§ 34-33-123 — Enforcement - civil and criminal penalties

Colorado § 34-33-123

• Jurisdiction: Colorado
• Title 34: Mineral
• Art.: Colorado Surface Coal

Text

(1) When, on the
basis of any inspection, an authorized representative of the office determines that
any condition or practices exist at a surface coal mining operation which is subject
to this article or that any operator is in violation of any requirement of this article or
any permit condition required by this article, which condition, practice, or violation
also creates an imminent danger to the health or safety of the public, or is causing
or can reasonably be expected to cause significant imminent environmental harm to
land, air, or water resources, such authorized representative shall immediately
order a cessation of surface coal mining and reclamation operations or that portion
thereof relevant to the condition, practice, or violation. Where such authorized
representative finds that the ordered cessation of surface coal mining and
reclamation operations will not completely abate the imminent danger or the
significant imminent environmental harm, the representative shall, in addition to the
cessation order, impose affirmative obligations on the operator requiring such
operator to abate the imminent danger or the significant imminent environmental
harm. The order shall specify a reasonable time in which such abatement shall be
accomplished.

(2) When, on the basis of any inspection, an authorized representative of the
office determines that any operator is in violation of any requirement of this article
or any permit condition required by this article, but such violation does not create
an imminent danger to the health or safety of the public or cannot be reasonably
expected to cause significant imminent environmental harm to land, air, or water
resources, such authorized representative shall issue a notice of violation to the
operator or a designated agent of the operator fixing a reasonable time, but not
more than ninety days, for the abatement of the violation.

(3) If the operator who is issued a notice of violation under subsection (2) of
this section fails to abate the violation within the abatement period as originally set
or subsequently extended, for good cause shown and upon written finding to that
effect, the authorized representative of the office shall immediately order a
cessation of the surface coal mining and reclamation operations or that portion
thereof relevant to the violation.

(4) Each notice of violation and cessation order issued pursuant to this
section shall be on a written form approved by the board, shall be signed by the
person issuing it, and shall set forth with reasonable specificity the nature of the
violation, including a reference to the provisions of the permit, statute, or regulation
allegedly violated, the steps necessary to abate the violation in the most
expeditious manner possible, the period of time established for abatement, and a
reasonable description of the portion of the surface coal mining and reclamation
operation to which the notice or order applies. The notice of violation or cessation
order shall also inform the operator that a civil penalty may be assessed for the
violation, if any, and that the operator has the right to have review of the notice or
order in public hearing before the board in accordance with section 34-33-124. The
procedure which the operator must follow to obtain such a hearing on any matters
contained in the notice of violation or cessation order shall be included in the notice
or order. Each notice of violation or cessation order shall be served in a timely
fashion on the operator, through his designated agent or management personnel at
the mine, in person or by certified mail, return receipt requested.

(5) Except as set forth in subsection (6) of this section, cessation orders
issued under this section shall remain in effect until the condition, practice, or
violation has been abated or until vacated, modified, or terminated in writing by an
authorized representative of the office or by the board. An authorized
representative of the office may vacate, modify, or terminate a cessation order for
good cause and may extend the time for abatement if the failure to abate within the
time previously fixed was not caused by lack of diligence on the part of the
operator. An authorized representative of the office shall immediately terminate a
cessation order by written notice to the permittee when such representative
determines that all conditions, practices, or violations listed in the order have been
abated.

(6) Any notice of violation or cessation order issued pursuant to this section
which requires cessation of mining, expressly or by necessary implication, shall
automatically expire thirty days after service of the notice or order to the operator
unless an informal hearing on the cessation of mining portion of the notice or order
is held within such time at the site or within such reasonable proximity to the site
that any viewings of the site can be conducted during the course of the hearing.
Such hearing shall be presided over by the authorized representatives of the office
and pursuant to such reasonable procedural rules as the board may adopt by
regulation. The office shall either affirm, modify, vacate, or terminate the notice or
order or grant temporary relief therefrom. The authorized representative of the
office who originally ordered the cessation of mining shall not take part in any such
decision. Such hearings may be waived by the operator to whom the order was
issued, and the holding of or failure to hold such a hearing shall not affect such
operator's right to board review under section 34-33-124.

