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DEPARTMENT OF THE INTERIOR

Surface Mining Reclamation and Enforcement Office

CFR Citation: 30 CFR Part 926

SAT ID: [SATS No.: MT-026/027-FOR; Docket ID: OSM-2008-0006]

NOTICE: RULES

DOCUMENT ACTION: Final rule; approval of amendment.

SUBJECT CATEGORY: Montana Regulatory Program

DATES: Effective Date: May 14, 2008.

DOCUMENT SUMMARY: We are approving amendments to the Montana regulatory program (the Montana program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Montana proposed revisions to, additions to, and deletions from its program statutes and corresponding regulations about: procedures for contested case hearings; permit fees and surety bonds; applications for increase or reduction in permit area; prospecting permits; refusal of permits; submission of actions on reclamation plans; required area mining bonds and alternative plans; planting of vegetation following grading of disturbed areas; determination of successful reclamation and final bond release; noncompliance, and suspension of permits; violations, penalties, and waivers; penalty factors; and collection of penalties, fees, late fees, and interest. Montana intends to revise its program to be consistent with the corresponding Federal regulations and SMCRA, clarify ambiguities, and improve operational efficiency.

SUMMARY: Montana Regulatory Program,

SUPPLEMENTAL INFORMATION

I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Montana Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non Federal and nonIndian lands within its borders by demonstrating that its State program includes, among other things, ``a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.'' 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Montana program on April 1, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Montana program in the April 1, 1980, Federal Register (45 FR 21560). You can also find later actions concerning Montana's program and program amendments at 30 CFR 926.15, 926.16, and 926.30.

Rules for the Montana program are contained in the Administrative Rules of Montana (ARM), Title 17 Chapter 24 (ARM 17.24.101 through 17.24.1820) entitled ``Reclamation.'' The enabling statutes for the Montana program are contained generally under Montana Code Annotated (MCA) Title 82 (MCA 821101 through 8215207) entitled ``Minerals, Oil, and Gas,'' and more specifically, under Chapter 4 (MCA 824101 through 8241002) entitled ``Reclamation'' and Chapter 4, Part 2 (MCA 824201 through 824254) entitled ``Coal and Uranium Mine
Reclamation.'' Provisions for penalties, fees, and interest are found in Chapter 4, Part 10 (MCA 8241001 through 8241002) and procedures for initiating and holding contested case administrative hearings are found in Chapter 4, Part 2 (MCA 824206) and under Title 2, Chapter 4, Part 6 (MCA 24601 through 24631). Provisions providing for judicial review of contested case decisions are found under Title 2, Chapter 4, Part 7 (MCA 24701 through 24711).

II. Submission of the Proposed Amendments

By letter dated January 18, 2006, Montana sent us a proposed amendment to its program (MT026FOR, Administrative Record No. MT23 1) under SMCRA (30 U.S.C. 1201 et seq.). Montana sent the amendment in response to an April 2, 2001, letter that we sent in accordance with 30 CFR 732.17(c) (pertaining to valid existing rights). The proposed amendment also includes revisions in response to changes in Montana's statutes enacted in 2005. The provisions of the MCA that Montana proposes to revise or add are:

MCA 824206, Procedure for contested case hearings; MCA 824223, Permit fee and surety bond; MCA 824225, Application for increase or reduction in permit area; MCA 824226, Prospecting permit; MCA 824 227, Refusal of permit; MCA 824231, Submission of and action on reclamation plan; MCA 824232, Area mining requiredbondalternative plan; MCA 824233, Planting of vegetation following grading of disturbed area; MCA 824235, Determination of successful reclamation final bond release; MCA 824251, Noncompliancesuspension of permits; MCA 824254, Violationpenaltywaiver; MCA 8241001, Penalty
factors; and MCA 8241002, Collection of penalties, fees, late fees, and interest.

We announced receipt of the proposed amendment in the March 27, 2006, Federal Register (71 FR 15090). In the same document, we provided opportunity for public comment and a public hearing or meeting on the amendment's adequacy (Administrative Record No. MT235). The public comment period ended on April 26, 2006.

In addition to the proposed changes to its statute, by letter dated November 6, 2006, Montana sent us proposed changes to its program rules (MT027FOR, Administrative Record No. MT241). These changes reflect the revisions to the statute submitted on January 18, 2006. In its November 6, 2006 letter, Montana suggested that the
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regulatory changes be combined with the January 18, 2006 submittal for purposes of conducting a more efficient review. We announced receipt of the proposed rule changes in the February 6, 2007, Federal Register (FR 5377). In the same document, we provided opportunity for public comment and a public hearing or meeting on the amendment's adequacy (Administrative Record No. MT246). The public comment period ended on March 8, 2007.

We did not hold a public hearing or meeting for either proposal because no one requested one. We received one public comment which is discussed under section IV below. This document contains our decision and findings for both submissions.

III. OSM's Findings

Following are the findings we made concerning the amendments under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17.

1. Montana proposed revisions to 824206, MCA, to provide that an applicant, permittee, or person with an interest that is or may be adversely affected may request a hearing before the Board of Environmental Review (Board) on decisions of the Department of Environmental Quality (Department) pertaining to (a) approval or denial of an application for a permit pursuant to 824231; (b) approval or denial of an application for a prospecting permit pursuant to 824226; (c) approval or denial of an application to increase or reduce a permit area pursuant to 824225; (d) approval or denial of an application to renew or revise a permit pursuant to 824221; or (e) approval or denial of an application to transfer a permit pursuant to 824238 or 824250.

In its proposed revision to 824206, MCA, Montana changes the phrase from ``persons aggrieved by a final decision of the Department'' to ``applicants, permittees or persons with an interest that is or may be adversely affected.'' This defines who can request a hearing before the Board. In subparagraph (1)(a) through (e), Montana also specifies the types of permitting decisions that can be contested. The revised wording and types of decisions are in accordance with SMCRA Section 514(c) which states that any person with an interest which is or may be adversely affected may request a hearing on the reasons for the final determination. The proposed State statute provides more detail as to who may request a contested case hearing and for what reasons without altering the provision's consistency with Federal law. We are approving the revisions to 824206, MCA.

2. Montana proposed to revise 824223, MCA, to: (1) Delete ``permit fee'' from the title; and (2) delete the provision for a permit application fee; and (3) make editorial changes. Under Section 507(a) of the Act and 30 CFR 777.17, the amount of a permit fee is to be determined by the regulatory authority. Montana proposes to delete its existing requirement for a $100 application fee because the administrative burden to collect it exceeds the value of the fee. We accept Montana's reason for deleting the fee and approve it.

