Montana Code 82-4-441. Administrative and judicial penalties — enforcement
82-4-441. Administrative and judicial penalties — enforcement. (1) When the department has reason to believe that a person is in violation of this part, a rule adopted or an order issued under this part, an administrative deficiency notice, or a term or condition of a permit issued under this part, it shall send a letter of warning or violation to the person. The letter of warning or violation must describe the provision of the statute, rule, order, or permit alleged to be violated and the facts alleged to constitute the violation. The letter must recommend corrective actions necessary to return to compliance. Issuance of a letter of warning or violation under this subsection does not limit the authority of the department under this part to bring a judicial action for penalties or injunctive relief or to initiate an administrative enforcement action.
Terms Used In Montana Code 82-4-441
- Board: means the board of environmental review provided for in 2-15-3502. See Montana Code 82-4-403
- Department: means the department of environmental quality provided for in 2-15-3501. See Montana Code 82-4-403
- Opencut operation: means activities conducted for the primary purpose of sale or utilization of materials, including:
(a)mine site preparation;
(b)(i) removing the overburden and mining directly from the exposed natural deposits; or
(ii)mining directly from natural deposits of materials;
(c)processing of materials mined from the natural deposits, except that processing facilities located more than 300 feet from where materials were mined or are permitted to be mined are not part of the opencut operation;
(d)transporting, depositing, staging, and stockpiling of overburden and materials unless the activity occurs more than 300 feet from where the materials were mined or are permitted to be mined;
(e)storing or stockpiling of materials at processing facilities that are part of the opencut operation;
(f)reclamation of affected land; and
(g)parking or staging of vehicles, equipment, or supplies unless:
(i)the activity is separated from other opencut operations by at least 25 feet and is connected to the opencut operation by a single road that is no more than 25 feet wide; or
(ii)the activity is inside the construction disturbance area shown on a construction project plan. See Montana Code 82-4-403
- Operator: means a person who holds a permit issued pursuant to this part. See Montana Code 82-4-403
- Person: means :
(a)a natural person;
(b)a firm, association, partnership, cooperative, or corporation;
(c)a department, agency, or instrumentality of the state or any governmental subdivision; or
(d)any other entity. See Montana Code 82-4-403
- Statute: A law passed by a legislature.
(2)By issuance of an order pursuant to subsection (5), the department may assess against a person who violates any of the provisions of this part, rules adopted or orders issued under this part, or provisions of a permit:
(a)an administrative penalty of not less than $100 or more than $1,000 for the violation; and
(b)an additional administrative penalty of not less than $100 or more than $1,000 for each day during which a violation continues.
(3)The department may bring a judicial action seeking a penalty of not more than $5,000 against a person who violates any of the provisions of this part, rules adopted or orders issued under this part, or provisions of a permit and a penalty of not more than $5,000 for each day that the violation continues. In determining the amount of the penalty, the district court shall consider the factors in subsection (4).
(4)Penalties assessed under this section must be determined in accordance with the penalty factors in 82-4-1001.
(5)(a) In addition to the letter of warning or violation sent pursuant to subsection (1), the department may also issue an order if it has credible information that a violation listed in subsection (2) has occurred. The order must specify the provision of the part, rule, order, or permit alleged to be violated and the facts alleged to constitute the violation. The order may require necessary corrective action within a reasonable period of time, may assess an administrative penalty determined in accordance with this section, or both. The order must be served personally or by certified mail.
(b)An order issued pursuant to subsection (5)(a) becomes final unless, within 30 days after the order is served, the person to whom the order is issued submits to the board a written request for a hearing stating the reason for the request. Service of an order by mail is complete 3 business days after mailing. If a request for a hearing is filed, a hearing must be held within a reasonable time under the contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6. After a hearing, the board shall affirm, modify, or rescind the order.
(6)The department may bring an action to enjoin an operator or other person violating or threatening to violate this part, rules adopted pursuant to this part, or a permit issued pursuant to this part. Actions for injunctions or penalties must be filed in the district court of the county in which the opencut operation is located.
(7)The provisions of this section do not limit the authority of the department to bring a judicial action for penalties or injunctive relief prior to or instead of initiating an administrative enforcement action under this part.
(8)For the purposes of this section, “administrative deficiency” means a deficiency in reporting, recordkeeping, fee payment, or notification that the department determines is minor in nature, nonsubstantive, and unlikely to recur.