AUTHORITY: Authorized by Sections 26 and 27 of the Environmental Protection Act [415 ILCS 5/26 and 27] and implementing Sections 21(o), 21(p), 22.51, 22.51a, 31.1, 42(b)(4), 42(b)(4-5), and 55(k) of the Act [415 ILCS 5/21(o), 21(p), 22.51, 22.51a, 31.1, 42(b)(4), 42(b)(4-5), and 55(k)] and Sections 1.1(b)(3) and 23.1 of the Public Water Supply Operations Act [415 ILCS 45/1.1(b)(3) and 23.1] and Sections 20 and 80 of the Electronic Products Recycling and Reuse Act [415 ILCS 150/20 and 80].

SOURCE: Adopted in R00-20 at 25 Ill. Reg. 397, effective January 1, 2001; amended in R04-24 at 29 Ill. Reg. 8833, effective June 8, 2005; amended in R14-21 at 39 Ill. Reg. 2397, effective January 27, 2015; amended in R15-20 at 39 Ill. Reg. 12921, effective September 8, 2015; amended in R16-17 at 40 Ill. Reg. 8003, effective May 20, 2016; amended in R17-18 at 41 Ill. Reg. 10172, effective July 5, 2017.

SUBPART A: GENERAL PROVISIONS

 

Section 108.100  Applicability

 

a)         This Part applies to proceedings before the Board concerning petitions to contest the issuance of an administrative citation.

 

b)         This Part must be read in conjunction with 35 Ill. Adm. Code 101 which contains procedures generally applicable to all of the Board's adjudicatory proceedings.  In the event of a conflict between the requirements of 35 Ill. Adm. Code 101 and this Part, the provisions of this Part will apply.

 

(Source:  Amended at 39 Ill. Reg. 12921, effective September 8, 2015)

 

Section 108.102  Severability

 

If any provision of this Part or its application to any person is adjudged invalid, the adjudication will not affect the validity of this Part as a whole or of any  portion not adjudged invalid.

 

Section 108.104  Definitions

 

For the purpose of this Part, words and terms will have the meanings as defined in 35 Ill. Adm. Code 101.Subpart B unless otherwise provided, or unless the context clearly indicates otherwise.

SUBPART B: ISSUANCE OF THE CITATION AND PETITION TO CONTEST

 

Section 108.200  Administrative Citation under the Act

 

a)         An administrative citation (AC) under the Act may be issued by either:

 

1)         The Agency under Section 31.1 of the Act; or

 

2)         A Delegated Unit of Local Government under Section 31.1 of the Act.  The Agency, under Section 4(r) of the Act, may by agreement delegate its AC authority to a unit of local government, which may then issue an AC.  All Delegated Units must submit to the Clerk a copy of the delegation agreement on or before July 1 of every year.

 

b)         In accordance with Section 31.1 of the Act, the Agency or Delegated Unit may serve an AC upon any person believed, through direct observation, to have violated Section 21(o), 21(p), 22.51, 22.51a, or 55(k) of the Act.

 

1)         The AC must be issued and served upon the AC Recipient not more than 60 days after the date of the observed violation and must contain the following information:

 

A)        A statement specifying the provisions of Section 21(o), 21(p), 22.51, 22.51a, or 55(k) of the Act that the AC Recipient was observed to have violated;

 

B)        A copy of the inspection report in which the Agency or Delegated Unit recorded the violation.  The report must include the date and time of inspection and weather conditions prevailing during the inspection;

 

C)        The penalty imposed by Section 42(b)(4) or (b)(4-5) of the Act for the violations;

 

D)        An affidavit by the personnel observing the violation, attesting to their material actions and observations; and

 

E)        Instructions for contesting the AC findings, including notification that the AC Recipient has 35 days within which to file a petition to contest the AC and, if an appeal is filed and the Board finds a violation, the AC Recipient may have to pay hearing costs under Section 108.500.  [415 ILCS 5/31.1(b)]

 

2)         The Agency or Delegated Unit must serve the AC upon the AC Recipient as follows:

 

A)        Personal service;

 

B)        U.S. Mail with a recipient's signature recorded by the U.S. Postal Service upon delivery; or

 

C)        Third-party commercial carrier with a recipient's signature recorded by the third-party commercial carrier upon delivery. 

