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

(b)  Any excavator or operator who negligentlyviolates, neglects, or fails in any particular instance to conform to or complywith 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, tobe assessed by the commission after a hearing in accordance with chapter 91;provided that the maximum penalty for related violations arising out of thesame 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 thatany excavator who negligently violates section 269E-7(a) shall be required, atthe expense of the excavator, to participate in an educational programconducted by the center.

(c)  Upon written application filed withinfifteen days after service of an order imposing a civil penalty pursuant tothis section, the commission may remit or mitigate such penalty upon such termsas it deems proper.  In determining whether such penalty should be remitted ormitigated, the commission may consider:

(1)  The gravity of the violation;

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

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

(d)  If any penalties imposed pursuant to thissection are not paid or complied with within such period as the commission maydirect, the attorney general shall institute a civil action in circuit courtfor compliance of the same.

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

(f)  Notwithstanding any other law to thecontrary, this chapter shall not affect any remedies, civil or criminal,otherwise provided by law.  This chapter, and compliance therewith, shall notbe construed as altering or mitigating any liabilities, responsibilities, orobligations imposed by law, rule, agreement, or contract, or as affording anyimmunity or protection from claims for injuries or damages relating to theexcavation.  This chapter does not expressly transfer, and shall not be deemedto imply the transfer of, any liability between operators and excavators.  Noinsurance policy shall provide coverage for any civil penalties imposed underthis chapter. [L 2004, c 141, pt of §1]