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350.990 Penalties.
(1)
(2)
Any permittee, person, or operator who violates any of the provisions of this chapter
or administrative regulations promulgated pursuant thereto or who fails to perform
the duties imposed by these provisions, except the refusal or failure to obtain a
permit or other authorization as provided in this chapter, or who violates any
determination or order issued pursuant to the provisions of this chapter, may be
liable to a civil penalty of not more than five thousand dollars ($5,000) for the
violation, and an additional civil penalty of not more than five thousand dollars
($5,000) for each day during which the violation continues, and in addition, may be
enjoined from continuing the violations provided in this section. Any permittee,
operator, or person who fails to abate a violation noted in a notice of noncompliance
or an order for immediate compliance and cessation within the time period
prescribed for the abatement shall be assessed a civil penalty of not less than seven
hundred fifty dollars ($750) for each day during which the violation continues. Any
person issued an order pursuant to KRS 350.130(4) shall be assessed a civil penalty
of not more than five thousand dollars ($5,000) for each violation cited in the
underlying notice of noncompliance issued therewith. No separate civil penalty
shall be assessed for the order issued pursuant to KRS 350.130(4). Each day of
continuing violation may be deemed a separate violation for purposes of penalty
assessment. The cabinet shall develop a method for calculating monetary penalties
and shall promulgate it as an administrative regulation. The secretary or a
designated representative, upon his or her own initiative or upon written request
received within fifteen (15) days after the cabinet mails its proposed penalty
assessment, may waive the use of the method for calculating monetary penalties if
he or she determines that, taking into account exceptional factors present in the
particular case, the penalty is demonstrably unjust. The basis for every waiver shall
be fully explained and documented in the records of the case. If the secretary or his
or her designated representative waives the use of the formula, he or she shall
determine the appropriate penalty upon consideration of the permittee's history of
previous violations at the particular surface coal mining operation, the seriousness
of the violation, 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. The penalties shall be recoverable in an action brought
in the name of the Commonwealth of Kentucky by the cabinet. The Franklin Circuit
Court shall hold concurrent jurisdiction and venue of all civil and injunctive actions
instituted by the cabinet for the enforcement of the provisions of this chapter or the
orders and administrative regulations of the cabinet promulgated pursuant thereto.
All sums recovered shall be placed in the State Treasury, except those moneys
collected in excess of eight hundred thousand dollars ($800,000) in any fiscal year
shall be deposited fifty percent (50%) in the reclamation guaranty fund for purposes
set forth in KRS 350.500 to 350.521 and 350.595 and fifty percent (50%) to the
supplemental fund established under KRS 350.139(1), and used for the purposes of
that section. All moneys previously deposited in the abandoned mine land
enhancement fund shall be redeposited in the reclamation guaranty fund.
Any person or operator who engages in surface coal mining operations without first
(3)
(4)
(5)
securing a permit, as provided in KRS 350.060, or any person who engages in coal
exploration operations, exclusive of core drilling, without proper authorization, as
required by the cabinet pursuant to KRS 350.057 or administrative regulations
promulgated pursuant thereto, or any person or operator who engages in other
mining operations, without proper authorization as required by this chapter or
administrative regulations promulgated pursuant thereto, shall be liable to a civil
penalty for damages to the Commonwealth of not less than five thousand dollars
($5,000) nor more than twenty-five thousand dollars ($25,000) and in addition, may
be enjoined from continuing the violations. Each day shall constitute a separate
violation. In addition to the foregoing penalties, any permittee, person, or operator
who fails to abate a violation of KRS 350.060 or KRS 350.029 or KRS 350.057, as
noted in a notice of noncompliance or an order for immediate compliance and
cessation within the time period prescribed for the abatement, shall be assessed an
additional civil penalty of not less than seven hundred fifty dollars ($750) for each
day during which the violation continues. However, the penalties provided in
subsection (1) of this section shall apply in lieu of the penalties provided in this
subsection where an operator or permittee through inadvertence has exceeded the
boundaries or expiration date of the permit in effect at that time.
The cabinet shall bring an action for the recovery of penalties and bring an action
for a restraining order, temporary or permanent injunction, against any permittee,
operator, or person violating or threatening to violate any of the provisions of this
chapter or violating or threatening to violate any order or determination issued
pursuant to the provisions of this chapter. The Franklin Circuit Court shall hold
concurrent jurisdiction and venue of all civil and injunctive actions instituted by the
cabinet for the enforcement of the provisions of this chapter or the orders and
administrative regulations of the cabinet promulgated pursuant thereto.
Any permittee, operator, or person who knowingly and willfully violates any of the
provisions of this chapter, except as provided in subsection (5) of this section, or
any determination or order issued pursuant to the sections of this chapter which
have become final, shall be guilty of a Class A misdemeanor. Each day on which
the violation occurs may constitute a separate offense.
(a) Any person or operator who, in violation of KRS 350.060(1)(a) willfully and
knowingly engages in surface coal mining operations without first obtaining a
permit from the cabinet, or any person or operator who willfully and
knowingly engages in coal exploration operations, exclusive of core drilling,
without proper authorization, as required by the cabinet pursuant to KRS
350.057 or administrative regulations promulgated pursuant thereto, or any
person or operator who willfully and knowingly engages in other mining
operations without proper authorization as required by this chapter or
administrative regulations promulgated pursuant thereto, with the intent to
violate the laws, shall be guilty of a Class D felony.
