Current through Register Vol. 48, No. 12, March 22, 2024
a) A
person issued a notice of violation or cessation order under 62 Ill. Adm. Code
1843.11 or
1843.12, or
a person having an interest which is or may be adversely affected by the
issuance, modification, vacation, or termination of a notice of violation or
cessation order, may request review of that action by filing a request for
hearing within thirty (30) days after receiving notice of the action. No
extension of time will be granted for filing a request for hearing.
b) Failure to file a request for hearing in
accordance with subsection (a) shall not preclude challenging the fact of
violation during a civil penalty review proceeding pursuant to 62 Ill. Adm.
Code
1847.5.
c) If a hearing has been requested and a
civil penalty is subsequently assessed for the notice of violation or cessation
order for which the hearing was requested, the proposed penalty assessment must
be forwarded to the Department, in accordance with Section
1847.5(c),
within thirty (30) days after receipt of the proposed assessment, for placement
in escrow, in order to continue the review proceedings. Failure to forward the
money to the Department within thirty (30) days after receipt of the proposed
penalty assessment shall result in a waiver of all legal rights to contest both
the fact of the violation and the amount of the penalty; requests for hearing
filed after the expiration of the thirty (30) day time period shall be
dismissed on motion of the Department in accordance with 62 Ill. Adm. Code
1848.12.
d) Contents of request. The hearing request
shall include:
1) A statement of facts
entitling the person to relief;
2)
A statement indicating the reasons why the fact of the violation is being
contested;
3) A statement of the
specific relief requested; and
4)
Any other relevant information.
e) Any party to the hearing may request that
a pre-hearing conference be scheduled, in accordance with 62 Ill. Adm. Code
1848.7.
f) Notice of hearing. The applicant and other
interested persons shall be given written notice of the hearing in accordance
with 62 Ill. Adm. Code
1848.5 at least
five (5) working days prior thereto. Notice of the hearing shall also be posted
at the appropriate district or field office, at the mine site, and to the
extent possible in a newspaper of general circulation in the area of the mine
at least five (5) days prior to the hearing.
g) Record of hearing. A complete record of
the hearing and all testimony shall be made by the Department and recorded
stenographically. Such record shall be maintained and shall be available to the
public until at least sixty (60) days after the final decision referred to in
subsection (k) is issued.
h) Burden
of proof.
1) In citation hearing proceedings
conducted under this Section, the Department shall have the burden of going
forward to establish a prima facie case as to the validity of the notice,
order, or modification, vacation or termination thereof.
2) The ultimate burden of persuasion shall
rest with the person who requested the hearing.
i) Within thirty (30) days after the close of
the record, the hearing officer shall issue and serve, by certified mail, each
party who participated in the hearing with a proposed decision consisting of
proposed written findings of fact, conclusions of law and an order adjudicating
the hearing request.
j) Within ten
(10) days after service of the hearing officer's proposed decision, each party
to the hearing may file with the hearing officer written exceptions to the
hearing officer's proposed decision, stating how and why such decision should
be modified or vacated. All parties shall have ten (10) days after service of
written exceptions to file a response thereto with the hearing officer. Failure
to file written exceptions or a response thereto is not a failure to exhaust
administrative remedies and does not affect a party's right to judicial
review.
k) If no written exceptions
are filed, the hearing officer's proposed decision shall become final ten (10)
days after service of such decision. If written exceptions are filed, the
hearing officer shall within fifteen (15) days following the time for filing a
response thereto either issue his final administrative decision affirming or
modifying his proposed decision, or shall vacate the decision and remand the
proceeding for rehearing.
l) The
filing of a request for a hearing under this Section shall not operate as a
stay of any notice or order, or of any modification, termination, or vacation
of any notice or order.
m)
Settlement agreement.
1) If a settlement
agreement is entered into at any stage of the hearing process, the person to
whom the notice or order was issued will be deemed to have waived all right to
further review of the violation or penalty in question, except as otherwise
expressly provided for in the settlement agreement. The settlement agreement
shall contain a waiver clause to this effect.