The proposal to modify 824223, MCA also includes minor substitutions and editorial changes which do not change the meaning of the existing statute. We approve these minor changes.

3. Montana proposed to revise 824225, MCA, to delete the requirement for a $50 application fee when revising a permit to increase or decrease the permitted area. Montana claims that the administrative burden to collect this fee exceeds the fee's value. Section 507(a) of SMCRA states that applications ``* * * shall be accompanied by a fee as determined by the regulatory authority. Such fee may be less than but shall not exceed the actual or anticipated cost of reviewing, administering, and enforcing such permit issued pursuant to a State or Federal program.'' It is evident that Congress enacted this provision to enable the regulatory authority to (among other things) recoup administrative costs associated with processing permit applications. However, Montana has stated that, under its current program, the administrative burden to collect the $50 application fee exceeds the fee's value. Given this explanation, and given the fact that Section 507(a) of the Act vests complete discretion in the regulatory authority to determine the amount of the fee (even in this case where the amount of the fee will be zero), we find that Montana's proposed revision is in accordance with the Act, and we approve it.

A minor editorial revision replaces ``in no case shall'' with ``may not.'' This minor revision is for clarification and does not alter the meaning of the provision. We approve it.

4. Montana proposed to delete 824226 (3), deleting the requirement for a $100 fee accompanying an application for a prospecting permit. Montana claims that the administrative burden to collect the fee exceeds the fee's value. Section 507(a) of SMCRA states that applications ``* * * shall be accompanied by a fee as determined by the regulatory authority. Such fee may be less than but shall not exceed the actual or anticipated cost of reviewing, administering, and enforcing such permit issued pursuant to a State or Federal program.'' It is evident that Congress enacted this provision to enable the regulatory authority to (among other things) recoup administrative costs associated with processing permit applications. However, Montana has stated that, under its current program, the administrative burden to collect the $100 application fee exceeds the fee's value. Given this explanation, and given the fact that Section 507(a) of the Act vests complete discretion in the regulatory authority to determine the amount of the fee (even in this case where the amount of the fee will be zero), we find that Montana's proposed revision is in accordance with the Act, and we approve it.

Other changes recodify previous subsections (4) through (8) as subsections (3) through (7) as a result of deleting the prospecting permit fee provision at original subsection (3). This recodification does not alter the content of the existing provisions. We approve these changes.

5. Montana proposed to revise 824227(13)(a), MCA, to add the national system of trails, Wild and Scenic Rivers Act study rivers and study river corridors, and Federal lands within National Forests, to areas where mining is prohibited (subject to valid existing rights).

Montana submitted this proposal in response to an OSM letter dated April 2, 2001, notifying Montana that revisions to the Federal rules on valid existing rights required the State to revise equivalent provisions in the State program. There are no additions to 824 227(13)(a), MCA that are not fully expressed in the corresponding Federal counterpart, Section 522(e) of SMCRA, which states: (e) After the enactment of this Act and subject to valid existing rights no surface coal mining operations except those which exist on the date of enactment of this Act shall be permitted (1) on any lands within the boundaries of units of the National Park System, the National Wildlife Refuge Systems, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act and National Recreation Areas designated by Act of Congress;
(2) on any Federal lands within the boundaries of any national forest: Provided, however, That surface coal mining operations [[Page 27732]]
may be permitted on such lands if the Secretary finds that there are no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations and(A) surface operations and impacts are incident to an underground coal mine; or
(B) where the Secretary of Agriculture determines, with respect to lands which do not have significant forest cover within those national forests west of the 100th meridian, that surface mining is in compliance with the MultipleUse SustainedYield Act of 1960, the Federal Coal Leasing Amendments Act of 1975, the National Forest Management Act of 1976, and the provisions of this Act: And provided further, That no surface coal mining operations may be permitted within the boundaries of the Custer National Forest;

In 824227(13)(b), MCA Montana adds ``* * * subject to the exceptions and limitations of 30 CFR 761.11(b) and the procedures of 30 CFR 761.13.'' 30 CFR 761.11(b) is substantively identical to Section 522(e)(1) and (2) of the Act. 30 CFR 761.13 provides that, if applicants intend to rely on the provisions in 30 CFR 761.11(b) they must request that OSM first obtain the Secretarial findings required by Section 761.11(b). Thus, by making 824227(13)(b), MCA subject to the exceptions and limitations in these two Federal regulations, Montana's proposal is consistent with the Federal regulations and in accordance with Section 522(e)(1) and (2) of the Act. Also, Montana proposed changing ``systems'' to ``system'' for grammatical correctness. For the above reasons, we approve Montana's proposed changes.

6. Montana proposed to revise 824231(9), MCA, to specify the Environmental Quality Board, or its hearing officer, as the authority to hold hearings appealing adverse permit decisions by the Department, and to clarify that hearings must be started, rather than held, within the 30day timeframe. Montana is establishing that, since appeals of permit decisions of the Department are contested cases, they will be heard by the Board and not the Department in compliance with the provisions in 824206, MCA. These minor changes clarify Montana's specific processes and do not alter the requirements of existing statutory provisions. Therefore, we find that they are consistent with and will not make Montana's statute less stringent than its Federal counterpart, SMCRA Section 514(c). We approve these changes to 824 231, MCA.

