2006 Code of Virginia § 62.1-44.15 - Powers and duties; civil penalties

62.1-44.15. Powers and duties; civil penalties.

It shall be the duty of the Board and it shall have the authority:

(1) [Repealed.]

(2) To study and investigate all problems concerned with the quality of statewaters and to make reports and recommendations.

(2a) To study and investigate methods, procedures, devices, appliances, andtechnologies that could assist in water conservation or water consumptionreduction.

(2b) To coordinate its efforts toward water conservation with other personsor groups, within or without the Commonwealth.

(2c) To make reports concerning, and formulate recommendations based upon,any such water conservation studies to ensure that present and future waterneeds of the citizens of the Commonwealth are met.

(3a) To establish such standards of quality and policies for any state watersconsistent with the general policy set forth in this chapter, and to modify,amend or cancel any such standards or policies established and to take allappropriate steps to prevent quality alteration contrary to the publicinterest or to standards or policies thus established, except that adescription of provisions of any proposed standard or policy adopted byregulation which are more restrictive than applicable federal requirements,together with the reason why the more restrictive provisions are needed,shall be provided to the standing committee of each house of the GeneralAssembly to which matters relating to the content of the standard or policyare most properly referable. The Board shall, from time to time, but at leastonce every three years, hold public hearings pursuant to subsection B of 2.2-4007 but, upon the request of an affected person or upon its own motion,hold hearings pursuant to 2.2-4009, for the purpose of reviewing thestandards of quality, and, as appropriate, adopting, modifying, or cancelingsuch standards. Whenever the Board considers the adoption, modification,amendment or cancellation of any standard, it shall give due considerationto, among other factors, the economic and social costs and benefits which canreasonably be expected to obtain as a consequence of the standards asadopted, modified, amended or cancelled. The Board shall also give dueconsideration to the public health standards issued by the VirginiaDepartment of Health with respect to issues of public health policy andprotection. If the Board does not follow the public health standards of theVirginia Department of Health, the Board's reason for any deviation shall bemade in writing and published for any and all concerned parties.

(3b) Except as provided in subdivision (3a), such standards and policies areto be adopted or modified, amended or cancelled in the manner provided by theAdministrative Process Act ( 2.2-4000 et seq.).

(4) To conduct or have conducted scientific experiments, investigations,studies, and research to discover methods for maintaining water qualityconsistent with the purposes of this chapter. To this end the Board maycooperate with any public or private agency in the conduct of suchexperiments, investigations and research and may receive in behalf of theCommonwealth any moneys that any such agency may contribute as its share ofthe cost under any such cooperative agreement. Such moneys shall be used onlyfor the purposes for which they are contributed and any balance remainingafter the conclusion of the experiments, investigations, studies, andresearch, shall be returned to the contributors.

(5) To issue, revoke or amend certificates under prescribed conditions for:(a) the discharge of sewage, industrial wastes and other wastes into oradjacent to state waters; (b) the alteration otherwise of the physical,chemical or biological properties of state waters; (c) excavation in awetland; or (d) on and after October 1, 2001, the conduct of the followingactivities in a wetland: (i) new activities to cause draining thatsignificantly alters or degrades existing wetland acreage or functions, (ii)filling or dumping, (iii) permanent flooding or impounding, or (iv) newactivities that cause significant alteration or degradation of existingwetland acreage or functions.

(5a) All certificates issued by the Board under this chapter shall have fixedterms. The term of a Virginia Pollution Discharge Elimination System permitshall not exceed five years. As of December 31, 2004, any Departmentpersonnel conducting inspections for compliance with stormwater managementpermits shall hold a certificate of competence pursuant to 10.1-561. Theterm of a Virginia Water Protection Permit shall be based upon the projectedduration of the project, the length of any required monitoring, or otherproject operations or permit conditions; however, the term shall not exceed15 years. The term of a Virginia Pollution Abatement permit shall not exceed10 years, except that the term of a Virginia Pollution Abatement permit forconfined animal feeding operations shall be 10 years. The Department ofEnvironmental Quality shall inspect all facilities for which a VirginiaPollution Abatement permit has been issued at least once every five years,except that the Department shall inspect all facilities covered by theVirginia Pollution Abatement permit for confined animal feeding operationsannually. Department personnel performing inspections of confined animalfeeding operations shall be certified under the voluntary nutrient managementtraining and certification program established in 10.1-104.2. The term of acertificate issued by the Board shall not be extended by modification beyondthe maximum duration and the certificate shall expire at the end of the termunless an application for a new permit has been timely filed as required bythe regulations of the Board and the Board is unable, through no fault of thepermittee, to issue a new permit before the expiration date of the previouspermit.

