10.1-1455 - Penalties and enforcement.
§ 10.1-1455. Penalties and enforcement.
A. Any person who violates any provision of this chapter, any condition of apermit or certification, or any regulation or order of the Board shall, uponsuch finding by an appropriate circuit court, be assessed a civil penalty ofnot more than $32,500 for each day of such violation. All civil penaltiesunder this section shall be recovered in a civil action brought by theAttorney General in the name of the Commonwealth. Such civil penalties shallbe paid into the state treasury and deposited by the State Treasurer into theVirginia Environmental Emergency Response Fund pursuant to Chapter 25 (§10.1-2500 et seq.) of this title.
B. In addition to the penalties provided above, any person who knowinglytransports any hazardous waste to an unpermitted facility; who knowinglytransports, treats, stores, or disposes of hazardous waste without a permitor in violation of a permit; or who knowingly makes any false statement orrepresentation in any application, disclosure statement, label, manifest,record, report, permit, or other document filed, maintained, or used forpurposes of hazardous waste program compliance shall be guilty of a felonypunishable by a term of imprisonment of not less than one year nor more thanfive years and a fine of not more than $32,500 for each violation, either orboth. The provisions of this subsection shall be deemed to constitute alesser included offense of the violation set forth under subsection I.
Each day of violation of each requirement shall constitute a separate offense.
C. The Board is authorized to issue orders to require any person to complywith the provisions of any law administered by the Board, the Director or theDepartment, any condition of a permit or certification, or any regulationspromulgated by the Board or to comply with any case decision, as defined in §2.2-4001, of the Board or Director. Any such order shall be issued only aftera hearing in accordance with § 2.2-4020 with at least 30 days' notice to theaffected person of the time, place and purpose thereof. Such order shallbecome effective not less than 15 days after mailing a copy thereof bycertified mail to the last known address of such person. The provisions ofthis section shall not affect the authority of the Board to issue separateorders and regulations to meet any emergency as provided in § 10.1-1402.
D. Any person willfully violating or refusing, failing or neglecting tocomply with any regulation or order of the Board or the Director, anycondition of a permit or certification or any provision of this chapter shallbe guilty of a Class 1 misdemeanor unless a different penalty is specified.
Any person violating or failing, neglecting, or refusing to obey any lawfulregulation or order of the Board or the Director, any condition of a permitor certification or any provision of this chapter may be compelled in aproceeding instituted in an appropriate court by the Board or the Director toobey such regulation, permit, certification, order or provision of thischapter and to comply therewith by injunction, mandamus, or other appropriateremedy.
E. Without limiting the remedies which may be obtained in this section, anyperson violating or failing, neglecting or refusing to obey any injunction,mandamus or other remedy obtained pursuant to this section shall be subject,in the discretion of the court, to a civil penalty not to exceed $32,500 foreach violation. Such civil penalties shall be paid into the state treasuryand deposited by the State Treasurer into the Virginia EnvironmentalEmergency Response Fund pursuant to Chapter 25 of this title. Each day ofviolation of each requirement shall constitute a separate offense. Such civilpenalties may, in the discretion of the court assessing them, be directed tobe paid into the treasury of the county, city or town in which the violationoccurred, to be used to abate environmental pollution in such manner as thecourt may, by order, direct, except that where the owner in violation is thecounty, city or town itself, or its agent, the court shall direct the penaltyto be paid into the state treasury and deposited by the State Treasurer intothe Virginia Environmental Emergency Response Fund pursuant to Chapter 25 ofthis title.
F. With the consent of any person who has violated or failed, neglected orrefused to obey any regulation or order of the Board or the Director, anycondition of a permit or any provision of this chapter, the Board mayprovide, in an order issued by the Board against such person, for the paymentof civil charges for past violations in specific sums, not to exceed thelimits specified in this section. Such civil charges shall be instead of anyappropriate civil penalty which could be imposed under this section. Suchcivil charges shall be paid into the state treasury and deposited by theState Treasurer into the Virginia Environmental Emergency Response Fundpursuant to Chapter 25 of this title.
