10.1-1309 - Issuance of special orders; civil penalties.
§ 10.1-1309. Issuance of special orders; civil penalties.
A. The Board shall have the power to issue special orders to:
(i) owners who are permitting or causing air pollution as defined by §10.1-1300, to cease and desist from such pollution;
(ii) owners who have failed to construct facilities in accordance with orhave failed to comply with plans for the control of air pollution submittedby them to and approved by the Board, to construct such facilities inaccordance with or otherwise comply with, such approved plans;
(iii) owners who have violated or failed to comply with the terms andprovisions of any Board order or directive to comply with such terms andprovisions;
(iv) owners who have contravened duly adopted and promulgated air qualitystandards and policies, to cease such contravention and to comply with airquality standards and policies;
(v) require any owner to comply with the provisions of this chapter and anyBoard decision; and
(vi) require any person to pay civil penalties of up to $32,500 for eachviolation, not to exceed $100,000 per order, if (a) the person has beenissued at least two written notices of alleged violation by the Departmentfor the same or substantially related violations at the same site, (b) suchviolations have not been resolved by demonstration that there was noviolation, by an order issued by the Board or the Director, or by othermeans, (c) at least 130 days have passed since the issuance of the firstnotice of alleged violation, and (d) there is a finding that such violationshave occurred after a hearing conducted in accordance with subsection B. Theactual amount of any penalty assessed shall be based upon the severity of theviolations, the extent of any potential or actual environmental harm, thecompliance history of the facility or person, any economic benefit realizedfrom the noncompliance, and the ability of the person to pay the penalty. TheBoard shall provide the person with the calculation for the proposed penaltyprior to any hearing conducted for the issuance of an order that assessespenalties pursuant to this subsection. Penalties shall be paid to the statetreasury and deposited by the State Treasurer into the Virginia EnvironmentalEmergency Response Fund (§ 10.1-2500 et seq.). The issuance of a notice ofalleged violation by the Department shall not be considered a case decisionas defined in § 2.2-4001. Any notice of alleged violation shall include adescription of each violation, the specific provision of law violated, andinformation on the process for obtaining a final decision or fact findingfrom the Department on whether or not a violation has occurred, and nothingin this section shall preclude an owner from seeking such a determination.
B. Such special orders are to be issued only after a hearing before a hearingofficer appointed by the Supreme Court in accordance with § 2.2-4020 withreasonable notice to the affected owners of the time, place and purposethereof, and they shall become effective not less than five days afterservice as provided in subsection C below. Should the Board find that anysuch owner is unreasonably affecting the public health, safety or welfare, orthe health of animal or plant life, or property, after a reasonable attemptto give notice, it shall declare a state of emergency and may issue withouthearing an emergency special order directing the owner to cease suchpollution immediately, and shall within 10 days hold a hearing, afterreasonable notice as to the time and place thereof to the owner, to affirm,modify, amend or cancel such emergency special order. If the Board finds thatan owner who has been issued a special order or an emergency special order isnot complying with the terms thereof, it may proceed in accordance with §10.1-1316 or 10.1-1320.
C. Any special order issued under the provisions of this section need not befiled with the Secretary of the Commonwealth, but the owner to whom suchspecial order is directed shall be notified by certified mail, return receiptrequested, sent to the last known address of such owner, or by personaldelivery by an agent of the Board, and the time limits specified shall becounted from the date of receipt.
D. Nothing in this section or in § 10.1-1307 shall limit the Board'sauthority to proceed against such owner directly under § 10.1-1316 or10.1-1320 without the prior issuance of an order, special or otherwise.
(1971, Ex. Sess., c. 91, § 10-17.18:1; 1973, c. 251; 1988, c. 891; 2005, c.706.)