AUTHORITY: Implementing Section 4(a) and authorized by Section 9(a) of the Illinois Hazardous Materials Transportation Act [430 ILCS 30] and Section 3-704(b) of the Illinois Vehicle Code [625 ILCS 5].

SOURCE: Adopted at 3 Ill. Reg. 5, p. A1, effective February 1, 1979; amended at 3 Ill. Reg. 49, p. 273, effective December 10, 1979; amended at 6 Ill. Reg. 4287, effective April 16, 1982; codified at 8 Ill. Reg. 17979; amended at 10 Ill. Reg. 5876, effective April 1, 1986; amended at 14 Ill. Reg. 2633, effective February 1, 1990; amended at 14 Ill. Reg. 8189, effective May 15, 1990; amended at 18 Ill. Reg. 7881, effective May 6, 1994; amended at 20 Ill. Reg. 6554, effective April 30, 1996; amended at 22 Ill. Reg. 5708, effective March 4, 1998; amended at 22 Ill. Reg. 17023, effective September 30, 1998; amended at 25 Ill. Reg. 7298, effective May 19, 2001; amended at 26 Ill. Reg. 8919, effective June 5, 2002; amended at 28 Ill. Reg. 10066, effective July 1, 2004; amended at 29 Ill. Reg. 660, effective December 20, 2004; recodified at 41 Ill. Reg. 11470; amended at 44 Ill. Reg. 9251, effective May 14, 2020.

SUBPART A: GENERAL PROVISIONS

 

Section 107.1000  Purpose and Scope

 

This Part defines certain terms and prescribes procedures that are applicable to each proceeding described in this Part that are utilized by the Department in carrying out its duties under the laws pertaining to the transportation of hazardous materials.

 

Section 107.1010  Definitions

 

As used in this Part:

 

"Act" means the Illinois Hazardous Materials Transportation Act [430 ILCS 30].

 

"Acting knowingly" means acting or failing to act while having actual knowledge of the facts giving rise to the violation, or having the knowledge that a reasonable person acting in the same circumstances and exercising due care would have had. (49 CFR 107.1, October 1, 2003)

 

"Administrator" means the Administrator, Research and Special Programs Administration (RSPA), US Department of Transportation or his or her delegate. (49 CFR 107.1, October 1, 2003)

 

"Applicant" means the person in whose name an exemption, approval, registration, a renewed or modified exemption or approval, or party status to an exemption is requested to be issued. (49 CFR 107.1, October 1, 2003)

 

"Application" means a request under subpart B of 49 CFR 107 for an exemption, a renewal or modification of an exemption, party status to an exemption, or a request under subpart H of 49 CFR 107 for an approval, or renewal or modification of an approval. (49 CFR 107.1, October 1, 2003)

 

"Approval" means written consent, including a competent authority approval, from the Associate Administrator or other designated Department official, to perform a function that requires prior consent under subchapter C of 49 CFR Chapter I (49 CFR 171 through 180). (49 CFR 107.1, October 1, 2003)

 

"Approval Agency" means an organization or a person designated by the RSPA to certify packagings as having been designed, manufactured, tested, modified, marked or maintained in compliance with applicable DOT regulations. (49 CFR 107.1, October 1, 2003)

 

"Associate Administrator" means the Associate Administrator for Hazardous Materials Safety, Research and Special Programs Administration, US Department of Transportation. (49 CFR 107.1, October 1, 2003)

 

"Competent authority" means a national agency that is responsible, under its national law, for the control or regulation of some aspect of hazardous materials (dangerous goods) transportation.  Another term for competent authority is "appropriate authority", which is used in the International Civil Aviation Organization’s (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air.  The Associate Administrator is the United States competent authority for purposes of 49 CFR 107. (49 CFR 107.1, October 1, 2003)

 

"Competent authority approval" means an approval by the competent authority that is required under an international standard (for example, the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code).  Any of the following may be considered a competent authority approval if it satisfies the requirement of an international standard:

 

A specific regulation in subchapter A or C of 49 CFR Chapter I. 

 

An exemption or approval issued under subchapter A or C of 49 CFR Chapter I. 

 

A separate document issued to one or more persons by the Associate Administrator. (49 CFR 107.1, October 1, 2003)

 

"Department" means the Illinois Department of Transportation.

 

"Director" means the Director of the Division of Traffic Safety.

 

"Division" means the Division of Traffic Safety.

 

"Enforcement" means issuance of warnings or notices of violation of any provision of the Act and the Illinois Hazardous Materials Transportation Regulations (IHMTR) and prosecution of violations of the IHMTR and the Act.

 

"Exemption" means a document issued by the Associate Administrator under the authority of 49 USC 5117.  The document permits a person to perform a function that is not otherwise permitted under subchapter A or C of 49 CFR Chapter I, or other regulations issued under 49 USC 5101 through 5127 (e.g., Federal Motor Carrier Safety routing requirements) (49 CFR 107.1, October 1, 2003)

 

"Federal Hazardous Material Transportation Law" means 49 USC 5101 et seq. (49 CFR 107.1, October 1, 2003)

 

"Filed" means received by the appropriate RSPA or other designated office within the time specified in a regulation or rulemaking document. (49 CFR 107.1, October 1, 2003)

 

"Holder" means the person in whose name an exemption or approval has been issued. (49 CFR 107.1, October 1, 2003)

 

"Imminent hazard" means the existence of a condition that presents a substantial likelihood that death, serious illness, severe personal injury, or substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion of an administrative hearing or other formal proceeding initiated to abate the risks of those effects. (49 CFR 107.1, October 1, 2003)

 

"Incident" means an event resulting in the unintended and unanticipated release of a hazardous material or an event meeting incident reporting requirements in 49 CFR 171.15 or 49 CFR 171.16. (49 CFR 107.1, October 1, 2003)

 

"Indian tribe" has the same meaning given that term in section 4 of the Indian Self-Determination and Education Assistance Act (25 USC 450b). (49 CFR 107.1, October 1, 2003)

 

"IHMTR" means the Illinois Hazardous Materials Transportation Regulations.