 

3)         The Agency or Delegated Unit must file the AC with the Board no later than 10 days after the date of service upon the AC Recipient.  [415 ILCS 5/31.1(c)]

 

(Source:  Amended at 41 Ill. Reg. 10172, effective July 5, 2017)

 

Section 108.201  Administrative Citation under the PWSO Act

 

a)         An AC under the Public Water Supply Operations Act [415 ILCS 45] may be issued by the Agency under Section 23.1(b) of the PWSO Act.

 

b)         In accordance with Section 23.1 of the PWSO Act, if Agency personnel discover that a Responsible Operator in Charge has violated Section 1.1(b)(3) of the PWSO Act, the Agency may serve an AC upon that individual. 

 

1)         The AC must be issued and served upon the AC Recipient not more than 90 days after the date of the discovery of the violation and must contain the following information:

 

A)        A statement specifying the report or result that the Responsible Operator in Charge failed to submit in accordance with Board rules and a citation to the Board rules that were violated;

 

B)        A copy of any report in which the Agency recorded the violation;

 

C)        The penalty imposed by Section 23.1(f) of the PWSO Act for the violation;

 

D)        Instructions for contesting the AC findings pursuant to Section 23.1 of the PWSO Act, including notification that the individual has 35 days within which to file a petition for review before the Board to contest the AC and, if an appeal is filed and the Board finds a violation, a statement that the AC Recipient may have to pay hearing costs under Section 108.500; and

 

E)        An affidavit by the personnel recording the violation. [415 ILCS 45/23.1(b)]

 

2)         The Agency must serve the AC upon the AC Recipient by personal service or certified mail. 

 

3)         The Agency must file the AC with the Board no later than 15 days after the date of service upon the AC Recipient.  [415 ILCS 45/23.1(c)]

 

(Source:  Amended at 41 Ill. Reg. 10172, effective July 5, 2017)

 

Section 108.202  Administrative Citation under the EPRR Act

 

a)         An AC under the Electronic Products Recycling and Reuse Act [415 ILCS 150] may be issued by either:

 

1)         The Agency under Section 20(k) of the EPRR Act; or

 

2)         A Delegated Unit under Section 20(k) of the EPRR Act.  The Agency, under Section 4(r) of the Act, may delegate its AC authority to a unit of local government, which may then issue an AC.  Under Section 20(k) of the EPRR Act, a Delegated Unit must be a county.  All Delegated Units must submit to the Clerk a copy of the delegation agreement on or before July 1 of every year.

 

b)         In accordance with Section 20(k) of the EPRR Act, the Agency or Delegated Unit may serve an AC upon any person believed, based on direct observation, to have violated any provision of the EPRR Act or the entity employing that person.

 

1)         The AC must be issued and served upon the AC Recipient not more than 60 days after the date of the observed violation and must contain the following information:

 

A)        A statement specifying the provisions of the EPRR Act that the person or the entity employing the person has violated;

 

B)        A copy of the inspection report in which the Agency or Delegated Unit recorded the violation; the report must include the date and time of inspection;

 

C)        The penalty imposed by Section 80 of the EPRR Act for the violations;

 

D)        An affidavit by the personnel observing the violation, attesting to their material actions and observations; and

 

E)        Instructions for contesting the AC findings, including notification that the AC Recipient has 35 days within which to file a petition to contest the AC.  [415 ILCS 150/20(k)]

 

2)         The Agency or Delegated Unit must serve the AC upon the AC Recipient as follows:

 

A)        Personal service;

 

B)        U.S. Mail with a recipient's signature recorded by the U.S. Postal Service upon delivery; or

 

C)        Third-party commercial carrier with a recipient's signature recorded by the third-party commercial carrier upon delivery. 

 

(Source:  Amended at 41 Ill. Reg. 10172, effective July 5, 2017)

 

Section 108.204  Filing Requirements for Petition to Contest

 

a)         Who May File.  The AC Recipient may file with the Board a petition to contest the AC.  The AC Recipient must be named as the respondent and the Agency or Delegated Unit must be named as the complainant.

 

b)         Time to File.  The petition to contest must be filed with the Board within 35 days after the date of the service of the AC.

 

c)         Additional Requirements.  Additional filing and service requirements are set forth at 35 Ill. Adm. Code 101.Subpart C.