2) If full payment of the amount specified in
the settlement agreement is not received by the Department within the agreed
upon period after the date of signing, the Department may enforce the agreement
or rescind it and proceed to collect the original face amount of the assessment
within thirty (30) days from the date of the rescission.
n) Summary disposition. Where the person
against whom the notice of violation or cessation order was issued fails to
appear at a hearing requested by him, that person will be deemed to have waived
his right to a hearing and the hearing officer may assume for purposes of the
proceeding:
1) That each violation listed in
the notice of violation or cessation order occurred; and
2) The truth of any facts alleged in such
notice or order.
o)
Temporary relief.
1) Pending completion of a
hearing held under this Section, the applicant may file with the Department a
written request for temporary relief from any notice or order issued under
Section 8.06 of the State Act. The applicant shall not apply to the courts for
immediate injunctive relief until a written order or decision granting or
denying temporary relief is issued by the hearing officer.
2) When to file. An application for temporary
relief may be filed by any party to a proceeding under this Section at any time
prior to a decision by the hearing officer.
3) Contents of application. The application
for temporary relief shall include:
A) A
detailed written statement setting forth the reasons why relief should be
granted;
B) A showing that there is
a substantial likelihood that the findings of the Department will be favorable
to the applicant;
C) A statement
that the relief sought will not adversely affect the health and safety of the
public or cause significant, imminent environmental harm to land, air or water
resources;
D) If the application
relates to an order of cessation issued pursuant to Section 8.06(b) or (c) of
the State Act, a statement of whether the requirement of Section 8.07(d) of the
State Act for decision on the request within five (5) days is waived;
and
E) A statement of the specific
relief requested.
4)
Response to application. Except as provided in subsection (o)(5)(B) below, all
parties to the proceeding to which the application relates shall have five (5)
days from the date of receipt of the application to file a written
response.
5) Determination on
application.
A) If the five (5) day
requirement of Section 8.07(d) of the State Act is waived, the hearing officer
shall expeditiously conduct a hearing and render a decision on the application
for temporary relief.
B) If there
is no waiver of the five (5) day requirement of Section 8.07(d) of the State
Act, the following special rules shall apply:
i) The five (5) day time for decision shall
not begin to run until the application is received by the hearing
officer.
ii) The applicant shall
serve all parties with a copy of the application simultaneously with the filing
of the application. If service is accomplished by mail, the applicant shall
inform such other parties by telephone at the time of mailing that an
application is being filed, the contents of the application and with whom the
application was filed.
iii) All
parties may indicate their objection to the application by communicating such
objection to the hearing officer and the applicant by telephone. All parties
shall simultaneously reduce their objections to writing. The written objections
must be immediately filed with the hearing officer and served upon the
applicant.
iv) Upon receipt of the
application the hearing officer shall immediately schedule a hearing and inform
all parties of the time, date and location of the hearing by telephone. The
hearing officer shall reduce such communication to writing in the form of a
memorandum to the file. Such hearing may be conducted by telephone if all
parties are so amenable.
v) The
hearing officer shall either rule from the bench on the application for
temporary relief, orally stating the reasons for his decision, or he shall
within twenty-four (24) hours of completion of the hearing issue a written
decision.
vi) The order or decision
of the hearing officer shall be issued within five (5) working days after the
receipt of the application for temporary relief.
vii) If at any time after the initiation of
this expedited procedure, the applicant requests a delay or acts in a manner so
as to frustrate the expeditious nature of this proceeding or fails to supply
the information required by subsection (o)(3), such action shall constitute a
waiver of the five (5) day requirement of Section 8.07(d) of the State
Act.
6)
Temporary relief may be granted under such conditions as the hearing officer
may prescribe, if:
A) Unless waived, a hearing
has been held in the locality of the permit area on the request for temporary
relief in which all parties were given an opportunity to be heard;
B) The applicant shows that there is
substantial likelihood that the finding of the Department will be favorable to
him; and
C) Such relief will not
adversely affect the health and safety of the public or cause significant,
imminent environmental harm to land, air or water resources.
p) Judicial review.
Following service of the Department's final administrative decision, the
permittee or any affected person may request judicial review of that decision
in accordance with the Administrative Review Law [735 ILCS 5 /Art.
III].