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36.11.313    PENALTIES

(1) Each violation of Title 77, chapter 5, part 3, MCA, rules adopted thereunder, or of an order issued pursuant to 77-5-305 , MCA, is subject to a separate civil penalty not to exceed $1,000, with each day of the violation constituting a separate violation.

(2) Upon determining that a violation may have occurred, the department will, prior to issuing a formal warning or repair-order, make a reasonable attempt to contact, by telephone, letter, electronic mail, or other means, the owner and operator.

(a) If the department is not successful in making contact with the owner and/or with the operator, it will proceed in the appropriate manner, including but not limited to, the issuance of a formal warning, repair-order, and/or assessment of a civil penalty.

(b) If the department determines that a violation does not warrant a civil penalty, as calculated in (5) , it may seek voluntary compliance and site rehabilitation through warning, conference, or other appropriate means.

(3) For purposes of assessing penalties, the department shall divide SMZs into 100 lineal-foot segments. Each violation of a forest-practices standard set forth in 77-5-303 (1) , MCA, that occurs in a separate 100 lineal-foot SMZ segment shall constitute a separate violation and shall be subject to a separate civil penalty.

(4) The penalty matrix set forth in this rule establishes the initial penalty value for each violation. The significance of the violation, whether significant harm resulted to health, environment, water quality and quantity, aquatic and terrestrial riparian habitats, stream channels and banks, may decrease or increase a penalty within the limits listed below. The department shall have the option to select the most appropriate penalty and penalty value for each and every violation of the SMZ law, 77-5-301 through 77-5-307 , MCA.

(5) SMZ violations that warrant a civil penalty and site rehabilitation shall be documented on a repair-order form prescribed by the department. For each separate violation, the department shall specify in the repair-order the nature of the violation and the damage or unsatisfactory condition resulting from the violation, shall specify the appropriate repair action, and shall, in order to implement the management standards provided in 77-5-303 , MCA, and to provide specific direction necessary for owners and operators to understand and comply with the management standards, specify the amount of civil penalty per violation, according to the following formula: Penalty Formula = [($100 x Repair) + ($100 x Damage) ] x # days of violation,

where the repair and damage variables are determined as follows:

(a) Repair Determined by whether the repair actions are completed by the deadline specified in the department's repair order, with one of the following values inserted into the Penalty Formula as the repair variable:

0 - Responsible party exceeds required repair actions.

2 - Responsible party meets required repair actions.

4 - Responsible party fails to complete repair actions.

(b) Damage Determined by the extent of watershed damage, duration of impact, and stream class involved, as shown in the following damage table, with one of the following values inserted into the Penalty Formula:

Degree and Duration of Watershed Damage Class 3 Stream Class 2 Stream Class 1 Stream
Minor and Temporary

1

2

3

Minor and Prolonged

2

3

4

Major and Temporary

2

3

4

Major and Prolonged

4

5

6

History: 77-5-303, 77-5-307, MCA; IMP, 77-5-303, 77-5-305, MCA; NEW, 2006 MAR p. 1883, Eff. 7/28/06.

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