345 IAC 1.5-3-2 Penalty assessment

Sec. 2. (a) Except for violations: (1) exempted under IC 4-21.5-2.5-2 or IC 4-21.5-2.5-3; or (2) designated as major violations in this rule under IC 4-21.5-2.5-2(1)(E); the board shall notify the alleged violator in writing that the agency believes a violation may exist and allow the alleged violator an opportunity to correct the violation before imposing a civil penalty. (b) A penalty may not exceed the maximum amount each day of the violation in IC 15-17-18-12. In addition to any penalties assessed, the board may seek costs and other expenses as authorized under IC 15-17-18-12. (c) The board shall determine the amount of a civil penalty that will be assessed within the ranges set forth in section 1 of this rule by considering the following factors: (1) Good faith efforts of the violator to comply, such as: (A) prompt notification to the board; (B) corrective actions taken in response to the noncompliance; and (C) cooperation by the violator with the board during the investigation process. (2) The violator's history of compliance. (3) The degree of potential harm to the health, safety, or welfare of human or animal health. When determining the degree of potential harm, the board shall consider the scale of the violator's activities, including the: (A) volume and composition of noncompliant products; or (B) number of animals involved in the incidents of noncompliance. (4) The degree of deviation from a statutory or rule requirement. (5) Whether it was reasonable for the violator to: (A) forsee [sic] and prevent a violation, including the degree of control the violator had over the events constituting the violation; (B) take precautions against the events constituting the violation; and (C) know the potential harm associated with the conduct. (6) Any economic benefits of the noncompliance to the violator, such as delayed or avoided costs because of the failure to comply. (7) Whether the acts constituting the violation resulted in other enforcement actions set forth in section 4 of this rule. (d) After a penalty is assessed under this section and other applicable laws or rules, the board may enter into a payment or other settlement agreement with a violator when the board determines that: (1) a delayed or an installment payment schedule; (2) a reduced penalty assessment; or (3) corrective actions with an associated reduction in an assessed amount; are appropriate terms to resolve the noncompliance. When negotiating the terms of a payment or other settlement agreement, the board shall balance the ability of a violator to pay with the need to protect the public health, safety, and welfare.