R311-208-5. Factors for Seeking or Negotiating Amount of Section 19-6-425 Penalties

  (a) Under Section 19-6-425, the court establishes penalty amounts rather than the Director. Nonetheless, the Director may enter a stipulated penalty agreement with the violator.

  (b) The Director shall consider the following factors when negotiating or calculating a penalty to promote a more swift resolution of environmental problems and promote compliance:

  (1) Economic benefit. The costs to an owner or operator delayed or avoided by not complying with applicable laws or rules.

  (2) Gravity of the violation. The extent of deviation from the rules and the potential for harm to health and the environment, regardless of the extent of the harm that actually occurred. This factor may be adjusted upward or downward depending on:

  (A) The degree of cooperation or noncooperation and good faith efforts to comply. Good faith takes into account the openness in dealing with the violations, promptness in correction of problems, and the degree of cooperation with the State;

  (B) The willfulness or negligence of the violation;

  (C) The history of compliance or noncompliance; and

  (D) Other unique factors including how much control the violator had over and the foreseeability of the events constituting the violation, whether the violator made or could have made reasonable efforts to prevent the violation, whether the violator knew of the legal requirements which were violated, and degree of recalcitrance

  (3) Environmental sensitivity. The actual impact of the violation(s) that occurred.

  (4) The number of days of noncompliance.

  (5) Response and investigation costs incurred by the State and others.

  (6) The possible deterrent effect of a penalty to prevent future violations.

  (c) All cases involving major violations with actual or high-potential for harming public health or the environment, and all cases involving a history of repeat violations by the same violator will require a penalty as a part of any settlement, unless good cause is shown for not seeking a penalty.

  (d) Where the Director determines that a penalty is appropriate under Section 19-6-425, the Director may negotiate the penalty based on the following categories and ranges:

  (1) Major Violations: $5,000 to $10,000 per violation. This category includes major deviations from the requirements of the rules or Act, violations that cause or may cause substantial or continuing risk to human health and the environment, or violations that may have a substantial adverse effect on the regulatory program.

  (2) Moderate Violations: $2,000 to $7,000 per violation. This category includes moderate deviations from the requirements of the rules or Act but some requirements have been implemented as intended, violations that cause or may cause a significant risk to human health and the environment, or violations that may have a significant notable adverse effect on the regulatory program.

  (3) Minor Violations: Up to $3,000 per violation. This category includes slight deviations from the rules or Act but most of the requirements are met, violations that cause or may cause a relatively low risk to human health and the environment, or violations that may have a minor adverse effect on the regulatory program.

  (e) The Director may consult "EPA Penalty Guidance for Violations of UST Regulations" (OSWER Directive 9610.12) as supplemental guidance to R311-208-5.