Most violations of environmental laws are resolved informally. IDEM compliance staff members provide one-on-one technical guidance to resolve many issues observed during a records review or inspection. As part of the informal resolution, a “violation letter” or “enforcement action letter” is sent, noting the violation and measures necessary to correct it in order to ensure the responsible party corrects the documented problem.
Certain violations are referred directly to formal administrative enforcement. If the recipient of a violation letter does not correct the problem as directed, it also may receive a “Notice of Violation” or “NOV.” If an NOV is issued, the enforcement action has moved from informal to formal. An NOV informs a respondent that IDEM believes violations of environmental statutes and rules have occurred and that the formal enforcement process has begun. 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. As part of the process of obtaining an AO, the respondent is invited to meet with IDEM to discuss the violations and how they will be resolved.
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. IDEM may reduce the assessed civil penalties if the respondent can prove mitigating circumstances exist.
After the 60-day settlement period, 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 of 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 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 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 Nonrule Policies page) to IDEM to be reviewed by the SEP review committee as early in the enforcement process as possible
A respondent who does not have a specific SEP in mind can consult the SEP Idea Library [PDF] for many project ideas.
Compliance is the Goal
IDEM aspires for 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 Nonrule Policies page) may provide some opportunities to identify, correct, and prevent violations of Indiana’s environmental statutes and rules before IDEM receives an enforcement referral. IDEM provides additional information and resources about self-disclosures:
- 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 listed in the letter 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 ask the case manager these questions:
- 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?
- Would it be beneficial to bring others (e.g.., managers, consultants, attorneys)?
It is always in the respondent’s best interest to cooperate with IDEM and follow its settlement procedures. IDEM usually reduces the assessed civil penalty when a settlement by Agreed Order is reached promptly and cooperatively. If a Commissioner’s Order is issued, the civil penalties will not be reduced.
Civil Enforcement and Court Enforcement
IDEM may seek to enforce environmental laws directly in a county court in two ways:
- In certain situations, IDEM may bypass the informal and formal enforcement process and initiate a lawsuit to seek a preliminary and permanent injunction or a temporary restraining order to obtain compliance with environmental laws.
- If a Commissioner’s Order or Agreed Order has been adopted, and a respondent still doesn’t comply, IDEM may seek a court order to enforce the Commissioner’s Order or Agreed Order.