                                 CODE OF VIRGINIA

 CIVIL AND CRIMINAL PENALTIES (§ 45.2-1021)

A. Any permittee who violates any permit condition or any other provision of
this chapter or the regulations adopted hereunder may be assessed a civil
penalty by the Director, except that if such violation leads to the issuance of
a cessation order, the civil penalty shall be assessed. Such penalty shall not
exceed $5,000 for each violation except that if the violation resulted in a
personal injury or fatality to any person, then the civil penalty shall not
exceed $70,000 for each violation. Each day of continuing violation may be
deemed a separate violation for the purposes of assessing penalties. In
determining the amount of the penalty, consideration shall be given to the
permittee&#8217;s history of previous violations at the particular coal surface
mining operation; the seriousness of the violation, including any irreparable
harm 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 the
permittee charged in attempting to achieve rapid compliance after notification
of the violation.

B. A civil penalty may be assessed by the Director only after the person charged
with a violation has been given an opportunity for a public hearing. After such
public hearing has been held, the Director shall make findings of fact and issue
a written decision as to the occurrence of the violation and the amount of the
penalty that is warranted, incorporating therein, when appropriate, an order
requiring that the penalty be paid. When appropriate, the Director shall
consolidate such hearing with other proceedings pursuant to the provisions of
this chapter. Any hearing under this section shall be a formal adjudicatory
hearing in accordance with the Administrative Process Act (&#xA7; 2.2-4000 et
seq.). If the person charged with such violation fails to avail himself of the
opportunity for a public hearing, a civil penalty shall be assessed by the
Director after the Director determines that a violation has occurred and the
amount of the penalty warranted and issues an order requiring that the penalty
be paid.

C. Upon the issuance of a notice or order charging that a violation described
under subsection A has occurred, the Director shall inform the permittee within
30 days of the proposed amount of the penalty. Such permittee shall, within 30
days of being so informed, pay the proposed penalty in full or, if the permittee
contests either the amount of the penalty or the fact of the violation, forward
the proposed amount to the Director for placement in an interest-bearing trust
account in the state treasury. Failure to forward the money to the Director
within 30 days constitutes a waiver of all legal rights to contest the violation
or the amount of the penalty. If through administrative or judicial review of
the proposed penalty it is determined that no violation occurred or that the
amount of the penalty will be reduced, the Director shall within 30 days of such
determination remit the appropriate amount to the permittee with accrued
interest thereon.

D. If a permittee required to pay a civil penalty fails to do so, the Director
may transmit a true copy of the final order assessing such penalty to the clerk
of the court of any county or city wherein it is ascertained that the permittee
owing the penalty has any estate; and the clerk to whom such copy is sent shall
record such final order, as a judgment is required by law to be recorded, and
index it in the name of the Commonwealth and the name of the person owing the
penalty. Upon such recording and indexing, there shall be a lien in favor of the
Commonwealth on the property of the permittee within such county or city in the
amount of the penalty. The Director may collect civil penalties that are owed in
the same manner as provided by law in respect to judgment of a court of record.
All civil penalties shall be paid into a special fund in the state treasury to
be used by the Director for enhancing conservation and recreational
opportunities in the coal-producing counties of the Commonwealth. The Director
shall transfer quarterly 50 percent of the fund balance to the Virginia
Coalfield Economic Development Authority, created pursuant to Chapter 60 (&#xA7;
15.2-6000 et seq.) of Title 15.2, for the purposes of developing infrastructure
and improvements at Breaks Interstate Park and 50 percent of the fund balance to
the Heart of Appalachia Tourism Authority for the purpose of developing
conservation and recreational opportunities consistent with the provisions of
Chapter 55 (&#xA7; 15.2-5500 et seq.) of Title 15.2.

E. Any person who willfully and knowingly (i) conducts any coal surface mining
or coal exploration operation without first obtaining a permit, or after a
permit has lapsed, or after suspension or revocation of a permit; (ii) violates
a condition of a permit issued pursuant to this chapter; or (iii) disregards or
fails or refuses to comply with any regulation adopted or order issued pursuant
to the provisions of this chapter, except an order incorporated in a decision
under subsection B, shall upon conviction be punished by a fine of not more than
$10,000, by confinement in jail for not more than 12 months, or both.

F. Whenever a corporate permittee violates a condition of a permit or disregards
or fails or refuses to comply with any order issued under this chapter, except
an order incorporated in a decision issued under subsection B, any director,
officer, or agent of such corporation who willfully and knowingly authorized,
ordered, or carried out such violation, failure, or refusal is subject to the
same civil penalties, fines, and confinement in jail to which a person may be
subject under subsections A and E.

G. Whoever knowingly makes any false statement, representation, or
certification, 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 to this
chapter, any regulation adopted hereunder, or any order or decision issued by
the Director under this chapter shall upon conviction be punished by a fine of
not more than $10,000, by confinement in jail for not more than 12 months, or
both.

H. Any operator who within the period permitted for the correction of such
violation fails to correct a violation for which a notice or order has been
issued shall be assessed a civil penalty of not less than $750 for each day
during which such failure or violation occurs. Such period for the correction of
a violation shall not end until the entry of (i) a final order by the Director,
in the case of any review proceedings initiated by the operator wherein the
Director orders, after an expedited hearing, the suspension of the abatement
requirements of the notice or order after determining that the operator is
likely to suffer irreparable loss or damage from the application of such
requirements or (ii) an order of the court, in the case of any review
proceedings initiated by the operator wherein the court orders the suspension of
the abatement requirements.

HISTORY: 1979, c. 290, § 45.1-246; 1980, c. 510; 1993, c. 663; 2005, c. 3;
2021, Sp. Sess. I, cc. 384, 387.