Section 312 IAC 25-7-14 - Civil penalties; penalty determinationsAuthority: IC 14-34-2-1
Affected: IC 14-34
Sec. 14.
The director shall determine the amount of penalty, if any, to be assessed by considering the following factors, and assigning points to each factor as follows:
(1) The director shall assign up to thirty (30) points based on the permittee's history of previous violations at the particular coal exploration or surface coal mining operation during the preceding twelve (12) months. One (1) point shall be assigned for each past violation contained in a notice of violation. Five (5) points shall be assigned for each violation contained in a cessation order. Points shall be assigned as follows: (A) A violation shall not be counted, if the notice or order is the subject of pending administrative or judicial review or if the time to request such review or to appeal any administrative or judicial decision has not expired.(B) No violation for which the notice or order has been vacated shall be counted.(C) Each violation shall be counted without regard to whether it led to a civil penalty assessment.(2) The director shall consider the seriousness of a violation, including any irreparable harm to the environment and hazard to the health or safety of the public, and shall assign up to thirty (30) points based on the seriousness of the violation as follows: (A) The director shall assign up to fifteen (15) points based on the probability of the occurrence of the event that a violated standard is designed to prevent. Points shall be assessed according to the following schedule: | Probability of Occurrence | Points |
| none | 0 |
| insignificant | 1 to 4 |
| unlikely | 5 to 9 |
| likely | 10 to 14 |
| occurred | 15 |
(B) The director shall assign up to fifteen (15) points, based on the extent of the potential or actual damage, in terms of area and impact on the public or environment, as follows:(i) If the damage or impact that the violated standard is designed to prevent would remain within the coal exploration or permit area, the director shall assign zero (0) to seven (7) points, depending on the duration and extent of the damage or impact.(ii) If the damage or impact that the violated standard is designed to prevent would extend outside the coal exploration or permit area, the director shall assign eight (8) to fifteen (15) points, depending on the duration and extent of the damage or impact.(C) In the case of a violation of an administrative requirement, the director shall in lieu of subdivisions (A) and (B), assign up to fifteen (15) points for seriousness based upon the extent to which enforcement is obstructed by the violation.(3) Negligence requirements are as follows: (A) The director shall assign up to twenty-five (25) points based on the permittee's degree of fault in the occurrence of or failure to correct a violation. Points shall be assigned as follows: (i) A violation that occurs through no fault shall be assigned zero (0) points.(ii) A violation that is caused by negligence shall be assigned twelve (12) points or less depending on the degree of fault.(iii) A violation that occurs through recklessness shall be assigned thirteen (13) to nineteen (19) points, depending on the degree of fault.(iv) A violation that is caused by knowing or intentional conduct shall be assigned twenty (20) to twenty-five (25) points depending on the degree of fault.(B) In determining the degree of fault involved in a violation and the number of points to be assigned, the following definitions apply: (i) "Knowing or intentional conduct" means conduct engaged in either with the conscious objective of causing the harm that results from the conduct or with the awareness that such harm will very probably be caused by that conduct.(ii) "No fault" means an inadvertent violation that was unavoidable by the exercise of reasonable care.(iii) "Negligence" means the failure of a permittee to prevent the occurrence of any violation due to indifference, lack of diligence, or lack of reasonable care or the failure to abate any violation due to indifference, lack of diligence or lack of reasonable care.(iv) "Recklessness" means evidence of a plain, conscious, and unjustifiable disregard of harm that might result from the conduct.(C) In calculating points to be assigned for negligence, the acts of all persons working on the coal exploration or surface coal mining and reclamation site shall be attributed to the permittee to whom the notice or order was issued unless the permittee establishes that they were acts of deliberate sabotage.(4) The director shall assign up to negative thirty (-30) points reducing any assessment of a violation if the permittee achieves rapid compliance after notification of violation, or if the permittee uses extraordinary measures in abating the violation. Points shall be assigned as follows: (A) Rapid compliance as follows: (i) If the violation is abated immediately or within up to thirty percent (30%) of the time set for abatement, including extensions of time for abatement, the director shall assign negative twenty-one (-21) points.(ii) If the violation is abated within thirty-one percent (31%) to forty percent (40%) of the time set for abatement, the director shall assign negative eighteen (-18) points.(iii) If the violation is abated within forty-one percent (41%) to fifty percent (50%) of the time set for abatement, the director shall assign negative fifteen (-15) points.(iv) If the violation is abated within fifty-one percent (51%) to sixty percent (60%) of the time set for abatement, the director shall assign negative twelve (-12) points.(v) If the violation is abated within sixty-one percent (61%) to seventy percent (70%) of the time set for abatement, the director shall assign negative nine (-9) points.(vi) If the violation is abated within seventy-one percent (71%) to eighty percent (80%) of the time set for abatement, the director shall assign negative six (-6) points.(vii) If the violation is abated within eighty-one percent (81%) to ninety percent (90%) of the time set for abatement, the director shall assign negative three (-3) points.(viii) If the violation is abated within ninety-one percent (91%) to one hundred percent (100%) of the time set for abatement, the director shall assign zero (0) points.(ix) If the permittee demonstrates that the time set for abatement, including extensions of time for abatement, is less than the time reasonably required under all of the circumstances, then the percentages set forth in items (i) through (viii) shall be applied to the time reasonably required for abatement of the violation rather than the time set for abatement in the notice or order.(B) Extraordinary measures as follows: (i) If the permittee uses additional equipment, or pulls equipment off production, or uses additional person hours, and interrupts normal operations, the director shall assign negative nine (-9) points.(ii) If the permittee uses additional equipment, or pulls equipment off production, or uses additional person hours, but normal coal production operations are not interrupted, the director shall assign negative six (-6) points.(iii) If the permittee does not use extraordinary abatement measures, the director shall assign zero (0) points.(iv) If the permittee performs more extensive abatement measures than those specified in the notice or order and if those measures result in an increased level of environmental protection or restoration, the director shall assign, in addition to any negative points assigned under clause (A) and items (i) through (iii) from negative one (-1) to negative ten (-10) points; provided that the total number of points deducted for good faith shall not be greater than thirty (30).Natural Resources Commission; 312 IAC 25-7-14; filed Jun 21, 2001, 2:53 p.m.: 24 IR 3597, eff Dec 1, 2001; readopted filed May 29, 2007, 9:51 a.m.: 20070613-IR-312070146RFA; readopted filed Sep 19, 2013, 10:12 a.m.: 20131016-IR-312130125RFAReadopted filed 3/26/2019, 3:40 p.m.: 20190424-IR-312190011RFA