R315-102-2. Criterion 1: Factors

  The Director shall consider the following factors when calculating a settlement amount:

  (a) Economic benefit of noncompliance. These are the costs a person may save by delaying or avoiding compliance with applicable laws or rules.

  (b) Gravity of the violation. This component of the calculation shall be based on:

  (1) the extent of deviation from the rules, and

  (2) the potential for harm to human health and the environment, regardless of the extent of harm that actually occurred.

  (c) The number of days of noncompliance.

  (d) Good faith efforts to comply or lack of good faith. This takes into account the openness in dealing with the violations, promptness in correction of the problems, and the degree of cooperation with the State to include accessibility to information and the amount of State effort necessary to bring the person into compliance.

  (e) Degree of willfulness or negligence. Factors to be considered include how much control the violator had over the events constituting the violation, the foreseeability of the events constituting the violation, whether the violator took reasonable precautions to prevent the violation, and whether the violator knew, or should have known, of the hazards associated with the conduct or the legal requirements which were violated.

  (f) History of compliance or noncompliance. The settlement amount may be adjusted upward in consideration of previous violations and the degree of recidivism. Likewise, the settlement amount may be adjusted downward when it is shown that the violator has a good compliance record.

  (g) Ability to pay. The settlement amount may be adjusted downward based on a person's inability to pay. This should be distinguished from a person's unwillingness to pay. In cases of financial hardship, the Director may accept payment of the settlement under an installment plan, delayed payment schedule, reduced penalty amount, or any combination of these options.

  (h) Other unique factors.