As Amended
SEC. 17-17-29. Penalties; injunction; recovery of cost of remedial action; disposition of fines.
(1) Any person found by the commission violating any of the provisions
of Sections 17-17-1
through 17-17-47,
or any rule or regulation or written order of the commission in pursuance
thereof, or any condition or limitation of a permit, shall be subject to
a civil penalty of not more than Twenty-five Thousand Dollars ($25,000.00)
for each violation, such penalty to be assessed and levied by the commission
after a hearing. Appeals from the imposition of the civil penalty may be
taken to the chancery court in the same manner as appeals from orders of
the commission. If the appellant desires to stay the execution of a civil
penalty assessed by the commission, he shall give bond with sufficient
resident sureties of one or more guaranty or surety companies authorized
to do business in this state, payable to the State of Mississippi, in an
amount equal to double the amount of any civil penalty assessed by the
commission, as to which the stay of execution is desired, conditioned,
if the judgment shall be affirmed, to pay all costs of the assessment entered
against the appellant. Each day upon which such violation occurs shall
be
deemed a separate and additional violation.
(2) In lieu of, or in addition to, the penalty provided in subsection (1) of this section, the commission shall have the power to institute and maintain in the name of the state any and all proceedings necessary or appropriate to enforce the provisions of Sections 17-17-1 through 17-17-47, rules and regulations in force pursuant thereto, and orders and permits made and issued under those sections, in the appropriate circuit, chancery, county or justice court of the county in which venue may lie. The commission may obtain mandatory or prohibitory injunctive relief, either temporary or permanent, and in cases of imminent and substantial hazard as set forth in Section 17-17-27, subsection (4), it shall not be necessary in such cases that the state plead or prove (a) that irreparable damage would result if the injunction did not issue; (b) that there is no adequate remedy at law; or (c) that a written complaint or commission order has first been issued for the alleged violation.
(3) Any person who violates any of the provisions of, or fails to perform any duty imposed by, Sections 17-17-1 through 17-17-47, or any rule or regulation issued hereunder, or who violates any order or determination of the commission promulgated pursuant to such sections, and causes the death of wildlife shall be liable, in addition to the penalties provided in subsection (1) and/or (2) of this section, to pay to the state an additional amount equal to the sum of money reasonably necessary to replenish such wildlife as determined by the commission after consultation with the Mississippi Commission on Wildlife, Fisheries and Parks. Such amount may be recovered by the commission on behalf of the state in a civil action brought in the appropriate county or circuit court of the county in which venue may lie.
(4) Any person creating, or responsible for creating, through misadventure, happenstance, or otherwise, an immediate necessity for remedial or cleanup action involving solid waste shall be liable for the cost of such remedial or cleanup action and the commission may recover the cost of same by a civil action brought in the circuit court of the county in which venue may lie. This penalty may be recovered in lieu of or in addition to the penalties provided in subsection (1), (2) and/or (3) of this section.
In the event of the necessity for immediate remedial or cleanup action, the commission may contract for same and advance funds from the Pollution Emergency Fund to pay the costs thereof, such advancements to be repaid to the Pollution Emergency Fund upon recovery by the commission as provided herein.
(5) Any person who knowingly violates any provision of this chapter or violates any order issued by the commission under the authority of this chapter shall, upon conviction, be guilty of a misdemeanor and shall be subject to a fine of not more than Twenty-five Thousand Dollars ($25,000.00) for each day of violation or to imprisonment not to exceed one (1) year, or both. Each day's violation shall constitute a separate offense. The provisions in subsection (7)(g) that authorize the commission to reduce a penalty in certain cases involving voluntary self-evaluation disclosures shall not apply to this subsection (5).
(6) All fines, penalties and other sums recovered or collected by the
commission for and in behalf of the state under this section shall be deposited
in the Pollution Emergency Fund established by Sections 49-17-61
through 49-17-70,
and the commission is authorized to receive and accept, from any and all
available sources whatsoever, additional funds to be deposited in such
fund and expended for the purpose of remedial, cleanup or abatement actions
involving the introduction of
solid waste upon or into the land, air or waters of this state in violation
of Sections 17-17-1
through 17-17-47,
any rule or regulation or written order of the commission in pursuance
thereof, or any condition or limitation of a permit.
