Not all violations of environmental laws trigger formal enforcement. One-on-one technical guidance provided by a compliance staff member is often adequate for resolving a problem observed during a records review or inspection. In such a case, a letter is sent noting the violation and measures necessary to correct it. Our compliance staff members work appropriately to ensure the responsible party corrects the documented problem.
Although IDEM may seek to enforce alleged violations of Indiana's environmental statutes and rules through a civil court action, the majority of enforcement actions undertaken by IDEM are administrative. The two types of administrative enforcement actions normally issued by IDEM include:
- an informal Violation Letter (VL); or
- a formal Notice of Violation (NOV).
The most significant difference between a VL and an NOV is that the VL gives the recipient a timeframe by which it needs to correct a problem, with no attendant civil penalty. If the recipient does not correct the problem within the requisite timeframe, it may receive an NOV, thereby elevating the enforcement action from informal to formal. An NOV informs a Respondent that IDEM believes violations of environmental statutes and rules have occurred. The Respondent is invited to attend a conference to discuss the violations and solutions for compliance. An NOV normally results in the assessment of civil penalties and the requirement that IDEM and the Respondent sign an Agreed Order (AO). The AO ensures that the Respondent achieves and maintains compliance with Indiana's environmental statutes and rules.
By statute, the Respondent has a 60-day settlement period after receiving an NOV in which to enter into an AO with IDEM. AOs potentially contain steps the Respondent must take to comply with the law, civil penalties, and stipulated penalties for failure to complete compliance steps. Penalties may be reduced if the Respondent can prove mitigating circumstances exist.
If IDEM and the Respondent cannot reach agreement through an AO, IDEM may issue a unilateral administrative order, referred to as a Commissioner's Order, in accordance with the provisions of Indiana Code § 13-30-3-4.
Although State law authorizes fines up to $25,000 per day per violation, most are much less. The amount of the fine depends on the magnitude of the violation, the potential harm to human health and the environment, the economic benefit gained by the violator by not complying, and the violator's efforts to achieve compliance.
Part of the formal enforcement process, whether through an AO or settlement of a CO, involves the assessment of civil penalties. IDEM's civil penalties are assessed in accordance with its Civil Penalty Policy [ENF-002] (available on the IDEM Nonrule Policies page).
During the negotiation of an AO, IDEM and a Respondent may wish to discuss the availability of a Supplemental Environmental Project (SEP) in accordance with the Supplemental Environmental Project Policy [ENF-003-R1] (available on the IDEM Nonrule Policies page). A SEP is an environmentally-beneficial project not otherwise required by Indiana law that a Respondent agrees to perform in exchange for a reduction in the cash payment portion of the civil penalty. A respondent is required to submit an application (available on the IDEM Nonrule Policies page) to IDEM to be reviewed by the SEP review committee as early in the enforcement process as possible.
If a respondent does not have a specific SEP in mind, a list of SEP ideas can be found on the SEP Idea Library [PDF].
IDEM desires all regulated entities to be in compliance. For those regulated entities who wish to reduce or eliminate the gravity portion of a civil penalty, the Self-Disclosure and Environmental Audit Policy [MP-004-R2] (available on the IDEM Nonrule Policies page) may provide some opportunities to identify, correct and prevent violations of Indiana's environmental statutes and rules prior to IDEM's receiving of an enforcement referral. IDEM provides additional information and resources about the Self-Disclosure and Environmental Audit Policy:
- Self Disclosure and Environmental Audit Policy Fact Sheet (available on the IDEM Fact Sheets page)
- Self Disclosure Application Form (available on the IDEM Forms page)
If You Receive a Notice of Violation:
The first step in ensuring a settlement of an NOV is to contact the case manager at IDEM's who is assigned to the case within 15 days of receipt. The case manager is familiar with the circumstances of the alleged violation(s) and is eager to work with you.
Respondents should remember to ask the case manager:
- what is the date, time, and location of the settlement conference;
- what documentation should be brought to the settlement conference;
- what issues will be discussed; and
- would it be beneficial to bring others (i.e., managers, consultants, attorneys).
It is always in the Respondent's best interest to comply with IDEM's settlement procedures.