in-20240207-IR-326240046FNA: TITLE 326 CIVIL PENALTIES

Notice of First Public Comment Period LSA Document #24-46 Sec. 1. (a) The department shall assess civil penalties as provided under IC 13-30-4. (b) The department may: (c) A civil penalty, as part of a unilateral order or court action, is only limited in amount by IC 13-30-4 or as otherwise limited by law. (d) Relevant portions of this rule shall be applied in conjunction with 329 IAC 9-11 [329 IAC 9-11 is proposed to be added at 20240207-IR-329240048FNA.] to calculate penalties for violations set forth in IC 13-23-14-2 and IC 13-23-14-3. (e) In situations where several violations have occurred, the following applies: (f) A civil penalty is the figure resulting from the following calculation: Sec. 2. The following definitions apply to this rule: Sec. 3. (a) A base civil penalty is determined by the following: (b) The civil penalty matrix evaluates the relationship of the potential for harm and extent of deviation from a requirement to a violation based on the following: (c) The department shall evaluate whether the potential for harm is major, moderate, or minor in a particular situation based on the following factors: (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, shall be applied to an initial penalty calculation. Other factors, including other mitigating factors the violator wishes to have considered, shall 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 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 shall 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 shall 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 consider other unique factors for flexibility in responding to unanticipated circumstances or information that arise after the calculation and assessment of a civil penalty, such as the following: Sec. 5. (a) Under 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 it is: (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. 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: