Page:United States Statutes at Large Volume 91.djvu/534

 91 STAT. 500

Hearing.

Notice.

Waiver.

Willful violations. Ante, p. 468.

Post, p. 520.

Corporate violations.

PUBLIC LAW 9 5 - 8 7 — A U G. 3, 1977 tion. E a c h day of continuing violation may be deemed a separate violation for purposes of penalty assessments. I n determining the amount of the penalty, consideration shall be given to the permittee's history of previous violations at the particular surface coal raining operation; the seriousness of the violation, including any irreparable h a r m to the environment and any hazard to the health or safety of the public; wheiher 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) 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. W h e n appropriate, the Secretary shall consolidate such hearings with other proceedings under section 521 of this Act. Any hearing under this section shall be of record and shall be subject to section 554 of title 5 of the United States Code. 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) Upon the issuance of a notice or order charging that a violation of the Act has occurred, the Secretary shall inform the operator within t h i r t y days of the proposed amount of said penalty. The person charged with the penalty shall then have t h i r t y days to pay the proposed penalty in full or, if the person washes 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. I f 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 t h i r t y 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. F a i l u r e to forward the money to the Secretary within t h i r t y days shall result in a waiver of all legal rights to contest the violation or the amount of the penalty. (d) Civil penalties owed under this Act, 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. (ej 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 502 or during Federal enforcement of a State program pursuant to section 521 of this Act or fails or refuses to comply with any order issued under section 521 or Fcction 526 of this Act, or any order incorporated in a final decision issued by the Secretary undei- this Act, except an order incorporated in a decision issued under subsection (b) of this section or section 704 of this Act. shall, upon conviction, be pimished by a fine of not more than $10,000, or by imprisonment for not more than one year or both. (f) 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 502 or Federal enforcement of a State program pursuant to section 521 of this Act or fails or

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