§ 45-769. Civil penalties.

A.  In the enforcement of a state program pursuant to this act any operator who violates any permit condition or who violates any other provision of this act may be assessed a civil penalty by the Department except that if such violation leads to the issuance of a cessation order under this act, the civil penalty shall be assessed. Such penalty shall not exceed Five Thousand Dollars ($5,000.00) for each violation.  Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments.  In determining the amount of the penalty, consideration shall be given to the operator's history of previous violations at the particular surface coal mining operation; the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public; whether the permittee was negligent; and the demonstrated good faith of the permittee charged in attempting to achieve rapid compliance after notification of the violation.

B.  A civil penalty shall be assessed by the Department only after the person charged with a violation described under subsection A of this section has been given an opportunity for a public hearing.  Where such a public hearing has been held, the Chief Mine Inspector shall make findings of fact, and he shall issue a written decision as to the occurrence of the violation and the amount of the penalty which is warranted, incorporating, when appropriate, an order therein requiring that the penalty be paid.  When appropriate, the Chief Mine Inspector shall consolidate such hearings with other proceedings under this act.  Any hearing under this section shall be of record.  Where the person charged with such a violation fails to avail himself of the opportunity for a public hearing, a civil penalty shall be assessed by the Chief Mine Inspector after the Chief Mine Inspector has determined that a violation did occur, and the amount of the penalty which is warranted, and has issued an order requiring that the penalty be paid.

C.  Upon the issuance of a notice or order charging that a violation of this act has occurred, the Department shall inform the operator within thirty (30) days of the proposed amount of said penalty.  The person charged with the penalty shall then have thirty (30) days to pay the proposed penalty in full or, if the person wishes to contest either the amount of the penalty or the fact of the violation, forward the proposed amount to the Department for placement in an escrow account.  If through administrative or judicial review of the proposed penalty, it is determined that no violation occurred, or that the amount of the penalty should be reduced, the Department shall within thirty (30) days remit the appropriate amount to the person, with interest at the rate of six percent (6%), or at the prevailing United States Department of the Treasury rate, whichever is greater.  Failure to forward the money to the Department within thirty (30) days shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.

D.  Civil penalties owed under this act may be recovered in a civil action brought by the Attorney General at the request of the Chief Mine Inspector in any appropriate district court.

E.  Any person who willfully and knowingly violates a condition of a permit issued pursuant to this act or fails or refuses to comply with any order issued under this act, or any order incorporated in a final decision issued by the Chief Mine Inspector under this act except an order incorporated in a decision issued under subsection B of this section, shall, upon conviction, be punished by a fine of not more than Ten Thousand Dollars ($10,000.00) or by imprisonment for not more than one (1) year, or both.

F.  Whenever a corporate permittee violates a condition of a permit issued pursuant to this act or fails or refuses to comply with any order issued under this act, or any order incorporated in a final decision issued by the Chief Mine Inspector under this act except an order incorporated in a decision issued under subsection B of this section, any director, officer or agent of such corporation who willfully and knowingly authorized, ordered or carried out such violation, failure or refusal shall be subject to the same civil penalties, fines and imprisonment that may be imposed upon a person under subsections A and E of this section.

G.  Whoever knowingly makes any false statement, representation or certification, or knowingly fails to make any statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained pursuant to this act or any order of decision issued by the Department under this act, shall, upon conviction, be punished by a fine of not more than Ten Thousand Dollars ($10,000.00) or by imprisonment for not more than one (1) year, or both.

H.  Any operator who fails to correct a violation for which a citation has been issued within the period permitted for its correction shall be assessed a civil penalty of not less than Seven Hundred Fifty Dollars ($750.00) for each day during which such failure or violation continues.

The period permitted for corrections of violations shall not end until:

1.  The entry of a final order by the Department after an expedited hearing, as provided by Section 53 of this act, which ordered the suspension of the abatement requirements of the citation because it was determined that the operator will suffer irreparable loss or damage from the application of the abatement requirements; or

2.  The entry of an order by a court in any review proceedings initiated by the operator in which the court orders the suspension of the abatement requirements.

I.  Any person who shall, except as permitted by law, willfully resist, prevent, impede or interfere with the Chief Mine Inspector or any of the agents or employees of the Department in the performance of duties pursuant to this act shall, upon conviction, be punished by a fine of not more than Five Thousand Dollars ($5,000.00), or by imprisonment for not more than one (1) year, or both.

Laws 1979, c. 249, § 36, emerg. eff. June 1, 1979.