 

"Investigation" includes investigations authorized under 49 USC 5121 and inspections authorized under 49 USC 5118 and 5121. (49 CFR 107.1, October 1, 2003)

 

"Knowingly" (See the definition of "acting knowingly" in this Section.)

 

"Manufacturing exemption" means an exemption from compliance with specified requirements that otherwise must be met before representing, marking, certifying (including requalifying, inspecting, and testing), selling or offering a packaging or container as meeting the requirements of subchapter C of 49 CFR Chapter I governing its use in the transportation in commerce of a hazardous material.  A manufacturing exemption is an exemption issued to a manufacturer of packagings who does not offer for transportation or transport hazardous materials in packagings subject to the exemption. (49 CFR 107.1, October 1, 2003)

 

"North American Uniform Out-Of-Service Criteria" means a set of guidelines recognized by all states and the provinces of Canada as acceptable standards for identifying critical violations that may render a driver, a commercial motor vehicle or a hazardous material load out-of-service.  The criteria is enforced by law enforcement officers of a state or the federal government.

 

"Out-of-service order" means a declaration by the State Police that a hazardous material shipment is out-of-service pursuant to 92 Ill. Adm. Code 171.2(a), 171.2(b) or 171.2(c) and the North American Uniform Out-of-Service Criteria as defined in this Section.

 

"Party" means a person, other than a holder, authorized to act under the terms of an exemption. (49 CFR 107.1, October 1, 2003)

 

"Person" means an individual, firm, copartnership, corporation, company, association, or joint stock association (including any trustee, receiver, assignee, or similar representative); or a government or Indian tribe (or an agency or instrumentality of any government or Indian tribe) that transports a hazardous material to further a commercial enterprise or offers a hazardous material for transportation in commerce.  Person does not include the following: 

 

The United States Postal Service. 

 

Any agency or instrumentality of the Federal government, for the purposes of 49 USC 5123 (civil penalties) and 5124 (criminal penalties). 

 

Any government or Indian tribe (or agency or instrumentality of any government or Indian tribe) that transports hazardous material for a governmental purpose. (49 CFR 107.1, October 1, 2003)

 

"Registration" means a written acknowledgment from the Associate Administrator that a registrant is authorized to perform a function for which registration is required under subchapter C of 49 CFR Chapter I (e.g., registration in accordance with 49 CFR 178.503 regarding marking of packagings).  For purposes of subparts A through E, "registration" does not include registration under subpart F or G of 49 CFR 107. (49 CFR 107.1, October 1, 2003)

 

"Report" means information, other than an application, registration or part thereof, required to be submitted to the Associate Administrator pursuant to subchapter A, subchapter B or subchapter C of 49 CFR Chapter I. (49 CFR 107.1, October 1, 2003)

 

"Respondent" means a person upon whom the Department has served a notice of probable violation.

 

"Secretary" means the Secretary of the Illinois Department of Transportation.

 

"State" means the State of Illinois.

 

"State Police" includes any individual officer of the Illinois State Police.

 

"Transports" or "transportation" means the movement of property and loading, unloading, or storage incidental to the movement. (49 CFR 107.1, October 1, 2003)

 

(Source:  Amended at 28 Ill. Reg. 10066, effective July 1, 2004)

 

Section 107.1020  Incorporation by Reference

 

a)         49 CFR 107, subparts F and G, are hereby incorporated by reference as those subparts of 49 CFR 107 were in effect on October 1, 2019.  No later amendments to or editions of 49 CFR 107, subparts F and G are incorporated.

 

b)         Copies of the materials incorporated by reference are available for inspection at the Illinois Department of Transportation, 2300 S. Dirksen Parkway, Springfield, Illinois 62764 or online via the U.S. Government Publishing Office at http://www.ecfr.gov.

 

(Source:  Amended at 44 Ill. Reg. 9251, effective May 14, 2020)

 

Section 107.1030  Request for Confidential Treatment

 

a)         If any person filing a document with the Division claims that some or all the information contained in the document should be exempt from public disclosure, and if that person requests the Division not to disclose the information, that person shall file together with the document a second copy of the document from which has been deleted the information for which confidential treatment is claimed.  The person shall indicate in the original document that it is confidential or contains confidential information and shall file a statement specifying the justification for which confidential treatment is claimed.  If the person states that the information constitutes trade secrets or commercial or financial information, that person must include a statement as to why the information is privileged or confidential.

 

b)         The Division retains the right to make its own determination with regard to any claim of confidentiality.  The determination of confidentiality will be based upon one or more of the following:

 

1)         The information submitted to the Division under paragraph (a);

 

2)         The  applicable provisions of any State or Federal statute which requires the information to be kept confidential;

 

3)         Whether such information constitutes trade secrets or commercial or financial information;

 

4)         Whether the information should be kept confidential in view of ongoing compliance actions;

 

5)         Whether release of the information could commercially or personally harm any person. Notice of a decision by the Division to deny the claim, in whole or in part, and an opportunity to respond shall be given to any person claiming confidentiality of information, no less than five days prior to its public disclosure.