(5b) Any certificate issued by the Board under this chapter may, after noticeand opportunity for a hearing, be amended or revoked on any of the followinggrounds or for good cause as may be provided by the regulations of the Board:

1. The owner has violated any regulation or order of the Board, any conditionof a certificate, any provision of this chapter, or any order of a court,where such violation results in a release of harmful substances into theenvironment or poses a substantial threat of release of harmful substancesinto the environment or presents a hazard to human health or the violation isrepresentative of a pattern of serious or repeated violations which, in theopinion of the Board, demonstrates the owner's disregard for or inability tocomply with applicable laws, regulations, or requirements;

2. The owner has failed to disclose fully all relevant material facts or hasmisrepresented a material fact in applying for a certificate, or in any otherreport or document required under this law or under the regulations of theBoard;

3. The activity for which the certificate was issued endangers human healthor the environment and can be regulated to acceptable levels by amendment orrevocation of the certificate; or

4. There exists a material change in the basis on which the permit was issuedthat requires either a temporary or a permanent reduction or elimination ofany discharge controlled by the certificate necessary to protect human healthor the environment.

(5c) Any certificate issued by the Board under this chapter relating todredging projects governed under Chapter 12 ( 28.2-1200 et seq.) or Chapter13 ( 28.2-1300 et seq.) of Title 28.2 may be conditioned upon ademonstration of financial responsibility for the completion of compensatorymitigation requirements. Financial responsibility may be demonstrated by aletter of credit, a certificate of deposit or a performance bond executed ina form approved by the Board. If the U.S. Army Corps of Engineers requiresdemonstration of financial responsibility for the completion of compensatorymitigation required for a particular project, then the mechanism and amountapproved by the U.S. Army Corps of Engineers shall be used to meet thisrequirement.

(6) To make investigations and inspections, to ensure compliance with anycertificates, standards, policies, rules, regulations, rulings and specialorders which it may adopt, issue or establish and to furnish advice,recommendations, or instructions for the purpose of obtaining suchcompliance. In recognition of 32.1-164 and 62.1-44.18, the Board and theState Department of Health shall enter into a memorandum of understandingestablishing a common format to consolidate and simplify inspections ofsewage treatment plants and coordinate the scheduling of the inspections. Thenew format shall ensure that all sewage treatment plants are inspected atappropriate intervals in order to protect water quality and public health andat the same time avoid any unnecessary administrative burden on those beinginspected.

(7) To adopt rules governing the procedure of the Board with respect to: (a)hearings; (b) the filing of reports; (c) the issuance of certificates andspecial orders; and (d) all other matters relating to procedure; and to amendor cancel any rule adopted. Public notice of every rule adopted under thissection shall be by such means as the Board may prescribe.

(8a) To issue special orders to owners (i) who are permitting or causing thepollution, as defined by 62.1-44.3, of state waters to cease and desistfrom such pollution, (ii) who have failed to construct facilities inaccordance with final approved plans and specifications to construct suchfacilities in accordance with final approved plans and specifications, (iii)who have violated the terms and provisions of a certificate issued by theBoard to comply with such terms and provisions, (iv) who have failed tocomply with a directive from the Board to comply with such directive, (v) whohave contravened duly adopted and promulgated water quality standards andpolicies to cease and desist from such contravention and to comply with suchwater quality standards and policies, (vi) who have violated the terms andprovisions of a pretreatment permit issued by the Board or by the owner of apublicly owned treatment works to comply with such terms and provisions or(vii) who have contravened any applicable pretreatment standard orrequirement to comply with such standard or requirement; and also to issuesuch orders to require any owner to comply with the provisions of thischapter and any decision of the Board. Orders issued pursuant to thissubsection may include civil penalties of up to $32,500 per violation, not toexceed $100,000 per order. The Board may assess penalties under thissubsection if (a) the person has been issued at least two written notices ofalleged violation by the Department for the same or substantially relatedviolations at the same site, (b) such violations have not been resolved bydemonstration that there was no violation, by an order issued by the Board orthe Director, or by other means, (c) at least 130 days have passed since theissuance of the first notice of alleged violation, and (d) there is a findingthat such violations have occurred after a hearing conducted in accordancewith subdivision (8b). The actual amount of any penalty assessed shall bebased upon the severity of the violations, the extent of any potential oractual environmental harm, the compliance history of the facility or person,any economic benefit realized from the noncompliance, and the ability of theperson to pay the penalty. The Board shall provide the person with thecalculation for the proposed penalty prior to any hearing conducted for theissuance of an order that assesses penalties pursuant to this subsection. Theissuance of a notice of alleged violation by the Department shall not beconsidered a case decision as defined in 2.2-4001. Any notice of allegedviolation shall include a description of each violation, the specificprovision of law violated, and information on the process for obtaining afinal decision or fact finding from the Department on whether or not aviolation has occurred, and nothing in this section shall preclude an ownerfrom seeking such a determination. Such civil penalties shall be paid intothe state treasury and deposited by the State Treasurer into the VirginiaEnvironmental Emergency Response Fund ( 10.1-2500 et seq.), except thatcivil penalties assessed for violations of Article 9 ( 62.1-44.34:8 et seq.)or Article 11 ( 62.1-44.34:14 et seq.) of this chapter shall be paid intothe Virginia Petroleum Storage Tank Fund in accordance with 62.1-44.34:11.

