75-2-401. Enforcement -- notice -- order for corrective action -- administrative penalty. (1) When the department believes that a violation of this chapter, a rule adopted under this chapter, or a condition or limitation imposed by a permit issued pursuant to this chapter has occurred, it may cause written notice to be served personally or by certified mail on the alleged violator or the violator's agent. The notice must specify the provision of this chapter, the rule, or the permit condition or limitation alleged to be violated and the facts alleged to constitute a violation. The notice may include an order to take necessary corrective action within a reasonable period of time stated in the order or an order to pay an administrative penalty, or both. The order becomes final unless, within 30 days after the notice is received, the person named requests in writing a hearing before the board. On receipt of the request, the board shall schedule a hearing.
     (2) If, after a hearing held under subsection (1), the board finds that violations have occurred, it shall issue an appropriate order for the prevention, abatement, or control of the emissions involved or for the taking of other corrective action or assess an administrative penalty, or both. As appropriate, an order issued as part of a notice or after a hearing may prescribe the date by which the violation must cease; time limits for particular action in preventing, abating, or controlling the emissions; or the date by which the administrative penalty must be paid. If, after a hearing on an order contained in a notice, the board finds that a violation has not occurred or is not occurring, it shall rescind the order.
     (3) (a) An action initiated under this section may include an administrative civil penalty of not more than $10,000 for each day of each violation, not to exceed a total of $80,000. If an order issued by the board under this section requires the payment of an administrative civil penalty, the board shall state findings and conclusions describing the basis for its penalty assessment.
     (b) Administrative penalties collected under this section must be deposited in the alternative energy revolving loan account established in 75-25-101.
     (c) Penalties imposed by an administrative order under this section may not be assessed for any day of violation that occurred more than 12 months prior to the issuance of the initial notice and order by the department under subsection (1).
     (d) In determining the amount of penalty to be assessed for an alleged violation under this section, the department or board, as appropriate, shall consider:
     (i) the alleged violator's ability to pay and the economic impact of the penalty on the alleged violator;
     (ii) the alleged violator's full compliance history and good faith efforts to comply;
     (iii) the duration of the violation as established by any credible evidence, including evidence other than the applicable test method;
     (iv) payment by the violator of penalties previously assessed for the same violation;
     (v) the economic benefit of noncompliance;
     (vi) the seriousness of the violation; and
     (vii) other matters as justice may require.
     (4) The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing conducted under this section.
     (5) Instead of issuing the order provided for in subsection (1), the department may either:
     (a) require that the alleged violators appear before the board for a hearing at a time and place specified in the notice and answer the charges complained of; or
     (b) initiate action under 75-2-412 or 75-2-413.
     (6) This chapter does not prevent the board or department from making efforts to obtain voluntary compliance through warning, conference, or any other appropriate means.
     (7) In connection with a hearing held under this section, the board may and on application by a party shall compel the attendance of witnesses and the production of evidence on behalf of the parties.

     History: En. Sec. 11, Ch. 313, L. 1967; amd. Sec. 20, Ch. 349, L. 1974; amd. Sec. 6, Ch. 140, L. 1977; R.C.M. 1947, 69-3914; amd. Sec. 6, Ch. 560, L. 1979; amd. Sec. 1, Ch. 218, L. 1983; amd. Sec. 5, Ch. 502, L. 1993; amd. Sec. 21, Ch. 591, L. 2001.