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## § 10.1-609 – Unsafe dams presenting nonimminent danger; civil penalty

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A. Within 30 days after completion of a safety inspection of an impounding structure by the dam owner’s licensed professional engineer in accordance with § 10.1-607, the owner shall submit to the Board a plan, consistent with regulations adopted pursuant to § 10.1-605, to address the recommendations for correcting any deficiencies found at the impounding structure and shall include a schedule for implementing such recommendations. The Board shall determine if the submitted plan and schedule are sufficient to address the deficiencies. If an owner fails or refuses to commence or diligently implement the recommendations for correction of deficiencies according to the schedule contained in the plan, the Director shall have the authority to issue an administrative order directing the owner to commence implementation and completion of such recommendations according to the schedule contained in the plan with modifications as appropriate. Such order may include a civil penalty of up to $500 per day, with the maximum amount not to exceed $25,000. The civil penalty may be in addition to, or in lieu of, any other forfeitures, remedies, or penalties authorized by law. When setting the civil penalty amount, the Director shall consider (i) the nature, duration, and number of previous instances of failure by the dam owner to comply with requirements of law relating to dam safety and the Board’s regulations and orders; (ii) the efforts of the dam owner to correct deficiencies or other instances of failure to comply with the requirements of law relating to dam safety and the Board’s regulations and orders that are the subject of the proposed penalty; (iii) the cost of carrying out actions required to meet the requirements of this article and the Board’s regulations and orders; (iv) the hazard classification of the dam; and (v) any other factors that the Department deems appropriate. The Director shall suspend the civil penalties if the dam owner complies with the administrative order and any conditions in the schedule of compliance contained in such order.

B. Within 30 days after being served by personal service or by mail with a copy of an order issued pursuant to this section, any owner shall have the right to petition the Board for a hearing. A timely filed petition shall stay the effect of the administrative order. The hearing shall be conducted before the Board or a designated member thereof pursuant to § 2.2-4019. The Board shall have the authority to affirm, modify, amend or cancel the administrative order. Any owner aggrieved by a decision of the Board after a hearing shall have the right to judicial review of the final Board decision pursuant to the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

C. The provisions of subsection A of this section notwithstanding, if the Director determines, after the plan is submitted, that changed circumstances justify reclassifying the deficiencies of an impounding structure as an imminent danger to life or property, the Director may proceed directly under § 10.1-613 for enforcement of his order, and the owner shall have the opportunity to contest the fact based upon which the administrative order was issued.

D. The Director, upon a determination that there is an unsafe condition at an impounding structure, is authorized to cause the lowering or complete draining of such impoundment until the unsafe condition has been corrected at the owner’s expense and prior to any authorization to refill. An owner who fails to comply with the provisions contained in an administrative order of the Department shall be subject to procedures set out in § 10.1-613 and the penalties authorized under § 10.1-613.1.

E. If any civil penalty has not been paid within 60 days after the Board’s final decision or a court order has been served on the owner, the Board shall request the Attorney General to bring a civil action against such owner in an appropriate court for appropriate relief.

F. Civil penalties assessed under this section shall be paid into the Dam Safety, Flood Prevention and Protection Assistance Fund established in § 10.1-603.17 and be used for the administration of the dam safety program, including for the repair and maintenance of impounding structures.

G. No persons, other than those authorized to maintain an impounding structure, shall interfere with the operation of an impounding structure.