(1) The department shall review each notice of noncompliance to determine whether the violation is a minor one for which a civil penalty should be waived or, if not, the amount of civil penalty.
(2) Within 90 days after issuance of the notice of noncompliance, the department shall serve a notice of violation and penalty order or notice of violation and waiver of penalty. Failure to serve the notice of violation and proposed penalty within 90 days is not grounds for dismissal of the penalty unless the person against whom the penalty is assessed demonstrates actual prejudice resulting from the delay and makes objection in the normal course of administrative review. If the notice of violation and penalty order is tendered by mail at the address of the person, as set forth in the permit in case of a permittee, and he or she refuses to accept delivery of or to collect such mail, service is completed upon such tender. In order to contest the fact of violation or the amount of penalty, the person charged with the violation must file a written request for hearing to the Board of Environmental Review within 30 days of service of the notice of violation and penalty order. The hearing must be a contested case hearing in accordance with 82-4-206 , MCA. If the department vacates the notice of violation, it shall also vacate the notice of noncompliance. At any time after issuance of the notice of violation and penalty order and before commencement of the hearing, or, if a hearing is not requested, before the notice and order become final, the person may confer with the department regarding the proposed penalty.
(3) The department shall determine the civil penalty in accordance with 82-4-1001 , MCA.
(4) The violation is minor and the civil penalty may be waived if a consideration of the penalty factors set forth in 82-4-1001 , MCA, demonstrates that the violation is not of potential harm to public health, public safety, or the environment and does not impair the administration of the Act. The department shall set forth the basis for waiving the penalty in writing. The department may not waive the penalty on the basis that the waiver could be used to offset the costs of abatement.