G. In addition to all other available remedies, the Board may issueadministrative orders for the violation of (i) any law or regulationadministered by the Board; (ii) any condition of a permit or certificateissued pursuant to this chapter; or (iii) any case decision or order of theBoard. Issuance of an administrative order shall be a case decision asdefined in § 2.2-4001 and shall be issued only after a hearing before ahearing officer appointed by the Supreme Court in accordance with § 2.2-4020.Orders issued pursuant to this subsection may include civil penalties of upto $32,500 per violation not to exceed $100,000 per order, and may compel thetaking of corrective actions or the cessation of any activity upon which theorder is based. The Board may assess penalties under this subsection if (a)the person has been issued at least two written notices of alleged violationby the Department for the same or substantially related violations at thesame site, (b) such violations have not been resolved by demonstration thatthere was no violation, by an order issued by the Board or the Director, orby other means, (c) at least 130 days have passed since the issuance of thefirst notice of alleged violation, and (d) there is a finding that suchviolations have occurred after a hearing conducted in accordance with thissubsection. The actual amount of any penalty assessed shall be based upon theseverity of the violations, the extent of any potential or actualenvironmental harm, the compliance history of the facility or person, anyeconomic benefit realized from the noncompliance, and the ability of theperson to pay the penalty. The Board shall provide the person with thecalculation for the proposed penalty prior to any hearing conducted for theissuance of an order that assesses penalties pursuant to this subsection.Penalties shall be paid to the state treasury and deposited by the StateTreasurer into the Virginia Environmental Emergency Response Fund (§10.1-2500 et seq.). The issuance of a notice of alleged violation by theDepartment shall not be considered a case decision as defined in § 2.2-4001.Any notice of alleged violation shall include a description of eachviolation, the specific provision of law violated, and information on theprocess for obtaining a final decision or fact finding from the Department onwhether or not a violation has occurred, and nothing in this section shallpreclude an owner from seeking such a determination. Orders issued pursuantto this subsection shall become effective five days after having beendelivered to the affected persons or mailed by certified mail to the lastknown address of such persons. Should the Board find that any person isadversely affecting the public health, safety or welfare, or the environment,the Board shall, after a reasonable attempt to give notice, issue, without ahearing, an emergency administrative order directing the person to cease theactivity immediately and undertake any needed corrective action, and shallwithin 10 days hold a hearing, after reasonable notice as to the time andplace thereof to the person, to affirm, modify, amend or cancel the emergencyadministrative order. If the Board finds that a person who has been issued anadministrative order or an emergency administrative order is not complyingwith the order's terms, the Board may utilize the enforcement and penaltyprovisions of this article to secure compliance.
H. In addition to all other available remedies, the Department and generatorsof recycling residues shall have standing to seek enforcement by injunctionof conditions which are specified by applicants in order to receive thepriority treatment of their permit applications pursuant to § 10.1-1408.1.
I. Any person who knowingly transports, treats, stores, disposes of, orexports any hazardous waste in violation of this chapter or in violation ofthe regulations promulgated by the Board and who knows at the time that hethereby places another person in imminent danger of death or serious bodilyinjury, shall, upon conviction, be guilty of a felony punishable by a term ofimprisonment of not less than two years nor more than 15 years and a fine ofnot more than $250,000, either or both. A defendant that is not an individualshall, upon conviction of violating this section, be subject to a fine notexceeding the greater of $1 million or an amount that is three times theeconomic benefit realized by the defendant as a result of the offense. Themaximum penalty shall be doubled with respect to both fine and imprisonmentfor any subsequent conviction of the same person.
J. Criminal prosecutions under this chapter shall be commenced within threeyears after discovery of the offense, notwithstanding the provisions of anyother statute.
K. The Board shall be entitled to an award of reasonable attorneys' fees andcosts in any action brought by the Board under this section in which itsubstantially prevails on the merits of the case, unless specialcircumstances would make an award unjust.
L. The Board shall develop and provide an opportunity for public comment onguidelines and procedures that contain specific criteria for calculating theappropriate penalty for each violation 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.
(1986, c. 492, § 10-310; 1988, c. 891; 1990, cc. 12, 781, 912, 919; 1991, c.718; 1993, c. 23; 1998, c. 837; 1999, c. 876; 2005, cc. 133, 706.)