(b) Any person or operator who in violation of KRS 350.060(1)(b) willfully and
knowingly receives, transports, sells, conveys, transfers, trades, exchanges,
donates, purchases, delivers, or in any way derives benefit from coal removed
from any surface mining operations conducted in violation of KRS
350.060(1)(a) or 350.057 shall be guilty of a Class D felony.
(6) Any person who violates any of the provisions of KRS 350.600 or administrative
regulations promulgated pursuant thereto shall be subject to civil penalties of not
more than twenty-five thousand dollars ($25,000). Each day of continuing violation
shall be deemed a separate violation.
(7) Any permittee, operator, or person who 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 by the cabinet, shall upon conviction be
guilty of a Class A misdemeanor.
(8) Except as permitted by law, any permittee, operator, or person who willfully and
knowingly resists, prevents, impedes, or interferes with the secretary or other
personnel of the cabinet in the performance of duties pursuant to this chapter shall
be guilty of a Class A misdemeanor.
(9) When a corporate permittee violates any provision of this chapter or administrative
regulation promulgated pursuant thereto or fails or refuses to comply with any final
order issued by the secretary, any director, officer, or agent of the corporation who
willfully and knowingly authorized, ordered, or carried out the violation, failure, or
refusal shall be subject to the same civil penalties, fines, and imprisonment as may
be imposed upon a person pursuant to this section.
(10) Upon notice by the secretary that any surety has failed to comply with the
provisions of KRS 350.032(3), the commissioner of the Kentucky Department of
Insurance shall revoke the surety's certificate of authority to conduct insurance
business within the Commonwealth of Kentucky.
(11) The cabinet, upon written request by any permittee, person, or operator subject to
any penalty assessment under this section and pursuant to procedures, if any, set
forth by administrative regulation and after consultation with the local county fiscal
court, may allow as an alternative to the payment of any assessed penalty under this
section the performance of in-kind reclamation, environmental rehabilitation, or
similar action to correct environmental pollution. The in-kind work shall not
substitute for those remedial measures mandated by the cabinet for the correction of
any violations. The estimated cost of the in-kind work shall be greater than the
penalty assessment. The cabinet's Division of Abandoned Mine Lands shall have
the authority to approve proposed in-kind projects and to recommend projects to the
cabinet, and shall determine whether the estimated cost of the in-kind work exceeds
the penalty assessment. For the purposes of this subsection, the cost of the in-kind
work shall include only those expenditures for actual on-site reclamation or
rehabilitation work, including direct equipment, personnel, and material cost, but
excluding administrative overhead or transportation costs. Failure to perform the inkind work as agreed upon by the person or operator subject to the penalty
assessment shall reinstate the liability of the person, permittee, or operator for the
full amount of the assessed penalty. The cabinet may prepare and promulgate
administrative regulations as are necessary to implement and administer the
provisions of this subsection.
Effective: March 22, 2013
History: Amended 2013 Ky. Acts ch. 78, sec. 11, effective March 22, 2013. -Amended 2010 Ky. Acts ch. 24, sec. 1896, effective July 15, 2010. -- Amended 1998
Ky. Acts ch. 148, sec. 1, effective July 15, 1998; and ch. 222, sec. 3, effective July
15, 1998. -- Amended 1996 Ky. Acts ch. 210, sec. 2, effective July 15, 1996. -Amended 1992 Ky. Acts ch. 120, sec. 3 effective July 14, 1992; ch. 429, sec. 35,
effective July 14, 1992; and ch. 463, sec. 38, effective July 14, 1992. -- Amended
1990 Ky. Acts ch. 202, sec. 1, effective July 13, 1990; ch. 210, sec. 13, effective July
13, 1990; ch. 212, sec. 5, effective July 13, 1990; and ch. 399, sec. 7, effective July
13, 1990. -- Amended 1988 Ky. Acts ch. 397, sec. 11, effective July 15, 1988. -Amended 1986 Ky. Acts ch. 137, sec. 13, effective July 15, 1986; and ch. 394, sec.
1, effective July 15, 1986. -- Amended 1984 Ky. Acts ch. 257, sec. 2, effective July
13, 1984; and ch. 282, sec. 2, effective July 13, 1984. -- Amended 1982 Ky. Acts ch.
150, sec. 4, effective July 15, 1982; and ch. 283, sec. 9, effective April 2, 1982. -Amended 1980 Ky. Acts ch. 62, sec. 35; ch. 260, sec. 1, effective July `15, 1980; and
ch. 377, sec. 3, effective March 21, 1980. -- Amended 1978 Ky. Acts ch. 332, sec.
11, effective June 17, 1978. -- Amended 1976 Ky. Acts ch. 289, sec. 1; and ch. 291,
sec. 2. -- Amended 1972 (1st Extra. Sess.) Ky. Acts ch. 3, sec. 80. -- Amended 1966
Ky. Acts ch. 4, sec. 27. -- Amended 1962 Ky. Acts ch. 105, sec. 14. -- Amended
1960 Ky. Acts ch. 143, sec. 6. -- Created 1954 Ky. Acts ch. 8, sec. 17.
Legislative Research Commission Note (7/13/90). This section was amended by four
1990 Acts. Where those Acts are not in conflict, they have been compiled together.
Where a conflict exists, the Act which was last enacted by the General Assembly
prevails, pursuant to KRS 446.250.
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