New Amendments to Virginia code §62.1-44.5(b) and §62.1-44.19:6(b)

Amendments to Virginia code §62.1-44.5(b) and §62.1-44.19:6(b) take effect on July 1, 2020, markedly enhancing transparency in environmental reporting requirements for spills that reach state waters

Everyone knows they expose themselves to liability if they discharge pollution into state waters without a permit.  They face potential criminal prosecution, potential civil fine payable to the Virginia Department of Environmental Quality (DEQ), and potential civil liability to persons harmed by the discharge.  These “discharges” can take many forms, including (to name a few), an oil spill from a boat or ship, a release of sewage, a release of industrial wastewater from a factory, a release of hazardous materials carried in a tanker truck after a crash, dumping dirt in a wetland, or even the home auto mechanic who drains his or her radiator into a storm drain.  The use of the term “spill” in this article refers to any of these things taking place without a DEQ-issued permit.

 

What You May Not Know

What many people may not know is that Virginia Code §62.1-44.5(B) requires the spiller to self-report their violation to the DEQ.  After DEQ receives that report, Virginia Code §62.1-44.19:6(B) requires DEQ to provide the report to “a local newspaper”, but only if the discharge crosses certain thresholds regarding harm. 

THE 2020 SESSION OF THE VIRGINIA GENERAL ASSEMBLY DECIDED THAT VIRGINIANS DESERVE FAR GREATER TRANSPARENCY WHEN IT COMES TO SPILLS

The General Assembly tightened the timeline for self-reporting the spill.  The current version of Virginia Code §62.1-44.5(B) gives the spiller 24 hours to self-report; on July 1, 2020 the spiller must self-report within 8 hours.  The amendment moves the law in the direction of requiring more immediate reporting of an accidental (or deliberate) release.

(Jason Mintzer / shutterstock.com)

Attorney and then U.S. Supreme Court Justice, Louis Brandeis wrote in 1914 that “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”  Millenials, a cohort that is set to become the largest working generation in the country, place great value on transparency.  Mr. Brandeis and millennials would be cheered by the variety of transparency enhancements created through the amendments made to Virginia Code §62.1-44.19:6(B).  Under current law, the DEQ could forego providing the report to “a local newspaper” if the Virginia Department of Health found that the spill was not detrimental to public health and the DEQ found that the spill did not impair the beneficial uses of state waters.  The amendment, which takes effect on July 1, 2020, spreads sunlight by requiring the DEQ to release every report, irrespective of harm.  To create wider publicity, DEQ must widely share the report.  As of July 1, 2020, once the amendments go into effect, DEQ shall provide the report to local newspapers (plural), local television stations and local radio stations.  Additionally, the amendment to Virginia Code §62.1-44.19:6(B) requires the DEQ to release the report to “commonly used social media platforms and email notification lists”.   

 

Will Increased Publicity Make a Difference?

Time will tell whether, as Mr. Brandeis believed, publicity will remedy the social ill that is pollution of state waters in Virginia.  Given the negative publicity, and the liability exposure, spillers will surely be tempted to ignore their duty to self-report in the hope that their spill goes unnoticed or, if it is noticed, that it will not be linked to them.  The stories involving spillers who try to stay under the radar are so widespread as to have given rise to the nickname “midnight dumpers”.  The antidote is Virginia Code §62.1-44.32, which incentivizes people to self-report by authorizing imposition of civil fines up to $32,500.00 per day against those who fail to self-report, misdemeanor criminal prosecution for willful or negligent violations, and felony criminal prosecutions for violations where the person who failed to self-report knew that withholding the report placed another person “in imminent danger of death or serious bodily harm”.  There are, however, no published judicial cases in Virginia involving the criminal prosecution of a person for failing to report a spill.  A heightened emphasis on use of the enforcement tools in Virginia Code §62.1-44.32 may be needed if Virginians are to receive the payoff that publicity and sunlight can deliver, as forecast by Mr. Brandeis one century ago. 

 

In Conclusion

Jim Lang holds an advanced legal degree in environmental law, awarded by The George Washington University School of Law, following a one-year course of study undertaken a few years following completion of law school.  He has successfully litigated environmental cases and is a published author on a variety of environmental law topics.  If you have any further questions, our experienced team is happy to help.  Feel free to contact us here.