(7) When the office determines that a pattern of violations of any
requirements of this article or any permit conditions required by this article exists
or has existed and that such violations are caused by the unwarranted failure of the
permittee to comply with any requirements of this article or any permit conditions
or that such violations are willfully caused by the permittee, the office shall
forthwith issue an order to the permittee to show cause why the permit should not
be suspended or revoked and shall provide opportunity for a public hearing before
the board to be held in accordance with section 34-33-124 and pursuant to such
rules and regulations the board may adopt.

(8) (a) Any operator who violates any permit condition or who violates any
other provision of this article may be assessed a civil penalty by the division; except
that, if such violation leads to the issuance of a cessation order under subsection (1)
or (3) of this section, the civil penalty shall be assessed. Such penalty shall not
exceed five thousand dollars 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
operator was negligent, and the demonstrated good faith of the operator charged
in attempting to achieve rapid compliance after notification of the violation.

(b) The office shall notify the operator in writing of the proposed amount of
any civil penalty within thirty days after the issuance of a notice or order charging a
violation. The operator shall have ten days after receipt of the proposed penalty
within which to request, on a written form approved by the board, an assessment
conference in which all relevant information concerning the violation and penalty,
including all information which the operator may submit, shall be reviewed by the
operator or an authorized representative and a conference officer who shall be an
authorized representative of the office.

(c) If the issues are resolved at the settlement conference, the conference
officer shall prepare a settlement agreement, on a form approved by the board,
which agreement shall be signed by the conference officer or his authorized
representative and the operator charged with the violation. The settlement
agreement shall provide, among other things, that, by paying the penalty as agreed,
the operator waives all further right to review of the violation or penalty. The
settlement agreement shall also require that the penalty, as agreed to, shall be
paid within a certain time not to exceed thirty days from the date the agreement is
signed by both parties. The settlement agreement shall not be effective if it is not
signed by the operator or his authorized representative at the conference or within
ten days thereafter.

(d) If the operator does not request a settlement conference, if a settlement
conference is requested and the issues are not resolved there, or if the penalty
agreed to in the settlement conference is not paid within the prescribed time, the
office shall order the penalty fixed at whatever amount it deems appropriate based
on the criteria set forth in paragraph (a) of this subsection (8) and on all relevant
information which was received at the assessment conference, if held, and it shall
give the operator written notice of the amount of the fixed penalty. The notice and
order shall be on a form approved by the board, shall require payment of the fixed
penalty within thirty days after the receipt of the notice and order by the operator,
and shall state the procedure which the operator must follow to obtain a hearing
before the board on the fact of the violation or the penalty. The notice and order
shall be served on the operator or a designated agent of the operator no later than
one hundred twenty days after the date the notice or order describing the violation
was originally issued.

(e) Failure of the operator to forward the amount of the fixed penalty to the
office and to request a public hearing in accordance with paragraph (f) of this
subsection (8) shall result in a waiver of all legal rights to contest the violation or
the amount of the penalty.

(f) If the operator wishes to contest either the amount of the fixed penalty or
the fact of the violation, the operator shall forward the amount of the fixed penalty
to the office within thirty days after receipt of notice thereof for placement in an
escrow account and request a public hearing before the board. Such hearing shall
be held in accordance with section 34-33-124, and, when appropriate, the board
shall consolidate such hearing with other proceedings under section 34-33-124.
After such a public hearing has been held, the board shall make findings of fact and
shall issue a written decision as to the occurrence of the violation and the amount
of the civil penalty which is warranted, incorporating, when appropriate, an order
therein requiring that the penalty be paid. Any hearing under this section shall be of
record and shall be subject to the State Administrative Procedure Act, article 4 of
title 24, C.R.S. Failure of the operator to pay the civil penalty ordered by the board
within thirty days after such order is issued shall result in a waiver of all legal rights
to contest the violation or the amount of penalty under section 34-33-128.