7. Montana proposed to revise 824232(6), MCA, concerning bond release applications to:
(1) Change the term bond release ``requests'' to bond release ``applications'' ((6)(a));
(2) Provide that a bond release application is administratively complete if it includes:
(6)(b)(i) The location and acreage of the land for which bond release is sought;
(ii) The amount of bond release sought;
(iii) A description of the completed reclamation, including the date of performance;
(iv) A discussion of how the results of the completed
reclamation satisfy the requirements of the approved reclamation plan; and
(v) Information required by rules implementing this part. (3) Provide that:
(6)(c) The [D]epartment notify the applicant in writing of its determination no later than 60 days after submittal of the application; if the [D]epartment determines that the application is not administratively complete, it shall specify in the notice those items that the application must address; after an application for bond release has been determined to be administratively complete by the [D]epartment, the permittee shall publish a public notice that has been approved as to form and content by the [D]epartment at least once a week for 4 successive weeks in a newspaper of general circulation in the locality of the mining operation.
(4) Provide that:
(6)(d) Any person with a valid legal interest that might be adversely affected by the release of a bond or the responsible officer or head of any federal, state, or local governmental agency that has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation or is authorized to develop and enforce environmental standards with respect to the operation may file written objections to the proposed release of bond to the [D]epartment within 30 days after the last publication of the notice. If written objections are filed and a hearing is requested, the [D]epartment shall hold a public hearing in the locality of the operation proposed for bond release or in Helena, at the option of the objector, within 30 days of the request for hearing. The [D]epartment shall inform the interested parties of the time and place of the hearing. The date, time, and location of the public hearing must be advertised by the [D]epartment in a newspaper of general circulation in the locality for 2 consecutive weeks. Within 30 days after the hearing, the [D]epartment shall notify the permittee and the objector of its final decision.
(5) Provide that:
(6)(e) Without prejudice to the rights of the objector or the permittee or the responsibilities of the [D]epartment pursuant to this section, the [D]epartment may establish an informal conference to resolve written objections.
(6) Provide that:
(6)(f) For the purpose of the hearing under subsection (6)(d), the [D]epartment may administer oaths, subpoena witnesses or written or printed materials, compel the attendance of witnesses or the production of materials, and take evidence, including but not limited to conducting inspections of the land affected and other operations carried on by the permittee in the general vicinity. A verbatim record of each public hearing required by this section must be made, and a transcript must be made available on the motion of any party or by order of the [D]epartment.
(7) Provide that:
(6)(g) If the applicant significantly modifies the application after the application has been determined to be administratively complete, the [D]epartment shall conduct a new review, including an administrative completeness determination. A significant
modification includes, but is not limited to:
(i) The notification of an additional property owner, local governmental body, planning agency, or sewage and water treatment authority of the permittee's intention to seek a bond release; (ii) A material increase in the acreage for which a bond release is sought or in the amount of bond release sought; or
(iii) A material change in the reclamation for which a bond release is sought or the information used to evaluate the results of that reclamation.
(8) Provide that:
((6)(h)) The [D]epartment conduct an inspection and evaluation of the reclamation work involved within 30 days of determining that the application is administratively complete or as soon as weather permits;
(9) Provide that:
(6)(i) The [D]epartment shall review each administratively complete application to determine the acceptability of the application. A complete application is acceptable if the application is in compliance with all of the applicable requirements of this part, the rules adopted under this part, and the permit.
(10) Provide that:
(6)(j)(i) The [D]epartment shall notify the applicant in writing regarding the acceptability of the application no later than 60 days from the date of the inspection.
(ii) If the [D]epartment determines that the application is not acceptable, it shall specify in the notice those items that the application must address.
(iii) If the applicant revises the application in response to a notice of unacceptability, the [D]epartment shall review the revised application and notify the applicant in writing within 60 days of the date of receipt as to whether the revised application is acceptable.
(iv) If the revision constitutes a significant modification, the [D]epartment shall conduct a new review, beginning with an administrative completeness determination.
(v) A significant modification includes, but is not limited to: (A) The notification of an additional property owner, local governmental body, planning agency, or sewage and water treatment authority of the permittee's intention to seek a bond release; (B) A material increase in the acreage for which a bond release is sought or the amount of bond release sought; or
(C) A material change in the reclamation for which a bond release is sought or the information used to evaluate the results of that reclamation.
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(11) Recodify original subsections (6)(c) through (e) as (6)(k) through (m), with some minor editorial changes, and,
(12) Recodify original subsections (6)(f) through (6)(h) as (6)(d) through (f).

The proposed changes in Paragraph 3 above (MCA 824232(6)(c)) require that public notice be published (at least once a week for 4 successive weeks in a newspaper of general circulation in the locality of the mining operation) after the bond release application has been reviewed and is determined to be administratively complete by the Department. These changes also include a provision which states that the Department will notify the applicant of its determination no later than 60 days after it receives the application. Although there is no direct Federal counterpart to this provision, we find that it is generally in accordance with Section 519 of SMCRA. The proposed changes at Paragraph (2) (MCA 824232(b)(2)) state that a bond release application shall be administratively complete if it includes certain specific information specified in (6)(b)(i) through (v) listed above. The corresponding Federal counterpart to the above provisions, SMCRA 519(a), requires the operator to publish (at least once a week for 4 successive weeks in a newspaper of general circulation in the locality of the mining operation) a notice within 30 days of filing an application for bond release containing the location of the land affected, the number of acres, the permit and the date approved, the amount of the bond filed, and the portion sought to be released, the type and dates of reclamation performed, and a description of the results as they relate to the operator's approved reclamation plan. Proposed 824232(6)(b) and (c) are substantively identical to and in accordance with the requirements of Section 519(a) of the Act. We approve the changes.

The changes in Paragraphs 4 through 10 above (MCA 824232(6)(d) through (j)) specify requirements for bond release applications including criteria for administrative completeness and procedures for review. These provisions are similar to the provisions for permit and permit revision applications in MCA 824231. While providing more specificity, revised MCA 824232(6) (d), (e), (f), and (h) through (j) include all of the provisions contained in Sections 519 (a), (b), (d), (f), (g), and (h) of SMCRA regarding bond release procedures. MCA 824 232(6) (g), (i), and (j) elaborate on administrative completeness determinations and procedures, and have no Federal counterparts. These additions add specificity to Montana's requirements and exceed SMCRA's requirements. For the above reasons, we find these changes to be no less stringent than comparable provisions in SMCRA, and we approve them.

As discussed below, additional changes at MCA 824232(11) and (12) are minor wording, editorial, punctuation, grammatical and recodification changes to existing statutes. More specifically, former MCA 824232 (6)(c) through 824232 (6)(e) have been recodified as 82 4232 (6)(k) through 824232 (6)(m). These changes are required by other recodification changes within the statute. ``[O]r deposit'' has been deleted from 824232 (6)(k). The term ``bonds'' means deposits such as cash or securities as well as other types of bonds and therefore the term ``deposits'' is not necessary. ``[O]r county'' was added to 824232 (6)(m), clarifying that an applicant for total or partial bond release must notify the municipality or county in which a prospecting or mining operation is located 30 days prior to the bond release. This minor addition clarifies applicant responsibilities and does not alter the requirements of the provision. We find that these recodification and editorial changes are minor and do not change the meaning of existing statutes. We approve these changes.

