Section R309-405-6 - Factors for Determining Amount of PenaltiesThe Director, in assessing or setting any administrative penalty, or in settling any claim for civil penalty, and the Board, in reviewing an administrative penalty settlement under Subsection 19-4-104(1)(c)(vii), may evaluate the following factors in determining the appropriate amount of the penalty:
(1) Economic benefit. The costs a person or organization may save by delaying or avoiding compliance with applicable laws or rules.(2) Gravity of the violation. This component of the calculation shall be based on:(a) the extent of deviation from the Utah Safe Drinking Water Act or rules;(b) the potential for harm to drinking water users, regardless of the extent of harm that in fact occurred; and(c) the degree of willfulness, recklessness, or negligence including how much control the respondent had over the violation and the reasonable foreseeability of the events constituting the violation; whether the respondent made or could have made reasonable efforts to prevent the violation; whether the respondent knew, or should have known, of the legal requirements which were violated; any facts suggesting that the violation was intentional; and the degree of the respondent's recalcitrance.(3) The duration of non-compliance.(4) Self-disclosure of non-compliance by the water supplier.(5) The degree of cooperation and good faith efforts to comply. Good faith takes into account the openness in dealing with the violations and promptness in providing notice, correcting violations, and avoiding potential public harm.(6) By contrast with Subsection R309-405-6(5), the degree of recalcitrance, non-cooperation, or delay associated with providing notice and appropriate responses to the violations.(7) History of compliance or non-compliance. The penalty amount may be adjusted upward in consideration of previous violations and the degree of recidivism. Likewise, the penalty amount may be adjusted downward when it is shown that the respondent has a good compliance record.(8) Response and investigation costs incurred by the state and others.(9) The possible deterrent effect of a penalty to prevent future violations by the respondent or other suppliers.(10) The respondent's financial structure, revenue sources to pay penalties, financial capabilities, and ability to pay or demonstrated inability to pay.(11) Any other aggravating or mitigating circumstances that are relevant to the matter.Utah Admin. Code R309-405-6
Amended by Utah State Bulletin Number 2021-09, effective 4/23/2021