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

Affected: IC 13-30-4

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:

1. (1) there is a lack of information necessary to determine the economic benefit; or
2. (2) the economic benefit of noncompliance is calculated to be less than one thousand dollars ($1,000).

(c) The department shall examine the following types of economic benefit of noncompliance in determining the economic benefit component:

1. (1) Benefit from delayed costs as described in subsection (d).
2. (2) Benefit from avoided costs as described in subsection (e).
3. (3) Other benefits, such as profits from a startup period before obtaining a permit.

(d) Delayed costs may result from the following types of violations:

1. (1) Delay or failure in installing equipment needed to meet discharge control standards.
2. (2) Delay or failure in effecting process changes needed to eliminate pollutants from products or waste streams.
3. (3) Testing violations, where testing is required to demonstrate achieved compliance.
4. (4) Delay or failure in obtaining necessary permits, where those permits are likely to be granted.

(e) Avoided costs may result from the following:

1. (1) Costs savings for operation and maintenance of equipment the violator failed to install.
2. (2) Delay or failure in properly operating and maintaining existing control equipment.
3. (3) Delay or failure in employing enough adequately trained staff.
4. (4) Delay or failure in establishing or following precautionary methods required by rules or permits.
5. (5) Process, operational, or maintenance savings from removing pollution equipment.
6. (6) Delay or failure in collecting, recording, or reporting required samples.

(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.

(Water Pollution Control Division; 327 IAC 1-2-5; filed Nov 18, 2024, 3:19 p.m.: 20241218-IR- 327240047FRA)