Former MCA 824232(6)(f) through 824232(6)(h) have been recodified as 824232(6)(d) through (6)(f). These changes are required by recodification changes to the previously approved statute (January 22, 1999) (64 FR 3604). The content of these provisions was unaffected, and we approve these changes.

MCA 824232(8) deals with proposals in postmining land use. Montana proposed in (a) to change ``alternate'' to ``alternative'' for consistency of terminology within the Montana statute and also with the revisions to rules approved by OSM on February 16, 2005 (70 FR 8018), where ``alternative'' was used. This is a minor wording change that is consistent with previously approved statutes and regulations. We approve this change.

8. Montana proposed to revise 824233, MCA, by deleting existing Paragraph (5) concerning special revegetation requirements for land that was mined, disturbed, or redisturbed after May 2, 1978, and that was seeded prior to January 1, 1984. Subsection (5) is no longer necessary as its provisions are now included in subsections (1) and (2) of 824233, MCA. This is a result of changes to 824233, MCA approved by OSM on February 16, 2005, (70 FR 8001). Subsections (1) and (2) include all the provisions of 30 CFR 816.111 for revegetation general requirements that were previously approved in subsection (5). We approve this change.

9. Existing MCA 824235(a) prescribes revegetation success criteria and the time requirements for reclamation responsibility for lands with regard to coal removal and disturbance or redisturbance before and after May 2, 1978. SMCRA took effect in two stages, an initial regulatory program described in Section 502, and the permanent regulatory program. On and after nine months from the date of enactment of the Act, on lands where surface coal mining operations were regulated by States, the initial regulatory program required compliance with Section 515(b)(19) of SMCRA requiring establishment of vegetative cover but did not require compliance with Section 515(b)(20) establishing the responsibility period for successful revegetation. The initial regulatory program became effective on May 3, 1978. The permanent regulatory program became effective with permits issued under approved State regulatory or Federal programs. Under MCA 824235(a), lands mined for coal or redisturbed prior to May 3, 1978 are subject to revegetation requirements listed in existing MCA 824235(3)(a)(i) and (ii). Existing MCA 824235 (2) sets a period of 5 years after planting as the responsibility period for lands mined for coal or redisturbed prior to May 3, 1978. Montana proposes additional language to MCA 824 235(3)(a) to clarify that lands disturbed by mining at any time prior to May 3, 1978 that were permitted under Montana programs that preceded SMCRA are required to meet the vegetation requirements in MCA 824 235(3)(a)(i) and (ii). For the most part, this additional provision deals with lands not subject to SMCRA provisions. Despite this proposed change, MCA 824235 remains in accordance with requirements in SMCRA in Sections 515(b)(19) and (20) and in Section 502 (c). The addition also provides clarification to the statute that was previously approved by OSM in the January 22, 1999 Federal Register (64 FR 3604). We approve the changes.

10. Montana 824251(3), MCA, pertains to orders issued to the permittee to show cause as to why the permit should not be suspended or revoked based on a determination that a pattern of violations exists. The existing provision provides for the opportunity for a public hearing in accordance with Section 521(a)(4) of SMCRA. In addition, Montana proposed that the permittee may request a contested case hearing. Pursuant to
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Montana's Administrative Procedures Act, whenever a statute requires a license or permit decision to be preceded by a hearing, the contested case provisions apply pursuant to MCA 824206(2). Procedures for contested case hearings are contained in Title 2, chapter 4, part 6, MCA (24601 through 24631). The contested case procedures provide for opportunity for reasonable notice, requiring the reason for and details of the hearing, and prescribe hearing procedures and time limits for decisions. Applying the contested case provisions of the Montana Administrative Procedures Act to hearings required in the Montana regulatory program is reasonable, is not inconsistent with the requirements of Section 521(a)(5) of the Act for notices and orders, public hearings conferences, and procedures associated with enforcement matters, and does not alter our previous approvals of MCA 824251(3). We approve the change.

In 824251(5), MCA, revisions are proposed to (a) allow an opportunity by a permittee to request an informal public hearing on any notice or order issued by the Department under this section of the Montana Code, and (b) specify the procedures for such informal hearings. More specifically, Montana proposes the above revisions to provide that informal public hearings on notices or orders that require cessation of mining must be requested by the person to whom the notice or order was issued. Further, if the Department receives a request for an informal public hearing 21 days after service of the notice or order, the period for holding the informal public hearing will be extended by the number of days after the 21st day that the request was received. Montana's previous statute did not provide for an opportunity by a permittee to request an informal public hearing on any notice or order issued by the Department under the statute. Therefore, it was inconsistent with the provisions in Section 521(a)(4) of SMCRA which provide the opportunity for a public hearing to be requested by the permittee after service of ``* * * an order to the permittee to show cause as to why the permit should not be revoked or suspended * * *.'' The proposed changes are in accordance with Section 521(a)(4) of SMCRA and the requirements for notices and orders, public hearings conferences, and procedures associated with enforcement matters contained in Section 521(a)(5). We approve these changes.

Montana proposes to revise 824251(6), MCA, to allow an alleged violator to ``request a hearing before the [B]oard,'' and delete existing requirements for Departmental investigations. Previously, hearings under this subsection were limited to notices of violation and cessation orders. The previous version also specified that the hearings were to be conducted by the Department, and the Department was required to make findings and issue a decision from such hearings. By definition, this is contrary to 824205(2) which requires that contested cases must be heard and decided by the Board of Environmental Review and not the Department. The above changes rectify this problem and are in accordance with the requirements for notices and orders, public hearings conferences, and procedures associated with enforcement matters contained in Section 521(a)(5) of SMCRA. Therefore, we approve these changes.

The following paragraphs, 11 through 27, address proposed changes to Montana statutes and regulations dealing with penalties. The standard for penalty provisions in a State program is established in Section 518(i) of SMCRA. This provision states that civil and criminal penalty provisions shall incorporate penalties no less stringent than those set forth in Section 518 of the Act, and shall contain the same or similar procedural requirements. OSM suspended 30 CFR 732.15(b)(7) and 840.13(a) (which implement Section 518(i) of the Act) insofar as they require State programs to establish a point system for assessing civil penalties or impose civil penalties as stringent as those appearing in 30 CFR 845.15 (which deals with the assessment of separate violations for each day) (August 4, 1980) (45 FR 51548). Hence, if the State program requires consideration of the four mandatory statutory criteriahistory of previous violations, seriousness, negligence, and good faith in attempting to achieve compliancewhen determining whether to assess a penalty and in determining the penalty amount, the program meets the Federal requirements. 30 CFR Part 846 covers the assessment of individual civil penalties and is the basis for State regulations.

