Section 240.160  Director's Decision

 

a)         Upon receipt of a notice of violation, the Director of the Department, or his designee, shall conduct an investigation and may affirm, vacate or modify the notice of violation.  In determining whether to take action in addition to remedial action necessary to abate a violation the Director shall consider:

 

1)         the person's or 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 or order is the subject of pending administrative review by the Department under Section 240.180 or if the time to request such review has not expired, and thereafter it shall be counted for only two 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 or order has been vacated shall be counted;

 

2)         the seriousness of the violation, including any irreparable harm to the environment or damage to property;

 

3)         the degree of culpability of the person or permittee; and

 

4)         the existence of any additional conditions or factors in aggravation or mitigation of the violation, including information provided by the person or permittee.

 

b)         Modification of the notice of violation may include:

 

1)         any different or additional remedial actions necessary to abate the violation, as set forth in Section 240.150(b)(2), and the time within which the violation must be abated;

 

2)         the assessment of civil penalties not to exceed $1,000 a day for each and every act of violation;

 

3)         probationary or permanent modification or conditions on the permit which may include special monitoring or reporting requirements; and

 

4)         revocation of the permit. (Section 8a of the Act)

 

c)         The Director shall determine whether or not to assess civil penalties based on the factors set forth in subsection (a) above.  If a penalty is assessed by the Department, the penalty shall be computed as follows:  

 

1)         Administrative violations, including, but not limited to, the failure to file the reporting, permitting and bond transfer forms required by the Department or the failure to notify the Department before setting surface casing, setting tubing and packer, or plugging a well , shall be assessed on an permittee-specific basis.  The Department may assess up to $250 for an administrative violation as follows:

 

A)        No previous violation of the same rule:  $25.

 

B)        One previous violation of the same rule:  $50.

 

C)        Two previous violations of the same rule:  $75.

 

D)        Three or more previous violations of the same rule:   $100.

 

E)         Four or more previous violations of the same rule: $250.

 

2)         Operating violations, including, but not limited to, operating a well required to be permitted under the Act without first obtaining a permit from the Department, operating a well required to be permitted under the Act without first obtaining the Department's transfer of operating authority, operating a well in violation of Department spacing requirements, pressure on the annulus, failure to maintain the well and flow line in a leak-free condition, failure to configure the wellhead for the inspection of the annulus, failure to comply with specified permit conditions, failure to report a spill, failure to maintain containment dikes, failure to maintain required performance bond in force for the wells under permit and failure to pay annual well fees, shall be assessed on a permittee-specific basis.   Multiple incidents of the same violation against a permittee on the same occasion shall not be considered separate violations.  The Department may assess up to $500 for an operating violation as follows:

 

A)        History of Violations:

 

i)          No previous violation of the same rule:  $50.

 

ii)         One previous violation of the same rule:  $100.

 

iii)         Two or more previous violations of the same rule:  $150.

 

B)        Seriousness:

 

i)          If the violation had a low degree of probability to cause environmental damage to soil and/or land surface, vegetation or crops, surface water, groundwater, livestock or wildlife:  add $50; or, 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 $100; or, if the violation caused environmental damage to soil and/or land surface, vegetation or crops, surface water, groundwater, livestock or wildlife:  add $200.

 

ii)         If the violation created a hazard to the safety of any person, such as the emission of hydrogen sulfide gas: add $500.

 

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 240.140 or correspondence from the Department and failed to comply:  add $100.

 

ii)         If the violation occurred as a result of the permittee's lack of reasonable care:  add $50; or, if the violation occurred as a result of the permittee's deliberate conduct, including lack of reasonable maintenance of equipment:  add $200.

 

iii)         If the permittee abated the violation within the violation deadline or within the specified time frame in an approved extension deadline:  subtract $250.

 

3)         Operating an annular or casing injection/disposal well; operating wells by a permittee for whom wells have been placed into, or funds have been expended from, the PRF; failure to provide emergency response or remediate a crude oil or produced water spill; or the improper disposal or discharge of produced fluids shall result in an assessment computed as follows:

 

A)        History of Violations:

            One or more previous violations of the same rule in accordance with subsection (a)(1)(A) of this Section:  $100 per violation.

 

B)        Seriousness:

 

i)          If the violation caused environmental damage to surface water, ground water or wildlife:  add $200.

 

ii)         If the violation created a hazard to the safety of any person, such as the emission of hydrogen sulfide gas:  add $500.

 

C)        Permittee's Action:  

            If the violation occurred as a result of the permittee's lack of reasonable care:  add $500; or, if the violation occurred as a result of the permittee's deliberate conduct:  add $1000.

 

d)         Any responsible person who willfully or knowingly authorized, ordered, or carried out any violation cited in the Director's decision shall be subject, after notice, to the same actions, including civil penalties, which may be imposed on the person or permittee under this Section. (Section 8a of the Act)

 

e)         The Director or his designee shall serve the person or permittee with his decision at the conclusion of his investigation.  The Director's decision shall provide that the person or permittee has the right to request a hearing in accordance with Section 240.180.  The Director's decision affirming, vacating or modifying the notice of violation shall be served in accordance with Section 8a of the Act.

 

f)          A Director's decision not appealed in accordance with Section 240.180 within 30 days after service shall become a final administrative decision of the Department, pursuant to Section 10 of the Act.  The filing of a request for hearing under Section 240.180 shall not operate as a stay of the Director's decision.

 

g)         The permittee may, within 30 days from the date of service of the Director's decision, submit to the Department, in writing, any mitigating factors which permittee believes to be relevant to the violation cited in the Director's decision.

 

h)         Upon further investigation, the Director of the Department, or his designee, 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 actions necessary to abate the violations set forth in the Director's decision; or

 

B)        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 abate the 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 hearing associated with the issuance of an amended or replacement Director's decision.

 

i)          If the Director's decision includes the assessment of a civil penalty, and the person or permittee named in the Director's decision does not request a hearing in accordance with Section 240.180 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 Director's decision.

 

j)          All civil penalties assessed and paid to the Department shall be deposited in the Underground Resources Conservation Enforcement Fund. (Section 8a of the Act)

 

(Source:  Amended at 25 Ill. Reg. 9045, effective July 9, 2001)