2019 US Virgin Islands Code
Title 12 - Conservation
Chapter 9 - Air Pollution Control
§ 215. Penalties

(a) Civil judicial penalties.

• The Commissioner shall, as appropriate, in the case of any person that is the owner or operator of a major emitting facility, or a major stationary source, and may, in the case of any other person, or any source of air pollution, commence a civil action for a permanent or temporary injunction, or assess and recover a civil penalty up to $50,000 per day per violation or both, for any violation or threatened violation for which the Commissioner is authorized to issue a notice of violation under section 209 of this chapter. It shall not be necessary to first revoke any permit prior to seeking injunctive relief. Any action under this subsection shall be brought in the Superior Court of the United States Virgin Islands, and such court shall have jurisdiction to restrain such violation, to require compliance, to assess such civil penalty, to collect any fees and noncompliance assessment owed the United States Virgin Islands under this chapter, and to award any other appropriate relief. Recourse to and exhaustion of the administrative remedies prescribed in section 209 shall not be a condition precedent to enforcement under this section.

(b) Administrative assessment of civil penalties.

• (1) Any person who violates any provision of this chapter, or of any permit, rule, regulation, standard or order issued or promulgated hereunder, shall be subject to a civil penalty up to $50,000 per day per violation.

• (2) Civil penalties charged pursuant to this subsection may be assessed administratively by the Department; provided, said person has been given the opportunity for a hearing on the record before the Commissioner, and that in making the civil assessment, the Commissioner has made finding of fact and conclusions of law.

• (3) The Commissioner's authority under this subsection shall be limited to matters where the total penalty sought does not exceed $250,000. The assessment of any administrative fine in excess of $250,000 may be enforced by the commencement of a civil action by the Attorney General pursuant to Virgin Islands law.

• (4) The Commissioner may compromise, modify, or remit, with or without conditions, any administrative penalty which may be imposed under this subsection.

(c) Criminal penalties.

• (1) Any person who knowingly violates any provisions of this chapter or any rule, regulation, order, emission standard, emission limitation, or emission prohibition promulgated pursuant to this chapter shall, upon conviction, be punished by a fine of not more than $10,000 per day per violation or by imprisonment for not more than one (1) year, or by both. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment.

• (2) Any person who gives advance notice of any inspection or investigation to be conducted under this chapter, without authority from the Commissioner or his designee shall, upon conviction, be punished by a fine of not more than $1,000 or by imprisonment for not more than six (6) months or both.

• (3) Any person who knowingly makes any false statements, representations or certification in any application, report, plan or other documents filed or required to be maintained under this chapter or by any permit, rule, regulation or order issued under this chapter, or who falsifies, tampers with or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter or by any permit, rule, regulation, or order issued under this chapter, shall, upon conviction be punished by a fine of not more than $10,000 per day per violation, or by imprisonment for not more than one (1) year, or both. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment.

• (4) Any person who knowingly fails to pay any major source permit fee owed the Commissioner under this chapter shall, upon conviction, be punished by a fine of not more than $10,000 per day per violation, or by imprisonment for not more than one year, or by both. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment.

• (5) Any person who negligently releases into the ambient air any hazardous air pollutant listed pursuant to section 112 of the Clean Air Act or any extremely hazardous air pollutant listed pursuant to section 302(a)(2) of the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 11002 (a)(2)) that is not listed in section 112 of the Clean Air Act, and who at the time negligently places another person in imminent danger of death or serious bodily injury shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than one year, or both. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment.

• (6)

  • (A) Any person who knowingly releases into the ambient air any hazardous air pollutant listed pursuant to section 112 of the Clean Air Act or any extremely hazardous substance listed pursuant to section 302(a)(2) of the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 11002(a)(2)) that is not listed in section 112 of this Act, and who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury shall, upon conviction, be punished by a fine of not more than $50,000 or by imprisonment of not more than 15 years, or both. Any person committing such violation which is an organization shall, upon conviction under this paragraph, be subject to a fine of not more than $1,000,000 for each violation. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment. For any air pollutant for which the Administrator or Commissioner has set an emissions standard or for any source for which a permit has been issued under Title V of the Clean Air Act, a release of such pollutant in accordance with that standard or permit shall not constitute a violation of this paragraph or paragraph (5).

(d) Penalty assessment criteria.

• (1) In determining the amount of any penalty to be assessed under this section, the Commissioner or the court, as appropriate, shall take into consideration (in addition to such other factors as justice may require) the size of the business, the economic impact of the penalty on the business, the violator's full compliance history and good faith efforts to comply, the duration of the violation as established by any credible evidence, payment by the violator of penalties previously assessed for the same violation, the economic benefit of noncompliance, and the seriousness of the violation.

• (2) A penalty may be assessed for each day of violation. For purposes of determining the number of days of violation for which a penalty may be assessed under subsections (1) and (2) of this section, where the Department has notified the source of the violation, and the plaintiff makes a prima facie showing that the conduct or events giving rise to the violation are likely to have continued or recurred past the date of notice, the days of violation shall be presumed to include the date of such notice and each and every day thereafter until the violator established that continuous compliance has been achieved, except to the extent that the violator can prove by a preponderance of the evidence that there were intervening days during which no violation occurred or that the violation was not continuing in nature.