CODE OF VIRGINIA

ENFORCEMENT; CIVIL PENALTIES; CRIMINAL PENALTIES; INJUNCTIVE RELIEF (§
10.1-1197.9)

A. Any person violating or failing, neglecting, or refusing to obey any
provision of this article, any regulation, case decision, or order, or any
certification or permit-by-rule condition may be compelled to comply by
injunction, mandamus, or other appropriate remedy.

B. Without limiting the remedies that may be obtained under subsection A, any
person violating or failing, neglecting, or refusing to obey any regulation,
case decision, or order, any provision of this article, or any certification or
permit-by-rule condition shall be subject, in the discretion of the court, to a
civil penalty not to exceed $ 32,500 for each violation. Each day of violation
shall constitute a separate offense. Such civil penalties shall be paid into the
state treasury and deposited by the State Treasurer into the Virginia
Environmental Emergency Response Fund pursuant to Chapter 25 (§ 10.1-2500 et
seq.). Such civil penalties may, in the discretion of the court assessing them,
be directed to be paid into the treasury of the county, city, or town in which
the violation occurred, to be used to abate environmental pollution in such
manner as the court may, by order, direct, except that where the person in
violation is the county, city, or town itself, or its agent, the court shall
direct the penalty to be paid into the state treasury and deposited by the State
Treasurer into the Virginia Environmental Emergency Response Fund pursuant to
Chapter 25.

C. 

   1.  Nothing in this article shall affect the enforcement authorities in laws
   administered by the State Air Pollution Control Board, the State Water Control
   Board, or the Virginia Waste Management Board, nor shall it affect enforcement
   authorities of the Department as described in § 10.1-1186.

   2.  The Department is authorized to issue orders to require any person to
   comply with the provisions of this article, any condition of a permit by rule
   or certification, or any regulations promulgated by the Department or to
   comply with any order or case decision, as defined in § 2.2-4001, of the
   Department. Any such order shall be issued only after a proceeding or hearing
   in accordance with § 2.2-4019 or 2.2-4020 with reasonable notice to the
   affected person of the time, place and purpose thereof. The provisions of this
   section shall not affect the authority of the Department to issue separate
   orders and regulations to meet any emergency as described in subsection C 5.

   3.  With the consent of any person who has violated or failed, neglected or
   refused to obey any regulation or order of the Department, any condition of a
   permit by rule, certification or any provision of this article, the Department
   may provide, in an order issued by the Department against such person, for the
   payment of civil charges for past violations in specific sums, not to exceed
   the limits specified in this section. Such civil charges shall be levied
   instead of any appropriate civil penalty, which could be imposed under this
   section. Such civil charges shall be paid into the state treasury and
   deposited by the State Treasurer into the Virginia Environmental Emergency
   Response Fund pursuant to Chapter 25 of this title.

   4.  In addition to all other available remedies, the Department may issue
   administrative orders for the violation of (i) any law or regulation
   administered by the Department; (ii) any condition of a permit by rule or
   certificate issued pursuant to this article; or (iii) any case decision or
   order of the Department. Issuance of an administrative order shall be a case
   decision as defined in § 2.2-4001 and shall be issued only after a hearing
   before a hearing officer appointed by the Supreme Court in accordance with §
   2.2-4020. Orders issued pursuant to this subsection may include civil
   penalties of up to $ 32,500 per violation not to exceed $ 100,000 per order,
   and may compel the taking of corrective actions or the cessation of any
   activity upon which the order is based. The Department may assess penalties
   under this subsection if (a) the person has been issued at least two written
   notices of alleged violation by the Department for the same or substantially
   related violations at the same site, (b) such violations have not been
   resolved by demonstration that there was no violation, by an order issued by
   the Department or the Director, or by other means, (c) at least 130 days have
   passed since the issuance of the first notice of alleged violation, and (d)
   there is a finding that such violations have occurred after a hearing
   conducted in accordance with this subsection. The actual amount of any penalty
   assessed shall be based upon the severity of the violations, the extent of any
   potential or actual environmental harm, the compliance history of the facility
   or person, any economic benefit realized from the noncompliance, and the
   ability of the person to pay the penalty. The Department shall provide the
   person with the calculation for the proposed penalty prior to any hearing
   conducted for the issuance of an order that assesses penalties pursuant to
   this subsection. Penalties shall be paid to the state treasury and deposited
   by the State Treasurer into the Virginia Environmental Emergency Response Fund
   (§ 10.1-2500 et seq.). The issuance of a notice of alleged violation by the
   Department shall not be considered a case decision as defined in § 2.2-4001.
   Any notice of alleged violation shall include a description of each violation,
   the specific provision of law violated, and information on the process for
   obtaining a final decision or fact finding from the Department on whether or
   not a violation has occurred, and nothing in this section shall preclude an
   owner from seeking such a determination. Orders issued pursuant to this
   subsection shall become effective five days after having been delivered to the
   affected persons or mailed by certified mail to the last known address of such
   persons. The Department shall develop and provide an opportunity for public
   comment on guidelines and procedures that contain specific criteria for
   calculating the appropriate penalty for each violation based upon the severity
   of the violations, the extent of any potential or actual environmental harm,
   the compliance history of the facility or person, any economic benefit
   realized from the noncompliance, and the ability of the person to pay the
   penalty.

   5.  Should the Department find that any person is grossly affecting the public
   health, safety or welfare, or the health of animals, fish or aquatic life or
   the environment, or such effects are imminent, the Department shall issue,
   without a hearing, an emergency administrative order directing the person to
   cease the activity immediately and undertake any needed corrective action, and
   shall within 10 days hold a hearing, after reasonable notice as to the time
   and place thereof to the person, to affirm, modify, amend or cancel the
   emergency administrative order. If the Department finds that a person who has
   been issued an administrative order or an emergency administrative order is
   not complying with the order’s terms, the Department may utilize the
   enforcement and penalty provisions of this article to secure compliance.

   6.  The Department shall be entitled to an award of reasonable
   attorneys’ fees and costs in any action brought by the Department under
   this article in which it substantially prevails on the merits of the case,
   unless special circumstances would make an award unjust.

D. Any person willfully violating or refusing, failing, or neglecting to comply
with any provision of this article or any regulation, permit by rule, order, or
certification under this article shall be guilty of a Class 1 misdemeanor unless
a different penalty is specified.

E. In addition to the penalties provided above, any person who knowingly
violates or refuses, fails, or neglects to comply with any provision of this
article or any regulation, permit by rule, order, or certification under this
article shall be guilty of a felony punishable by a term of imprisonment of not
less than one year nor more than five years and a fine of not more than $ 32,500
for each violation, either or both. The provisions of this subsection shall be
deemed to constitute a lesser included offense of the violation set forth under
subsection F.

F. Any person who knowingly violates or refuses, fails, or neglects to comply
with any provision of this article or any regulation, permit by rule, order, or
certification under this article and who knows at the time that he thereby
places another person in imminent danger of death or serious bodily injury,
shall, upon conviction, be guilty of a felony punishable by a term of
imprisonment of not less than two years nor more than 15 years and a fine of not
more than $ 250,000, either or both. A defendant that is not an individual
shall, upon conviction of violating this section, be subject to a fine not
exceeding the greater of $ 1 million or an amount that is three times the
economic benefit realized by the defendant as a result of the offense. The
maximum penalty shall be doubled with respect to both fine and imprisonment for
any subsequent conviction of the same person.

G. Criminal prosecutions under this article shall be commenced within three
years after discovery of the offense, notwithstanding the provisions of any
other statute.

HISTORY: 2009, cc. 808, 854.