82-4-1001. Penalty factors. (1) In determining the amount of an administrative or civil penalty assessed under the statutes listed in subsection (4), the department of environmental quality 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 82-4-254, after the amount of a penalty is determined under (1), the department of environmental quality 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 82-4-254, the department of environmental quality 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 department of environmental quality or the district court under 82-4-141, 82-4-254, 82-4-361, and 82-4-441.
     (5) The board of environmental review and the department of environmental quality may, for the statutes listed in subsection (4) for which each has rulemaking authority, adopt rules to implement this section.

     History: En. Sec. 3, Ch. 487, L. 2005.