[269E-14] Penalties. (a) An action for the enforcement of penalties pursuant to this chapter shall be brought before the commission by the State, county, excavator, or any operator.

(b) Any excavator or operator who negligently violates, neglects, or fails in any particular instance to conform to or comply with any requirement of this chapter or any order or rule of the commission:

(1) Shall be subject to a civil penalty not to exceed $5,000 per day for each day such violation, neglect, or failure continues, to be assessed by the commission after a hearing in accordance with chapter 91; provided that the maximum penalty for related violations arising out of the same act, omission, or occurrence shall not exceed $100,000; and

(2) May be required, at the expense of the violator, to participate in an educational program conducted by the center; provided that any excavator who negligently violates section 269E-7(a) shall be required, at the expense of the excavator, to participate in an educational program conducted by the center.

(c) Upon written application filed within fifteen days after service of an order imposing a civil penalty pursuant to this section, the commission may remit or mitigate such penalty upon such terms as it deems proper. In determining whether such penalty should be remitted or mitigated, the commission may consider:

(1) The gravity of the violation;

(2) Whether the excavator or operator charged with the violation attempted in good faith to comply with this chapter, before and after notification of the violation; and

(3) Any history of previous violations of this chapter by the operator or excavator.

(d) If any penalties imposed pursuant to this section are not paid or complied with within such period as the commission may direct, the attorney general shall institute a civil action in circuit court for compliance of the same.

(e) In addition to civil penalties imposed, the nonprevailing party shall reimburse the prevailing party for legal fees and costs incurred by the prevailing party.

(f) Notwithstanding any other law to the contrary, this chapter shall not affect any remedies, civil or criminal, otherwise provided by law. This chapter, and compliance therewith, shall not be construed as altering or mitigating any liabilities, responsibilities, or obligations imposed by law, rule, agreement, or contract, or as affording any immunity or protection from claims for injuries or damages relating to the excavation. This chapter does not expressly transfer, and shall not be deemed to imply the transfer of, any liability between operators and excavators. No insurance policy shall provide coverage for any civil penalties imposed under this chapter. [L 2004, c 141, pt of 1, 7; am L 2009, c 72, 3]



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