 

Section 107.1040  Persons Holding Federal Exemptions

 

Any valid exemption issued by the Secretary of the U.S. Department of Transportation under Section 107 of the federal Hazardous Materials Transportation Act (49 U.S.C. Section 1806) shall be considered a valid exemption issued under this subpart.

 

Section 107.1050  Service

 

a)         Each order, notice, or other document required to be served under this Part shall be served personally or by registered or certified mail, except as otherwise provided.

 

b)         Service upon a person's duly authorized representative constitutes service upon that person.

 

c)         Service by registered or certified mail is complete upon mailing.  An official United States Postal Service receipt from the registered or certified mailing constitutes prima facie evidence of service.

 

Section 107.1060  Subpoenas

 

a)         The Secretary, or any individual whom he has designated to preside over a hearing convened in accordance with this Part, may sign and issue subpoenas either on his own initiative or, upon the request of any person participating in that proceeding where that person makes an adequate showing that the information sought will materially advance the proceeding.

 

b)         A subpoena may require the attendance of a witness or the production of relevant documentary or other tangible evidence in the possession or under the control of the person served, or both.

 

c)         Service of a subpoena upon the person named therein shall be made by delivering a copy of the subpoena to such person.  Delivery of a copy of a subpoena to a natural person may be made by handing it to the person, leaving it at his or her office with the person in charge thereof, leaving it at his dwelling place or usual place of abode with some person of suitable age and discretion then residing therein, or by mailing it by registered or certified mail to the person at the person's last known address.  When the person to be served is not a natural person, delivery of a copy of the subpoena may be effected by handing it to a registered agent for service, or to any officer, director, or agent in charge of any office of the person, or by mailing it by registered or certified mail to that representative at his last known address.

 

d)         The original subpoena bearing a certificate of service shall be filed with the Department official having responsibility for the proceeding in connection with which the subpoena was issued.

 

e)         Any person to whom a subpoena is directed may, prior to the time specified therein for compliance, but in no event more than 10 days after the date of service of such subpoena, apply to the presiding officer who issued the subpoena, or if he is unavailable, to the Secretary, to quash or modify the subpoena.  The application shall contain a brief statement of the reasons relied upon in support of the action sought therein.  The Secretary, or the presiding officer, as the case may be, may:

 

1)         Deny the application;

 

2)         Quash or modify the subpoena; or

 

3)         Condition denial of the application to quash or modify the subpoena upon the satisfaction of certain just and reasonable requirements.  The denial may be summary.

 

f)         If there is a refusal to obey a subpoena served upon any person under the provisions of this section, the Department may request the Attorney General to seek the aid of the Circuit Court or any court of competent jurisdiction in which the person is found, to compel that person, after notice, to appear and give testimony, or to appear and produce the subpoenaed documents before the Department, or both.

 

(Source:  Amended at 6 Ill. Reg. 4287, effective April 16, 1982)

SUBPART B: ENFORCEMENT

 

Section 107.1100  Responsibility for Enforcement

 

In accordance with delegations of authority from the Secretary, responsibility for enforcement of this Subchapter is exercised by:

 

a)         The Department of Transportation;

 

b)         The Department of State Police; and

 

c)         Any other department or agency of State government which has jurisdiction with respect to the transportation of hazardous materials, with which the Secretary concludes an interagency agreement.

 

(Source:  Amended at 14 Ill. Reg. 2633, effective February 1, 1990)

 

Section 107.1110  Purpose and Scope

 

This subpart describes the various enforcement authorities exercised by the Department and the associated sanctions and prescribes the procedures governing the exercise of those authorities and the imposing of those sanctions.

 

Section 107.1120  Investigations

 

a)         General.  The Department may conduct investigations relating to compliance by any person with any provision of these regulations and any order issued thereunder, or any court decree relating thereto.

 

b)         Confidentiality.  Information received in an investigation under this section, including the identity of the person investigated and any other person who provides information during the investigation, shall, unless otherwise determined by the Department, remain confidential.

 

(Source:  Amended at 6 Ill. Reg. 4287, effective April 16, 1982)

 

Section 107.1130  Inspection and Examination of Records and Properties

 

a)         Any representative of the State acting under delegation of authority in Section 107.301, upon presenting appropriate credentials, may enter without delay, inspect and examine the records and properties of any person to the extent such records and properties relate to the transportation or shipment of hazardous materials on the highways of this State.  All such inspections and examinations shall be conducted during regular working hours and in a reasonable manner.

 

b)         If any person refuses to permit the representative to make an inspection or examination in accordance with Section 107.307(a), the representative shall terminate the inspection or confine the inspection to areas concerning which no objection is raised.  The representative shall endeavor to ascertain the reason for such refusal and shall immediately report the matter to the Director.  If the Director desires to have an inspection and examination conducted, he may refer the matter to the Department's Office of Chief Counsel to take appropriate action, including compulsory process, if necessary.

 

Section 107.1140  Notice of Apparent Violation

 

a)         When any representative of the State acting under delegation of authority in Section 107.301 has reason to believe that a person is engaging in conduct which involves a violation of any provision of these regulations, or of any exemption under Subpart B, the representative shall issue a notice of apparent violation.

 

b)         A notice of apparent violation shall be issued:

 

1)         In the case of a violation observed at any location where hazardous materials are handled, to the person in charge of or responsible for the place or location who is present at the time the violation is observed and, if that person is not the owner or lessor of the place or location, to the owner or lessor of the place or location.

