Why did a 1997 North Carolina bill propose clarifying when continuing air-quality penalties begin?

Plain-English summary

A question at a North Carolina Senate committee concerned Senate Bill 194, which would amend N.C.G.S. § 143-215.114A(b). The AG described the amendment's purpose as clarifying that continuing air-quality penalties may be assessed "from date the violation begins," rather than when the violator receives written notice. The opinion explains the proposal and its federal implications; it does not tell lawmakers how to vote. Source

The AG's office and DEHNR had consistently read the air statute to permit penalties of up to $10,000 per day from the violation date, as they read the water and groundwater statutes. Some air-quality violators instead argued that penalties could start only when they received notice, relying on a difference in statutory wording. Source

The opinion says federal law required the State to have authority to recover civil penalties "in a maximum amount of not less than $10,000 per day for each violation" for approval of its Title V Operating Permits Program. According to the opinion, EPA had advised the State that an inability to assess continuing violations from the violation date would cause disapproval of that part of the program. It also identifies possible sanctions, including loss of federal highway funds, additional requirements on industries in nonattainment areas, and EPA's own assessment of penalties. Source

Currency note

This letter was issued in April 1997 about a pending bill. Check the enacted law and current federal and state rules before relying on it for a current violation.

Background and statutory framework

The opinion says an inconsistency between the air statute and the water and groundwater penalty provisions originated in early versions of the air statute and continued through the 1990 and 1991 amendments. It cites the 1990 changes to the Environmental Management Commission's civil penalty powers and the 1991 bill addressing the federal Clean Air Act Amendments. Source

The letter points to section 502(b)(5)(E) of the federal 1990 Clean Air Act Amendments and 40 C.F.R. § 70.11(a)(3)(i) for the Title V penalty-authority requirement. Its warning about program disapproval depends on the State being unable to assess continuing violations from the date they began. Source

Common questions

What start date did the AG's office use for continuing air penalties?

The opinion says the office and DEHNR consistently construed the air statute to allow assessment from "the date of violation." It describes some violators' competing argument for starting when they received notice. Source

Did the AG say Senate Bill 194 must pass?

No recommendation appears in the letter. It explains the amendment's purpose, the difference in statutory wording, and what EPA had said could happen if the State lacked penalty authority from the violation date. Source

Did the opinion decide whether an amendment would apply to older violations?

No. The letter does not discuss retroactivity or a court ruling on that question. It addresses the pending bill and the existing disagreement over when continuing penalties begin. Source

Source

• Landing page: https://ncdoj.gov/opinions/amended-environmental-laws/

Citations

• N.C.G.S. § 143-215.114A(b)
• Clean Air Act Amendments of 1990, § 502(b)(5)(E)
• 40 C.F.R. § 70.11(a)(3)(i)
• 1989 Sess. Laws (Reg. Sess. 1990) chs. 1036 and 1045
• 1991 Sess. Laws ch. 552, sec. 4

Original opinion text

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 nonattainment 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