                                 CODE OF VIRGINIA

ENFORCEMENT AND PENALTIES (§ 62.1-44.34:20)

A. Upon a finding of a violation of this article or a regulation or term or
condition of approval issued pursuant to this article, the Board is authorized
to issue a special order requiring any person to cease and desist from causing
or permitting such violation or requiring any person to comply with any such
provision, regulation or term or condition of approval. Such special orders
shall be issued only after notice and an opportunity for hearing except that, if
the Board finds that any discharge in violation of this article poses a serious
threat to (i) the public health, safety or welfare or the health of animals,
fish, botanic or aquatic life; (ii) a public water supply; or (iii)
recreational, commercial, industrial, agricultural or other reasonable uses, the
Board may issue, without advance notice or hearing, an emergency special order
requiring the operator of any facility, vehicle or vessel to cease such
discharge immediately, to implement any applicable contingency plan and to
effect containment and cleanup. Such emergency special order may also require
the operator of a facility to modify or cease regular operation of the facility,
or any portion thereof, until the Board determines that continuing regular
operation of the facility, or such portion thereof, will not pose a substantial
threat of additional or continued discharges. The Board shall affirm, modify,
amend or cancel any such emergency order after providing notice and opportunity
for hearing to the operator charged with the violation. The notice of the
hearing and the emergency order shall be issued at the same time. If an operator
who has been issued such a special order or an emergency special order is not
complying with the terms thereof, the Board may proceed in accordance with
subsection B of this section, and where the order is based on a finding of an
imminent and substantial danger, the court shall issue an injunction compelling
compliance with the emergency special order pending a hearing by the Board. If
an emergency special order requires modification or cessation of operations, the
Board shall provide an opportunity for a hearing within 48 hours of the issuance
of the injunction.

B. In the event of a violation of this article or a regulation, administrative
or judicial order, or term or condition of approval issued under this article,
or in the event of failure to comply with a special order issued by the Board
pursuant to this section, the Board is authorized to proceed by civil action to
obtain an injunction of such violation, to obtain such affirmative equitable
relief as is appropriate and to recover all costs, damages and civil penalties
resulting from such violation or failure to comply. The Board shall be entitled
to an award of reasonable attorneys&#8217; fees and costs in any action in which
it is a prevailing party.

C. Any person who violates or causes or permits to be violated a provision of
this article, or a regulation, administrative or judicial order, or term or
condition of approval issued under this article, shall be subject to a civil
penalty for each such violation as follows:

   1. For failing to obtain approval of an oil discharge contingency plan as
   required by &#xA7; 62.1-44.34:15, not less than $1,000 nor more than $50,000
   for the initial violation, and $5,000 per day for each day of violation
   thereafter;

   2. For failing to maintain evidence of financial responsibility as required by
   &#xA7; 62.1-44.34:16, not less than $1,000 nor more than $100,000 for the
   initial violation, and $5,000 per day for each day of violation thereafter;

   3. For discharging or causing or permitting a discharge of oil into or upon
   state waters, or owning or operating any facility, vessel or vehicle from
   which such discharge originates in violation of &#xA7; 62.1-44.34:18, up to
   $100 per gallon of oil discharged;

   4. For failing to cooperate in containment and cleanup of a discharge as
   required by &#xA7; 62.1-44.34:18 or for failing to report a discharge as
   required by &#xA7; 62.1-44.34:19, not less than $1,000 nor more than $50,000
   for the initial violation, and $10,000 for each day of violation thereafter;
   and

   5. For violating or causing or permitting to be violated any other provision
   of this article, or a regulation, administrative or judicial order, or term or
   condition of approval issued under this article, up to $32,500 for each
   violation. Each day of violation of each requirement shall constitute a
   separate offense.

D. Civil penalties may be assessed under this article either by a court in an
action brought by the Board pursuant to this section, as specified in &#xA7;
62.1-44.15, or with the consent of the person charged, in a special order issued
by the Board. All penalties shall be paid into the state treasury and deposited
by the State Treasurer into the Virginia Underground Petroleum Storage Tank Fund
as established in &#xA7; 62.1-44.34:11. In determining the amount of any
penalty, consideration shall be given to the willfulness of the violation, any
history of noncompliance, the actions of the person in reporting, containing and
cleaning up any discharge or threat of discharge, the damage or injury to state
waters or the impairment of their beneficial use, the cost of containment and
cleanup, the nature and degree of injury to or interference with general health,
welfare and property, and the available technology for preventing, containing,
reducing or eliminating the discharge.

E. Any person who knowingly violates, or causes or permits to be violated, a
provision of this article, or a regulation, administrative or judicial order, or
term or condition of approval issued under this article shall be guilty of a
misdemeanor punishable by confinement in jail for not more than 12 months and a
fine of not more than $100,000, either or both. Any person who knowingly or
willfully makes any false statement, representation or certification in any
application, record, report, plan or other document filed or required to be
maintained by this article or by administrative or judicial order issued under
this article shall be guilty of a felony punishable by a term of imprisonment of
not less than one nor more than three years and a fine of not more than
$100,000, either or both. In the case of a discharge of oil into or upon state
waters:

   1. Any person who negligently discharges or negligently causes or permits such
   discharge shall be guilty of a misdemeanor punishable by confinement in jail
   for not more than 12 months and a fine of not more than $50,000, either or
   both.

   2. Any person who knowingly and willfully discharges or knowingly and
   willfully causes or permits such discharge shall be guilty of a felony
   punishable by a term of imprisonment of not less than one year nor more than
   10 years and a fine of not more than $100,000, either or both.

F. Each day of violation of each requirement shall constitute a separate
offense. In the event the violation of this article follows a prior felony
conviction under subdivision E 2 of this section, such violation shall
constitute a felony and shall be punishable by a term of imprisonment of not
less than two years nor more than 10 years and a fine of not more than $200,000,
either or both.

G. Upon conviction for a violation of any provision of this article, or a
regulation, administrative or judicial order, or term or condition of approval
issued under this article, a defendant who is not an individual shall be
sentenced to pay a fine not exceeding the greater of:

   1. $1 million; or

   2. An amount that is three times the economic benefit, if any, realized by the
   defendant as a result of the offense.

H. Any tank vessel entering upon state waters which fails to provide evidence of
financial responsibility required by &#xA7; 62.1-44.34:16, and any vessel from
which oil is discharged into or upon state waters, may be detained and held as
security for payment to the Commonwealth of any damages or penalties assessed
under this section. Such damages and penalties shall constitute a lien on the
vessel and the lien shall secure all costs of containment and cleanup, damages,
fines and penalties, as the case may be, for which the operator may be liable.
The vessel shall be released upon posting of a bond with surety in the maximum
amount of such damages or penalties.

HISTORY: 1990, c. 917; 1992, c. 456; 2005, c. 706.