R311-208-3. Satisfaction of Penalty Under Stipulated Penalty Agreement

  (a) The Director may accept the following methods of payment or satisfaction of a penalty to promote compliance and to achieve the purposes set forth in Section 19-1-102(3):

  (1) Payment of the penalty may be extended 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 penalty under an installment plan or delayed payment schedule with interest.

  (2) Without regard to financial hardship, the Director may allow a portion of the penalty to be deferred and eventually waived if no further violations are committed within a period designated by the Director.

  (3) In some cases, the Director may allow the violator to satisfy the stipulated penalty by completing an environmentally beneficial mitigation project approved by the Director. The following criteria shall be used in determining the eligibility of such projects:

  (A) The project must be in addition to all regulatory compliance obligations;

  (B) The project preferably should closely address the environmental effects of the violation;

  (C) The actual cost to the violator, after consideration of tax benefits, must reflect a deterrent effect;

  (D) The project must primarily benefit the environment rather than benefit the violator;

  (E) The project must be judicially enforceable;

  (F) The project must not generate positive public perception for violations of the law.