(1) Any person who violates the provisions of section 25-15-308 or who violates any compliance order of the department which is not subject to a stay pending judicial review and which has been issued pursuant to this part 3 shall, for each such violation, be subject to a penalty for each day during which such violation occurs or continues. The department may impose an administrative penalty of no more than fifteen thousand dollars per day per violation. In lieu of imposing an administrative penalty pursuant to this section, the department may seek a civil penalty for violation of state environmental law in the district court of the judicial district in which the violation occurs. The district court may impose a civil penalty of no more than twenty-five thousand dollars per day per violation. (2) The department shall not be precluded from referring a matter for criminal prosecution regardless of whether an order is issued pursuant to section 25-15-301 (4)(a) or 25- 15-308. The department shall not impose both a civil penalty and an administrative penalty for any particular instance of a violation of this part 3. (3) The department, the administrative law judge, the commission, or the court shall consider the factors contained in paragraphs (a) to (i) of this subsection (3) in determining the amount of any administrative or civil penalty for a violation of this part 3. The factors contained in paragraphs (f), (g), and (h) of this subsection (3) shall be mitigating factors and may be applied, together with other factors, to reduce penalties. Such factors are: (a) The seriousness of the violation; (b) Whether the violation was intentional, reckless, or negligent; (c) The impact upon or the threat to the public health or the environment as a result of the violation; (d) The degree, if any, of recalcitrance or recidivism upon the part of the violator; (e) The economic benefit realized by the violator as a result of the violation; (f) The voluntary and complete disclosure by the violator of such violation in a timely fashion after discovery and prior to the department's knowledge of the violation, provided that all reports required pursuant to state environmental law have been submitted as and when otherwise required; (g) Full and prompt cooperation by the violator following disclosure of a violation, including, when appropriate, entering into in good faith and implementing a legally enforceable agreement to undertake compliance and remedial efforts; (h) The existence of a regularized and comprehensive environmental compliance program or an environmental audit program that was adopted in a timely and good-faith manner and that includes sufficient measures to identify and prevent future noncompliance; and (i) Any other aggravating or mitigating circumstances. (4) Notwithstanding the provisions of subsection (3) of this section, the department may enter into settlement agreements regarding any penalty or claim resolved pursuant to this part 3. Any settlement agreement may include but is not necessarily limited to the payment or contribution of moneys to state or local agencies or for other environmentally beneficial purposes.
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