in-20241218-IR-326240046FRA: DIGEST CIVIL PENALTIES

Final Rule LSA Document #24-46 DIGEST Sec. 1. (a) The department shall assess civil penalties consistent with this rule when imposing civil penalties as provided under IC 13-30-4. (b) A civil penalty is the figure resulting from the following calculation: (c) In situations where several violations have occurred, the following applies: Sec. 2. The following definitions apply to this rule: Sec. 3. (a) A base civil penalty is calculated by selecting a penalty from the matrix in subsection (f), set forth under subsections (b) through (e), and multiplying the base penalty by the number of days of violation as described in subsection (g). (b) In calculating the base civil penalty, the range of penalties to be selected from the penalty matrix in subsection (f) is the range corresponding to the violation's: (c) The department shall determine a violation's potential for harm by evaluating the: (d) The degree of potential harm represented by each category is defined as follows: (e) The extent of deviation from a statutory, rule, or permit requirement relates to the degree to which the requirement is violated and is defined as follows: (f) The department shall determine the base civil penalty based on individual circumstances using the following matrix: (g) The department shall multiply the penalty derived from the matrix calculation by the number of days of violation to obtain the base civil penalty. (h) Multi-day penalties may be calculated in the case of continuing violations. Sec. 4. (a) The department may make an upward or downward adjustment to a base civil penalty based on unique factors and circumstances that exist in relation to the violation, including the following aggravating or mitigating circumstances: (b) Aggravating and mitigating factors, for which the department has sufficient information, may be applied to an initial penalty calculation. Other factors, including other mitigating factors the violator wishes to have considered, may be evaluated at the settlement stage. (c) The department may adjust a base civil penalty up or down by up to fifty percent (50%) based on an assessment of the degree to which a violator is able to anticipate or prevent a violation, using the following factors: (d) Action or inaction by the violator after a violation, to limit real or potential harm or exposure, may either decrease or increase the civil penalty amount by up to fifty percent (50%) of the base civil penalty, and is determined based on the following actions by the violator: (e) The department may increase a base civil penalty by up to one hundred percent (100%) for a history of noncompliance, taking into consideration subsections (f) and (g) and based on the following factors: (f) A violation is considered similar to a prior violation if the previous enforcement response from the department or U.S. EPA alerted, or reasonably should have alerted, the violator to a particular type of compliance problem. A prior violation of the same or comparable requirement constitutes a similar violation. (g) The department may adjust a penalty toward the lower end of the range if a prior violation was handled in an informal manner, such as a warning letter, and toward the higher end of the range if a prior violation was handled in a formal manner, such as a notice of violation or an agreed order. (h) The department may defer or reduce a civil penalty depending on a violator's ability to pay the penalty in the following manner: (i) The department may adjust a base civil penalty upward to include all costs incurred by the department in a particular enforcement action, including the following: (j) The department may recalculate a civil penalty under this rule when unanticipated circumstances arise, such as additional evidence that leads to a significant reevaluation of the facts surrounding a violation. Sec. 5. (a) Under the provisions of this section, the department shall calculate and add the economic benefit to the base civil penalty as adjusted under section 4 of this rule when a violation results in significant economic benefit to the violator. (b) The department shall consider the economic benefit of noncompliance, but may disregard it if: (c) The department shall examine the following types of economic benefit of noncompliance in determining the economic benefit component: (d) Delayed costs may result from the following types of violations: (e) Avoided costs may result from the following: (f) The department shall calculate the economic benefit of delayed, avoided, and other costs for each year and may use a model, such as U.S. EPA's Economic Benefit model, to estimate economic benefit costs. (g) If a violator believes the economic benefit derived from noncompliance differs from the estimated amount, the violator may present information documenting its actual savings at the settlement stage. The department shall consider information that is verifiable. Sec. 6. (a) A negotiated order may contain a provision that allows a portion of the civil penalty to be offset by a qualified supplemental environmental project. (b) An order may include a stipulated or an additional penalty as follows: