-22(f); Eff. April 1, 1982; Amended Eff. May 1, 1987.
 
 
 
 

.0706 WAIVER OF ADMINISTRATIVE HEARING

A respondent waives his right to a hearing when he:

(1) submits a written waiver to the Division or its delegates of his right to an administrative hearing;

(2) fails to request a hearing within 30 days of receipt of notice of penalty assessment; or

(3) fails to attend a scheduled administrative hearing.
 
 

 History Note: Statutory Authority G.S. 130A-22(f); Eff. April 1, 1982; Amended Eff. May 1, 1987.
 
 

.0707 REFERRAL

History Note: Statutory Authority G.S. 130A-22(f); Eff. April 1, 1982; Repealed Eff. Sep.1, 1990.