Effective 28 Aug 1993

444.870. Penalties, administrative and criminal, procedure. — 1. Any permittee who violates any permit condition or any provision of the reclamation plan or who violates any provision of this law or rules and regulations may be assessed an administrative penalty by the commission, except that if such violation leads to the issuance of a cessation order under section 444.885 the 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 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; and the demonstrated good faith of the permittee charged in attempting to achieve rapid compliance after notification of the violation.

2. An administrative penalty shall be assessed by the commission only after the person charged has been given an opportunity for a public hearing. When such a public hearing has been held, the commission shall make findings of fact and conclusions of law, and 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 commission shall consolidate such hearings with other proceedings under section 444.885. Any hearing under this section shall be of record and shall be a contested case. The chairman may designate one commission member as hearing officer, or may appoint a member in good standing of the Missouri bar as hearing officer to hold the hearing and make recommendations to the commission, but the commission shall make the final decision therein and any member participating in the decision shall review the record before making decision. Where the person charged with such a violation fails to avail himself of the opportunity for a public hearing, an administrative penalty shall be assessed and ordered paid only after the commission has determined that a violation did occur and the amount of the penalty which is warranted.

3. When the director believes that a violation has occurred he may, or if a cessation order has resulted he shall, file with the commission and serve the operator by registered mail a notice charging a violation has occurred and setting forth the proposed amount of said penalty. The operator, if he wishes to contest either the amount of the penalty or the fact of the violation, may within thirty days of receipt of the notice request a hearing before the commission. The operator shall, with such request, file with the commission a penalty bond in the amount of the proposed penalty, in a form prescribed by the commission, with security attached in the form of a certificate of deposit, conditioned upon forfeiture upon a final nonappealable decision. If through administrative or judicial review, it is determined that no violation occurred, or that the amount of the penalty should be reduced, the commission shall within thirty days of such determination release said bond and remit the appropriate amount to the person, with interest at the rate of six percent, or at the prevailing United States Department of the Treasury rate, whichever is greater. Failure to file the bond with the request for hearing shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.

4. Administrative penalties, plus interest at the rate of six percent, or at the prevailing United States Department of the Treasury rate, whichever is greater, plus attorney's fees, may be recovered in a civil action brought by the attorney general at the request of the commission in the county where the violation occurred or in Cole County.

5. Any person who willfully and knowingly violates a condition of a permit or fails or refuses to comply with any order issued under section 444.885 or section 444.900, or any order incorporated in a final decision issued by the commission, except an order incorporated in a decision issued under subsection 2 of this section shall, upon conviction, be punished by a fine of not more than ten thousand dollars, or by imprisonment for not more than one year, or both.

6. Whenever a corporate permittee violates a condition of a permit or fails or refuses to comply with any order issued under section 444.885, or any order incorporated in a final decision issued by the commission, except an order incorporated in a decision issued under subsection 2 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 administrative penalties, fines and imprisonment that may be imposed upon a person under subsections 1 and 5 of this section.

7. 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 shall, upon conviction, be punished by a fine of not more than ten thousand dollars, or by imprisonment for not more than one year, or both.

8. Any operator who fails to correct a violation for which a citation has been issued under subsection 1 of section 444.885 within the period permitted for its correction (which period shall not end until the entry of a final order by the commission, in the case of any review proceedings under section 444.895 initiated by the operator wherein the commission orders, after an expedited hearing, the suspension of the abatement requirements of the citation after determining that the operator will suffer irreparable loss or damage from the application of those requirements, or until the entry of an order of the court, in the case of any review proceedings under section 444.900 initiated by the operator wherein the court orders the suspension of the abatement requirements of the citation) shall be assessed an administrative penalty by the commission of not less than seven hundred fifty dollars, nor more than five thousand dollars for each day during which such failure or* violation continues.

­­--------

(L. 1979 H.B. 459, A.L. 1991 S.B. 45, A.L. 1993 H.B. 312 & 257)

*Word "of" appears in original rolls.