SECTION 460:2-7-8. Determination by hearing examiner

(a)   The hearing examiner shall incorporate in his decision concerning the civil penalty, findings of fact on each of the four criteria set forth in I DOM/RR Section 845.13 and conclusions of law.

(b)   If the hearing examiner finds that:

(1)   A violation occurred or that the fact of the violation is uncontested, he shall establish the amount of the penalty, but in doing so, he shall adhere to the point system and conversion table contained in I DOM/RR Section 845.14, except that the hearing examiner may waive the use of such point system where he determines that a waiver would further abatement of the violations of the act. However, the hearing examiner shall not waive the use of the point system and reduce the proposed assessment on the basis of an argument that a reduction in the proposed assessment could be used to abate other violations of the act; or

(2)   No violation occurred, he shall issue an order that the proposed assessment be returned to the petitioner.

(c)   If the hearing examiner makes a finding that no violation occurred or if the hearing examiner reduces the amount of the civil penalty below that of the proposed assessment and a timely petition for review of his decision is not filed with the Director or the Director refuses to grant such a petition, the Department shall have 30 days from the expiration date for filing a petition with the Director if no petition is filed, or 30 days from the date the Director refuses to grant such a petition, within which to remit the appropriate amount to the person who made the payment, with interest at the rate of 6 percent, or at the prevailing Department of the Treasury rate, whichever is greater.

(d)   If the hearing examiner increase the amount of the civil penalty above that of the proposed assessment, the hearing examiner shall order payment of the appropriate amount within 30 days of receipt of the decision.