45.1-246 - Civil and criminal penalties.
§ 45.1-246. Civil and criminal penalties.
A. Any permittee who violates any permit condition or any other provision ofthis chapter or the regulations thereunder may be assessed a civil penalty bythe Director, except that if such violation leads to the issuance of acessation order, the civil penalty shall be assessed. Such penalty shall notexceed $5,000 for each violation except that if the violation resulted in apersonal injury or fatality to any person, then the civil penalty shall notexceed $70,000 for each violation. Each day of continuing violation may bedeemed a separate violation for the purposes of assessing penalties. Indetermining the amount of the penalty, consideration shall be given to thepermittee's history of previous violations at the particular coal surfacemining operation; the seriousness of the violation, including any irreparableharm to the environment and any hazard to the health or safety of the public;whether the permittee was negligent; and the demonstrated good faith of thepermittee charged in attempting to achieve rapid compliance afternotification of the violation.
B. A civil penalty may be assessed by the Director only after the personcharged with a violation has been given an opportunity for a public hearing.Where such a public hearing has been held, the Director shall make findingsof fact and issue a written decision as to the occurrence of the violationand the amount of the penalty which is warranted, incorporating, whenappropriate, an order therein requiring that the penalty be paid. Whenappropriate, the Director shall consolidate such hearings with otherproceedings pursuant to the provisions of this chapter. Any hearing underthis section shall be a formal adjudicatory hearing in accordance with theAdministrative Process Act (Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2).When the person charged with such a violation fails to avail himself of theopportunity for a public hearing, a civil penalty shall be assessed by theDirector after the Director determines that a violation has occurred and theamount of the penalty warranted, and issues an order requiring that thepenalty be paid.
C. Upon the issuance of a notice or order charging that a violation describedunder subsection A of this section has occurred, the Director shall informthe permittee within 30 days of the proposed amount of the penalty. Thepermittee charged with the penalty shall then have 30 days to pay theproposed penalty in full or if the permittee wishes to contest either theamount of the penalty or the fact of the violation, forward the proposedamount to the Director for placement in an interest-bearing trust account inthe State Treasurer's office. If through administrative or judicial review ofthe proposed penalty, it is determined that no violation occurred, or thatthe amount of the penalty should be reduced, the Director shall within 30days of that determination remit the appropriate amount to the permittee withaccrued interest thereon. Failure to forward the money to the Director within30 days shall result in a waiver of all legal rights to contest the violationor the amount of the penalty.
D. If a permittee who is required to pay a civil penalty fails to do so, theDirector may transmit a true copy of the final order assessing such penaltyto the clerk of the court of any county or city wherein it is ascertainedthat the permittee owing the penalty has any estate; and the clerk to whomsuch copy is so sent shall record it, as a judgment is required by law to berecorded, and shall index the same as well in the name of the Commonwealth asof the person owing the penalty, and thereupon there shall be a lien in favorof the Commonwealth on the property of the permittee within such county orcity in the amount of the penalty. The Director may collect civil penaltieswhich are owed in the same manner as provided by law in respect to judgmentof a court of record. All civil penalties shall be paid into a special fundin the State Treasurer's office to be used by the Director for enhancingconservation and recreational opportunities in the coal-producing counties ofthe Commonwealth. The Director shall transfer quarterly 50 percent of thefund balance to the Virginia Coalfield Economic Development Authority for thepurposes of developing infrastructure and improvements at Breaks InterstatePark and 50 percent of the fund balance to the Tourism Development Authorityfor the purpose of developing conservation and recreational opportunitiesconsistent with the provisions of Chapter 55 (§ 15.2-5500 et seq.) of Title15.2.
E. Any person who willfully and knowingly (i) conducts coal surface mining orcoal exploration operations without first obtaining a permit, or after apermit has lapsed, or after suspension or revocation of a permit; or (ii)violates a condition of a permit issued pursuant to this chapter; or (iii)disregards, fails or refuses to comply with the regulations or orderspromulgated or issued pursuant to the provisions of this chapter, except anorder incorporated in a decision under subsection B of this section shall,upon conviction, be punished by a fine of not more than $10,000, byconfinement in jail for not more than 12 months, or both.
F. Whenever a corporate permittee violates a condition of a permit ordisregards, fails, or refuses to comply with any order issued under thischapter, except an order incorporated in a decision issued under subsection Bof this section, any director, officer, or agent of such corporation whowillfully and knowingly authorized, ordered, or carried out such violation,failure or refusal shall be subject to the same civil penalties, fines andconfinement in jail that may be imposed upon a person under subsections A andE of this section.
G. Whoever knowingly makes any false statement, representation orcertification, or knowingly fails to make any required statement,representation or certification, in any application, objection, record,report, plan or other document filed or required to be maintained pursuant tothis chapter, the regulations promulgated thereunder, or any order ordecision issued by the Director under this chapter shall, upon convictionthereof, be punished by a fine of not more than $10,000, or by confinement injail for not more than 12 months, or both.
H. Any operator who fails to correct a violation for which a notice or orderhas been issued within the period permitted for its correction, which periodshall not end until the entry of a final order by the Director, in the caseof any review proceedings initiated by the operator wherein the Directororders after an expedited hearing the suspension of the abatementrequirements of the notice or order after determining that the operator willsuffer irreparable loss or damage from the application of those requirements,or until entry of an order of the court, in the case of any reviewproceedings initiated by the operator wherein the court orders the suspensionof the abatement requirements, shall be assessed a civil penalty of not lessthan $750 for each day during which such failure or violation occurs.
(1979, c. 290; 1980, c. 510; 1993, c. 663; 2005, c. 3.)