444.870. Penalties, administrative and criminal, procedure.
Penalties, administrative and criminal, procedure.
444.870. 1. Any permittee who violates any permitcondition or any provision of the reclamation plan or whoviolates any provision of this law or rules and regulations maybe assessed an administrative penalty by the commission, exceptthat if such violation leads to the issuance of a cessation orderunder section 444.885 the penalty shall be assessed. Suchpenalty shall not exceed five thousand dollars for eachviolation. Each day of continuing violation may be deemed aseparate violation for purposes of penalty assessments. Indetermining the amount of the penalty, consideration shall begiven to the permittee's history of previous violations at theparticular surface coal mining operation; the seriousness of theviolation, including any irreparable harm to the environment andany hazard to the health or safety of the public; whether thepermittee was negligent; and the demonstrated good faith of thepermittee charged in attempting to achieve rapid compliance afternotification of the violation.
2. An administrative penalty shall be assessed by thecommission only after the person charged has been given anopportunity for a public hearing. When such a public hearing hasbeen held, the commission shall make findings of fact andconclusions of law, and shall issue a written decision as to theoccurrence of the violation and the amount of the penalty whichis warranted, incorporating, when appropriate, an order thereinrequiring that the penalty be paid. When appropriate, thecommission shall consolidate such hearings with other proceedingsunder section 444.885. Any hearing under this section shall beof record and shall be a contested case. The chairman maydesignate one commission member as hearing officer, or mayappoint a member in good standing of the Missouri bar as hearingofficer to hold the hearing and make recommendations to thecommission, but the commission shall make the final decisiontherein and any member participating in the decision shall reviewthe record before making decision. Where the person charged withsuch a violation fails to avail himself of the opportunity for apublic hearing, an administrative penalty shall be assessed andordered paid only after the commission has determined that aviolation did occur and the amount of the penalty which iswarranted.
3. When the director believes that a violation has occurredhe may, or if a cessation order has resulted he shall, file withthe commission and serve the operator by registered mail a noticecharging a violation has occurred and setting forth the proposedamount of said penalty. The operator, if he wishes to contesteither the amount of the penalty or the fact of the violation,may within thirty days of receipt of the notice request a hearingbefore the commission. The operator shall, with such request,file with the commission a penalty bond in the amount of theproposed penalty, in a form prescribed by the commission, withsecurity 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 determinedthat no violation occurred, or that the amount of the penaltyshould be reduced, the commission shall within thirty days ofsuch determination release said bond and remit the appropriateamount to the person, with interest at the rate of six percent,or at the prevailing United States Department of the Treasuryrate, whichever is greater. Failure to file the bond with therequest for hearing shall result in a waiver of all legal rightsto contest the violation or the amount of the penalty.
4. Administrative penalties, plus interest at the rate ofsix percent, or at the prevailing United States Department of theTreasury rate, whichever is greater, plus attorney's fees, may berecovered in a civil action brought by the attorney general atthe request of the commission in the county where the violationoccurred or in Cole County.
5. Any person who willfully and knowingly violates acondition of a permit or fails or refuses to comply with anyorder issued under section 444.885 or section 444.900, or anyorder incorporated in a final decision issued by the commission,except an order incorporated in a decision issued undersubsection 2 of this section shall, upon conviction, be punishedby a fine of not more than ten thousand dollars, or byimprisonment for not more than one year, or both.
6. Whenever a corporate permittee violates a condition of apermit or fails or refuses to comply with any order issued undersection 444.885, or any order incorporated in a final decisionissued by the commission, except an order incorporated in adecision issued under subsection 2 of this section, any director,officer, or agent of such corporation who willfully and knowinglyauthorized, ordered, or carried out such violation, failure, orrefusal shall be subject to the same administrative penalties,fines and imprisonment that may be imposed upon a person undersubsections 1 and 5 of this section.
7. Whoever knowingly makes any false statement,representation, or certification, or knowingly fails to make anystatement, representation, or certification in any application,record, report, plan, or other document filed or required to bemaintained shall, upon conviction, be punished by a fine of notmore than ten thousand dollars, or by imprisonment for not morethan one year, or both.
8. Any operator who fails to correct a violation for whicha citation has been issued under subsection 1 of section 444.885within the period permitted for its correction (which periodshall not end until the entry of a final order by the commission,in the case of any review proceedings under section 444.895initiated by the operator wherein the commission orders, after anexpedited hearing, the suspension of the abatement requirementsof the citation after determining that the operator will sufferirreparable loss or damage from the application of thoserequirements, or until the entry of an order of the court, in thecase of any review proceedings under section 444.900 initiated bythe operator wherein the court orders the suspension of theabatement requirements of the citation) shall be assessed anadministrative penalty by the commission of not less than sevenhundred fifty dollars, nor more than five thousand dollars foreach 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.