§1458.540. Standards for the Assessment of Civil Penalties

a)         In determining whether to assess civil penalties, the Commission shall consider the following factors:

 

1)         the lack of mitigating circumstances, including:

 

A)        whether the violation's occurrence was attributable to causes beyond the respondent's control rather than to respondent's fault or intent; and

 

B)        whether the violation's occurrence was attributable to action by the Commission that precluded compliance;

 

2)         the lack of good faith or intent, including:

 

A)        the past compliance history of the respondent; and

 

B)        whether a violation is the result of willful conduct or comes about through mistake, inadvertence, or negligence;

 

3)         the financial ability of the respondent to pay the penalties assessed;

 

4)         the degree to which the violative conduct was harmful to the public; and

 

5)         the financial benefit accruing to the respondent as a result of its illegal activities.

 

b)         The Commission's consideration shall be limited to only those violations for which evidence exists. It shall be the burden of the respondent to establish a compelling reason why the civil penalty should be mitigated.