Administrative Code

Virginia Administrative Code
7/5/2022

Part 846. Individual Civil Penalties

4VAC25-130-846.2. (Repealed.)

Historical Notes

Derived from VR480-03-19 § 846.2, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994; repealed, Virginia Register Volume 29, Issue 13, eff. March 27, 2013.

4VAC25-130-846.12. When an individual civil penalty may be assessed.

(a) Except as provided in Paragraph (b) of this section, the division may assess an individual civil penalty against any corporate director, officer or agent of a corporate permittee who knowingly and willfully authorized, ordered or carried out a violation, failure, or refusal.

(b) The division shall not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the division to the corporate permittee for the violation, and the cessation order has remained unabated for 30 days.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 846.12, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

4VAC25-130-846.14. Amount of the individual civil penalty.

(a) In determining the amount of an individual civil penalty, the division shall consider the criteria specified in § 45.2-1021 of the Act, including:

(1) The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular surface coal mining operation;

(2) The seriousness of the violation, failure or refusal (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public; and,

(3) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal.

(b) The 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 determined under 4VAC25-130-845.13 (d) shall be multiplied by a factor of 20, not to exceed $70,000. Each day of a continuing violation may be deemed a separate violation and the division may assess a separate individual civil penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order or other order incorporated in a final decision issued by the director, until abatement or compliance is achieved.

Statutory Authority

§ 45.2-103 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 846.2, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994; repealed, Virginia Register Volume 29, Issue 13, eff. March 27, 2013; Volume 38, Issue 13, eff. March 31, 2022.

4VAC25-130-846.17. Assessment of an individual civil penalty.

(a) Notice. The division shall serve, by certified mail, each individual to be assessed a penalty under this Part a notice of proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed, and a copy of any underlying notice of violation and cessation order.

(b) Final order and opportunity for review. The notice of proposed individual civil penalty assessment shall become a final order of the director 30 days after service upon the individual, unless:

(1) The individual submits a written request for formal review of the penalty to the division within 30 days of service of the notice of proposed individual civil penalty assessment; or

(2) The division and the individual or responsible corporate permittee agree within 30 days of service of the notice of proposed individual civil penalty to a schedule or plan for the abatement or correction of the violation, failure or refusal.

(c) Service. For purposes of this section, service shall be performed on the individual to be assessed an individual civil penalty, by certified mail, or by any alternative means consistent with the Rules of the Supreme Court of Virginia governing service of a summons and complaint. Service shall be complete upon tender of the notice of proposed assessment and included information or of the certified mail and shall not be deemed incomplete because of refusal to accept.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 846.17, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994; Virginia Register Volume 15, Issue 6, eff. January 6, 1999.

4VAC25-130-846.18. Penalty payment.

(a) If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a request for formal review or an abatement agreement, the penalty shall be due upon issuance of the final order.

(b) If an individual named in the notice of proposed individual civil penalty assessment timely requests formal review under 4VAC25-130-846.17(b)(1), the penalty shall be due upon issuance of the final administrative order affirming, increasing or decreasing the proposed penalty.

(c) Abatement agreement. Where the division and corporate permittee or individual have agreed in writing on a plan for the abatement of or compliance with the unabated order, the individual named in the notice may postpone payment of the penalty until receiving either:

(1) A final order from the division stating that the penalty is due (whereupon, payment must be submitted within 30 days); or,

(2) A written notice from the division stating that abatement or compliance has been satisfactorily accomplished and the penalty has been withdrawn.

Statutory Authority

§§ 45.1-161.3 and 45.1-230 of the Code of Virginia.

Historical Notes

Derived from VR480-03-19 § 846.18, eff. December 15, 1981; amended, eff. June 28, 1982; October 28, 1982; December 14, 1982; October 11, 1983; December 27, 1983; May 8, 1984; June 22, 1984; August 2, 1984; October 16, 1985; January 7, 1987; July 22, 1987; November 25, 1987; October 12, 1988; December 26, 1990; July 1, 1991; July 17, 1991; November 20, 1991; July 7, 1992; May 5, 1993; October 19, 1994.

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