75-11-525. Administrative penalties for violations -- appeals -- venue for hearings. (1) A person who violates any of the provisions of this part or any rules promulgated under the authority of this part may be assessed and ordered by the department to pay an administrative penalty not to exceed $500 for each violation. This limitation on administrative penalties applies only to penalties assessed under this section. Each occurrence of the violation and each day that it remains uncorrected constitutes a separate violation. The department may suspend a portion of the administrative penalty assessed under this section if the condition that caused the assessment of the penalty is corrected within a specified time. Assessment of an administrative penalty under this section may be made in conjunction with any order or other administrative action authorized by this chapter.
     (2) When the department assesses an administrative penalty under this section, it must have written notice served personally or by certified mail on the alleged violator or the violator's agent. For purposes of this chapter, service by mail is complete on the day of receipt. The notice must state:
     (a) the provision alleged to be violated;
     (b) the facts alleged to constitute the violation;
     (c) the amount of the administrative penalty assessed under this section;
     (d) the amount, if any, of the penalty to be suspended upon correction of the condition that caused the assessment of the penalty;
     (e) the nature of any corrective action that the department requires, whether or not a portion of the penalty is to be suspended;
     (f) as applicable, the time within which the corrective action is to be taken and the time within which the administrative penalty is to be paid;
     (g) the right to appeal or to a hearing to mitigate the penalty assessed and the time, place, and nature of any hearing; and
     (h) that a formal proceeding may be waived.
     (3) The department shall provide each person assessed a penalty under this section an opportunity for a hearing to either contest the alleged violation or request mitigation of the penalty. The contested case provisions of the Montana Administrative Procedure Act, provided for in Title 2, chapter 4, part 6, apply to a hearing conducted under this section. If a hearing is held under this section, it must be held in Lewis and Clark County or the county in which the alleged violation occurred. This subsection does not apply until the department gives written notice, served personally or by certified mail, to the alleged violator or the violator's agent. For the purposes of this chapter, service by mail is complete on the day of receipt. The notice must state:
     (a) the provision allegedly violated;
     (b) the facts that constitute the alleged violation;
     (c) the specific nature of any corrective action that the department requires, estimated costs of compliance with the action, and where to receive help to correct the alleged violation; and
     (d) a timetable that a reasonable person would consider appropriate for compliance with the alleged violations.
     (4) The department shall publish a schedule of maximum and minimum penalties for specific violations. In determining appropriate penalties for violations, the department shall consider the gravity of the violations and the potential for significant harm to the public health or the environment. In determining the appropriate amount of penalty, if any, to be suspended upon correction of the condition that caused the penalty assessment, the department shall consider the cooperation and the degree of care exercised by the person assessed the penalty, how expeditiously the violation was corrected, and whether significant harm resulted to the public health or the environment from the violation.
     (5) If the department is unable to collect an administrative penalty assessed under this section or if a person fails to pay all or any portion of an administrative penalty assessed under this section, the department may take action in district court to recover the penalty amount and any additional amounts assessed or sought under this chapter.
     (6) Action under this section does not bar action under this chapter or any other remedy available to the department for violations of underground storage tank laws or rules promulgated under those laws.
     (7) Administrative penalties collected under this section must be deposited in the state general fund.

     History: En. Sec. 3, Ch. 281, L. 1993; amd. Sec. 29, Ch. 112, L. 1997; Sec. , MCA 1995; redes. by Sec. 36(2), Ch. 112, L. 1997.