(8b) Such special orders are to be issued only after a hearing before ahearing officer appointed by the Supreme Court in accordance with 2.2-4020or, if requested by the person, before a quorum of the Board with at least 30days' notice to the affected owners, of the time, place and purpose thereof,and they shall become effective not less than 15 days after service asprovided in 62.1-44.12; provided that if the Board finds that any suchowner is grossly affecting or presents an imminent and substantial danger to(i) the public health, safety or welfare, or the health of animals, fish oraquatic life; (ii) a public water supply; or (iii) recreational, commercial,industrial, agricultural or other reasonable uses, it may issue, withoutadvance notice or hearing, an emergency special order directing the owner tocease such pollution or discharge immediately, and shall provide anopportunity for a hearing, after reasonable notice as to the time and placethereof to the owner, to affirm, modify, amend or cancel such emergencyspecial order. If an owner who has been issued such a special order or anemergency special order is not complying with the terms thereof, the Boardmay proceed in accordance with 62.1-44.23, and where the order is based ona finding of an imminent and substantial danger, the court shall issue aninjunction compelling compliance with the emergency special order pending ahearing by the Board. If an emergency special order requires cessation of adischarge, the Board shall provide an opportunity for a hearing within 48hours of the issuance of the injunction.

(8c) The provisions of this section notwithstanding, the Board may proceeddirectly under 62.1-44.32 for any past violation or violations of anyprovision of this chapter or any regulation duly promulgated hereunder.

(8d) With the consent of any owner who has violated or failed, neglected orrefused to obey any regulation or order of the Board, any condition of apermit or any provision of this chapter, the Board may provide, in an orderissued by the Board against such person, for the payment of civil charges forpast violations in specific sums not to exceed the limit specified in 62.1-44.32 (a). Such civil charges shall be instead of any appropriate civilpenalty which could be imposed under 62.1-44.32 (a) and shall not besubject to the provisions of 2.2-514. Such civil charges shall be paid intothe state treasury and deposited by the State Treasurer into the VirginiaEnvironmental Emergency Response Fund ( 10.1-2500 et seq.), excluding civilcharges assessed for violations of Article 9 ( 62.1-44.34:8 et seq.) or 10( 62.1-44.34:10 et seq.) of Chapter 3.1 of this title, or a regulation,administrative or judicial order, or term or condition of approval relatingto or issued under those articles.

The amendments to this section adopted by the 1976 Session of the GeneralAssembly shall not be construed as limiting or expanding any cause of actionor any other remedy possessed by the Board prior to the effective date ofsaid amendments.

(8e) The Board shall develop and provide an opportunity for public comment onguidelines and procedures that contain specific criteria for calculating theappropriate penalty for each violation based upon the severity of theviolations, the extent of any potential or actual environmental harm, thecompliance history of the facility or person, any economic benefit realizedfrom the noncompliance, and the ability of the person to pay the penalty.

(9) To make such rulings under 62.1-44.16, 62.1-44.17 and 62.1-44.19 asmay be required upon requests or applications to the Board, the owner orowners affected to be notified by certified mail as soon as practicable afterthe Board makes them and such rulings to become effective upon suchnotification.

(10) To adopt such regulations as it deems necessary to enforce the generalwater quality management program of the Board in all or part of theCommonwealth, except that a description of provisions of any proposedregulation which are more restrictive than applicable federal requirements,together with the reason why the more restrictive provisions are needed,shall be provided to the standing committee of each house of the GeneralAssembly to which matters relating to the content of the regulation are mostproperly referable.

(11) To investigate any large-scale killing of fish.

