Section 300.247  Office of Mines and Minerals Decision

a)         Upon receipt of a notice of violation or cessation order, the Director of the Office of Mines and Minerals, or his designee,  shall conduct an investigation and either affirm, vacate or modify the notice of violation or cessation order.

b)         Modification of the Notice of Violation or Cessation Order may include:

1)         Any different or additional remedial actions necessary to abate the violation and the time within which the violation must be abated;

2)         The assessment of civil penalties for each and every act of violation;

3)         Probationary or permanent modification or conditions on the blasting site which may include special monitoring or reporting requirements;

4)         The extension of  time set for abatement or for accomplishment of an interim step may be extended due to the existence of any additional conditions or factors in aggravation or mitigation of the violation, including information provided by the operator, if the failure to meet the time previously set was not caused by lack of diligence on the part of the operator to whom it was issued;  and

5)         Termination (when all abatement  action required by the Department has been completed).

c)         Inability to Comply

1)         No cessation order or notice of violation issued under this Part may be vacated because of an inability to comply.

2)         Unless caused by lack of diligence, inability to comply may be considered only in mitigation of the amount of civil penalty under subsection (d) of this Section.

d)         Civil  Penalty Assessment Process

            The Department   shall assess a penalty for each notice of violation or cessation order.  In determining  the amount of civil penalties to assess,  the Director of the Office of Mines and Minerals, or his designee,  shall consider:

1)         The operator's history of previous violations.  For purposes of determining the history of violations, the Department  shall consider only those violations occurring at  the same mining operation within a one year period.

A)        A violation shall not be counted if the notice or order  is the subject of pending administrative review by the Department under Section 300.248 or if the time to request such review has not expired, and thereafter it shall be counted for only one year 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 or order has been vacated shall be counted;

C)        History of Violations

i)          First violation of the rule, assess $100.

ii)         Second violation of the same rule within a one year period from the date of issuance of the first violation or the date of the final administrative or judicial decision, assess $250.

iii)        Third and subsequent violations of the same rule within a one year period from the date of issuance of the first violation or the date of the final administrative or judicial decision, assess $500.

2)         The seriousness of  the violation.

A)        If the violation did not cause injury to persons or cause damage to public or private property, or if the Department cannot clearly make the determination that the violation  caused injury to persons or caused damage to public or private property, add $100.

B)        If the violation caused injury to persons or  damage to public or private property, add $500.

3)         The degree of culpability of the operator.

A)        If the Department cannot make a determination that the operator failed to use reasonable care in the design or execution of the blast, add $0 (no fine assessed).

B)        If the violation occurred due to the operator's failure to use reasonable care in the design or execution of the blast, add $250.

C)        If the violation occurred as a result of the operator's reckless or deliberate conduct, add $750.

4)         Administrative Requirements: In the case of a violation of an administrative requirement, such as a requirement to keep records, the Department shall assess a civil penalty of up to $100.

e)         The Office of Mines and Minerals Decision, including the civil penalty assessment, shall be served on the  operator  within 60 days after the issuance of the notice of violation or cessation order.  The Office of Mines and Minerals Decision shall provide that the operator has the right to request a hearing  to contest the facts of the violation and/or the civil penalty assessed in accordance with Section 300.248(a). The Office of Mines and Minerals Decision affirming, vacating, terminating or modifying the notice of violation or cessation order shall be served by certified  mail, return receipt requested, and shall be considered served upon mailing.

f)         If the Office of Mines and Minerals Decision includes the assessment of a civil penalty, and the operator named in such decision does not request a hearing in accordance with Section 300.248(a)  to contest the amount of the penalty, the amount assessed shall be paid to the Department in full within 30 days after service of the Office of Mines and Minerals Decision.

g)         An Office of Mines and Minerals Decision not appealed in accordance with Section 300.248(a) within 30 days after service shall become a final administrative decision of the Department. The operator's failure to request a hearing in accordance with Section 300.248(a) shall constitute a waiver of all legal rights to contest the Office of Mines and Minerals Decision or the cessation order, including the amount of any civil penalty assessed. The filing of a request for hearing under Section 300.248(a) shall not operate as a stay of the Office of Mines and Minerals Decision.

h)         All civil penalties assessed and paid to the Department shall be deposited in the Aggregate Operations Regulatory Fund.

(Source:  Amended at 23 Ill. Reg. 11231, effective August 26, 1999)