11. Montana proposed to revise 824254(1)(a), MCA, to provide individual administrative penalties determined in accordance with 824 1001, MCA, for persons who ``purposely or knowingly,'' rather than ``willfully,'' authorize, order, or carry out violations. Montana explains that the terms ``purposely or knowingly'' are used in the Montana Criminal Code, and ``willfully'' is not; therefore, this change will provide consistency within Montana state law. OSM believes that Montana's term ``purposely or knowingly'' is substantively the same as ``willfully and knowingly,'' as used in Section 518(e) of SMCRA and we are approving it.

Montana proposes further additions and deletions in (1)(a) that are minor wording, editorial, punctuation, grammatical and recodification changes to existing statutes. Additionally, the term ``civil'' is replaced with ``administrative'' to clarify that penalties assessed by the Department are administrative penalties, rather than judicial penalties that are levied by Montana State District Court. This proposed change is consistent with Section 518(b) of SMCRA which provides for penalties to be assessed by the regulatory body, and not through the courts. This change is therefore consistent with SMCRA, and we approve it.

Proposed part (b) references a new section, MCA 8241001, which sets forth guidelines for determining the amount of administrative penalty to be assessed (discussed below).

824254(2), MCA, is revised to add that the Department may not waive a penalty assessed under the section if the person or operator fails to abate the violation as directed under MCA 824251. This revision does not have a Federal counterpart and is more stringent than requirements in Section 518 of SMCRA dealing with the assessment of penalties. Moreover, the addition provides clarification and specificity to existing provisions. We approve this change.

Montana also proposes additions and deletions in 824254(2), MCA that are for clarification of terminology. These changes are minor and do not alter the meaning of the existing regulation. We approve these minor changes.

Montana adds new requirements at 824254(3)(a), MCA, providing that:

To assess an administrative penalty under this section, the Department shall issue a notice of violation and penalty order to the person or operator, unless the penalty is waived pursuant to subsection (2). The notice and order must specify the provision of this part, rule adopted or order issued under this part, or term or condition of a permit that is violated and must contain findings of fact, conclusions of law, and a statement of the proposed
administrative penalty. The notice and order must be served personally or by certified mail. Service by mail is complete 3 business days after the date of mailing. The notice and order become final unless, within 30 days after the order is served, the person or operator to whom the order was issued requests a hearing before the Board.

A requirement is added to Paragraph (3)(a) that on receiving a request, the Board must schedule a hearing. The
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changes in proposed MCA 824254(3)(a) are for the purpose of converting the current twostep process of assessing a penalty into a more streamlined onestep process. The Department would now issue a Notice of Violation and Administrative Penalty Order (NOV/APO) that would contain all of the relevant components from the existing twostep process. If a hearing is not requested, the NOV/APO would become final and eliminate the need to issue separate findings of fact and conclusions of law.

New Paragraph (3)(b) indicates that only persons or operators issued a final order may obtain judicial review. The changes in MCA 82 4254(3)(b) reflect the changes in (3)(a) and provide additional clarification.

New Paragraphs (3)(c) and (4) allow (1) the Department, rather than the Attorney General, to file actions for collection, (2) filing in the first judicial district (if agreed by the parties), and (3) the Department, rather than the Attorney General, to bring actions for judicial relief. Additionally, the changes in MCA 824254(3)(c) specify that the Department, not the Attorney General, may file an action in District Court to recover penalties; Department attorneys are special assistants to the Attorney General and are authorized to file such cases in District Court. The changes in MCA 824254(4) reflect changes in (3)(c) specifying that the Department, rather than the Attorney General, may file an action for a restraining order or temporary or permanent injunction against an operator or person meeting criteria outlined in subsections (4)(a) through (f).

These changes will result in assessment and collection of civil penalties by Montana in accordance with the provisions for assessing and collecting civil penalties found in Section 518(a), (b), (c) and (d) of SMCRA. The changes provide clarification and specificity to existing provisions. We approve the proposed changes, finding that the additions and deletions are reasonable and do not alter OSM's previous decision to approve MCA 824254(1) through (3) in the January 22, 1999 Federal Register (64 FR 3604).

12. Montana proposed revisions to ARM 17.24.1219(1) and (2) for individual civil penalties and procedures for assessments that reflect revisions discussed above to 824254(3)(a), MCA. The proposed amendments to (1) and (2) provide for the Department to issue a penalty order rather than a statement of proposed penalty. The proposed amendment to subparagraph (1) also deletes the requirement that the penalty document give an explanation for the penalty as well as its amount. These requirements are now set forth in 824254(3)(a) and 82 41001, MCA (see Findings 11 and 15). It is, therefore, unnecessary to impose them by administrative rule. These changes to ARM 117.24.1219, reflect the changes in 824254(3)(a), MCA that were approved by OSM on February 16, 2005 (70 FR 8018). We approve the changes to ARM 17.24.1219(1) and (2).

13. Montana proposed revisions to ARM 17.24.1220(1), (2) and (3) concerning individual civil penalty payments. The proposed amendment to subparagraph (1) reflects the proposed changes to MCA 824254 discussed above, and requires the payment of a penalty within 30 days after the expiration of the period for requesting a hearing rather than upon issuance of the final order. Pursuant to 824254, MCA, the notice of violation and penalty order become final by operation of law if a request for hearing is not made in a timely manner. Therefore, the deadline for paying the penalty must be keyed to the expiration of the period for requesting a hearing (rather than to the issuance of a final order as previously required under 824254, MCA).

Subparagraph (2) replaces the phrase ``proposed individual civil penalty assessment'' with ``violation and penalty order'' to maintain consistency with MCA 824254. To further maintain this consistency, the phrase ``[U]pon issuance'' (of a final administrative order) is replaced with ``within 30 days after the issuance'' (of a final administrative order).

Under 30 CFR 846.17(b), the notice of proposed individual civil penalty assessment shall become a final order of the Secretary 30 days after service upon the individual unless:
(1) The individual files within 30 days of service of the notice of proposed individual civil penalty assessment a petition for review with the Hearings Division, Office of Hearings and Appeals; or
(2) The Office [of Surface Mining] and the individual or responsible corporate permittee agree within 30 days of service of the notice of proposed individual civil penalty assessment to a schedule or plan for the abatement or correction of the violation.

