KRS § 350.990 — KY Code / Title XXVIII / Chapter 350 / Section 350.990
350.990 Penalties
Status: in_force

350.990 Penalties.

(1) 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 into the restricted fund account of the Office of the

Commissioner of the Department for Natural Resources to be disbursed for the

purposes set out in KRS Chapters 350, 351, and 352. All moneys previously

deposited in the abandoned mine land enhancement fund shall be redeposited in the

reclamation guaranty fund.

(2) Any person or operator who engages in surface coal mining operations without first

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.

(3) 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.

(4) 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.

(5) (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 in-

kind 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.