(7) In determining the amount of any penalty under this chapter, the commission shall consider at a minimum:
(a) The willfulness of the violation;
(b) Any damage to air, water, land or other natural resources of the state or their uses;
(c) Costs of restoration and abatement;
(d) Economic benefit as a result of noncompliance;
(e) The seriousness of the violation, including any harm to the environment and any hazard to the health, safety and welfare of the public;
(f) Past performance history; and
(g) Whether the noncompliance was discovered and disclosed as the result
of a voluntary self-evaluation. If a person discovers as a result of a
voluntary self-evaluation, information related to noncompliance with
an environmental law and voluntarily discloses that information to the
department, commission or any employee thereof, the commission shall, to
the greatest extent possible, reduce a penalty, other than a criminal penalty
imposed under subsection (5), if any,
determined by the commission, except for economic benefit as a result
of noncompliance, to a de minimis amount if all of the following are true
concerning the noncompliance discovered and disclosed as a result of a
voluntary self-evaluation:
(i) The disclosure is made promptly after knowledge of the information disclosed is obtained by the person; (ii) The person making the disclosure initiates the appropriate corrective actions and pursues those corrective actions with due diligence and has either completed the corrective action or is in compliance with a schedule for conduct of the corrective action approved by the commission or the department;
(iii) The person making the disclosure cooperates with the commission and the department regarding investigation of the issues identified in the disclosure;
(iv) The person is not otherwise required by an environmental law to make the disclosure to the commission or the department;
(v) The information was not obtained through any source independent of the voluntary self-evaluation or by the department through observation, sampling or monitoring; * * *
(vi) The noncompliance did not result in a substantial hazard or endangerment threatening the public health and safety * * * or the environment that actually exists currently, existed previously, or is imminent to occur in the future;
(vii) The noncompliance shall not be a violation of an administrative order from the commission or the United States Environmental Protection Agency or of a judicial order;
(viii) This subparagraph (viii) shall be limited to the one-year period
immediately before disclosure of the noncompliance described herein and
shall be based solely on the compliance history of the specific facility
or property that is the subject of the noncompliance described herein.
Within this one-year period and at this single facility or property, the
owner or operator of a facility or property shall not have committed significant
violations of environmental laws that 1. constitute a pattern of continuous
or repeated significant violations of a. environmental laws, b. administrative
orders from or settlement agreements with the commission or the United
States Environmental Protection Agency settling alleged significant
violations of environmental laws, or c. judicial orders settling alleged
significant violations of environmental laws; and 2. arose from either
a. events giving rise to these alleged or actual significant violations
that are separate and distinct from the significant violation noncompliance
that is disclosed, or b.multiple administrative orders from or settlement
agreements with the commission or the United States Environmental Protection
Agency concerning the same significant violation noncompliance that is
disclosed; and
(ix) Terms used in this paragraph (g) shall have the meanings ascribed in Section 49-2-2.
(8) Any provision of this section and chapter regarding liability for the costs of cleanup, removal, remediation or abatement of any pollution, hazardous waste or solid waste shall be limited as provided in Section 49-17-42 and rules adopted thereto.
(9) If a person asserts the environmental self-evaluation report privilege, the commission shall not consider or hold such assertion against the person when the commission determines the amount of any penalty.
SOURCES: Laws, 1974, ch. 573, Sec. 7; Laws, 1979, ch. 491, Sec. 6; Laws, 1980, ch. 551, Sec. 2; Laws, 1981, ch. 528, Sec. 9; Laws, 1988, ch. 311, Sec. 2; Laws, 1991, ch. 334, Sec. 1; Laws, 1995, ch. 627, Sec. 5; Laws, 2001, ch. 560, Sec. 3, HB 1447, eff from and after July 1, 2001.
PREVIOUS VERSION: Pre-2001.