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2003 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 10.1-1181.2 of the Code of Virginia is amended and reenacted as follows:
§ 10.1-1181.2. Conduct of silvicultural activities; issuance of special orders.
A. If the State Forester believes that an owner or operator has conducted or is conducting or has allowed or is allowing the conduct of any silvicultural activity in a manner that is causing or is likely to cause pollution, he may notify the owner or operator regarding the activity that is causing or likely to cause pollution and recommend (i) corrective measures and (ii) a reasonable time period to prevent, mitigate, or eliminate the pollution. If the owner or operator fails to take action to prevent, mitigate, or eliminate the pollution, the State Forester shall issue a special order pursuant to subsection B or C. Failure of the State Forester to notify an owner or operator of such corrective measures shall not impair the State Forester's authority to issue special orders pursuant to subsection B or C.
B. The State Forester shall have the authority to issue special orders to any
owner or operator who has conducted or is conducting, or has allowed or is
allowing to be conducted, any silvicultural activity in a manner which that is
causing or is likely to cause pollution, to cease immediately all or part of the silvicultural
activities on the site, and to implement specified corrective measures within a stated period of
time. Such special orders are to be issued only after the owner or operator has
been given the opportunity for a hearing with reasonable notice to the owner or
operator, or both, of the time, place and purpose thereof, and they shall
become effective not less than five days after service as provided in
subsection D.
C. If the State Forester finds that any owner or operator is conducting any
silvicultural activity in a manner which that is causing or is likely to cause
an alteration of the physical, chemical or biological properties of any state
waters resulting from sediment deposition presenting an imminent and
substantial danger to (i) the public health, safety or welfare, or the health
of animals, fish or aquatic life; (ii) a public water supply; or (iii)
recreational, commercial, industrial, agricultural or other reasonable uses,
the State Forester may issue, without advance notice or hearing, an emergency
order directing the owner or operator, or both, to cease immediately all or
part of the silvicultural activities on the site, and to implement specified
corrective measures within a stated period of time. The commencement of
proceedings by the State Forester for the issuance of a special order pursuant
to subsection B shall not impair the State Forester's authority to issue an
emergency special order pursuant to this subsection. The State Forester shall
provide an opportunity for a hearing, after reasonable notice as to the time
and place thereof to the owner or operator, to affirm, modify, amend or cancel
such emergency special order.
D. The owner or operator to whom such special order is directed shall be notified by certified mail, return receipt requested, sent to the last known address of the owner, or operator, or by personal delivery by an agent of the State Forester, and the time limits specified shall be counted from the date of receipt.
E. The State Forester shall not issue a special order to any owner or operator
who has incorporated generally acceptable water quality protection techniques
in the operation of silvicultural activities, which techniques have failed to
prevent pollution, if the State Forester determines that the pollution is the
direct result of unusual weather events which that could not have been
reasonably anticipated.
F. Any hearing required under this section shall be conducted in accordance with § 2.2-4020 unless the parties consent to informal proceedings.
G. The State Forester shall not issue a notice under subsection A or a special
silvicultural order or emergency special order under subsection B or C
more than one year after the silvicultural activity has occurred on the
property. Any such notice, special order, or emergency special order shall
remain in effect until the State Forester determines that corrective measures
specified therein have been implemented.
H. Prior to completion but not later than three working days after the
commencement of an operation, the operator shall notify the State Forester of
the commercial harvesting of timber. For the purpose of this section,
commercial harvesting of timber means the harvesting of trees for the primary
purpose of transporting to another site for additional manufacturing. The
notification may be verbal or written and shall (i) specify the location and
the actual or anticipated date of the activity and (ii) be made in a manner
prescribed by the State Forester. If an operator fails to comply with the
provisions of this subsection, the State Forester may assess a civil penalty of
$250 for the initial violation and not more than $1,000 for any subsequent
violation within a twenty-four 24-month period by the operator. All civil
penalties assessed under this subsection shall be recovered in a civil action brought by the Attorney
General in the name of the Commonwealth. Such civil penalties shall be paid
into the state treasury and credited to the Virginia Forest Water Quality Fund
pursuant to § 10.1-1181.7.