(g) If, after board review or judicial review of the fixed penalty, it is
determined that no violation occurred or that the amount of the penalty should be
reduced, the board shall, within thirty days of such determination, remit the
appropriate amount to the operator with interest at the rate prevailing in the escrow
account established under paragraph (f) of this subsection (8).

(h) Civil penalties owed under this section may be recovered in a civil action
brought by the attorney general at the request of the board in the district court of
this state for the district in which any of the affected land is located or in such other
district agreeable to all parties to such action.

(i) Any operator who fails to correct a violation for which a notice or
cessation order has been issued under this section within the period permitted for
its correction, which period shall not end until the entry of an order of the court, in
the case of any review proceedings under section 34-33-128 initiated by the
operator wherein the court orders the suspension of the abatement requirements of
the citation, shall be assessed a civil penalty of not less than seven hundred fifty
dollars for each day during which such failure or violation continues.

(9) Any operator who willfully and knowingly violates a condition of a permit
or fails or refuses to comply with any order issued under this section or any order
incorporated in a final decision issued by the board under this article, except a
notice and order issued under paragraph (d) of subsection (8) of this section or an
order issued under paragraph (f) of subsection (8) of this section shall, upon
conviction thereof, be punished by a fine of not more than ten thousand dollars, or
by imprisonment for not more than one year, or by both such fine and imprisonment.

(10) Whenever a corporate operator violates a condition of a permit or fails or
refuses to comply with any order issued under this section or any order
incorporated in a final decision issued by the board under this article, except a
notice and order issued under paragraph (d) of subsection (8) of this section or an
order issued under paragraph (f) of subsection (8) 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 an operator
under subsections (8) and (9) of this section.

(11) 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 board or office under this article shall, upon conviction thereof, be punished by
a fine of not more than ten thousand dollars, or by imprisonment for not more than
one year, or by both such fine and imprisonment.

(12) The board or office may request the attorney general to institute a civil
action for relief, including a permanent or temporary injunction, restraining order, or
any other appropriate order in the district court of this state for the district in which
the surface coal mining and reclamation operation is located or in which the
permittee thereof has its principal office, whenever such permittee or an agent of
such permittee violates or fails or refuses to comply with any order or decision
issued by the board or office under this article, or interferes with, hinders, or delays
the board or office in carrying out the provisions of this article, or refuses to admit
an authorized representative of the office to the mine, or refuses to permit
inspection of the mine by such representative, or refuses to furnish any information
or report requested by the office or board in furtherance of the provisions of this
article, or refuses to permit access to, and copying of, such records as the office or
board determines necessary in carrying out the provisions of this article. Such court
shall have jurisdiction to provide such relief as may be appropriate. Temporary
restraining orders shall be issued in accordance with rule 65 of the Colorado rules
of civil procedure. Any relief granted by the court to enforce an order based on a
violation or failure or refusal to comply with any order or decision issued by the
board or office under this article shall continue in effect until the completion or
final termination of all proceedings for review of such order under this article,
unless, prior thereto, the district court granting such relief sets it aside or modifies
it.

(13) (a) When the office determines that it improvidently issued a permit that
should not have been issued under the criteria set forth in section 34-33-114 (3), it
shall implement remedial measures, including development of a cooperative plan
with the permittee, imposition of a condition on the permit to correct the reason
that the permit should not have been issued under section 34-33-114 (3), or
issuance of an order to the permittee to show cause why the permit should not be
suspended or revoked.

(b) When an order to show cause is issued pursuant to this subsection (13),
the order shall include the reasons for the finding that the permit was improvidently
issued and shall provide an opportunity for a public hearing before the board to be
held in accordance with section 34-33-124 and pursuant to rules the board may
adopt. Rules adopted pursuant to this section shall be no less effective than the
federal rules provided in 30 CFR 773.21.

Legislative History

Source: L. 79: Entire article added, p. 1288, � 1, effective July 1. L. 81: (4) and (8)(d) amended, p. 1682, � 5, effective June 16. L. 92: (1) to (3), (5) to (7), (8)(b), (8)(d) to (8)(f), (11), and (12) amended, p. 1962, � 66, effective July 1. L. 95: (13) added, p. 149, � 5, effective April 7.