Under 30 CFR 846.18(a) a penalty for an individual civil penalty assessed in accordance with 30 CFR 846.17, in the absence of a petition for review or abatement agreement, shall be due upon issuance of the final order.

The Federal and proposed State provisions have similar procedural requirements, differing only in that in the absence of requesting a hearing or a petition for review, the Federal notice becomes a final order and payment is due 30 days after issuance, whereas the State allows an additional 30 days (total of 60 days) for payment. The State's extra 30 days is keyed to the time allowed to file an appeal. OSM finds Montana's reference to the time period for requesting review to be reasonable since, until the time has passed to file a petition for review, the penalty may yet be subject to change. A comparison of the time frames for the Federal regulations and Montana's program, from detection of a violation, to the issuance of a notice of violation, to the issuance of civil penalties and individual civil penalties and the requirements for payment of penalties, indicates slight differences between the steps; however, the steps are similar from violation issuance to payment of the penalty. In addition, a petition for review under both the State and Federal schemes can delay the issuance of a final order affirming a penalty well beyond 30 days. These considerations reduce the importance of each specific Federal timeframe. For these reasons, Montana's proposed revisions to ARM 17.24.1220(1) and (2) are consistent with 30 CFR 846.17 and 846.18 and we approve them.

Section (3) currently provides that an individual who has entered into a written agreement with the Department for ``abatement of the violation'' or ``compliance with the unabated order'' may postpone payment until receiving a final order indicating that the penalty is due or has been withdrawn. Compliance with an unabated order is synonymous with the abatement of the violation. The proposed amendment to (3) deletes two unnecessary references to the phrase ``compliance with the unabated order.''

Section (3) is nearly identical to its Federal counterpart at 30 CFR 846.18(c), which states that ``[w]here the Office and the corporate permittee or individual have agreed in writing on a plan for the abatement of or compliance with the unabated order, an individual named in a notice of proposed civil penalty assessment may postpone payment until receiving either a final order from the Office stating that the penalty is due on the date of such final order, or written notice that the abatement or compliance is satisfactory and the penalty has been withdrawn.'' The changes to subsection (3) are for clarification and reduce redundancy without altering the meaning of the existing regulation. Accordingly, we approve the proposed changes.

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14. Montana proposed to revise 824254(6) and (8), MCA, to provide criminal sanctions against persons who purposely or knowingly, rather than willfully, commit certain acts. The term ``willfully'' is changed to ``purposely or knowingly'' for clarification and consistency with 824254(1)(a), MCA, and other provisions of State law. In a previous finding (see Paragraph 11 above), we found that the term, ``purposely and knowingly,'' is substantively the same as ``willfully and knowingly'' used in Section 518(e) of SMCRA. For the above reasons, we are approving the proposed changes to 824254(6) and (8), MCA, because they are minor and do not change the meaning of the existing statute.

Montana adds a new Paragraph, 824254(10), MCA, providing that within 30 days after receipt of full payment of an administrative penalty assessed under this section, the Department will issue a written release of civil liability for the violations for which the penalty was assessed. This provides a legal conclusion to violations that have been satisfactorily resolved. This is an addition for which there is no Federal counterpart. Section 518(i) of SMCRA states that ``any State program * * * shall, at a minimum, incorporate penalties no less stringent than those set forth in this section, and shall contain the same or similar procedural requirements relating thereto.'' We find the proposed addition does not jeopardize other Program requirements that ensure assessment and collection of civil penalties in accordance with the requirements of Section 518 of SMCRA. Therefore, we approve this addition.

15. Montana proposed a new section, 8241001, MCA, as follows:

Penalty factors.
(1) In determining the amount of an administrative or civil penalty assessed under the statutes listed in subsection (4), the [D]epartment of [E]nvironmental [Q]uality or the district court, as appropriate, shall take into account the following factors: (a) The nature, extent, and gravity of the violation;
(b) The circumstances of the violation;
(c) The violator's prior history of any violation, which: (i) Must be a violation of a requirement under the authority of the same chapter and part as the violation for which the penalty is being assessed;
(ii) Must be documented in an administrative order or a judicial order or judgment issued within 3 years prior to the date of the occurrence of the violation for which the penalty is being assessed; and
(iii) May not, at the time that the penalty is being assessed, be undergoing or subject to administrative appeal or judicial review;
(d) The economic benefit or savings resulting from the violator's action;
(e) The violator's good faith and cooperation;
(f) The amounts voluntarily expended by the violator, beyond what is required by law or order, to address or mitigate the violation or impacts of the violation; and
(g) Other matters that justice may require.
(2) Except for penalties assessed under 824254, after the amount of a penalty is determined under (1), the [D]epartment of [E]nvironmental [Q]uality or the district court, as appropriate, may consider the violator's financial ability to pay the penalty and may institute a payment schedule or suspend all or a portion of the penalty.
(3) Except for penalties assessed under 824254, the
[D]epartment of [E]nvironmental [Q]uality may accept a supplemental environmental project as mitigation for a portion of the penalty. For purposes of this section, a ``supplemental environmental project'' is an environmentally beneficial project that a violator agrees to undertake in settlement of an enforcement action but which the violator is not otherwise legally required to perform.
(4) This section applies to penalties assessed by the
[D]epartment of [E]nvironmental [Q]uality or the district court under 824141, 824254, 824361, and 824441.
(5) The [B]oard of [E]nvironmental [R]eview and the [D]epartment of [E]nvironmental [Q]uality may, for the statutes listed in subsection (4) for which each has rulemaking authority, adopt rules to implement this section.

The purpose of this new section is to create a standard set of factors that can be used to assess and enforce penalties for the Montana Program and 15 other environmental programs under the Department's jurisdiction. This enables staff to apply fair and consistent penalties Department wide.

Section (1)(a) lists the following factor for consideration: ``the nature, extent and gravity of the violation.'' In considering the ``nature'' of a violation, Montana states in its submission that the Department will determine whether the violation harms or has the potential to harm human health or the environment, or whether the violation adversely impacts the Department's administration of the Montana Act. This is consistent with and corresponds to the consideration of ``seriousness'' in Section 518(a) of SMCRA.

