On September 6, 2012, the Virginia Department of Environmental Quality (DEQ) Division of Enforcement published revisions to their Civil Enforcement Manual. Specifically, Chapter 4 of the Manual, which addresses Civil Charges and Penalties, was revised and updated. A memorandum summarizing the changes was published along with the new version of Chapter 4. The most significant change includes a re-write of the section on the Virginia Water Protection Permit Program (VWPP). Additionally, the revisions emphasize that the cost of non-compliance should exceed the cost of compliance and that the ability to pay a civil penalty is to be considered before, not after, an enforcement order is signed.

Although Chapter 4 also includes guidance on Air and Waste Programs, it is the changes to the VWPP within the Water Program section that are most likely to affect individuals or organizations primarily concerned with development of linear transportation, commercial, institutional or residential projects. Therefore, changes to the VWPP section of Chapter 4 are addressed in more detail.

The bulk of the changes to the VWPP section are included within the VWPP Civil Charge/Civil Penalty Worksheet located on pages 56 & 57 of the document. While several changes were made to the Gravity Factors associated with Surface Water and Wetlands, no changes were made to Gravity Factors associated with Surface Water Withdrawal. The previous version of the Surface Water and Wetlands worksheet was revised to remove two categories relating to fish kills, fuel or oil spills. Two other categories were renamed: Unauthorized discharge of pollutants became Unauthorized impacts to wetlands and/or streams and Other violations not listed above became Record or reporting violations.

The revised manual provides very specific guidance on determination of the Potential for Harm, which directly relates to the amount of the civil penalty imposed, for Failure to obtain coverage and Exceeding coverage categories. However, very limited guidance is offered for the other ten factors that contribute to the calculation of the Gravity component of the civil penalty. The lack of specific guidance for the remaining factors is particularly troublesome because the dollar value of penalties associated with eight of the twelve Gravity Factors were modified, while four remained unchanged. Of the eight values that were modified, four decreased and four increased. Although changes have been made to the VWPP Civil Charge/Civil Penalty Worksheet that may affect the dollar value of the civil penalty associated with a particular violation, the maximum penalty amount of $32,500 per day for each violation is defined by law and does not change.

For further information please contact Dan Lucey, Doug Chapin or Mark Headly.