53-9-55 - Violation of chapter; civil penalties; public hearing; judicial review; limitations on liability.
§ 53-9-55. Violation of chapter; civil penalties; public hearing; judicial review; limitations on liability.
(1) (a) When the commission or an authorized representative of the department has reason to believe that a violation of this chapter or any regulation or order of the commission or permit board or any condition of a permit has occurred, the commission may cause a written complaint to be served upon the alleged violator. The complaint shall specify the section, regulation, order or permit alleged to be violated and the facts alleged to constitute the violation and shall require the alleged violator to appear before the commission at a time and place specified in the order to answer the complaint. The time of appearance before the commission shall be not less than twenty (20) days from the date of the mailing or service of the complaint, whichever is earlier.
(b) The commission shall afford an opportunity for a formal hearing to the alleged violator at the time and place specified in the complaint or at another time or place agreed to in writing by both the department and the alleged violator, and approved by the commission. On the basis of the evidence produced at the formal hearing, the commission shall enter an order which in its opinion will best further the purposes of this chapter and shall give written notice of that order to the alleged violator and to any other persons who participated as parties at the formal hearing or who made written request for notice of the order. The commission may assess penalties as provided in this section.
(c) Except as otherwise expressly provided, any notice or other instrument issued by or under authority of the commission may be served on any affected person personally or by publication, and proof of that service may be made in the same manner as in case of service of a summons in a civil action. The proof of service shall be filed in the office of the commission. Service may also be made by mailing a copy of the notice, order, or other instrument by certified mail, directed to the person affected at the person's last known post-office address as shown by the files or records of the commission. Proof of service may be made by the affidavit of the person who did the mailing and shall be filed in the office of the commission.
(2) When the commission determines that any person has violated this chapter or any regulation promulgated under this chapter, order of the commission issued under this chapter or condition or limitation of a permit issued under this chapter, the commission, after notice and opportunity for a formal hearing as provided in this section, unless expressly waived by the violator, may assess that person a civil penalty not to exceed Twenty-Five Thousand Dollars ($25,000.00) per violation. Each day of a continuing violation may be deemed a separate violation for purposes of penalty assessments. If a cessation order is issued under Section 53-9-69, the commission shall assess a civil penalty under this section. In determining the amount of the penalty, the commission shall consider the permittee'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; demonstrated good faith of the permittee charged in attempting to achieve rapid compliance after notification of the violation; and other factors set forth in Section 49-17-43.
(3) Upon the issuance of an order finding that a violation of this chapter has occurred, the person found to be in violation shall have thirty (30) days to pay the proposed penalty in full or, if the person wishes to appeal either the amount of the penalty or the fact of the violation or both forward the proposed amount as a penalty payment bond to the executive director for placement in an escrow account. The executive director shall forward any money submitted for placement in an escrow account in accordance with regulations promulgated by the commission. If, through administrative or judicial review of the violation or proposed penalty, the commission or a court of appropriate jurisdiction determines that no violation occurred or that the amount of the penalty should be reduced, the executive director shall within thirty (30) days remit the appropriate amount to the person with any interest earned on the money while in escrow. Failure to forward the proposed penalty amount to the executive director within thirty (30) days shall result in a waiver of all legal rights to contest the violation or the amount of the penalty. When all opportunities for administrative and judicial review have been exhausted, a failure to pay the civil penalty shall result in forfeiture of the bond or deposit in an amount not to exceed the amount of the penalty imposed. The commission may promulgate regulations regarding a waiver from the requirement to post a penalty payment bond upon a showing by the operator of an inability to post the bond.
(4) When a permittee violates this chapter or any regulation or written order of the commission promulgated or issued under this chapter or any condition of a permit issued any director, officer, general partner, joint venturer in or authorized agent of the permittee who willfully and knowingly authorized, ordered or carried out that violation shall be subject to separate civil penalties in the same amount as penalties that may be imposed upon a person under subsection (2) of this section.
(5) Civil penalties assessed by the commission and owed under this section may be recovered in a civil action brought by the department in the chancery or circuit court of the First Judicial District of Hinds County or in the chancery or circuit court of any county in which the surface coal mining and reclamation operation exists or in which the defendant may be found.
(6) Any provisions of this section and chapter regarding liability for the costs of clean-up, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules promulgated under that section.
Sources: Laws, 1979, ch. 477, § 23; Laws, 1995, ch. 627, § 12; Laws, 1997, ch. 306, § 27, eff from and after passage (approved March 10, 1997).