(a) In determining the amount of an individual civil penalty assessed under §12.696 of this title (relating to When an Individual Civil Penalty May Be Assessed), the Commission shall consider the criteria specified in §§134.174-134.181 of the Act, including:
  (1) the individual's history of authorizing, ordering, or carrying out previous violations, failures, or refusals at the particular surface coal mining operation;
  (2) the seriousness of the violation, failure, or refusal (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public; and
  (3) the demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure, or refusal.
(b) The penalty shall not exceed $5,000 for each violation. Each day of a continuing violation may be deemed a separate violation and the Commission may assess a separate individual civil penalty for each day the violation, failure, or refusal continues, from the date of service of the underlying notice of violation, cessation order, or other order incorporated in a final decision issued by the Commission, until abatement or compliance is achieved.

Source Note: The provisions of this §12.697 adopted to be effective April 7, 1997, 22 TexReg 3093.