 

2)         In the case of a violation involving a motor vehicle intended to be used or being used for the transportation of hazardous materials, or in the case of a violation observed occurring in the course of the transportation of hazardous materials, to the driver or operator of the vehicle and to the employer of the driver or operator and, to the owner or lessor of the vehicle if the owner or lessor is a person other than the driver or operator or the employer of the driver or operator.

 

3)         In the case where an individual person is observed to be knowingly committing an act which is a violation or to have knowingly committed an act which is a violation of these regulations, to that individual person and, if applicable, to the employer of that person.

 

4)         In all other cases, to a responsible person present at the time the violation is observed, and if that person is not the owner or lessor of the place or location, to the owner or lessor of the place or location.

 

c)         The notice of apparent violation shall be served in accordance with Section 107.11.

 

d)         A copy of each notice of apparent violation issued shall be forwarded to the Director.

 

(Source:  Amended at 6 Ill. Reg. 4287, effective April 16, 1982)

 

Section 107.1150  Stopping of Vehicles

 

a)         The State Police shall stop any vehicle when the State Police has reason to believe that an imminent hazard exists.  "Imminent hazard," as used in this section, exists if there is a likelihood that death, serious illness, or personal injury will occur prior to the completion of a formal proceeding initiated to abate the risk of such harm.

 

b)         If the State Police stop a vehicle pursuant to 92 Ill. Adm. Code 171.2(c), the State Police shall prevent the further movement of the hazardous materials and shall tag the vehicle carrying the hazardous material so as to place the vehicle out of service until such time as the imminent danger observed is abated.

 

c)         Whenever the State Police stop and inspect any motor vehicle for any violation of the Act or IHMTR and identify violations that trigger placing the hazardous material shipment out-of-service under the "North American Uniform Out-of-Service Criteria," the State Police shall prevent the further movement of the hazardous material and shall issue an out-of-service order by tagging the hazardous material shipment so as to place it out-of-service until such time as the unsafe condition is corrected and the shipment complies with the IHMTR.  North American Uniform Hazardous Materials Out-of-Service Criteria include but are not limited to:

 

1)         Transporting hazardous materials not accompanied by a shipping paper that indicates hazardous materials are being transported;

 

2)         Fifty percent or more of required placards for a hazard class are missing or any placards misrepresent the hazardous materials being transported;

 

3)         Transporting hazardous materials in a bulk packaging not authorized for the material being transported; and

 

4)         Hazardous materials leaking from a package.  (North American Uniform Out-of-Service Criteria, Commercial Vehicle Safety Alliance Operations Manual, April 1, 1998)

 

d)         Whenever the State Police stop a vehicle and the driver or operator of the vehicle is able to properly abate the existing danger, the vehicle shall be permitted to continue in service; however, the State Police shall notify the Director of the matter and the Director shall notify the employer of the driver or operator and the owner or lessor of the vehicle if the owner or lessor is not the employer.

 

Section 107.1160  Department Review of Notice of Apparent Violation

 

Upon receiving a copy of a notice of apparent violation, the Department shall review the notice and determine whether any further administrative action is required. If the Department determines that further administrative action is required, the Department may take any administrative action set forth in this subpart it believes is appropriate.

 

(Source:  Amended at 14 Ill. Reg. 2633, effective February 1, 1990)

 

Section 107.1170  Warning Letter

 

a)         When the Department has reason to believe that a person is engaging in conduct which involves a violation of any provision of these regulations, the Director, or his authorized representative, may issue a warning letter which shall:

 

1)         Advise the person of the time, place and circumstances of the apparent violation;

 

2)         Advise the person that a subsequent inspection may be conducted to ascertain whether the violation has been corrected; and

 

3)         Warn the person not to repeat the violation in the future.

 

b)         The warning letter shall be served in the manner prescribed in Section 107.11.

 

(Source:  Amended at 14 Ill. Reg. 8189, effective May 15, 1990)

 

Section 107.1180  Civil Penalties Generally

 

When the Department has reason to believe that a person has knowingly committed an act which is a violation of any provision of these regulations it may conduct proceedings to assess and, if appropriate, compromise a civil penalty.

 

Section 107.1190  Maximum Penalties

 

A person who knowingly commits an act that is a violation of any of these regulations is liable for a civil penalty of not more than $10,000 for each violation.  When the violation is a continuing one, each day of the violation constitutes a separate offense.

 

Section 107.1200  Commencement of Civil Penalty Proceeding

 

a)         The Department, by the Director or his authorized representative, begins a civil penalty proceeding by serving a Notice of Intent to Assess Civil Monetary Penalty, in accordance with Section 107.11, on a person charging that person with having knowingly committed an act which is a violation of one or more provisions of the IHMTR.

 

b)         A Notice of Intent to Assess Civil Monetary Penalty issued under this Section shall include:

 

1)         Notice of the provisions(s) of the IHMTR or settlement agreement which the respondent is believed to have violated;

 

2)         A brief description of the manner in which the respondent is believed to have violated the IHMTR or settlement agreement;

 

3)         Notice of the maximum amount of civil penalty for which the respondent may be liable;

 

4)         Notice of the amount of the civil penalty sought to be assessed by the Department; pursuant to 92 Ill. Adm. Code 401;

 

5)         A description of the manner in which the respondent shall make payment in accordance with Section 107.317 of any money to the State;

 

6)         A statement that the respondent may request a conference with the Department, by verbal or written request to the Director, to review and discuss the alleged violation and civil penalty, and of the procedures for requesting a conference;

 

7)         A statement that if a settlement cannot be reached within 90 days, a Notice of Probable Violation will be served upon the respondent, and the respondent will have an opportunity for a hearing as provided by Section 11 of the Act and the IHMTR;

 

8)         A statement that if the respondent does not reply to the Notice of Intent to Assess Civil Monetary Penalty within 30 days after its service upon the respondent, the failure of the respondent to reply constitutes a waiver of its right to appear and contest the allegations, without further notice to the respondent, and authorizes the Secretary, without further notice to the respondent, to find the facts to be as alleged in the Notice of Intent to Assess Civil Monetary Penalty and order the assessment of the civil penalty stated in the Notice; and

 

9)         A statement that respondent's failure to pay a civil monetary penalty as ordered by the Secretary may result in revocation or suspension by the Illinois Secretary of State of the registration of vehicles either owned by the respondent or, regardless of ownership, that were the subject of violations by the respondent of the Illinois Hazardous Materials Transportation Regulations, pursuant to 625 ILCS 5/3-704(b).

 

c)         In the event that the Department and the respondent do not enter a settlement agreement following service of a Notice of Intent to Assess Civil Monetary Penalty, the Department by the Director shall serve a Notice of Probable Violation on the respondent.

 

d)         A Notice of Probable Violation issued under this Section includes:

 

1)         A statement of the provision(s) of the IHMTR or of a settlement agreement which the respondent is believed to have violated;

 

2)         A statement of the factual allegations upon which the proposed civil penalty is being sought;

 

3)         Notice of the maximum amount of civil penalty for which the respondent may be liable;

 

4)         Notice of the amount of the civil penalty sought to be assessed by the Department;

 

5)         A description of the manner in which the respondent shall make payment of any money to the State in accordance with Section 107.317;

 

6)         A statement of respondent's right to request a hearing and the procedures for requesting a hearing in accordance with Section 107.318; and

 

7)         A statement of respondent's right to appear at the hearing and to present relevant written or oral explanations, information and materials in answer to the allegations or in mitigation of the penalty.

 

e)         A settlement of a civil penalty proceeding may be effectuated at any time upon agreement of the parties, shall be reduced to writing by the Department and signed by the parties.  Terms of the settlement may include a reduction in the amount of the proposed civil penalty, and may include training and procedural requirements agreed upon by the respondent and Department. Training and procedural requirements may be agreed upon to increase awareness of and compliance with 92 Ill. Adm. Code 107 through 180, and 397, and those portions of 49 CFR adopted by reference.

 

(Source:  Amended at 26 Ill. Reg. 8919, effective June 5, 2002)

 

Section 107.1210  Reply

 

a)         Within 30 days of the service of a notice of probable violation issued under Section 107.315, the respondent may:

 

1)         Pay the preliminary assessment as provided in Section 107.317(a) and thereby close the case; or

 

2)         Request a hearing as provided in Section 107.318.

 

b)         The Director may extend the 30-day period for good cause shown.

 

c)         Failure of the respondent to reply by taking one of the two actions described in paragraph (a) of this section within the period provided constitutes a waiver of his right to appear and contest the allegations, and authorizes the Secretary, without further notice to the respondent, to find the facts to be as alleged in the notice of probable violation and order the assessment of an appropriate civil penalty.  The assessment shall be the same as the assessment stated in the notice when the respondent fails to reply.

 

d)         An order entered against a respondent who fails to reply may be vacated by the Secretary upon good cause shown in a written motion filed within 30 days of service of the order.  A motion to vacate must be accompanied by a request for hearing meeting the requirements of Section 107.318.  No further extension of this time for filing shall be granted.

 

(Source:  Amended at 6 Ill. Reg. 4287, effective April 16, 1982)

 

Section 107.1220  Payment of Penalty

 

a)         Payment of a civil penalty should be made by certified check or money order payable to the Treasurer of the State of Illinois and sent to the Director, Division of Traffic Safety, Illinois Department of Transportation, 3215 Executive Park Drive, P.O. Box 19212, Springfield, Illinois 62794-9212;

 

b)         At any time after an order assessing a civil penalty is referred to the Attorney General for collection, the respondent may offer to compromise for a specific amount by submitting a certified check or money order for that amount to the Director who, with the consent of the Attorney General, may accept or reject it.  If it is accepted, the respondent is notified in writing by the Director that the acceptance is in full settlement of the civil penalty for the violation.

 

(Source:  Amended at 18 Ill. Reg. 7881, effective May 6, 1994)

 

Section 107.1230  Request for Hearing

 

a)         If a respondent elects to request a hearing, he shall submit a written request to the Director.  The request must:

 

1)         State the name and address of the respondent and of the person signing the request if different from the respondent;

 

2)         State with respect to each allegation whether it is admitted or denied; and

 

3)         State with particularity the issues to be raised by the respondent at the hearing.

 

b)         After receiving a request for hearing which complies with the requirements of paragraph (a) of this section, the Director shall request the Secretary to appoint a presiding officer. The designated presiding officer schedules a hearing for the earliest practicable date.

 

c)         The presiding officer may grant extensions of the time of the commencement of the hearing for good cause shown.

 

(Source:  Amended at 6 Ill. Reg. 4287, effective April 16, 1982)

 

Section 107.1240  Hearing

 

a)         When a hearing is requested under Section 107.318, the Secretary shall appoint a presiding officer to convene and preside over the hearing.  To the extent practicable, the hearing will be held near the place where the alleged violation occurred or at a place convenient to the respondent; provided that all such hearings shall be in Illinois.  Testimony by witness shall be given under oath and the hearing shall be recorded verbatim.

 

b)         The presiding officer may:

 

1)         Administer oaths and affirmations;

 

2)         Issue subpoenas as provided by Section 107.13;

 

3)         Adopt procedures, including the submission of evidence in written form;

 

4)         Take or cause depositions to be taken;

 

5)         Rule on offers of proof and receive relevant evidence;

 

6)         Examine witnesses at the hearing;

 

7)         Convene, recess, reconvene, adjourn and otherwise regulate the course of the hearing;

 

8)         Hold conferences for settlement, simplification of the issues or any other proper purpose; and

 

9)         Take any other action authorized by or consistent with the provisions of this subpart pertaining to civil penalties and permitted by law which may expedite the hearing or aid in the disposition of an issue raised therein.

 

c)         The Director, or his representative, has the burden of proving the facts alleged in the notice of probable violation as may be necessary to fully inform the presiding officer as to the matter concerned.

 

d)         The respondent may appear and be heard on his own behalf or through counsel of his choice.  The respondent or his counsel may offer relevant information including testimony which he believes should be considered in defense of the allegations or which may bear on the penalty to be assessed and conduct such cross-examination as may be required for a full disclosure of the facts.

 

(Source:  Amended at 3 Ill. Reg. 49, p. 273, effective December 10, 1979)

 

Section 107.1250  Presiding Officer's Decision

 

a)         After consideration of the evidence of record, the presiding officer may dismiss the notice of probable violation in whole or in part.  If he does not dismiss it in whole, he will issue and serve on the respondent an order assessing a civil penalty.  The order will include a statement of findings and conclusions as well as the reasons therefor on all material issues of fact, law, and discretion.

 

b)         If, within 20 days after service of an order assessing a civil penalty, the respondent does not pay the civil penalty or file an appeal as provided in Section 107.323(a), the case shall be referred to the Attorney General with a request that an action to collect the penalty be brought in the appropriate Circuit Court.

 

Section 107.1260  Assessment Considerations

 

In assessing a civil penalty under Section 107.320, the assessment is made only after considering:

 

a)         The nature and circumstances of the violation;

 

b)         The extent and gravity of the violation;

 

c)         The degree of the respondent's culpability;

 

d)         The respondent's history of prior offenses;

 

e)         The respondent's ability to pay;

 

f)         The effect on the respondent's ability to continue in business; and

 

g)         Such other matters as justice may require.

 

Section 107.1270  Appeal

 

a)         Orders of dismissal and orders assessing civil penalties may be appealed to the Secretary.  An appeal must be filed within 20 days of service of the presiding officer's order.

 

b)         The decision of the Secretary on appeal shall be made on the record of the hearing, including all pleadings and the decision of the officer who presided at the hearing.  No new or additional evidence shall be considered by the Secretary without a positive showing by the party presenting such evidence that the evidence was not available or, through due diligence, could not have been made available at the hearing.  At the discretion of the Secretary and upon reasonable notice of the parties oral argument may be had on appeal.  Any party requesting oral argument must detail in his petition for appeal the reasons for the request for argument.

 

c)         If the Secretary affirms the assessment and the respondent does not pay the civil penalty within 35 days after service of the Secretary's decision on appeal and no complaint for administrative review has been filed, the case shall be referred to the Attorney General with a request that an action to collect the penalty be brought in the appropriate Circuit Court.

 

d)         Petition for appeal shall detail the assailed findings and be confined to factual and legal issues which are essential to the ultimate and just determination of the proceeding. Petitions shall not exceed 10 pages in length, excluding a separate preface and summary of argument which shall not exceed 3 pages.  A reply to the petition, if any, shall be filed within 20 days of receipt of the petition for appeal and shall meet the same requirements as to length and format.

 

e)         The filing of the petition shall stay the effect of the prior decision, order or requirement pending the determination of the appeal.

 

(Source:  Amended at 3 Ill. Reg. 49, p. 273, effective December 10, 1979)

 

Section 107.1280  Failure to Pay Civil Penalty

 

a)         Failure of the respondent to pay all or a portion of a civil penalty under Section 107.315(b)(8), Section 107.316(c), or Section 107.320 or a settlement agreement under Section 107.315(e) or Section 107.317(b) will result in the Department, without further notice to the respondent, notifying the Illinois Secretary of State in writing or by electronic communication, no sooner than 30 days and no more than 40 days after that failure to pay, that respondent has not paid a civil penalty or a settlement agreement arising from a violation of the IHMTR.  The Illinois Secretary of State may then suspend or revoke the registration of vehicles that are owned by the respondent or, regardless of ownership, that were the subject of violations of the IHMTR for which a civil penalty or settlement agreement remains unpaid.

 

b)         An order to pay a civil penalty or a settlement agreement will include a provision that failure to pay all or a portion of the civil monetary penalty or settlement agreement will result in the Department, without further notice to respondent, notifying the Illinois Secretary of State that the respondent has not paid a civil penalty or a settlement agreement arising from a violation of the IHMTR and that the Illinois Secretary of State may then suspend or revoke the registration of vehicles that are owned by respondent or, regardless of ownership, that were the subject of violations of the IHMTR for which a civil penalty or settlement agreement remains unpaid.

 

c)         Within three business days after the respondent paying a civil penalty or settlement agreement that was the subject of a notice to the Illinois Secretary of State under subsection (a) of this Section, the Department will notify the Secretary of State that the civil penalty or settlement agreement has been paid.

