ALABAMA SURFACE MINING COMMISSION ADMINISTRATIVE CODE

CHAPTER 880-X-11E INDIVIDUAL CIVIL PENALTIES

TABLE OF CONTENTS

880-X-11E-.01 Scope

880-X-11E-.02 Definitions

880-X-11E-.03 When An Individual Civil Penalty May Be Assessed

880-X-11E-.04 Amount Of Individual Civil Penalty

880-X-11E-.05 Procedure For Assessment Of Individual Civil Penalty

880-X-11E-.06 Payment Of Penalty

880-X-11E-.01 Scope. This part covers the assessment of individual civil penalties under Section 26 of the Act.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-94.

History: Original Filed November 14, 1989; effective: March 7, 1991.

880-X-11E-.02 Definitions.

(1) For purposes of this part: Knowingly means that an individual knew or had reason to know in authorizing, ordering or carrying out an act or omission on the part of a corporate permittee that such act or omission constituted a violation, failure or refusal.

(2) Violation, failure or refusal means --

(a) A violation of a condition of a permit issued pursuant to the State program.

(b) A failure or refusal to comply with any order issued under Section 880-X-11C of the Rules and Regulations of the Alabama Surface Mining Commission, or any order incorporated in a final decision issued by the Alabama Surface Mining Commission under the Act, except an order incorporated in a decision issued under 26(b).

(3) Willfully means that an individual acted (1) either intentionally, voluntarily or consciously, and (2) with intentional disregard or plain indifference to legal requirements in authorizing, ordering or carrying out a corporate permittee's action or omission that constituted a violation, failure or refusal.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-94.

History: Original filed November 14, 1989; effective: March 7, 1991.

880-X-11E-.03 When An Individual Civil Penalty May Be_Assessed.

(1) Except as provided in Paragraph (2) of this section, the Alabama Surface Mining Commission may assess an individual civil penalty against any corporate director, officer or agent, of a corporate permittee who knowingly and willfully authorized, ordered or carried out a violation, failure or refusal.

(2) The Alabama Surface Mining Commission shall not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the Alabama Surface Mining Commission to the corporate permittee for the violation, and the cessation order has remained unabated for 30 days.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-94.

History: Original filed November 14, 1989; effective: March 7, 1991.

880-X-11E-.04 Amount Of Individual Civil Penalty.

(1) In determining the amount of an individual civil penalty assessed under 880-X-11E-.03, the Alabama Surface Mining Commission shall consider the criteria specified in Section 26(a) of the Act, including:

(a) The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular surface coal mining operation;

(b) The seriousness of the violation, failure or refusal (as indicated by the extent of damage and/or the cost of reclamation) including any irreparable harm to the environment and any hazard to the health or safety of the public; and

(c) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal.

(2) The penalty shall not exceed $5,000 for each violation. Each day of a continuing violation may be deemed a separate violation and the Alabama Surface Mining Commission may assess a separate individual civil penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order or other order incorporated in a final decision issued by the Alabama Surface Mining Commission, until abatement or compliance is achieved.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-94.

History: Original filed November 14, 1989; effective: March 7, 1991.

880-X-11E-.05 Procedure For Assessment Of Individual Civil_Penalty.

(1) Notice. The Alabama Surface Mining Commission shall serve on each individual to be assessed an individual civil penalty a notice of proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed, and a copy of any underlying notice of violation and cessation order.

(2) Final order and opportunity for review. The notice of proposed individual civil penalty assessment shall become a final order of the Alabama Surface Mining Commission 30 days after service upon the individual unless:

(a) The individual files within 30 days of service of the notice of proposed individual civil penalty assessment a petition for review with the Division of Hearings and Appeals in accordance with 880-X-5A-.06; or

(b) The Alabama Surface Mining Commission and the individual or responsible corporate permittee agree within 30 days of service of the notice of proposed individual civil penalty assessment to a schedule or plan for the abatement or correction of the violation, failure or refusal.

(3) Service. For purposes of this section, service is sufficient if it would satisfy Section 880-X-5A-.08.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-94.

History: Original Filed November 14, 1989; effective: March 7, 1991.

880-X-11E-.06 Payment Of Penalty.

(1) No abatement or appeal. If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a petition for review or abatement agreement, the penalty shall be due upon issuance of the final order.

(2) Appeal. If an individual named in a notice of proposed individual civil penalty assessment files a petition for review in accordance with 880-X-5A, the penalty shall be due upon issuance of a final administrative order affirming, increasing or decreasing the proposed penalty.

(3) Abatement agreement. Where the Alabama Surface Mining Commission and the corporate permittee or individual have agreed in writing on a plan for the abatement of or compliance with the unabated order, an individual named in a notice of proposed individual civil penalty assessment may postpone payment until receiving either a final order from the Alabama Surface Mining Commission stating that the penalty is due on the date of such final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn.

Author: Randall C. Johnson

Statutory Authority: Code of Ala. 1975, 9-16-94.

History: Original Filed November 14, 1989; effective: March 7, 1991.