House Bill No. 395

Introduced By grimes, knox, beaudry, grosfield, quilici, mccarthy, lynch

A Bill for an Act entitled: "An Act specifying the venue for actions brought by third parties to enforce compliance with the metal mine reclamation laws and for actions brought by the department of environmental quality for recovery of civil penalties or injunctive relief under the metal mine reclamation laws; and amending sections 82-4-354 and 82-4-361, MCA."

Be it enacted by the Legislature of the State of Montana:

Section 1.  Section 82-4-354, MCA, is amended to read:

"82-4-354.   Mandamus to compel enforcement. (1) Any A person having an interest that is or may be adversely affected, with knowledge that a requirement of this part or a rule adopted under this part is not being enforced by a public officer or employee whose duty it is to enforce the requirement or rule, may bring the failure to the attention of the public officer or employee by an affidavit stating the specific facts of the failure. Knowingly making false statements or charges in the affidavit subjects the affiant to penalties prescribed for false swearing, as provided in 45-7-202.

(2)  If the public officer or employee neglects or refuses for an unreasonable time after receipt of the affidavit to enforce the requirement or rule, the affiant may bring an action of mandamus in the district court of the first judicial district or in the district court of the county in which the land is located. If the court finds that a requirement of this part or a rule adopted under this part is not being enforced, it shall order the public officer or employee to perform his the duties. If he the officer or employee fails to do so, the public officer or employee must be held in contempt of court and is subject to the penalties provided by law.

(3)  Any A person having an interest that is or may be adversely affected may commence a civil action on his own behalf to compel compliance with this part against any a person for the violation of this part or any rule, order, or permit issued under it. However, no such an action may not be commence commenced:

(a)  prior to 60 days after the plaintiff has given notice in writing to the department and to the alleged violator; or

(b)  if the department has commenced and is diligently prosecuting a civil action to require compliance with the provisions of this part or any rule, order, or permit issued under it. Any A person having an interest that is or may be adversely affected may intervene as a matter of right in any such the civil action.

(4) Legal actions under subsection (3)(a) must be brought in the district court of the county in which the alleged violation occurred or, if mutually agreed to by the parties to the action, in the first judicial district, Lewis and Clark County.

(4)(5)  Nothing in this section restricts any right of any person under any statute or common law to seek enforcement of this part or the rules adopted under it or to seek any other relief."

Section 2.  Section 82-4-361, MCA, is amended to read:

"82-4-361.   Violation -- penalties -- waiver. (1) (a) Except as provided in subsections (1)(b) and (2), a civil penalty of not less than $100 or more than $1,000 for each of the following violations, an additional civil penalty of not less than $100 or more than $1,000 for each day during which the violation continues, and an injunction from continuing the violation may be imposed against:

(i)  a person or operator who violates a provision of this part, a rule or order adopted under this part, or a term or condition of a permit; or

(ii) any director, officer, or agent of a corporation who willfully authorizes, orders, or carries out a violation of a provision of this part, a rule or order adopted under this part, or a term or condition of a permit.

(b)  If the violation created an imminent danger to the health or safety of the public or caused significant environmental harm, the maximum penalty is $5,000 for each day of violation.

(2)  (a) The department may bring an action for a restraining order or a temporary or permanent injunction against an operator or other person violating or threatening to violate an order adopted under this part.

(b)  The civil penalties provided for in this section may be waived for a minor violation if it is determined that the violation does not represent potential harm to public health, public safety, or the environment and does not impair the administration of this part. The board shall adopt rules to implement and administer a procedure for waiver of a penalty under this subsection.

(3)  The department shall notify the person or operator of the violation. The department shall issue a statement of proposed penalty within 30 days after notice of the violation. The person or operator, by filing a written request within 20 days of receipt of the notice of proposed penalty, is entitled to a hearing on the issues of whether the alleged violation has occurred and whether the penalty proposed to be assessed is proper. After the hearing or after the time for requesting a hearing has expired, the board shall make findings of fact and issue a written decision as to the occurrence of the violation and whether the amount of penalty is warranted. The board shall order the payment of a penalty in that amount. The person or operator shall remit the amount of the penalty or petition for judicial review within 30 days of receipt of the order. A person or operator who fails to request the hearing provided for in this subsection or who fails to petition for judicial review within 30 days of receipt of the order forfeits that person's or operator's right to seek judicial review of the violation or penalty determinations. These penalties are recoverable in an action brought by the department.

(4) Legal actions FOR INJUNCTIVE RELIEF under this section must be brought in the district court of the county in which the alleged violation occurred or, if mutually agreed to by the parties to the action, in the first judicial district, Lewis and Clark County. LEGAL ACTIONS FOR REVIEW OF PENALTY ORDERS OR FOR RECOVERY OF PENALTIES MUST BE BROUGHT IN THE DISTRICT COURT IN THE FIRST JUDICIAL DISTRICT, LEWIS AND CLARK COUNTY."

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