Ill. Admin. Code tit. 62, § 1773.25 - Standards for Challenging Ownership or Control Links and the Status Violations
a) The
provisions of this Section shall apply whenever a person has and exercises a
right, under the provisions of Section
1773.20,
1773.21,
1773.23
or
1773.24,
to challenge an ownership or control link to any person and/or the status of
any violation covered by a notice.
b) Agencies Responsible
1) Except as provided in subsection (b)(3):
A) The regulatory authority before which an
application is pending shall have responsibility for making decisions with
respect to ownership or control relationships of the application.
B) The regulatory authority that issued a
permit shall have responsibility for making decisions with respect to the
ownership or control relationships of the permit.
C) The regulatory authority for the State
that issued a State violation notice shall have responsibility for making
decisions with respect to the ownership or control relationship of the
violation.
D) The regulatory agency
that issued a violation notice, whether State or federal, shall have
responsibility for making decisions concerning the status of the violation
covered by the notice, i.e., whether the violation remains outstanding, has
been corrected, is in the process of being corrected, or is the subject of a
good faith appeal, within the meaning of Section
1773.15(b)(1).
2) OSM shall have responsibility
for making decisions with respect to the ownership or control relationships of
a federal violation notice.
3) With
respect to information shown on AVS, the responsibilities referred to in
subsection (b)(1) shall be subject to the plenary authority of OSM to review
any State regulatory authority decision regarding an ownership or control
link.
4) With respect to ownership
or control information that has not been entered into AVS by the State and with
respect to information shown on AVS relating to the status of a violation,
State regulatory authorities' determinations are subject to OSM's program
authority oversight under 30 CFR 733, 842 and 843.
c) Evidentiary Standards
1) In any formal or informal review of an
ownership or control link or of the status of a violation covered by a
violation notice, the responsible agency shall make a prima facie determination
or showing that the link exists or existed during the relevant period, and/or
that the violation covered by the notice remains outstanding. Once a prima
facie determination or showing has been made, the person challenging the link
or the status of the violation shall have the burden of proving by a
preponderance of the evidence, with respect to any relevant time period, that:
A) The facts relied upon by the responsible
agency to establish ownership or control or a presumption of ownership or
control under the definition of "owned or controlled" or "owns or controls" in
Section
1773.5, do not or did
not exist;
B) A person subject to a
presumption of ownership or control under the definition of "owned or
controlled" or "owns or controls" in Section
1773.5 does not or
did not in fact have the authority directly or indirectly to determine the
manner in which surface coal mining operations are or were conducted;
or
C) The violation covered by the
violation notice did not exist, has been corrected, is in the process of being
corrected, or is the subject of a good faith appeal within the meaning of
Section
1773.15(b)(1),
provided that the existence of the violation at the time it was cited may not
be challenged, under the provisions of Section 1773.24, by the following
persons:
i) A permittee, unless the challenge
is made by the permittee within the context of Section
1773.20
and 1773.21;
ii) Any person who had
a prior opportunity to challenge the violation notice and failed to do so in a
timely manner; or
iii) Any person
who is bound by a prior administrative or judicial determination concerning the
existence of the violation.
2) In meeting the burden of proof set forth
in subsection (c)(1), the persons challenging the ownership or control link or
the status of the violation shall present probative, reliable and substantial
evidence and any supporting explanatory materials, which may, if before the
responsible agency, include:
A) Affidavits
setting forth:
i) specific facts concerning
the scope of responsibility of the various owners or controllers of an
applicant, permittee, or any person cited in a violation notice; the duties
actually performed by the owners or controllers; the beginning and ending dates
of the owners' or controllers' affiliation with the applicant, permittee, or
person cited in a violation notice; and the nature and details of any
transaction creating or severing an ownership or control link; or
ii) specific facts concerning the status of
the violation.
B)
Certified copies of corporate minutes, stock ledgers, contracts, purchase and
sale agreements, leases, correspondence or other relevant company
records;
C) Certified copies of
documents filed with or issued by any State, municipal or federal governmental
agency;
D) An opinion of counsel,
when supportive by:
i) Evidentiary
materials;
ii) A statement by
counsel that he or she is qualified to render the opinion; and
iii) A statement that counsel has personally
and diligently investigated the facts of the matter or, when counsel has not so
investigated the facts, a statement that the opinion is based upon information
that has been supplied to counsel and that is assumed to be true;
E) If before any administrative or
judicial tribunal reviewing the decision of the responsible agency, any
evidence admissible under the rules of that tribunal.
d) Following any determination by
a State regulatory authority or other State agency, or any decision by an
administrative or judicial tribunal reviewing the determination, the State
regulatory authority shall review the information in AVS to determine if it is
consistent with the determination or decision. If it is not, the State
regulatory authority shall promptly inform OSM and request that the AVS
information be revised to reflect the determination or decision.
Notes
Added at 20 Ill. Reg. 2090, effective January 19, 1996
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