(3) Violations of Administrative Orders.(a) If the Director seeks the imposition of administrative penalties arising from the violation of an administrative order, the notice of agency action procedures set forth in Section 19-4-109 and Subsection R309-405-5(5) shall apply to the issuance and service of the notice of agency action and any adjudication arising from the issuance and service of the notice of agency action.
(b) The Director may seek judicial enforcement or the imposition of administrative penalties arising from the violation of an administrative order issued under the Safe Drinking Water Act without first issuing a notice of violation.
(4) Administrative Penalty Range.
(a) Any violation by a public water system serving a population of more than 10,000 individuals shall be subject to a penalty of exactly $1,000 on a per day, per violation basis.
(b) Any violation by a public water system serving a population of less than 10,000 individuals shall be subject to a penalty not to exceed $1,000 on a per day, per violation basis, based on the criteria described in Section R309-405-6.
(5) Administrative Penalty Assessment, Payment, and Collection Procedures; Adjudications and Appeals.
(a) Prior to assessing administrative penalties under the Safe Drinking Water Act and Rule R309-405, the Director shall provide the respondent with a written Notice of Proposed Assessment of Administrative Penalties, in accordance with Section R305-7-402, and provide the respondent with the opportunity of no less than 30 calendar days to submit comments to the Director relating to the proposed penalties. The comments may include evidence of mitigating circumstances the respondent desires the Director to consider prior to assessing penalties.
(b) After considering any timely comments or evidence submitted by the respondent, the Director may decline to assess administrative penalties by providing notice to the respondent. If, after considering timely comments and evidence submitted by the respondent, the Director makes the decision to pursue the assessment of penalties, the Director shall proceed as follows:
(i) The Director shall issue a Notice of Agency Action and Demand for Payment in accordance with Section 19-4-109 and Title 63G, Chapter 4, Administrative Procedures Act, providing a detailed statement of basis for the assessed penalty, including the Director's evaluation of any comments or evidence submitted by the respondent during the comment period.
(ii) The Notice of Agency Action and Demand for Payment shall include notice of the right to a formal adjudicative proceeding in accordance with Subsection 63G-4-201(2)(a)(vi) by filing a written response within 30 days of the mailing date of the Notice of Agency Action and Demand for Payment. The adjudication of administrative penalties shall be conducted as a formal adjudication.
(iii) If the respondent does not request an adjudicative proceeding, payment of administrative penalties shall be due within 30 days of the date of issuance of the Notice of Agency Action and Demand for Payment.
(iv) If the respondent files a timely written response to the Notice of Agency Action and Demand for Payment pursuant to Section 63G-4-204, the following procedures shall apply:
(A) The Director, serving as the presiding officer, shall conduct a formal adjudication pursuant to Title 63G, Chapter 4, Administrative Procedures Act.
(B) At the conclusion of the formal adjudicative proceeding, the Director shall issue a final order of the adjudicative proceeding, pursuant to Section 63G-4-208, as the final agency action regarding the assessment of administrative penalties.
(C) The final order of the adjudicative proceeding shall be subject to judicial review pursuant to Section 63G-4-403.
(6) Settlement.
(a) At any time during a notice of violation, administrative order, or penalty assessment or adjudication process, the Director may compromise or settle administrative penalties in accordance with Subsection 19-4-109(3), except that settlements that require the payment of penalties in excess of $25,000 require Board approval under Subsection 19-4-104(1)(c)(vii).
(b) The Director's authority to compromise or settle administrative penalties includes providing payment terms and extensions of time, at the discretion of the Director.
R309-405-6. Factors for Determining Amount of Penalties.
The 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.
