(a)A permittee who violates this part, rules promulgated pursuant to this part, or any permit condition required by this part, may be assessed a civil penalty by the commissioner, except that if the violation leads to the issuance of a cessation order, a civil penalty must be assessed, and in either case, such permittee is also liable for any damages to the state resulting from the violation. A civil penalty assessed under this subsection (a) shall not exceed five thousand dollars ($5,000) for each violation. Each day of a continuing violation may be deemed a separate violation for purposes of assessing a civil penalty. In determining the amount of the penalty, the commissioner shall consider the history of previous violations by the permittee at the particular surface coal mining operati
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(a) A permittee who violates this part, rules promulgated pursuant to this part, or any permit condition required by this part, may be assessed a civil penalty by the commissioner, except that if the violation leads to the issuance of a cessation order, a civil penalty must be assessed, and in either case, such permittee is also liable for any damages to the state resulting from the violation. A civil penalty assessed under this subsection (a) shall not exceed five thousand dollars ($5,000) for each violation. Each day of a continuing violation may be deemed a separate violation for purposes of assessing a civil penalty. In determining the amount of the penalty, the commissioner shall consider the history of previous violations by the permittee at the particular surface coal mining operation; the seriousness of the violation, including any irreparable harm to the environment and any danger 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) (1) The commissioner shall assess a civil penalty or damages only after the person charged with a violation described under subsection (a) has been given notice and an opportunity for a public hearing before the commissioner, unless the public hearing is expressly waived by the person charged. (2) When a public hearing has been held, the commissioner shall make findings of fact, and the commissioner shall issue a written decision as to the occurrence of the violation and the amount of the assessment that is warranted, incorporating, when appropriate, an order requiring that the assessment be paid. (3) When appropriate, a public hearing held pursuant to this section shall be consolidated with other proceedings under § 59-8-116 . Any hearing under this subsection (b) shall be of record and conducted as a contested case under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, except to the extent that this part or rules promulgated by the commissioner pursuant to this part are inconsistent, in which case this part or the rules promulgated by the commissioner apply. (4) If the person charged with a violation waives the public hearing, then the commissioner shall issue an order requiring that the assessment be paid after determining that a violation did occur and the amount of the assessment which is warranted. (c) Within thirty (30) days of issuing a notice or order, the commissioner shall inform the person charged with the assessment of the proposed amount of the assessment. The person charged with the assessment shall then have thirty (30) days to pay the proposed assessment in full or, if the person wishes to contest either the amount of the assessment or the fact of the violation, forward the proposed amount to the commissioner for placement in an escrow account. If, through administrative or judicial review of the proposed assessment, it is determined that no violation occurred or that the amount of the assessment should be reduced, the commissioner shall, within thirty (30) days of the determination, remit the applicable escrowed amount to the person with interest at the rate of six percent (6%) per annum, or at the prevailing department of treasury rate, whichever is greater. Failure to forward the money to the commissioner within thirty (30) days results in a waiver of all legal rights to contest the violation or the amount of the assessment. (d) The commissioner, through the attorney general and reporter, may institute proceedings in the name of the department for the recovery of any assessment made under this part in any appropriate court. All sums recovered shall be placed in the state treasury and credited to the coal mining protection fund, created by § 59-8-132 . (e) Any person who willfully and knowingly violates this part, rules promulgated pursuant to this part, or any condition of a permit or order issued pursuant to this part, except an order incorporated in a decision issued under subsection (b) or § 59-8-131 , commits a Class E felony and, upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000), or incarceration, or both. (f) Any person who knowingly makes any false statement, representation, or certification, or who knowingly fails to make any statement, representation, or certification, in any application, record, report, plan, or document filed or required to be maintained by this part, rules promulgated under this part, or any permit, order, or decision issued by the commissioner, commits a Class E felony and, upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000), or incarceration, or both. (g) Any person who knowingly violates the conflict of interest provisions of § 59-8-127 commits a Class E felony and, upon conviction, shall be punished by a fine of not more than two thousand five hundred dollars ($2,500), or incarceration, or both. (h) Any person who knowingly engages in surface coal mining and reclamation operations without first obtaining a permit for the mine from the commissioner, commits a Class E felony, and upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000), or incarceration, or both. (i) Any person who, except as permitted by law, willfully resists, prevents, impedes, or interferes with the commissioner or the commissioner's agents from performing the commissioner's or agent's duty under this part commits a Class E felony, and upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000), or incarceration, or both. (j) Whenever a corporate permittee commits the violations enumerated in subsections (a) and (e), any director, officer, or agent of the corporation who willfully and knowingly authorized, ordered, or carried out the violation, failure, or refusal shall be subject to the same civil penalties, fines, and imprisonment that may be imposed under subsections (a) and (e). The commissioner shall promulgate rules establishing the procedure provided by 30 CFR part 846 for assessing individual civil penalties under this subsection (j). (k) (1) The period for correcting a violation for which a citation has been issued under § 59-8-116 does not end until: (A) The entry of a final order by the commissioner, in the case of any review proceedings under § 59-8-120 initiated by the person wherein the commissioner orders, after an expedited hearing, the suspension of the abatement requirements of the citation after determining that the person will suffer irreparable loss or damage from the application of those requirements; or (B) The entry of an order of the court, in the case of any review proceedings under § 59-8-121 initiated by the person wherein the court orders the suspension of the abatement requirements of the citation. (2) Any person who fails to correct a violation for which a citation has been issued under § 59-8-116 within the period permitted for its correction shall be assessed a civil penalty of not less than seven hundred fifty dollars ($750) for each day during which the failure to correct or violation continues. (l) Nothing in this section eliminates any additional enforcement right or procedures that are available under state law to a state agency but are not specifically enumerated in this section. (m) Damages to the state may include any reasonable expenses incurred in investigating and enforcing violations of this chapter and to defray expenses necessary for activities supporting the reclamation of land and water adversely affected by surface coal mining and exploration activities after August 3, 1977.