[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 30USC1268]
TITLE 30--MINERAL LANDS AND MINING
CHAPTER 25--SURFACE MINING CONTROL AND RECLAMATION
SUBCHAPTER V--CONTROL OF THE ENVIRONMENTAL IMPACTS OF SURFACE COAL
MINING
Sec. 1268. Penalties
(a) Civil penalties for violations of permit conditions and provisions
of this subchapter
In the enforcement of a Federal program or Federal lands program, or
during Federal enforcement pursuant to section 1252 of this title or
during Federal enforcement of a State program pursuant to section 1271
of this title, any permittee who violates any permit condition or who
violates any other provision of this subchapter, may be assessed a civil
penalty by the Secretary, except that if such violation leads to the
issuance of a cessation order under section 1271 of this title, the
civil penalty shall be assessed. Such penalty shall not exceed $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 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.
(b) Hearing
A civil penalty shall be assessed by the Secretary 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 Secretary shall make findings of fact,
and he 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 Secretary shall consolidate such
hearings with other proceedings under section 1271 of this title. Any
hearing under this section shall be of record and shall be subject to
section 554 of title 5. 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 Secretary after the Secretary 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) Notice of violation; action required of violator; waiver of legal
rights
Upon the issuance of a notice or order charging that a violation of
this chapter has occurred, the Secretary shall inform the operator
within thirty days of the proposed amount of said 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 Secretary 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 Secretary shall within thirty days remit the
appropriate amount to the person, with interest at the rate of 6
percent, or at the prevailing Department of the Treasury rate, whichever
is greater. Failure to forward the money to the Secretary within thirty
days shall result in a waiver of all legal rights to contest the
violation or the amount of the penalty.
(d) Civil action to recover civil penalties
Civil penalties owed under this chapter, may be recovered in a civil
action brought by the Attorney General at the request of the Secretary
in any appropriate district court of the United States.
(e) Willful violations
Any person who willfully and knowingly violates a condition of a
permit issued pursuant to a Federal program, a Federal lands program or
Federal enforcement pursuant to section 1252 of this title or during
Federal enforcement of a State program pursuant to section 1271 of this
title or fails or refuses to comply with any order issued under section
1271 or section 1276 of this title, or any order incorporated in a final
decision issued by the Secretary under this chapter, except an order
incorporated in a decision issued under subsection (b) of this section
or section 1294 of this title, shall, upon conviction, be punished by a
fine of not more than $10,000, or by imprisonment for not more than one
year or both.
(f) Corporate violations
Whenever a corporate permittee violates a condition of a permit
issued pursuant to a Federal program, a Federal lands program or Federal
enforcement pursuant to section 1252 of this title or Federal
enforcement of a State program pursuant to section 1271 of this title or
fails or refuses to comply with any order issued under section 1271 of
this title, or any order incorporated in a final decision issued by the
Secretary under this chapter except an order incorporated in a decision
issued under subsection (b) of this section or section 1293 of this
title, 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 civil penalties, fines,
and imprisonment that may be imposed upon a person under subsections (a)
and (e) of this section.
(g) False statements, representations, or certifications
Whoever knowingly makes any false statement, representation, or
certification, or knowingly fails to make any statement, representation,
or certification in any application, record, report, plant, or other
document filed or required to be maintained pursuant to a Federal
program or a Federal lands program or any order of decision issued by
the Secretary under this chapter, shall, upon conviction, be punished by
a fine of not more than $10,000, or by imprisonment for not more than
one year or both.
(h) Failure to correct violation
Any operator who fails to correct a violation for which a citation
has been issued under section 1271(a) of this title within the period
permitted for its correction (which period shall not end until the entry
of a final order by the Secretary, in the case of any review proceedings
under section 1275 of this title initiated by the operator wherein the
Secretary 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 1276 of this title
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 $750 for each day during which such failure or
violation continues.
(i) Effect on additional enforcement right or procedure available under
State law
As a condition of approval of any State program submitted pursuant
to section 1253 of this title, the civil and criminal penalty provisions
thereof shall, at a minimum, incorporate penalties no less stringent
than those set forth in thi
