GROUND WATER PROTECTION
STATE OF INDIANA DRAFT GENERIC
PESTICIDE MANAGEMENT PLAN
Appendix H of the Plan
FY'95 ENFORCEMENT RESPONSE POLICY (ERP)
This policy has been developed to provide a mechanism to assist in the evaluation of the gravity of each situation and violation encountered, and to assist the Office of the Indiana State Chemist (OISC) in responding in a predictable, uniform, and timely manner with an appropriate enforcement action.
I. VIOLATIONS LIKELY TO BE ENCOUNTERED
A) Pesticide Use and Application Law (IC 15-3-3.6)
B) Pesticide Registration Law (IC 15-3-3.5)
II. DETERMINING GRAVITY OF VIOLATION AND LEVEL OF
ENFORCEMENT
1. The nature or gravity of the violation.
Includes, without limitation, concepts such as and relating to: seriousness of violation; type of violation; character of violation; frequency, duration, persistence of violation; whether repeated or continuous; whether damage susceptible to cleanup or abatement; likelihood of permanent injury; population at risk; and degree of harm, potential harm, effect on or risk to public health, safety and welfare, the environment, or the reasonable use of property.
2. The degree of the violator's culpability.
Includes, without limitation, concepts such as and relating to: whether violation was reported or concealed; whether cause of violation was result of accident, mistake, or omission, negligence or intentional act, gross negligence, reckless, wanton misconduct, willfulness, recalcitrance, defiance or indifference, misrepresentations, knowing falsities, fraud or recurrent pattern; and degree of care to prevent violations.
3. The extent of the violator's good faith efforts to comply.
Includes, without limitations, concepts such as and relating to:
cooperativeness of violator; effectiveness of response actions or corrective measures and efforts to comply; available technology; ability to comply, time necessary to comply; opportunity an degree of difficulty to correct; technical practicability and economic reasonableness of reducing or eliminating contamination; voluntary cleanup; unproven or innovative nature of control equipment; extent to which violation continued after notice to correct; and amount necessary to ensure immediate and continued compliance.
4. The economic benefit from delayed compliance.
Includes, without limitation, concepts such as and relating to: amount of money violator saved by not having made necessary expenditures; profit realized, advantages gained by noncompliance; and economic savings realized.
5. The history of prior violations.
Includes, without limitation, concepts such as relating to previous compliance record; and record of maintenance.
6. The economic impact of penalty on the violator.
Includes, without limitation, concepts such as and relating to: effect of penalty on ability to continue in business; appropriateness of penalty to size of business; violator's ability to pay, if fine, economic and financial status of violator; gross revenues of violator; and size of operation.
7. The deterrent effect of the penalty.
Includes, without limitation, concepts such as and relating to: amount which would constitute actual and substantial economic deterrent to violation for which it is assessed; and penalty substantial enough to deter others from similar violations.
8. The costs to the state of enforcing against the violator, or of cleaning up its pollution.
Includes, without limitation, concepts such as and relating to: costs of investigation, enforcement and/or cleanup; restoration of environmental and natural resources; replenishing wildlife; other extraordinary costs to state; and reasonable compensation for adverse environmental effects determined by toxicity, degradability, and dispersal effects of contamination, sensitivity of the receiving environment and degree of existing environmental quality.
9. A balancing of the competing interests served by penalizing or not penalizing the violator.
Includes, without limitation, concepts such as and relating to: weighing societal costs and benefits by considering advantages and disadvantages to residents and businesses, social and economic value of activity, use of property, area suitability; and practicability of reducing or eliminating contamination.
10. Other relevant factors.
The Pesticide Investigator is responsible for case development and preparation of recommended enforcement action. The case file is then forwarded to the Pesticide Administrator who makes the final decision after consultation with the Investigator, respective Program Manager and, if necessary, legal counsel.
III. ENFORCEMENT REMEDIES AVAILABLE
A) Pesticide Use and Application Law (IC 15-3-3.6)
1) Administrative Actions By OISC
2) Injunctive Relief Through a Court
To enjoin violations or threatened violations
3) Criminal Prosecution Through a Court
Class C Misdemeanor (maximum $500 fine and sixty (60) days in jail)
4) Civil Penalty Imposed by OISC
The Indiana Pesticide Review Board shall establish a schedule of civil penalties that may be imposed by OISC for violations. The Board has developed a rule (357 IAC 1-7) that establishes the penalty schedule.
For a violation committed by a person who is required to be certified as a private applicator, one hundred dollars ($100) maximum.
For a violation by a person who is not described above the following:
Two hundred fifty dollars ($250) maximum for a persons first violation.
Five hundred dollars ($500) maximum for a persons second violation.
One thousand dollars ($1,000) maximum for a person's third violation and each subsequent violation.
The state chemist may impose a civil penalty for a person's first violation only after the board has approved the imposition of the civil penalty.
If a violation is of a continuing nature, the state chemist may impose a civil penalty for each day that the violation occurred.
A proceeding that involves the imposition of a civil penalty may be consolidated with any other proceeding commenced to enforce this chapter or the rules adopted under this chapter.
Money collected for civil penalties shall be credited to the agricultural extension service. The money may be used only for the purpose of providing education about pesticides.
B. Pesticide Registration Law (IC 15-3-3.5)
1) Administrative Action By OISC
2) Injunctive Relief Through a Court
· To enjoin violations or continued violations
3) Criminal Prosecution Through a Court
Class C Misdemeanor (maximum $500 fine and sixty (60) days in jail)
4) Civil Penalty Imposed by OISC
The Indiana Pesticide Review Board shall establish a schedule of civil penalties that may be imposed by OISC for violations. The Board has developed a rule (357 IAC 1-6) that establishes this schedule.
Two hundred fifty dollars ($250) maximum for a person's first violation.
Five hundred dollars ($500) maximum for a persons second violation.
One thousand dollars ($1,000) maximum for a person's third violation and each subsequent violation.
The state chemist may impose a civil penalty for a person's first violation only after the board has approved the imposition of the civil penalty.
If a violation is of a continuing nature, the state chemist may impose a civil penalty for each day that the violation occurred.
A proceeding that involves the imposition of a civil penalty may be consolidated with any other proceeding commenced to enforce this chapter of the rules adopted under this chapter.
Money collected for civil penalties shall be credited to the agricultural extension service. The money may be used only for the purpose of providing education about pesticides.