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A. Civil Penalty for a Violation

Any person who violates any of the provisions of the Act, this section, Sec. 3.8, Sedimentation and Erosion Control, Sec. 12.10, Sedimentation and Erosion Control, or rules or orders adopted or issued pursuant to those sections or the Act, or rule or order adopted or issued pursuant to this Ordinance, or who initiates or continues a land-disturbing activity for which a plan is required except in accordance with the terms, conditions, and provisions of an approved plan, is subject to a civil penalty. The maximum civil penalty amount that the County may assess per violation is $5,000. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation. When the person has not been assessed any civil penalty under this subsection for any previous violation, and that person abated continuing environmental damage resulting from the violation within 180 days from the date of the notice of violation, the maximum cumulative total civil penalty assessed under this subsection for all violations associated with the land-disturbing activity for which the erosion and sedimentation control plan is required is $25,000.

B. Civil Penalty Assessment Factors

The Sedimentation and Erosion Control Officer or designee shall determine the amount of the civil penalty based upon the following factors:

1. The degree and extent of harm caused by the violation;

2. The cost of rectifying the damage;

3. The amount of money the violator saved by noncompliance;

4. Whether the violation was committed willfully; and

5. The prior record of the violator in complying or failing to comply with this Ordinance.

C. Notice of Civil Penalty Assessment

The Sedimentation and Erosion Control Officer or designee shall provide notice of the civil penalty amount and basis for assessment to the person assessed. The notice of assessment shall be served by any means authorized under NCGS 1A-1, Rule 4. A notice of assessment by the Sedimentation and Erosion Control Officer or designee shall direct the violator to either:

1. Pay the assessment;

2. File a request for remission of the assessment;

a. A request for remission of a civil penalty imposed under this section must be filed with the Sedimentation Control Commission within 30 days of receipt of the notice of assessment,

b. Notification of a request for remission must also be filed with the County Engineer,

c. A remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to NCGS § 150B, Art. 3, and a stipulation of the facts on which the assessment was based; or

3. Contest the assessment within 30 days by filing a petition for a contested case under NCGS § 150B, Art. 3.

a. The administrative law judge hearing the matter shall make a recommended decision to the Board of Commissioners. If either party wishes to challenge the recommended decision, they must file with the Clerk to the Board of Commissioners, and serve on the other parties, and the Office of Administrative Hearings, specific exceptions and objections, detailing the errors of fact or law they contend exist within the recommended decision, and other written argument they wish to submit, within 30 days after the issuance of same. Other parties shall file any response they wish to make to a submission of exceptions and objections within 30 days of service of same but may not use this subsequent filing to submit new, or additional, exceptions and objections of their own.

b. The recommended decision and any written submissions of the parties will be reviewed by the Board of Commissioners within 90 days after the official record in this matter is served upon the Clerk to the Board of Commissioners by the Office of Administrative Hearings. The Board of Commissioners shall adopt or modify the recommended decision consistent with the provisions of NCGS § 150B-36.

c. Appeal of the decision of the Board of Commissioners shall be in accordance with NCGS § 150B, Art. 4.

D. Collection

If payment is not received within 60 days after it is due, Durham County may institute a civil action to recover the amount of the assessment. The civil action may be brought in the Superior Court of the county where the violation occurred, or where the violator’s residence or principal place of business is located. Such civil actions must be filed within three years of the date the assessment was due. An assessment that is not contested is due when the violator is served with a notice of assessment. An assessment that is contested is due at the conclusion of the administrative and judicial review of the assessment.

E. Credit of Civil Penalties

The clear proceeds of civil penalties collected by Durham County under this subsection shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2. Penalties collected by Durham County may be diminished only by the actual costs of collection. The collection cost percentage to be used shall be established and approved by the North Carolina Office of State Budget and Management on an annual basis, based upon the computation of actual collection costs by Durham County for the prior fiscal year.