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The Indiana Department of Environmental Management (IDEM) has a Confidentiality Mandate for its Compliance and Technical Assistance Program (CTAP), available online via the Indiana Code (IC 13-28-3-4, IC 13-10-2-4 before recodification in 1996).
Inquiries made to the program and activities and documents of the program that identify or describe an individual facility or operation are confidential, unless a clear and immediate danger to the public health or environment exists. Information concerning inquiries, activities, and documents of the program that identify or describe an individual facility or operation may not be made available for use by other divisions of the department without the consent of the person who:
CTAP cannot, by law, divulge your business-specific information to other divisions of IDEM unless something you are doing presents a clear and immediate danger to the public health or the environment. “Clear and immediate danger” is generally considered to be an acute danger, causing irreparable damage to public health or the environment. Since its inception in 1995, CTAP has never had to override confidentiality because a clear and immediate danger was present.
To provide a quality assurance guarantee to an individual, municipality, business or other entity ("Regulated Entities") that has received confidential compliance assistance from the Compliance and Technical Assistance Program ("CTAP") of the Office of Program Support (OPS) and upon which such Regulated Entity may have relied to its detriment.
This nonrule policy applies in instances where CTAP assistance may have either directly or indirectly lead Compliance and/or Enforcement staff to allege non-compliance by the Regulated Entity. In such instance, the Indiana Department of Environmental Management (IDEM) shall not issue either a Violation Letter or a Notice of Violation assessing a gravity-based penalty against a Regulated Entity upon learning that a Regulated Entity sought out, received, and relied upon written confidential compliance assistance provided by CTAP prior to the alleged violation.
When requested by a regulated entity, it is the responsibility of compliance and/or enforcement staff of the Office of Air Quality (OAQ), the Office of Land Quality (OLQ), and the Office of Water Quality (OWQ) to forward to CTAP written waivers of confidentiality regarding enforcement actions within ten (10) business days of receipt of such request. The request may be made at the time of an inspection or thereafter and be made by any written means (e.g. email, letter, facsimile). Upon receipt of a written waiver of confidentiality, CTAP will then provide documentation of its actions and will coordinate with the compliand and enforcement staff of OAQ, OLQ, and OWQ to review and make an appropriate determination. It is the responsibility of CTAP to document the Regulated Entity's detailed requests for compliance and technical assistance and to enter this information into the CTAP database. It is the responsibility of the Regulated Entity to provide relevant compliance-related information in sufficient detail to CTAP.
CTAP staff must ensure the CTAP database entry includes all relevant and appropriate information as supplied by the Regulated Entity. The database entry must also include a summary of the compliance assistance given, including information obtained from program areas, interpretation and documentation of all responses and program area contacts. Upon receipt of the regulated entity's written waiver of confidentiality, CTAP will provide Compliance and Enforcement staff with the date of service, requested information, and response to the questions or issues. CTAP will also provide a means for the Regulated Entity to review the summary of information supplied to CTAP by the Regulated Entity and confidential compliance assistance given based on that information. This written summary will be generated by CTAP's database.
If and when a Regulated Entity claims that it has received and relied upon confidential compliance assistance provided by CTAP and that such reliance has either directly or indirectly lead to an allegation of non-compliance by OAQ, OLQ or OWQ, a written request for waiver of confidentially shall be sought from the Regulated Entity. If the Regulated Entity declines to waive confidentiality, then Compliance and Enforcement staff of OAQ, OLQ or OWQ shall proceed with a relevant and appropriate compliance/enforcement response.
If the regulated entity consents in writing to waiving confidentiality, then the confidential compliance assistance documentation maintained by CTAP shall be examined within five (5) business days after its receipt by appropriate representatives of OAQ, OLQ, OWQ and OPS to determine if the confidential compliance assistance provided by CTAP, and relied upon by the Regulated Entity, has either directly or indirectly lead to an allegation by Compliance and Enforcement staff of OAQ, OLQ or OWQ of non-compliance against a Regulated Entity.
If the appropriate representatives of OAQ, OLQ, OWQ and CTAP agree that the confidential compliance assistance provided by CTAP and relied upon by the Regulated Entity has either directly or indirectly lead to an allegation of non-compliance, then Compliance and Enforcement staff shall not proceed with assessing a gravity-based civil penalty against the Regulated Entity. However, Compliance and Enforcement staff may elect to assess a civil penalty solely based on economic benefit of non-compliance, consistent with IDEM's Civil Penalty Policy (IC 13-30-4).
If it is determined that the confidential compliance assistance provided by CTAP to a Regulated Entity has not directly or indirectly lead to an allegation of non-compliance against a Regulated Entity, then a relevant and appropriate compliance/enforcement response shall be provided by Compliance and Enforcement staff. In the event that consensus on this determination is not achieved by the appropriate representatives of OAQ, OLQ, OWQ and CTAP, then the matter shall be resolved by the Assistant Commissioners of the Compliance Branches of OAQ, OLQ, OWQ and OPS.
In effectuating this policy, it may be necessary for a Regulated Entity and IDEM to enter into an Agreed Order specifying certain corrective measures needed to be performed by the Regulated Entity in order to return to compliance with Indiana law.
Should a Regulated Entity intentionally, knowingly, or recklessly either (1) provide erroneous information to CTAP during its confidential compliance assistance efforts; or (2) prior to seeking confidential compliance assistance from CTAP, violate a rule or statute under I.C. § 13-30-10 directly or indirectly connected to the same issue for which the Regulated Entity subsequently sought confidential compliance assistance from CTAP, then this Policy shall not apply and Compliance and Enforcement staff shall initiate an appropriate compliance/enforcement response.