(a) Amount - In determining the amount of the penalty, if any, to be assessed, consideration shall be given to: - (i) The operator's history of previous violations at the particular surface coal mining operation, regardless of whether any led to a civil penalty assessment. Special consideration shall be given to violations contained in or leading to a cessation order. However, a violation shall not be considered if the notice or order containing the violation:
- (A) Is or may become the subject of pending administrative or judicial review; or
- (ii) The seriousness of the violation based on the likelihood and extent of the potential or actual impact on the public or environment, both within and outside the permit or exploration area.
- (iii) The degree of fault of the operator in causing or failing to correct the violation, either through act or omission. Such degree shall range from inadvertent action causing an event which was unavoidable by the exercise of reasonable care to reckless, knowing or intentional conduct.
- (iv) The operator's demonstrated good faith, by considering whether he took extraordinary measures to abate the violation in the shortest possible time, or merely abated the violation within the time given for abatement. Consideration shall also be given to whether the operator gained any economic benefit as a result of a failure to comply.
- (v) Inability to comply, unless caused by lack of diligence.
- (vi) Any information submitted to the Director by the operator within 15 days of the service of the notice or order relating to the facts surrounding the violation or the amount of penalty.
(b) In determining the amount of the penalty, consideration shall not be given to whether a reduction in the amount of a penalty could be used to abate violations of the Act or regulations.
(c) The procedure for any requested assessment conference, as provided for in W.S. § 35 - 1 l-902(d) shall be the equivalent of the informal conference procedure described by the Act and regulations applicable to permit applications excepting that the Director, not the Administrator, shall conduct the conference.
(d) If the operator requests and receives the review proceeding provided for by W.S. § 35 - ll-437(c), the fact of the violation may not be further contested under this Section.
(e) If any party requests judicial review of a final order of the Council on the penalty, the proposed penalty shall continue to be held in bond or escrow until completion of the review. If any review results in an order increasing the penalty, the person to whom the notice or order was issued shall pay the difference within 15 days after notification.
(f) The civil penalty prescribed by W.S. § 35 - 1 l-902(n) shall be assessed for a maximum of 30 days, except that, if the person to whom the notice or order was issued initiated review proceedings with respect to the violation, the abatement period shall be extended as follows: - (i) If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding, the period permitted for abatement shall not end until the date on which the Council issues a final order with respect to the violation in question; and
- (ii) If the persons to whom the notice or order was issued initiate judicial review proceedings with respect to the violation, in which the obligations to abate are stayed by the court pending full review, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court.
020-16 Wyo. Code R. § 16-3