(a) Whenever the Board shall determine that any owner, whether or not heshall have been issued a certificate for discharge of waste, has dischargedsewage, industrial waste, or other waste into state waters in such quantity,concentration or manner that fish are killed as a result thereof, it mayeffect such settlement with the owner as will cover the costs incurred by theBoard and by the Department of Game and Inland Fisheries in investigatingsuch killing of fish, plus the replacement value of the fish destroyed, or asit deems proper, and if no such settlement is reached within a reasonabletime, the Board shall authorize its executive secretary to bring a civilaction in the name of the Board to recover from the owner such costs andvalue, plus any court or other legal costs incurred in connection with suchaction.

(b) If the owner is a political subdivision of the Commonwealth, the actionmay be brought in any circuit court within the territory embraced by suchpolitical subdivision. If the owner is an establishment, as defined in thischapter, the action shall be brought in the circuit court of the city or thecircuit court of the county in which such establishment is located. If theowner is an individual or group of individuals, the action shall be broughtin the circuit court of the city or circuit court of the county in which suchperson or any of them reside.

(c) For the purposes of this subsection the State Water Control Board shallbe deemed the owner of the fish killed and the proceedings shall be as thoughthe State Water Control Board were the owner of the fish. The fact that theowner has or held a certificate issued under this chapter shall not be raisedas a defense in bar to any such action.

(d) The proceeds of any recovery had under this subsection shall, whenreceived by the Board, be applied, first, to reimburse the Board for anyexpenses incurred in investigating such killing of fish. The balance shall bepaid to the Board of Game and Inland Fisheries to be used for the fisheries'management practices as in its judgment will best restore or replace thefisheries' values lost as a result of such discharge of waste, including,where appropriate, replacement of the fish killed with game fish or otherappropriate species. Any such funds received are hereby appropriated for thatpurpose.

(e) Nothing in this subsection shall be construed in any way to limit orprevent any other action which is now authorized by law by the Board againstany owner.

(f) Notwithstanding the foregoing, the provisions of this subsection shallnot apply to any owner who adds or applies any chemicals or other substancesthat are recommended or approved by the State Department of Health to statewaters in the course of processing or treating such waters for public watersupply purposes, except where negligence is shown.

(12) To administer programs of financial assistance for planning,construction, operation, and maintenance of water quality control facilitiesfor political subdivisions in the Commonwealth.

(13) To establish policies and programs for effective area-wide or basin-widewater quality control and management. The Board may develop comprehensivepollution abatement and water quality control plans on an area-wide orbasin-wide basis. In conjunction with this, the Board, when consideringproposals for waste treatment facilities, is to consider the feasibility ofcombined or joint treatment facilities and is to ensure that the approval ofwaste treatment facilities is in accordance with the water quality managementand pollution control plan in the watershed or basin as a whole. In makingsuch determinations, the Board is to seek the advice of local, regional, orstate planning authorities.

(14) To establish requirements for the treatment of sewage, industrial wastesand other wastes that are consistent with the purposes of this chapter;however, no treatment shall be less than secondary or its equivalent, unlessthe owner can demonstrate that a lesser degree of treatment is consistentwith the purposes of this chapter.

(15) To promote and establish requirements for the reclamation and reuse ofwastewater that are protective of state waters and public health as analternative to directly discharging pollutants into waters of the state. Therequirements shall address various potential categories of reuse and mayinclude general permits and provide for greater flexibility and lessstringent requirements commensurate with the quality of the reclaimed waterand its intended use. The requirements shall be developed in consultationwith the Department of Health and other appropriate state agencies. Thisauthority shall not be construed as conferring upon the Board any power orduty duplicative of those of the State Board of Health.

(16) To establish and implement policies and programs to protect and enhancethe Commonwealth's wetland resources. Regulatory programs shall be designedto achieve no net loss of existing wetland acreage and functions. Voluntaryand incentive-based programs shall be developed to achieve a net resourcegain in acreage and functions of wetlands. The Board shall seek and obtainadvice and guidance from the Virginia Institute of Marine Science inimplementing these policies and programs.

(Code 1950, 62.1-27; 1968, c. 659; 1970, c. 638; 1972, c. 741; 1975, c.335; 1976, c. 621; 1977, c. 32; 1978, c. 827; 1984, c. 11; 1985, cc. 249,397; 1988, cc. 167, 328; 1989, c. 389; 1990, c. 717; 1991, cc. 239, 718;1993, c. 456; 1994, c. 698; 1998, cc. 805, 863; 2000, cc. 972, 1032, 1054;2002, cc. 49, 396; 2004, c. 431; 2005, c. 706.)