Indiana Administrative Code
Title 312 - NATURAL RESOURCES COMMISSION
Article 25 - COAL MINING AND RECLAMATION OPERATIONS
Rule 7 - Inspection and Enforcement Procedures
Section 7-14 - Civil penalties; penalty determinations
Universal Citation: 312 IN Admin Code 7-14
Current through March 20, 2024
Authority: 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).
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