Current through Register Vol. 41, No. 3, September 23, 2024
The division shall use the point system described in this
section to determine the amount of the penalty.
(a) Seriousness. The division shall assign up
to 10 points based on the seriousness of the violation in accordance with the
following.
Points:
0 No actual or potential damage to the environment or
threat to public health and safety.
1-2 Slight actual or potential damage to the environment
and no actual or potential threat to public health and safety; also violations
of administrative requirements which can be quickly corrected and which do not
obstruct enforcement by the division.
3-4 Moderately significant actual or potential damage to
the environment which can be corrected promptly; also actual or potential minor
hazard to the public health and safety; also violations of administrative
requirements which can be corrected after some delay, and which tend to hamper
or obstruct enforcement by the division.
5-6 Moderately significant actual or potential damage to
the environment which can be corrected only after a substantial effort or
period of time; also actual or potential moderately significant hazard to the
public health and safety.
7-8 Substantial actual or potential damage to the
environment which can be corrected only after a substantial effort or period of
time; also extremely serious potential damage to the environment; also
substantial actual or potential damage to the public health and safety.
9-10 Extremely serious actual damage to the environment;
also extreme actual or potential hazards to the public health and
safety.
(b) Negligence.
(1) The division shall assign up to six
points based on the degree of fault of the person to whom the notice or order
was issued in causing or failing to correct the violation, condition, or
practice which led to the notice or order, either through act or omission.
Points shall be assessed as follows:
(A) A
violation which occurs through no negligence shall be assigned no penalty
points for negligence;
(B) A
violation which is caused by negligence shall be assigned three points or less,
depending on the degree of negligence;
(C) A violation which occurs through a
greater degree of fault than negligence shall be assigned four to six points,
depending on the degree of fault.
(2) In determining the degree of negligence,
involved in a violation and the number of points to be assigned, the following
definitions apply:
(A) No negligence means an
inadvertent violation which was unavoidable by the exercise of reasonable
care.
(B) Negligence means the
failure of a permittee to prevent the occurrence of any violation of the permit
or any requirement of the Act or this chapter due to indifference, lack of
diligence, or lack of reasonable care, or the failure to abate any violation of
such permit or the Act due to indifference, lack of diligence, or lack of
reasonable care.
(C) A greater
degree of fault than negligence means reckless, knowing, or intentional
conduct.
(3) In
calculating points to be assigned for negligence, the acts of all persons
working on the coal exploration or surface coal mining and reclamation site
shall be attributed to the person to whom the notice or order was issued,
unless that person establishes that they were acts of deliberate
sabotage.
(c) Credit for
good faith in attempting to achieve compliance.
(1) The division shall deduct from the total
points assigned under subsections (a) and (b) of this section points based on
the demonstrated good faith of the permittee in attempting to achieve rapid
compliance after notification of the violation. Points shall be deducted as
follows:
(i) three to four points shall be
deducted when the permittee to whom the notice or order was issued took
extraordinary measures to abate the violation in the shortest possible time and
that abatement was achieved before the time set for abatement.
(ii) one to two points shall be deducted when
the permittee to whom the notice or order was issued took prompt and diligent
efforts to promptly abate the violation and that abatement was achieved before
the time set for abatement.
(2) If the consideration of this criterion is
impractical because of the length of the abatement period, the calculation of
points may be made without considering this criterion and may be re-calculated
after the violation has been abated.
(d) Determination of base penalty.
The division shall determine the base amount of any civil
penalty by converting the total number of points calculated under subsections
(a), (b), and (c) of this section to a dollar amount, according to the
following schedule:
| Points |
Dollars |
Points |
Dollars |
| 1 |
50 |
9 |
1050 |
| 2 |
100 |
10 |
1350 |
| 3 |
175 |
11 |
1700 |
| 4 |
250 |
12 |
2050 |
| 5 |
325 |
13 |
2400 |
| 6 |
400 |
14 |
2750 |
| 7 |
475 |
15 |
3100 |
| 8 |
750 |
16 |
3500 |
(e) Credit and additional penalties for
previous history.
(1) Except for a violation
that resulted in personal injury or fatality to any person, the division shall
reduce the base penalty determined under subsection (d) of this section by 10%
if the permittee has had no violations cited by the division within the
preceding 12-month period.
(2) The
division shall add to the base penalty determined under subsection (d) of this
section additional sums for the permittee's previous history of violations as
follows:
(i) Twenty dollars for each
violation contained in a notice of violation, up to 10 of such
violations;
(ii) Fifty dollars for
each violation contained in a notice of violation, in excess of 10
violations;
(iii) One hundred
dollars for each violation contained in a cessation order.
(3) A violation shall not be counted if the
notice or order is the subject of pending administrative or judicial review or
if the time to request such review has not expired, and thereafter it shall be
counted for only one year; provided however, that a violation which is subject
to administrative or judicial review, or for which the time to request such
review has not expired, shall not be disregarded for the purpose of obtaining a
10% reduction pursuant to subdivision (e)(1) of this section, unless such
administrative or judicial review results in the vacation of the
penalty.
(4) No violation for which
the notice or order has been vacated shall be counted.
(5) Each violation shall be counted without
regard to whether it led to a civil penalty assessment.
(f) The maximum penalty which the division
may assess under this section for each cessation order or notice of violation
shall be $5,000, except that if the violation resulted in a personal injury or
fatality to any person, then the civil penalty determined under subsection (d)
of this section shall be multiplied by a factor of 20, not to exceed $70,000.
As provided in 4VAC25-130-845.15, each day of continuing violation may be
deemed a separate violation for the purpose of assessing penalties.
Statutory Authority
§§ 45.1-161.3 and 45.1-230 of the Code of
Virginia.
