9 Va. Admin. Code § 5-91-600 - General enforcement process

A. Upon issuance of a notice of violation, attempts shall be made to negotiate a consent order. The negotiation process may take the form of two tiers, the first involving negotiations with the department field staff. The second tier involves subsequent negotiations with the department's management personnel for regional compliance, mobile sources operations, or enforcement if the first tier negotiations are unsuccessful and the alleged violator wishes to continue negotiations.

B. If the parties cannot agree on a consent order, an informal fact finding shall be held after reasonable notice in accordance with § 2.2-4019 of the Administrative Process Act. Upon consent of all parties, the informal fact finding may be waived and a formal hearing shall be held after reasonable notice in accordance with § 2.2-4020 of the Administrative Process Act. During these proceedings, the department and the alleged violator may present facts and circumstances surrounding the alleged violation in accordance with the Administrative Process Act.

C. A formal hearing shall be held to suspend emissions inspection station permits, unless the parties agree to hold an informal fact finding and waive a formal hearing and agree that the decision from the informal fact finding is the final decision for purposes of Article V (§ 2.2-4025 et seq.) of the Administrative Process Act.. An emissions inspection station permit may be suspended pursuant to an informal fact finding, provided a formal hearing is held within 10 days from the date of suspension in accordance with § 46.2-1185 of the Virginia Motor Vehicle Emissions Control Law and § 2.2-4020 of the Administrative Process Act.

D. As provided in § 46.2-1185 of the Virginia Motor Vehicle Emissions Control Law, the director can summarily suspend an emissions inspection station permit without a formal hearing and require the permit holder to immediately cease performing emissions inspections. Within 10 days of such action, a formal hearing shall be held to affirm, modify, amend, or cancel the suspension unless the affected party agrees to waive the formal hearing and allow the suspension to remain in effect.

E. With respect to appeals of penalties imposed pursuant to an informal fact finding, the presiding officer shall be a designee of the director other than the regional emissions inspection program manager or any emissions inspection program staff member.

F. Any case decision made pursuant to an informal fact finding must be in writing, must inform the alleged violator of the penalty being imposed and the basis for any adverse decision, and must inform the named party of his right to appeal.

1. Any affected party has the right to request a formal hearing to appeal an adverse decision from an informal fact finding unless the parties agree before the decision is rendered to waive the formal hearing and that the decision shall be considered a final decision for purposes of Article V (§ 2.2-4025 et seq.) of the Administrative Process Act.

2. A written informal fact finding decision shall contain a statement that the affected party has the right to request a formal hearing in order to appeal the decision within 10 days of notification of the decision or, if previously agreed by the parties, that the decision is final and the affected party has the right to appeal the decision to court.

3. Any request for a formal hearing shall be made within 10 days of notification of the decision by the affected party, in writing, to the department representative who made the informal fact finding decision.

G. Case decisions made pursuant to a formal hearing shall be made by the director or a designated representative. They must be in writing and contain findings of fact and conclusions of law that set forth the basis for any adverse decision, inform the alleged violator of the penalty being imposed and inform the named party of his right to appeal that decision to court.

H. All permits, licenses and certifications shall be surrendered to the department upon notice of revocation. Emissions inspection stations and emissions repair facilities shall also surrender to the department all forms, data media and documents issued by or purchased from the department.

I. If the case decision is a final decision for purposes of Article V (§ 2.2-4025 et seq.) of the Administrative Process Act, the department need not act further except to enforce any penalty or order issued pursuant to the decision.

J. If the director determines that a permittee, licensee, or holder of a certification is not complying with the Virginia Motor Vehicle Emissions Control Law, this chapter, any case decision, penalty or consent order issued pursuant to this chapter, the director may seek appropriate criminal or civil judicial enforcement, or both, in accordance with §§ 46.2-1187 and 46.2-1187.2 of the Virginia Motor Vehicle Emissions Control Law.

Notes

9 Va. Admin. Code § 5-91-600

Derived from Virginia Register Volume 13, Issue 12, eff. April 2, 1997; amended, Virginia Register Volume 18, Issue 20, eff. October 1, 2002.

Statutory Authority

§ 46.2-1180 of the Code of Virginia.