 

(Source:  Amended at 39 Ill. Reg. 12921, effective September 8, 2015)

 

Section 108.206  Petition Contents

 

A formal petition to contest must include any reasons why the AC Recipient believes the AC was improperly issued, including:

 

a)         The AC Recipient did not cause or allow the alleged violations;

 

b)         The AC was not timely filed or properly served;  or

 

c)         The alleged violation was the result of uncontrollable circumstances.

 

(Source:  Amended at 39 Ill. Reg. 12921, effective September 8, 2015)

 

Section 108.208  AC Recipient's Voluntary Withdrawal

 

The AC Recipient may, at any time before entry of the Board decision, withdraw its petition to contest.  It must do so in writing or orally on the record at hearing.  If an AC Recipient withdraws its petition to contest, the Board will adopt an order in accordance with Section 108.406 of this Part.

SUBPART C: HEARINGS

 

Section 108.300  Authorization of Hearing

 

a)         The hearing date will be set within 60 days after the filing of the petition to contest unless the hearing officer orders otherwise to prevent material prejudice.

 

b)         The hearing officer will give the parties at least 21 days written notice of the hearing.

 

c)         The hearing will be held and conducted in accordance with 35 Ill. Adm. Code 101.Subpart F, including any hearing held by videoconference (see 35 Ill. Adm. Code 101.600(b)).

 

(Source:  Amended at 41 Ill. Reg. 10172, effective July 5, 2017)

SUBPART D: BOARD DECISIONS

 

Section 108.400  Burden of Proof

 

The burden of proof is on the Agency or Delegated Unit.

 

Section 108.402  Dismissal

 

The Board may issue an order dismissing the AC and closing the docket upon its own motion or a motion by the AC Recipient, Agency or Delegated Unit if the AC was not timely and properly served under the relevant statute and Section 108.200, 108.201 or 108.202.

 

(Source:  Amended at 41 Ill. Reg. 10172, effective July 5, 2017)

 

Section 108.404  Default

 

Failure of a party to appear at the hearing, or failure to proceed as ordered by the Board or hearing officer, may constitute default.  Upon default the Board will issue an order against the defaulting party.

 

Section 108.406  Non-Contested Citations

 

The Board will consider the AC non-contested if the AC Recipient does not file a petition to contest, fails to timely file a petition to contest, or withdraws its petition to contest under Section 108.208.

 

(Source:  Amended at 41 Ill. Reg. 10172, effective July 5, 2017)

SUBPART E: ASSESSMENT OF PENALTIES AND COSTS

 

Section 108.500  Penalties and Costs

 

a)         Unless the AC Recipient has shown that the violations resulted from uncontrollable circumstances, the Board will impose penalties as follows:

 

1)         For violations of the Act, the Board will impose penalties as set forth in Sections 42(b)(4) and 42(b)(4-5) of the Act.

 

2)         For violations of the PWSO Act, the Board will impose penalties as set forth in Section 23.1(f) of the PWSO Act.

 

3)         For violations of the EPRR Act, the Board will impose penalties as set forth in Section 80(j) of the EPRR Act.

 

b)         When the Board imposes penalties under subsection (a) following a finding of violation of the Act or the PWSO Act, the Board will assess the AC Recipient associated hearing costs, if any, under Sections 108.502 and 108.504.

 

(Source:  Amended at 41 Ill. Reg. 10172, effective July 5, 2017)

 

Section 108.502  Claimed Costs of Agency or Delegated Unit

 

Within 30 days after the close of the hearing or as otherwise directed by the hearing officer, the Agency or Delegated Unit must submit to the Clerk and serve on all parties an itemized listing of the costs associated with the hearing.  The costs must not include attorney's fees or witness fees for persons employed by the Agency or Delegated Unit.

 

(Source:  Amended at 41 Ill. Reg. 10172, effective July 5, 2017)

 

Section 108.504  Board Costs

 

At the beginning of every fiscal year the Board will place on file a schedule of hearing costs for AC cases.  The schedule will include a per day breakdown of the Board's costs for holding a hearing.  A copy will be available at the Board's offices and on the Board's Web site.

 

Section 108.506  Response to Claimed Costs and Reply

 

a)         The AC Recipient may challenge the claimed costs submitted by the Agency, Delegated Unit, or the Board by filing a response.  The response must be filed within 21 days after the service of the claimed costs and must be served on all parties.

 

b)         The Agency or Delegated Unit may file a reply to the AC Recipient's response to claimed costs within 14 days after the service of the response.

 

c)         The Board may hold an evidentiary hearing on hearing costs.