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(1)  In evaluating the gravity of a violation, the department may consider certain factors that may increase or decrease the penalty matrix value. The following are examples of gravity factors that may be considered:

(a)  the extent, type, kind, nature, and severity of harm;

(b)  the potential of the violation to cause harm;

(c)  history of compliance;

(d)  timeliness in correcting a violation;

(e)  cooperation during an inspection or investigation;

(f)  the number of violations;

(g)  timely and voluntary settlement of damages; and

(h)  knowledge of the law that was violated.

(2)  For purposes of implementing civil penalties, a violation has occurred if conduct is prohibited by Title 80, chapter 5, part 1, MCA regardless of the degree of care exercised. However, the department may consider evidence of the degree of care exercised for the purpose of determining an appropriate penalty. The department will consider degree of care when and to the extent that a charged person presents evidence of the standard of care exercised. Such evidence will be evaluated as follows:

(a)  a violation that occurs through little or no negligence of the charged person may mitigate the penalty;

(b)  a violation that occurs through negligence may have a neutral effect; and

(c)  a violation that occurs as a result of gross negligence may enhance the penalty.

(3)  In determining the applicability of the above, the following definitions apply:

(a)  "no negligence" means an inadvertent violation which was unavoidable by the exercise of reasonable care;

(b)  "negligence" means a failure to exercise reasonable care;

(c)  "reasonable care" means the degree of care that would be demonstrated by a prudent person acting in their own concern with a knowledge of the nature and probable consequences of the act or omission; and

(d)  "gross negligence" means knowing, intentional or reckless conduct.

(4)  Financial hardship that could be imposed by a civil penalty may be considered by the department for purposes of mitigating a civil penalty. The department will consider financial hardship when a person submits bona fide financial information demonstrating finances and the degree of hardship that would be caused by a civil penalty. The charged person may request a reduction in a civil penalty or an alternate payment schedule. Examples of bona fide financial information include copies of income tax statements and financial statements.

History: 80-5-139, MCA; IMP, 80-5-136, MCA; NEW, 2000 MAR p. 3334, Eff. 12/8/00.

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