Montana further explains in its submission that the consideration of ``extent'' takes into account the degree of harm or potential harm to human health and the environment, or the degree of adverse impact to the Department's administration of the Montana Act. As such, Montana states that violations resulting in a higher degree of harm or potential harm or a higher degree of adverse impact to the Department's administration of the Montana Act will be assigned higher points under ``extent.'' This too is in accordance with the ``seriousness'' factor in Section 518(a) of SMCRA.

Next, Montana states that the consideration of ``gravity'' in (1)(a) factors in the probability of occurrence. Specifically, a violation that results in a higher probability of occurrence of the event that a standard is designed to prevent is more grave than a violation with a lower probability of the occurrence of the event, and will be assigned more points. This also is consistent with the consideration of ``seriousness'' in Section 518(a) of SMCRA.

In its submission, Montana states that the consideration of ``circumstances'' in (1)(b) directly relates to the negligence or culpability of the violator. This definition also is set forth under proposed ARM 17.4.302 (1), described below. Under the Department's proposed penalty rules, the more negligent or culpable the violator is, the higher the penalty will be. This is consistent with the consideration of ``negligence'' in Section 518(a) of SMCRA.

Proposed section MCA 8241001(1)(c) defines the ways a violator's prior history of violations may result in increased penalty assessment. Subsections (1)(c)(i), (ii), and (iii) specify that for violations to be considered as prior history, they must be less than 3 years old, a violation of the same chapter and part as the violation for which the penalty is assessed, and not under administrative appeal or judicial review. This section is in accordance with the requirement in Section 518(a) of SMCRA to consider the permittee's history of previous violations.

Proposed section MCA 8241001(1)(d) allows the Department in assessing a penalty to consider the economic benefit or savings resulting from the violator's action. The new text in (1)(d) takes into account the extent to which a violator has gained any economic benefit as a result of its failure to comply. The Federal regulations do not contain a similar provision. However, Montana's provision can only result in an increased penalty should there have been an economic benefit or savings resulting from the violator's action. Therefore, we find new (1)(d) to be no less effective than the Federal regulations and we approve it.

The assessment of ``good faith and cooperation'' under proposed section MCA 8241001(1)(e) relates to a violator's willingness to abate the violation, and measures employed to abate the violation in the timeliest manner possible, with the least amount
[[Page 27737]]
of environmental harm possible. In its submission, Montana explains that, if a person has a high degree of good faith and cooperation, the Department will calculate a lower penalty. This subsection is consistent with Section 518(a) of SMCRA dealing with the consideration of ``demonstrated good faith'' by the permittee in attempting to achieve compliance and we approve it.

Proposed section MCA 8241001(1)(f) allows the Department to consider the amount voluntarily expended by the violator beyond what is necessary to address or mitigate the violation or impacts of the violation. There is no counterpart in the Federal regulations allowing for consideration of effort or amounts expended beyond the necessary minimum. However, a provision of 30 CFR 845.16(a) allowing for waiver of use of the formula to determine civil penalty provides that ``the Director shall not waive the use of the formula or reduce the proposed assessment on the basis of an argument that a reduction in the proposed penalty could be used to abate violations of the Act, this chapter, any applicable program, or any condition of any permit or exploration approval.'' Under Montana's proposed (1)(f) the amount of funding or effort required to abate the violation cannot be considered in reducing the penalty. Rather, this provision gives the Department the authority to consider amounts expended by the operator beyond that which is necessary to abate the violation. Therefore, we find that new (1)(f) is not inconsistent with the Federal regulations and we approve it.

In its submission, Montana states that provision (1)(g) was inserted to cover other circumstances that warrant consideration in penalty assessment, e.g. to provide for fairness and effectiveness. Montana goes on to explain that the Department expects that this factor will only be used when, based on particular facts and circumstances, the application of the penalty factors would not result in a fair and just penalty. 30 CFR 845.16(a), concerning waiver of use of the formula to determine civil penalty, states that ``The Director, upon his own initiative or upon written request received within 15 days of issuance of a notice of violation or a cessation order, may waive the use of the formula contained in 30 CFR 845.13 to set the civil penalty, if he or she determines that, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust.'' We find proposed (1)(g) to be consistent with this provision in the Federal regulations and we approve it.

Subsections (2) and (3) allow for penalties in other Departmental programs to be reduced and waived, but do not apply to penalties assessed in the coal regulatory program under 824254, MCA. Thus, these provisions are of no concern for purposes of this amendment.

Subsection (4) states that the provisions of this section (824 1001, MCA) will apply to penalties assessed by the Department or District Court, and subsection (5) empowers the Department and Board to adopt rules to implement this new statute. This delegation of authority is acceptable under Montana's permanent regulatory program approved by OSM in the April 1, 1980 Federal Register (45 FR 21560), and we approve it.

We are approving each of the proposed changes above in MCA, 824 1001, finding that the additions and deletions incorporate penalties that are no less stringent than those set forth in Section 518 of the Act and contain the same or similar procedural requirements relating thereto.

16. Consistent with 824254(1), MCA (discussed above), Montana proposed revisions to ARM 17.24.1218 to require that individual civil penalties be calculated based on criteria specified in 8241001, MCA. The changes to ARM 17.24.1218 implement and are consistent with changes to the corresponding statute and we are approving them.

