Section 9-16-94

Penalties.

(a) Any permittee or operator who violates any permit condition or who violates any other provision of this article, may be assessed a civil penalty by the regulatory authority, except that if such violation leads to the issuance of a cessation order under Section 9-16-93, the civil penalty shall be assessed. Such penalty shall not exceed $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 permittee's history of previous violations at the particular surface coal mining operations; 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 regulatory authority only after the person charged with a violation described under subsection (a) of this section has been given an opportunity for a public hearing before a hearing officer pursuant to Sections 9-16-78 and 9-16-79. Where such a public hearing has been held, the hearing officer 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 hearing officer shall consolidate such hearings with other proceedings under Section 9-16-93 of this article. 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 regulatory authority after the regulatory authority 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 the article has occurred, the regulatory authority shall inform the operator within 30 days of the proposed amount of said penalty. The person charged with the penalty shall then have 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 regulatory authority 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 regulatory authority shall within 30 days remit the appropriate amount to the person, with interest at the rate of six percent, or at the prevailing Department of the Treasury rate, whichever is greater. Failure to forward the money to the regulatory authority within 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 article may be recovered in a civil action brought by the Attorney General at the request of the regulatory authority in any appropriate circuit court of this state.

(e) Any person who willfully and knowingly violates a condition of a permit issued pursuant to this article or fails or refuses to comply with any order issued under Section 9-16-79 or Section 9-16-93 of this article or any order incorporated in a final decision issued by the regulatory authority under this article, 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 $10,000.00, or by imprisonment for not more than one year or both. Any person who willfully and knowingly engages in surface coal mining operations without a license and permit as required by this article shall upon conviction be punished by a fine of not more than $10,000.00 per day for each and every day during which such violation continues, and shall be subject to imprisonment for not more than one year or both. In addition to any criminal penalty issued hereunder any person who affects land in violation of this subsection shall be required to post a bond in accordance with that of Section 9-16-89 and to reclaim the affected land.

(f) Whenever a corporate permittee violates a condition of a permit issued pursuant to this article or fails or refuses to comply with any order issued under Section 9-16-93 of this article, or any order incorporated in a final decision issued by the regulatory authority under this article 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 article or any order or decision issued by the regulatory authority under this article, shall upon conviction, be punished by a fine of not more than $10,000.00, or by imprisonment for not more than one year or both.

(h) Any operator who fails to correct a violation for which a citation has been issued under Section 9-16-93 within the period permitted for its correction (which period shall not end until the entry of a final order or the conclusion of the appeals process), shall be assessed a civil penalty of not less than $750.00 for each day during which such failure or violation continues, but not to exceed 30 days.

(i) Any operator who forfeits his bond for willful failure to reclaim the affected land shall not be issued a new permit for any operation in which he owns any interest until he has paid to the regulatory authority for deposit to the Alabama Surface Mining Fund the sum equal to the amount of coverage of the forfeited bond. This repayment will not affect the previous bond forfeiture of the operator.

(j) Any person who shall, except as permitted by law, willfully resist, prevent, impede, or interfere with the regulatory authority or any of its agents in the performance of duties pursuant to this article shall be punished by a fine of not more than $10,000.00 or by imprisonment for not more than one year, or both.

(Acts 1981, No. 81-435, p. 682, §26; Acts 1983, No. 83-774, p. 1415, §§2, 9.)