82-4-441. Penalty -- enforcement. (1) The department may assess against a person who violates any of the provisions of this part, rules adopted under this part, or provisions of a reclamation permit:
     (a) a civil penalty of not less than $100 or more than $1,000 for the violation; and
     (b) an additional civil penalty of not less than $100 or more than $1,000 for each day during which a violation continues following the service of notice of the violation.
     (2) The department shall take into account the following factors in determining whether to institute a civil penalty action and in determining the penalty amount:
     (a) the nature, circumstances, extent, and gravity of the violation;
     (b) the violator's prior history of violations;
     (c) the economic benefit or savings, if any, to the violator resulting from the violator's action;
     (d) the amounts voluntarily expended by the violator to address or mitigate the violation or impacts of the violation; and
     (e) other matters that justice may require.
     (3) The department shall notify the person or operator of the violation. The person or operator is entitled, by filing a written request within 20 days of receipt of the notice of violation, to a hearing on the issues of whether the alleged violation has occurred and whether the penalty proposed to be imposed is proper. The department shall issue a statement of proposed penalty no more than 10 days after notice of violation. After the hearing or after the time for requesting a hearing has expired, the department shall make findings of fact, issue a written decision as to the occurrence of the violation and the amount of penalty warranted, and order the payment of a penalty in that amount. The person or operator shall remit the amount of the penalty within 30 days of the order. If the person or operator wishes to obtain judicial review of the assessment, the person or operator shall submit with the penalty a statement that the penalty is being paid under protest and the department shall hold the payment in escrow until judicial review is complete. A person or operator who fails to request and submit testimony at the hearing provided for in this subsection or who fails to pay the assessed penalty under protest within 30 days of the order assessing the penalty forfeits the right to seek judicial review of the violation or penalty determinations. These penalties are recoverable in an action brought by the department in the district court of the first judicial district of this state, in and for the county of Lewis and Clark, or in the district court of the county in which the opencut mine is located.
     (4) 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 pursuant to this part in the district court of the first judicial district of this state, in and for the county of Lewis and Clark, or in the district court of the county in which the opencut mine is located.

     History: En. Sec. 1, Ch. 113, L. 1981; amd. Sec. 7, Ch. 280, L. 1987; amd. Sec. 4, Ch. 431, L. 1991; amd. Sec. 414, Ch. 418, L. 1995; amd. Sec. 2, Ch. 271, L. 1997; amd. Sec. 5, Ch. 273, L. 1997; amd. Sec. 18, Ch. 507, L. 1999.