 

(Source:  Added at 26 Ill. Reg. 8919, effective June 5, 2002)

 

Section 107.1290  Compliance Orders Generally

 

When the Department has reason to believe that a person is engaging in conduct which involves a violation of any provision of these regulations, the Department may conduct proceedings to determine the nature and extent of the violation and may thereafter issue an order directing compliance.

 

Section 107.1300  Notice of Probable Violation

 

a)         The Department by the Director begins a compliance order proceeding by serving a notice of probable violation on a person charging that person with violating one or more provisions of these regulations.

 

b)         A notice of probable violation issued under this section includes:

 

1)         A statement of the provision(s) of the regulations which the respondent is believed to be violating;

 

2)         A statement of the factual allegation upon which remedial action is being sought; and

 

3)         A statement of the remedial action being sought in the form of a proposed compliance order.

 

c)         The Department may amend a notice of probable violation issued under this section at any time before the entry of a final compliance order.  If an amendment includes any new material allegation of fact or seeks new or additional remedial action, the respondent is given an opportunity to respond.  (Filed 11-28-79, effective 12-10-79)

 

(Source:  Amended at 6 Ill. Reg. 4287, effective April 16, 1982)

 

Section 107.1310  Reply

 

a)         Within 30 days of the service of a notice of probable violation issued under Section 107.333, the respondent may file a reply with the Director.  The Director may extend the 30-day period for good cause shown.

 

b)         The reply must be in writing, signed by the person filing it, and state with respect to each factual allegation whether it is admitted or denied.  Even though formally denied, a factual allegation set forth in a notice of probable violation is considered to be admitted for purposes of the proceeding unless:

 

1)         Opposed by the written statement of an individual having personal knowledge of the subject matter;

 

2)         Challenged as being in error together with a supporting explanation as to why it is believed to be in error; or

 

3)         Otherwise contested or contradicted through the submission of relevant evidence.

 

c)         The reply must set forth any defenses and include a statement of the form and nature of proof by which those defenses are to be established.

 

d)         If it is necessary to respond to an amendment to the notice of probable violation, the respondent may amend his reply at any time before the issuance of an order under Section 107.337.

 

e)         If the respondent elects not to contest one or more factual allegations, he should so state in the reply.  An election not to contest a factual allegation is an admission of that allegation solely for the purpose of issuing a compliance order and constitutes a waiver of hearing as to that allegation but does not, by itself, constitute a waiver of the right to be heard on other issues.  In connection with a statement of election not to contest a factual allegation, the respondent, may propose an appropriate order for issuance by the Director, or propose the negotiation of a consent order.

 

f)         Failure of the respondent to file a reply within the period provided constitutes a waiver of his right to appear and contest the allegation and authorizes the Secretary, without further notice to the respondent, to find the facts to be as alleged in the notice of probable violation and to issue an appropriate order directing compliance.

 

(Source:  Amended at 3 Ill. Reg. 49, p. 273, effective December 10, 1979)

 

Section 107.1320  Consent Order

 

a)         At any time before the issuance of an order under Section 107.337, the Department and the respondent may execute an agreement for disposing of the case by the entry of a consent order. If the Director accepts the agreement, he issues an order in accordance with its terms.  If the Director rejects the agreement, he directs that the proceeding continue.

 

b)         An agreement submitted to the Director under this section must include:

 

1)         A proposed compliance order suitable for the Director's signature;

 

2)         An admission of all jurisdictional facts;

 

3)         An express waiver of further procedural steps and of all right to seek judicial review or otherwise challenge or contest the validity of the order; and

 

4)         An acknowledgment that the notice of probable violation may be used to construe the terms of the order.

 

Section 107.1330  Hearing

 

a)         When a respondent files a reply contesting allegations in a notice of probable violation issued under Section 107.333 or when the Department and the respondent fail to agree upon an acceptable consent order, the Director shall request the Secretary to appoint a presiding officer.  The Secretary shall appoint a presiding officer to convene and preside over a hearing on the proposed compliance order.  Testimony by witnesses shall be given under oath and the hearing shall be recorded verbatim.

 

b)         The presiding officer may:

 

1)         Administer oaths and affirmations;

 

2)         Issue subpoenas as provided by Section 107.13;

 

3)         Adopt procedures, including the submission of evidence in written form;

 

4)         Take or cause depositions to be taken;

 

5)         Rule on offers of proof and receive relevant evidence;

 

6)         Examine witnesses at the hearing;

 

7)         Convene, recess, reconvene, adjourn and otherwise regulate the course of the hearing;

 

8)         Hold conferences for settlement, simplification of the issues or any other proper purpose; and

 

9)         Take any other action authorized by or consistent with the provisions of this subpart pertaining to compliance orders and permitted by law which may expedite the hearing or aid in the disposition of an issue raised therein.

 

c)         The Director, or his representative, has the burden of proving the facts alleged in the notice of probable violation and may offer such relevant information as may be necessary to fully inform the presiding officer as to the matter concerned.

 

d)         The respondent may appear and be heard on his own behalf or through counsel of his choice.  The respondent or his counsel may offer relevant information including testimony which he believes should be considered in defense of the allegations or which may bear on the remedial action being sought and conduct such cross-examination as may be required for a full disclosure of the facts.

 

(Source:  Amended at 3 Ill. Reg. 49, p. 273, effective December 10, 1979)

 

Section 107.1340  Presiding Officer's Decision

 

a)         After consideration of evidence, the presiding officer may dismiss the notice of probable violation or issue an order directing compliance.  The order will include a statement of findings and conclusions as well as the reasons therefor on all material issues of fact, law, and discretion.

