49-405c. Civil penalty for violation of permit condition or provision of act; determination of amount of penalty; hearing; criminal penalty for violations; civil penalty for failure to correct a viola - Kansas Statutes

49-405c

Chapter 49.--MINES AND MINING Article 4.--MINED-LAND CONSERVATION AND RECLAMATION

      49-405c.   Civil penalty for violation of permit condition or provisionof act; determination of amount of penalty; hearing; criminal penalty forviolations; civil penalty for failure to correct a violation for which acitation has been issued; right to seek other relief not restricted.(a) Any operator who violates any permit condition or who violates anyother provision of this act, may be assessed a civil penalty by the secretary,except that if such violation leads to the issuance of acessation order under this act, the civil penalty shall be assessed.Such penalty shall not exceed $5,000 for eachviolation. Each day of continuing violation may be deemed a separateviolation for purposes of penalty assessments. In determining theamount of the penalty, consideration shall be given to the operator'shistory of previous violations at the particular surface coal miningoperation; the seriousness of the violation, including any irreparableharm to the environment and any hazard to the health or safety of thepublic; whether the operator was negligent; and the demonstrated goodfaith of the operator charged in attempting to achieve rapid complianceafter notification of the violation.

      (b)   A civil penalty shall be assessed by the secretary only after theperson charged with a violation described under subsection (a) of thissection has been given an opportunity for a public hearing. Where sucha public hearing has been held, the hearing officer appointedby the secretary shall make findings of fact,and shall issue a written decision as to the occurrence of the violationand the amount of the penalty which is warranted, incorporating, whenappropriate, an order therein requiring that the penalty be paid. Whenappropriate, the secretary or hearing officer shallconsolidate such hearings with otherproceedings under this act. Any hearing under this section shall be of record. Where the person charged with such a violation fails to take advantageof the opportunity for a public hearing,the assessment of the civil penalty shall become final.

      (c)   Upon the issuance of a notice or order charging that a violationof the act has occurred, the secretary shall inform the operator within 30days of the proposed amount of the penalty. The personcharged with the penalty shall then have 30 days to pay theproposed penalty in full or, if the person wishes to contest either theamount of the penalty or the fact of the violation, forward the proposedamount to the secretary for placement in an interest-bearing escrow account.Each such escrow account shall be outside the state treasury and shall bein a bank, as defined by subsection (d) of K.S.A. 75-4201,and amendments thereto, designatedby the pooled-money investment board. If throughadministrative or judicial review of the proposed penalty, it isdetermined that no violation occurred, or that the amount of the penaltyshould be reduced, the secretary shall remit within 30days theappropriate amount to the person, with interest at the rate earned thereon. Failure to forward the money to the secretary within 30 days shall result ina waiver of all legal rights to contestthe violation or the amount of the penalty.

      (d)   Civil penalties owed under this act may be recovered in a civilaction brought by the attorney general at the request of the secretary inthe district court of Shawnee county.

      (e)   Any person who willfully and knowingly violates a condition of apermit issued pursuant to this act or fails or refuses to comply withany order issued under this act, or any order incorporated in a finaldecision issued by the secretary under this act, except an orderincorporated in a decision issued under subsection (b),upon conviction, shall be punished by a fine of not morethan $10,000, or by imprisonment for not more than oneyear or both.

      (f)   Whenever an operator violates a condition of a permit issuedpursuant to this act or fails or refuses to comply with any order issuedunder this act, or any order incorporated in a final decision issued bythe secretary under this act, except an order incorporated in a decisionissued under subsection (b), any director, officer, oragent of such corporation who willfully and knowingly authorized,ordered, or carried out such violation, failure, or refusal shall besubject to the same civil penalties, fines, and imprisonment that may beimposed upon a person under subsections (a) and (e).

      (g)   Whoever knowingly makes any false statement, representation, orcertification, or knowingly fails to make any statement, representation,or certification in any application, record, report, plan or otherdocument filed or required to be maintained pursuant to this act,upon conviction, shall be punished by a fine of not more than $10,000, orby imprisonment for not more than one year orboth.

      (h)   Any operator who fails to correct a violation for which acitation has been issued within the period permitted for its correctionshall be assessed a civil penalty of not less than $750 for each day duringwhich such failure or violationcontinues.

      (i)   Any action pursuant to this sectionshall not be a bar to enforcement of this act, rules and regulations inforce pursuant thereto, and any orders made pursuant to this act, byinjunction or other appropriate remedy, and the secretary shall have powerto institute and maintain in the name of this state any and all suchenforcement proceedings.

      (j)   Nothing in this act shall be construed to abridge, limit orotherwise impair the right of any person to damages or other relief onaccount of injury to persons or property and to maintain any action orother appropriate proceedings therefor.

      History:   L. 1979, ch. 169, § 13; L. 1981, ch. 213, § 2;L. 1988, ch. 192, § 12; July 1.