A. Any permittee who violates any permit condition or any person who violates any provision of the Surface Mining Act may be assessed a civil penalty by the director, except that if such violation leads to the issuance of a cessation order under Section 25 [69-25A-25 NMSA 1978] of the Surface Mining Act, the civil penalty shall be assessed. Such penalty shall not exceed five thousand dollars ($5,000) 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:

(1) the permittee's history of previous violations at the particular surface coal mining operation;

(2) the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public;

(3) whether the permittee was negligent; and

(4) 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 director only after the person charged with a violation described under Subsection A of this section has been given an opportunity for a public hearing. Where such a public hearing has been held, the director shall make findings of fact, 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 director shall consolidate such hearings with other proceedings under Section 25 [69-25A-25 NMSA 1978] of the Surface Mining Act. Any hearing under this section shall be of record and adjudicatory in accordance with commission regulations. 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 director after the director 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 Surface Mining Act has occurred, the director shall inform the operator within thirty days of the proposed amount of the penalty. The person charged with the penalty shall then have thirty 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 director 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 to the director 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 director shall within thirty days remit the appropriate amount to the person, with interest at the rate of six percent per annum, or at the prevailing United States department of the treasury rate, whichever is greater. Failure to forward the money to the director within thirty 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 the Surface Mining Act may be recovered in a civil action brought by the attorney general at the request of the director in the district court of the county where the violation occurred.

E. Any person who willfully and knowingly violates a condition of a permit issued pursuant to the Surface Mining Act or fails or refuses to comply with any order issued, under Section 25 [69-25A-25 NMSA 1978] or Section 30 [69-25A-30 NMSA 1979] of that act, or any order incorporated in a final decision issued by the director or the commission with respect to which the time for appeal has expired or with respect to which the right of appeal has been exhausted, 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 ten thousand dollars ($10,000) or by imprisonment for not more than one year, or both.

F. Whenever a corporate permittee commits a violation as specified in Subsection E of this section, any director, officer or agent or [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 the Surface Mining Act or any final order or decision issued by the director or the commission, with respect to which the time for appeal has expired or with respect to which the right of appeal has been exhausted shall upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000), 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 25 [69-25A-25 NMSA 1978] of the Surface Mining Act within the period permitted for its correction, (which period shall not end until the last to occur of :

(1) the entry of a final order by the director, in the case of any review proceedings under Section 29 [69-25A-29 NMSA 1978] of that act initiated by the operator wherein the director 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;

(2) the commission's decision, in the case of an appeal initiated by the operator pursuant to Subsection G of Section 29 [69-25A-29 NMSA 1978] of the Surface Mining Act; or

(3) until the entry of an order of the court, in the case of any review proceedings under Section 30 [69-25A-30 NMSA 1978] of that act 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 ($750) for each day during which such failure or violation continues.

History: Laws 1979, ch. 291, § 22.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 53A Am. Jur. 2d Mines and Minerals §§ 257, 260.

58 C.J.S. Mines and Minerals § 334 et seq.