17. Montana proposed revisions to 17.4.303, ARM concerning base penalties. Montana proposes that the Department shall calculate the penalties according to the following:
(1) The base penalty is calculated by multiplying the maximum penalty amount authorized by statute by a factor from the
appropriate base penalty matrix in (2) or (3). In order to select a matrix from (2) or (3), the nature of the violation must first be established. For violations that harm or have the potential to harm human health or the environment, the [D]epartment shall classify the extent and gravity of the violation as major, moderate, or minor as provided in (4) and (5). For all other violations, the extent factor does not apply, and the [D]epartment shall classify the gravity of the violation as major, moderate, or minor as provided in (5). (2) The [D]epartment shall use the following matrix for violations that harm or have the potential to harm human health or the environment:
Gravity
Extent
Major Moderate Minor Major............................ 0.85 0.70 0.55 Moderate......................... 0.70 0.55 0.40 Minor............................ 0.55 0.40 0.25 (3) The [D]epartment shall use the following matrix for violations that adversely impact the [D]epartment's administration of the applicable statute or rules, but which do not harm or have the potential to harm human health or the environment:
Gravity
Major Moderate Minor 0.50.......................................... 0.40 0.30 (4) In determining the extent of a violation, the factors that the [D]epartment may consider include, but are not limited to, the volume, concentration, and toxicity of the regulated substance, the severity and percent of exceedance of a regulatory limit, and the duration of the violation. The [D]epartment shall determine the extent of a violation as follows:
(a) A violation has a major extent if it constitutes a major deviation from the applicable requirements;
(b) A violation has a moderate extent if it constitutes a moderate deviation from the applicable requirements;
(c) A violation has a minor extent if it constitutes a minor deviation from the applicable requirements.
(5) The [D]epartment shall determine the gravity of a violation as follows:
(a) A violation has major gravity if it causes harm to human health or the environment, poses a serious potential to harm human health or the environment, or has a serious adverse impact on the [D]epartment's administration of the statute or rules. Examples of violations that may have major gravity include a release of a regulated substance that causes harm or poses a serious potential to harm human health or the environment, construction or operation without a required permit or approval, an exceedance of a maximum contaminant level or water quality standard, or a failure to provide an adequate performance bond.
(b) A violation has moderate gravity if it:
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(i) Is not major or minor as provided in (5)(a) or (c); and (ii) Poses a potential to harm human health or the environment, or has an adverse impact on the [D]epartment's administration of the statute or rules. Examples of violations that may have moderate gravity include a release of a regulated substance that does not cause harm or pose a serious potential to harm human health or the environment, a failure to monitor, report, or make records, a failure to report a release, leak, or bypass, or a failure to construct or operate in accordance with a permit or approval. (c) A violation has minor gravity if it poses no risk of harm to human health or the environment, or has a low adverse impact on the [D]epartment's administration of the statute or rules. Examples of violations that may have minor gravity include a failure to submit a report in a timely manner, a failure to pay fees, inaccurate recordkeeping, or a failure to comply with a minor operational requirement specified in a permit.

Pursuant to the abovedescribed regulations, the first step in the penalty calculation process is to identify a base penalty, which is a percentage of the statutory maximum penalty. The percentage varies depending on how the three statutory factors of ``nature'', ``extent'', and ``gravity'' are weighed. These three statutory factors are defined and two matrices are created for determining the amount of the base penalty.

The ``nature'' of a violation is determined on the basis of whether it harms or has the potential to harm human health or the environment.

The ``extent'' of a violation is determined by considering such factors as the volume, concentration and toxicity of the regulated substance, the severity and percent exceedance of a regulatory limit, and the duration of the violation.

The ``gravity'' of a violation is determined by considering (among other things) such factors as whether a release of a regulated substance has occurred, the degree of risk to human health or the environment, and the extent of impact to the Department's ability to administer the statute and rules.

The rule clarifies how the statutory factors will be implemented, and ensures that a consistent penalty calculation process is used for all of the environmental laws subject to 8241001, MCA.

The additions noted above under ARM 17.4.303 implement 8241001, MCA. OSM approved the proposed changes to 8241001, MCA in Paragraph 15 above. Penalties under 8241001, MCA are based on the ``nature, extent, gravity, and circumstances'' of the violation. The violator's history and good faith abating the violation are also factors in determining penalties in 8241001, MCA. Our approval found that 824 1001, MCA incorporated factors for determining penalties in accordance with Section 518 of the Act. ARM 17.4.303 clarifies how the statutory factors in 8241001, MCA will be implemented. It includes a procedure for calculating penalties. As discussed above, the standard for penalty provisions in a State program is established in Section 518(i) of SMCRA. This provision states that civil and criminal penalty provisions shall incorporate penalties no less stringent than those set forth in Section 518 of the Act, and shall contain the same or similar procedural requirements. OSM suspended 30 CFR 732.15(b)(7) and 840.13(a) insofar as they require State programs to establish a point system for assessing civil penalties or to impose civil penalties as stringent as those appearing in 30 CFR 845.15 (August 4, 1980) (45 FR 51548). Hence, if the State program requires consideration of the four mandatory statutory criteriahistory of previous violations, seriousness, negligence, and good faith in attempting to achieve compliancewhen determining whether to assess a penalty and in determining the penalty amount, the program meets the Federal requirements. 30 CFR Part 846 covers the assessment of individual civil penalties and is the basis for State regulations.

We find that Montana's procedure for calculating penalties incorporates criteria consistent with the four criteria of Section 518(a) of SMCRA. Additionally, we find that ARM 17.4.303 is consistent with 8241001, MCA, and that both of these provisions provide for civil penalties in accordance with Section 518 of the Act. Therefore, we approve the additions to ARM 17.4.303.

18. Montana proposed revisions to ARM 17.4.304, for adjusted base penalty.
(1) As provided in this rule, the [D]epartment may consider circumstances, good faith and cooperation, and amounts voluntarily expended to calculate an adjusted base penalty. Circumstances may be used to increase the base penalty. Good faith and cooperation and amounts voluntarily expended may be used to decrease the base penalty. The amount of adjustment for each of the above factors is based upon a percentage of the base penalty. The amount of the adjustment is added to the base penalty to obtain an adjusted base penalty.
(2) The [D]epartment may increase a base penalty by up to 30 percent based upon the circumstances of the violation. To determine the penalty adjustment based upon circumstances, the [D]epartment shall evaluate a violator's culpability associated with the violation. In determining the amount of increase for circumstances, the [D]epartment's consideration must include, but not be limited to, the following factors:
(a) How much control the violator had over the violation; (b) The foreseeability of the violation;
(c) Whether the violator took reasonable precautions to prevent the violation;
(d) The foreseeability of the impacts associated with the violation; and
(e) Whether the violator knew or should have known of the requirement that was violated.
(3) The [D]epartment may decrease a base penalty by up to 10 percent based upon the violator's good faith and cooperation. In determining the amount of decrease for good faith and cooperation, the department's consideration must include, but not be limited to, the following factors:
(a) The violator's promptness in reporting and correcting the violation, and in mitigating the impacts of the violation;
(b) The extent of the violator's voluntary and full disclosure of the facts related to the violation; and
(c) The extent of the violator's assistance in the
[D]epartment's investigation and analysis of the violation. (4) The [D]epartment may decrease a base penalty by up to 10% based upon the amounts voluntarily expended by the violator, beyond what is required by law or order, to address or mitigate the violation or the impacts of the violation. The amount of a decrease is not required to match the amounts voluntarily expended. In determining the amount of decrease for amounts v

FOR FURTHER INFORMATION CONTACT Jeffrey W. Fleischman, Telephone: 307.261.6550, Email address: jfleischman@osmre.gov.