(1) Before initiating an administrative penalty action under this rule, the department shall issue a notice letter, in accordance with 75-5-617 , MCA, notifying the person of the violation and requiring compliance. The department is not required to issue a notice letter under 75-5-617 , MCA, if the violation represents an imminent threat to human health, safety, or welfare or to the environment.

(2) Upon determination that a violation has occurred, the department may initiate an administrative penalty action in accordance with 75-5-611 , MCA, and this rule. Except for a violation specified under (7) , the department shall first issue a written notice letter to a violator by certified mail or personal delivery that:

(a) contains the information required in 75-5-611 (1) , MCA, including the amount of penalty proposed for assessment under (6) ;

(b) explains how the penalty was calculated;

(c) describes the violator's opportunities for administrative appeal or for informal conference with the department; and

(d) discloses that, unless the alleged violation is vacated or dismissed, the department will include the alleged violation in violator's history for purposes of assessing penalties for any future violations even though this violation may ultimately be resolved without assessment of a penalty.

(3) Refusal to accept delivery of the notice letter does not render service incomplete.

(4) A notice letter issued in accordance with (2) satisfies the notice letter requirement in (1) .

(5) Except as provided in (7) , the department may not assess a penalty for a violation cited in the notice letter if the violator submits to the department in writing within the time specified in the notice letter:

(a) a response signed by the violator certifying that its activity was, or is now, in compliance with all requirements cited in the notice letter; or

(b) a proposal that describes a plan and schedule for corrective action that will bring the activity into timely compliance with the requirements cited in the notice letter and that is approved by the department.

(i) The department shall respond to a proposed corrective action plan within 30 days either approving or disapproving the proposed plan.

(6) If, after completing the requirements of (2) , the department determines that the violator has not adequately responded as required in (5) , the department may issue an administrative notice and order that assesses a penalty.

(a) The administrative notice and order must contain, as applicable, the information described in (2) .

(b) If the department finds that a violator is not in compliance as certified under (5) , or if a violator fails to adhere to the requirements of the plan and schedule for corrective action approved under (5) (b) , the department may without further notice issue an administrative notice and order assessing a penalty.

(7) In lieu of the notice letter under (2) , the department may issue an administrative notice together with an administrative order if the department's action:

(a) does not involve assessment of an administrative penalty; or

(b) seeks an administrative penalty only for an activity that the department believes and alleges was or is a violation of 75-5-605 , MCA, and the violation was or is:

(i) a class I violation as described in ARM 17.30.2001(1) ; or

(ii) a violation of major extent and gravity as described in ARM 17.4.303.

(8) The department shall calculate a penalty in accordance with ARM 17.4.301 through 17.4.308.

(9) Nothing in this rule may be construed as limiting the department's authority under Title 75, chapter 5, MCA, to address violations through administrative compliance or cleanup orders or through judicial actions for penalties or injunctive relief.