                                 CODE OF VIRGINIA

ISSUANCE OF SPECIAL ORDERS; CIVIL PENALTIES (§ 10.1-1309)

A. The Department 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 or
      have failed to comply with plans for the control of air pollution submitted
      by them to and approved by the Department, to construct such facilities in
      accordance with or otherwise comply with, such approved plans;

      iii. owners who have violated or failed to comply with the terms and
      provisions of any Department order or directive to comply with such terms
      and provisions;

      iv. owners who have contravened duly adopted and promulgated air quality
      standards and policies, to cease such contravention and to comply with air
      quality standards and policies;

   v. require any owner to comply with the provisions of this chapter and any
   Department decision; and

      vi. require any person to pay civil penalties of up to $32,500 for each
      violation, not to exceed $100,000 per order, 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 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 subsection B. 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 (&#xA7; 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 &#xA7; 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.

B. Such special orders are to be issued only after a hearing before a hearing
officer appointed by the Supreme Court in accordance with &#xA7; 2.2-4020 with
reasonable notice to the affected owners of the time, place and purpose thereof,
and they shall become effective not less than five days after service as
provided in subsection C below. Should the Department find that any such owner
is unreasonably affecting the public health, safety or welfare, or the health of
animal or plant life, or property, after a reasonable attempt to give notice, it
shall declare a state of emergency and may issue without hearing an emergency
special order directing the owner to cease such pollution immediately, and shall
within 10 days hold a hearing, after reasonable notice as to the time and place
thereof to the owner, to affirm, modify, amend or cancel such emergency special
order. If the Department finds that an owner who has been issued a special order
or an emergency special order is not complying with the terms thereof, it may
proceed in accordance with &#xA7; 10.1-1316 or 10.1-1320.

C. Any special order issued under the provisions of this section need not be
filed with the Secretary of the Commonwealth, but the owner to whom such special
order is directed shall be notified by certified mail, return receipt requested,
sent to the last known address of such owner, or by personal delivery by an
agent of the Department, and the time limits specified shall be counted from the
date of receipt.

D. Nothing in this section or in &#xA7; 10.1-1307 shall limit the
Department&#8217;s authority to proceed against such owner directly under &#xA7;
10.1-1316 or 10.1-1320 without the prior issuance of an order, special or
otherwise.

HISTORY: 1971, Ex. Sess., c. 91, § 10-17.18:1; 1973, c. 251; 1988, c. 891;
2005, c. 706; 2022, c. 356.