TCA § 59-8-117 — Civil penalty — Notice of proposed assessment — Hearing — Appeal —Recovery of assessment or violation — Violations — Correction of violation. [Contingent effective date, see Compiler's Notes.]

Any operator, permittee, or person who violates this part, the board's rules, or any permit condition required by this part, or order issued pursuant to this part may be assessed a civil penalty by the commissioner, except that if the violation leads to the issuance of a cease and desist order, a civil penalty shall be assessed. A civil penalty assessed under this subsection (a) 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 assessing a civil penalty. In determining the amount of the penalty, the commissioner shall consider the history of previous violations by the operator, permittee, or person at the particular coal surface mining operation; the seriousness of the violation, including any irreparable harm to the environment and any danger to the health or safety of the public; whether the operator, permittee, or person was negligent; and the demonstrated good faith of the operator, permittee, or person charged in attempting to achieve rapid compliance after notification of the violation. If notice of a proposed assessment is not provided as part of a complaint or cease and desist order pursuant to § 59-8-116, then the commissioner shall give notice of a proposed assessment by certified mail return receipt requested as provided in § 59-8-116(d)(2) within thirty (30) days of the date the complaint or order is served. If an appeal from the notice of proposed assessment is not made to the commissioner or the board as provided in subsection (b) or (c) by the operator, permittee, or person within thirty (30) days of service of the notification of the proposed assessment, the operator, permittee, or person is deemed to have consented to the assessment, and the assessment shall become final. Unless the operator, permittee, or person subject to the notice of proposed assessment consents to the notice of proposed assessment under subsection (a), the commissioner shall not assess a civil penalty until the operator, permittee, or person receives an opportunity for a hearing before the commissioner. When a public hearing has been held, the commissioner shall make findings of fact, and the commissioner shall issue a written decision as to the occurrence of the violation, if submitted by the operator, permittee, or person as provided in § 59-8-116(f), and the amount of the penalty that is warranted, incorporating, when appropriate, an order requiring that the penalty be paid. Any hearing under this subsection (b) shall be of record and shall be subject to title 4, chapter 5, part 3. If an operator, permittee, or person who is charged with a violation fails to appear at the public hearing, then the operator, permittee, or person shall be deemed to have consented to the assessment, and the assessment shall become final. The operator, permittee, or person shall have thirty (30) days after the notice of proposed assessment is served pursuant to subsection (a) or, after a decision is issued by the commissioner pursuant to subdivision (b)(2) if an appeal is filed pursuant to subsection (b), to pay the proposed penalty in full or, if the operator, permittee, or person wishes to contest either the amount of the penalty or the violation, forward the proposed amount to the commissioner for placement in an escrow account. If, through administrative or judicial review of the proposed violation or penalty, the board, chancellor, or judge determines that no violation occurred or that the amount of the penalty should be reduced, the commissioner shall, within thirty (30) days of the determination, remit the applicable escrowed amount to the operator, permittee, or person with interest at the rate of six percent (6%) per annum, or at the prevailing department of treasury rate, whichever is greater. Failure to forward the money to the commissioner within thirty (30) days shall result in a waiver of all legal rights to contest the violation or the amount of the penalty. Notwithstanding § 20-4-101 to the contrary, the commissioner, through the attorney general and reporter, may institute proceedings in the name of the department for the recovery of any assessment or penalty made under this part in the chancery court for Davidson County, or the chancery court or circuit court in the district where the surface coal mining and reclamation operation is located. All sums recovered shall be placed in the state treasury and credited to the coal mining protection fund, created by § 59-8-132. Any person, who willfully and knowingly violates a condition of a permit issued under this part or fails or refuses to comply with any complaint or order issued under § 59-8-116, § 59-8-120, or § 59-8-121, except an order incorporated under subsections (a) and (b), or who willfully and knowingly falsifies or fails to make any statement, representation, or certification in any records, information, plans, specifications, or other data required by the board or the commissioner, commits a Class E felony and, upon conviction, shall be punished only by a fine of not more than ten thousand dollars ($10,000). Any person who knowingly violates the conflict of interest provisions of § 59-8-127 commits a Class E felony and, upon conviction, shall be punished only by a fine of not more than two thousand five hundred dollars ($2,500). For purposes of this subsection (f), “person” includes state officials and employees. Any person who knowingly engages in surface coal mining and reclamation operations without first obtaining a permit for the mine from the commissioner, commits a Class E felony, and upon conviction, shall be punished only by a fine of not more than ten thousand dollars ($10,000). Any person who, except as permitted by law, knowingly prevents or impedes an employee of this state from performing the employee's duty under this part commits a Class E felony, and upon conviction, shall be punished only by a fine of not more than ten thousand dollars ($10,000). Whenever a corporation commits the acts described in subsection (a), (e), (g), or (h), 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 and fines that may be imposed under subsections (a), (e), (g), and (h). The time period for the correction of a violation for which a complaint has been issued under § 59-8-116 shall not end: In the case of any review proceeding under § 59-8-120 that is initiated by the operator, permittee, or person wherein the commissioner orders, after an expedited hearing, the suspension of the abatement requirements of the complaint after determining that the operator, permittee, or person will suffer irreparable loss or damage from the application of those requirements, until the entry of a final order by the board; or In the case of any review proceeding under § 59-8-121 that is initiated by the operator, permittee, or person wherein the court orders the suspension of the abatement requirements, until the entry of an order of the court. Any operator, permittee, or person who fails to correct a violation for which a complaint has been issued under § 59-8-116 within the period permitted for its correction shall be assessed a civil penalty of not less than seven hundred fifty dollars ($750) for each day during which the failure to correct or violation continues. All penalties recovered under this section shall be placed in the state treasury and credited to the coal mining protection fund, created in § 59-8-132. Nothing in this part abrogates the right of any person who is materially or personally damaged or injured by the operation of a surface mine to seek remedies against the responsible person in court.