Current through Register Vol. 48, No. 12, March 22, 2024
a)
Upon receipt of a Notice of Violation, the Director or Director's designee
shall conduct an investigation and may affirm, vacate or modify the Notice of
Violation. In determining whether to affirm, vacate or modify the Notice of
Violation, the Director shall consider:
1)
whether the facts support the violation set forth in the Notice of
Violation;
2) the seriousness of
the violation, including any harm to public health, public safety, aquatic
life, wildlife or the environment or damage to property;
3) the permittee's history of previous
violations, including violations at other locations and under other permits.
A) A violation shall not be counted if the
Notice of Violation or Director's Decision is the subject of pending
administrative review by the Department under Section
245.1130,
or judicial review under the Administrative Review Law and the rules adopted
under that Law, or if the time to request a review has not expired, and
thereafter it shall be counted for only 5 years after the date of the
Department's final administrative decision or a final judicial decision
affirming the Department's decision.
B) No violation for which the Notice of
Violation or Director's Decision has been vacated shall be counted;
4) the degree of culpability of
the permittee;
5) whether the
remedial action to address the violation set forth in the Notice of Violation
is completed within the time set forth in the Notice of Violation;
and
6) the existence of any
additional conditions or factors in aggravation or mitigation of the violation,
including information provided by any person or by the permittee.
b) Modification to the Notice of
Violation may include:
1) any different or
additional remedial actions required to address the violation and the time
within which the remedial actions must be completed;
2) assessment of administrative penalties not
to exceed $5,000 a day for each and every act of violation, not to exceed
$50,000;
3) probationary or
permanent modification or conditions on the permit, which may include special
monitoring or reporting requirements;
4) suspension of the permit; and
5) revocation of the permit.
c) The Director shall determine
whether to assess administrative penalties based on the factors set forth in
subsection (a). If an administrative penalty is assessed by the Department, the
administrative penalty shall be computed as follows, but shall not exceed
$5,000 per day for each and every act of violation:
1) Administrative violations are violations
of any submission, reporting or notification requirements of this Part,
including, but not limited to, providing incorrect, misleading, incomplete or
materially untrue information regarding permittee registration, permit
application, permit modification, permit transfer, or permit bonding, and
failing to properly comply with the reporting and Department notification
requirements set forth in the construction, operation, monitoring, disclosure
or production requirements of this Part or of the permit, and shall be assessed
on a permittee-specific basis. The Department may assess a penalty for an
administrative violation as follows:
A) No
previous violation of the same rule: $500.
B) One previous violation of the same rule:
$1,000.
C) Two previous violations
of the same rule: $1,500.
D) Three
previous violations of the same rule: $2,000.
E) Four or more previous violations of the
same rule: $5,000.
2)
Operating violations are violations of all other requirements of this Part not
covered by subsection (c)(1), including, but not limited to, operating a well
required to be permitted under the Act without first obtaining a proper permit
from the Department, constructing or operating a well in violation of the
construction, operation, monitoring, disclosure or production requirements of
this Part or of the permit. The Department may assess a penalty for an
operating violation by considering elements of subsections (c)(2)(A), (B) and
(C) as follows:
A) History of Violations:
i) No previous violation of the same rule:
$1,000.
ii) One previous violation
of the same rule: $2,500.
iii) Two
previous violations of the same rule: $5,000.
iv) Three previous violations of the same
rule: $7,500.
v) Four previous
violations of the same rule: $10,000.
vi) Five or more previous violations of the
same rule: $25,000.
B)
Seriousness:
i) If the violation had a high
degree of probability to cause environmental damage to soil and/or land
surface, vegetation or crops, surface water, groundwater, livestock or
wildlife: add $2,500; or, if the violation caused environmental damage to soil
and/or land surface, vegetation or crops, surface water, groundwater, livestock
or wildlife: add $10,000.
ii) If
the violation created a hazard to the safety of any person: add
$20,000.
C) Permittee's
Actions:
i) If the permittee was previously
notified of the violation using a routine inspection report (Form OG-22) in
accordance with Section
245.1110 or
correspondence from the Department and failed to comply: add $5,000.
ii) If the violation occurred as a result of
the permittee's deliberate conduct, including lack of reasonable maintenance of
equipment: add $5,000.
iii) If the
violation involves a failure of surface casing or cement of surface casing: add
up to $50,000, but no less than $5,000.
d) The Director or Director's
designee shall serve the permittee with his or her decision at the conclusion
of the investigation. The Director's Decision shall be served either
personally or by certified mail, receipt return requested, to the
permittee (Section 1-60(b) of the Act). The Director's Decision shall
provide that the permittee has the right to request a hearing to contest the
Director's Decision in accordance with Section 245.1130.
e) The Director's Decision shall take effect
upon issuance.
f) The permittee may
contest the Director's Decision by submitting a request, in writing,
within 30 days after the date of receiving the Director's Decision,
for a hearing in accordance with Section
245.1130. Except as provided under Section
245.1130(d)(2),
in the event a hearing is requested, the Director's Decision
shall remain in effect until a final order is entered pursuant to the
hearing. (Section 1-60(c) of the Act)
g) Failure of the permittee to timely request
a hearing, or if a civil penalty has been assessed, to timely tender the
assessed civil penalty, shall constitute a failure to exhaust all
administrative remedies and a waiver of all legal rights to contest the
Director's Decision, including the amount of the civil penalty.
h) The permittee may, within 30 days from the
date of receiving the Director's Decision, submit to the Department, in
writing, any mitigating factors that permittee believes to be relevant to the
violation cited in the Director's Decision.
i) Upon further investigation, the Director
may enter into a settlement agreement, issue an amended Director's Decision, or
issue a replacement Director's Decision.
1) A
settlement agreement shall be issued to:
A)
extend the amount of time provided to complete remedial action necessary to
address a violation set forth in the Director's Decision; or
B) increase or reduce the civil penalty
assessed in the Director's Decision; or
C) allow new permits or the transfer of
existing permits to be issued during the term of the settlement
agreement.
2) An amended
Director's Decision shall be issued to:
A)
extend the amount of time provided to complete remedial action necessary to
address a violation set forth in the Director's Decision; or
B) reduce the civil penalty assessed in the
Director's Decision.
3)
A replacement Director's Decision shall be issued to correct an administrative
error contained in the Director's Decision or the Notice of
Violation.
4) The permittee shall
have no right to administrative hearing associated with the issuance of a
settlement agreement or an amended Director's Decision.
j) If the Director's Decision includes the
assessment of an administrative penalty and the permittee named in the
Director's Decision does not request a hearing in accordance with Section
245.1130, the administrative penalty assessed shall be paid to the Department
in full within 30 days after receiving the Director's Decision.
k)
All administrative
penalties assessed and paid to the Department shall be deposited in the
Mines and Minerals Regulatory Fund (Section 1-35(e) of the
Act).