Section 150. Enforcement of regulations

A. All activities of an AOSE/PE pertaining to evaluations and designs of sewage treatment systems governed by the Sewage Handling and Disposal Regulations (12VAC5-610) and applications for certification as an AOSE shall comply with the requirements set forth in this chapter. The commissioner may enforce this chapter through any means lawfully available.

B. Subject to the exceptions indicated below, whenever the commissioner, the commissioner's designee, or the district or local health department has reason to believe a violation of this chapter, any law administered by the board, commissioner, or department, any regulations of the board, any order of the board or commissioner, or any conditions in a permit has occurred or is occurring, the department shall notify the alleged violator. Such notice shall be made in writing, shall be delivered personally or sent by certified mail, shall cite the regulation or regulations that are allegedly being violated, shall state the facts that form the basis for believing the violation has occurred or is occurring, shall include a request for a specific action by the recipient by a specified time and shall state the penalties associated with such violations (see § 32.1-27 of the Code of Virginia). In addition, or in the alternative, when the commissioner or the commissioner's designee deems it necessary, the department may initiate criminal prosecution or seek civil relief in circuit court through mandamus or injunctive relief without giving notice. Written notice pursuant to this section is required only when the department intends to pursue administrative enforcement pursuant to the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

C. Pursuant to the authority granted in § 32.1-26 of the Code of Virginia, the commissioner may issue orders to require any person to comply with the provisions of this chapter. The order shall be signed by the commissioner and may require, for example:

1. The immediate cessation or correction, or both, of the violation;

2. The submission of a plan to prevent future violations to the commissioner for review and approval;

3. The submission of an application for certification as an AOSE, an application for a permit, or an application for a variance; and

4. Any other corrective action deemed necessary for proper compliance with the regulations or to protect public health.

D. Before the issuance of an order described in subsection C of this section, a hearing must be held with at least 30 days notice to the affected party of the time, place and purpose thereof, for the purpose of adjudicating the alleged violation or violations of this chapter. The procedure at the hearing shall be in accordance with § 2.2-4020 of the Code of Virginia.

E. All orders shall become effective not less than 15 days after mailing a copy thereof by certified mail to the last known address of the person violating this chapter. Violation of an order is a misdemeanor. (See § 32.1-27 of the Code of Virginia.)

F. The commissioner may enforce all orders. Should any person fail to comply with any order, the commissioner may:

1. Apply to an appropriate court for an injunction or other legal process to prevent or stop any practice in violation of the order;

2. Seek mandamus against any owner or person that is a municipal corporation;

3. Request the Attorney General to bring an action for civil penalty;

4. Request the Commonwealth's Attorney to bring a criminal action.

G. Nothing contained in this section shall be interpreted to require the commissioner to issue an order prior to seeking enforcement of any regulations or statute through an injunction, mandamus or criminal prosecution.

Historical Notes

Derived from Volume 18, Issue 18, eff. July 1, 2002.

Statutory Authority

§§ 32.1-163.5 and 32.1-164 of the Code of Virginia.