Authority: IC 4-22-2; IC 13-14-9; IC 13-30-4-1

Affected: IC 13-30-4

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:

1. (1) Actions before the violation as described in subsection (c).
2. (2) Actions after the violation as described in subsection (d).
3. (3) History of noncompliance as described in subsections (e), (f), and (g).
4. (4) Ability to pay as described in subsection (h).
5. (5) Enforcement costs to the department as described in subsection (i).
6. (6) Unanticipated circumstances as described in subsection (j).

(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:

1. (1) How much control the violator had over the events constituting the violation.
2. (2) The violator's ability to anticipate the events constituting the violation.
3. (3) Whether the violator took reasonable precautions against the events constituting the violation.
4. (4) Whether the violator knew or should have known of the hazards associated with the conduct.
5. (5) The degree to which the violator knew or should have known of the statutory, rule, or permit requirement that was violated. Lack of knowledge of a legal requirement will not be used as a basis to reduce civil penalty.

(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:

1. (1) Promptly reporting noncompliance if not otherwise required by law.
2. (2) Promptly correcting environmental problems in conjunction with other good faith efforts.
3. (3) The amount of control the violator had over how quickly the violation was remedied.
4. (4) The degree and timeliness of cooperation exhibited by the violator in resolving an enforcement action.

(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:

1. (1) Similarity of the violation to a prior violation.
2. (2) If the prior violation occurred within the last five (5) years.
3. (3) The number of prior violations.
4. (4) Efforts by the violator to correct a prior violation.
5. (5) Other relevant factors to be considered.

(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:

1. (1) The violator shall provide a demonstration to the department that:

   1. (A) the department determines to be acceptable and sufficient; and
   2. (B) shows the existence and extent of the violator's inability to pay the assessed penalty.
2. (2) The department may consider the compliance history of the violator before consideration of the ability to pay.

3. (3) The department may consider the following options related to the ability to pay:

   1. (A) A delayed payment schedule.
   2. (B) An installment payment plan, with or without interest.
   3. (C) A reduced penalty, as a last recourse.

(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:

1. (1) Special sampling and analysis costs.
2. (2) Research time for collecting other specialized information.
3. (3) Other costs associated with above average department staff time for collecting evidence or pursuing settlement of the violation.

(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.

(Air Pollution Control Division; 326 IAC 1-8- 4; filed Nov 20, 2024, 1:07 p.m.: 20241218-IR-326240046FRA)