 

b)         A compliance order issued under this section is effective upon service on the respondent unless otherwise provided therein.

 

Section 107.1350  Compliance Order For Immediate Compliance

 

a)         Notwithstanding Sections 107.333 through Section 107.337, the Director may issue a compliance order for immediate compliance, which is effective upon issuance, and until rescinded or suspended, if he finds:

 

1)         There is strong probability that a violation is occurring or is about to occur;

 

2)         The violation poses an unreasonable risk to health or to safety of life or property; and

 

3)         The public interest requires the avoidance or amelioration of that unreasonable risk through immediate compliance and waiver of the procedures afforded under Section 107.333 through Section 107.337.

 

b)         A compliance order for immediate compliance is served promptly upon the person against whom the order is issued by telex or telegram, with a copy served in the manner provided in Section 107.11.  The copy contains a written statement of the relevant facts and the legal basis for the order, including the findings required by paragraph (a) of this Section.

 

c)         The Director may rescind or suspend a compliance order for immediate compliance if it appears that the criteria set forth in paragraph (a) of this section are no longer satisfied. When appropriate, however, such a suspension or rescission may be accompanied by a notice of probable violation issued under Section 107.333.

 

d)         If at any time in the course of a proceeding commenced by a notice of probable violation the criteria set forth in paragraph (a) of this section are satisfied, the Director may issue a compliance order for immediate compliance, even if the 30-day period for reply specified in Section 107.334(a) has not expired.

 

e)         At any time after a compliance order for immediate compliance has become effective, the Secretary may request the Attorney General to bring an action for appropriate relief in accordance with Section 107.341.

 

f)         The Director shall commence a compliance order proceeding as soon as practicable after the issuance of a compliance order for immediate compliance.

 

(Source:  Amended at 6 Ill. Reg. 4287, effective April 16, 1982)

 

Section 107.1360  Appeal

 

a)         Orders of dismissal and orders directing compliance may be appealed to the Secretary.  An appeal must be filed within 20 days after service of the compliance order.

 

b)         The decision of the Secretary on appeal shall be made on the record of the hearing, including all pleadings and the decision of the officer who presided at the hearing.  No additional evidence shall be considered by the Secretary without a positive showing by the party presenting such evidence that the evidence was not available or, through due diligence, could not have been made available at the hearing.  At the discretion of the Secretary and upon reasonable notice to the parties oral argument may be had on appeal.  Any party requesting oral argument must detail in his petition for appeal the reasons for the request for argument.

 

c)         The Secretary may stay the effectiveness of an order where the equities so require.  The filing of an appeal does not stay the effectiveness of the order unless the Secretary expressly so provides.

 

d)         Petition for appeal shall detail the assailed findings and be confined to factual and legal issues which are essential to the ultimate and just determination of the proceeding. Petitions shall not exceed 10 pages in length, excluding a separate preface and summary of argument which shall not exceed 3 pages.  A reply to the petition, if any, shall be filed within 20 days of receipt of the petition for appeal and shall meet the same requirements as to length and format.

 

(Source:  Amended at 3 Ill. Reg. 49, effective December 10, 1979)

 

Section 107.1370  Injunctions and Other Equitable Relief

 

Whenever it appears to the Department that a person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any provision of these regulations or of any order issued thereunder, the Secretary may request the Attorney General to bring an action in the appropriate Circuit Court for such relief as is necessary, including mandatory or prohibitive injunctive relief, and interim equitable relief.

 

(Source:  Amended at 6 Ill. Reg. 4287, effective April 16, 1982)

 

Section 107.1380  Imminent Hazards

 

Whenever it appears to the Department that there is a substantial likelihood that death, serious illness, or severe personal injury will result from the transportation of a particular hazardous material before a compliance order proceeding or other administrative hearing or formal proceeding to abate the risk of that harm can be completed, the Department shall, through the Attorney General or State's Attorney, bring an action in the appropriate Circuit Court for an order suspending or restricting the transportation of that hazardous material, or for such other equitable relief as is necessary or appropriate to ameliorate the hazard as provided by Section 13 of the Act.

 

Section 107.1390  Criminal Penalties Generally

 

Section 12 of the Act provides a criminal penalty of a fine of not more than $25,000 for any person who willfully violates a provision of the Act or a regulation issued under the Act.

 

Section 107.1400  Referral for Prosecution

 

If the Department becomes aware of a possible willful violation of the Act, or any provision of the regulations, the Department reports it to the Department's Office of Chief Counsel.  If appropriate, the Chief Counsel refers the report to the Attorney General or State's Attorney for criminal prosecution of the offender.




Section 107.APPENDIX A   Standard Conditions Applicable to Exemptions, Packages, Containers, Shipments

 

Exemptions from the regulations governing packages, containers, and the preparation and offering of hazardous materials for shipment are subject to the following conditions:

 

1)         The outside of each package must be plainly and durably marked "DOT-E" followed by the exemption number assigned.  On portable tanks, cargo tanks and tank car tanks, the markings must be in letters at least two inches high on a contrasting background.

2)         Each shipping paper issued in connection with a shipment made under an exemption must, in association with the entries required by 92 Ill. Adm. Code 172.203(a), bear the notation "DOT-E" followed by the exemption number assigned.

3)         When an exemption issued to a shipper contains special carrier requirements, the shipper shall furnish a copy of the exemption to the carrier before or at the time a shipment is tendered.

 

(Source:  Amended at 26 Ill. Reg. 8919, effective June 5, 2002)