103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB3628

 

Introduced 2/17/2023, by Rep. Nicholas K. Smith

 

SYNOPSIS AS INTRODUCED:
 
415 ILCS 5/42  from Ch. 111 1/2, par. 1042

    Amends the Environmental Protection Act. To the extent allowed under federal law, caps the civil penalties that can be levied against a municipality for NPDES-related violations of the Act at $50,000. Provides that, if the Agency brings an enforcement action under the Act against a municipality for an NPDES-related violation, then it is the affirmative obligation of the Environmental Protection Agency (i) to provide the municipality with all technical assistance requested by the municipality and necessary to resolve the environmental condition that is responsible for the violation and (ii) to make available to the municipality financial assistance that the Agency is authorized under State or federal law to supply to the municipality to resolve that condition. Requires the Agency, before seeking civil penalties against a municipality under the Act or before taking any other legal action against a municipality under this Act, to hold a public hearing within the municipality to explain the rationale for the enforcement action. Requires public notice of the meeting to be published by the Agency in a newspaper of general circulation in the affected municipality.


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A BILL FOR

 

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1    AN ACT concerning safety.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Environmental Protection Act is amended by
5changing Section 42 as follows:
 
6    (415 ILCS 5/42)  (from Ch. 111 1/2, par. 1042)
7    Sec. 42. Civil penalties.
8    (a) Except as provided in this Section, any person that
9violates any provision of this Act or any regulation adopted
10by the Board, or any permit or term or condition thereof, or
11that violates any order of the Board pursuant to this Act,
12shall be liable for a civil penalty of not to exceed $50,000
13for the violation and an additional civil penalty of not to
14exceed $10,000 for each day during which the violation
15continues; such penalties may, upon order of the Board or a
16court of competent jurisdiction, be made payable to the
17Environmental Protection Trust Fund, to be used in accordance
18with the provisions of the Environmental Protection Trust Fund
19Act.
20    (b) Notwithstanding the provisions of subsection (a) of
21this Section:
22        (1) Any person that violates Section 12(f) of this Act
23    or any NPDES permit or term or condition thereof, or any

 

 

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1    filing requirement, regulation or order relating to the
2    NPDES permit program, shall be liable to a civil penalty
3    of not to exceed $10,000 per day of violation.
4        (2) Any person that violates Section 12(g) of this Act
5    or any UIC permit or term or condition thereof, or any
6    filing requirement, regulation or order relating to the
7    State UIC program for all wells, except Class II wells as
8    defined by the Board under this Act, shall be liable to a
9    civil penalty not to exceed $2,500 per day of violation;
10    provided, however, that any person who commits such
11    violations relating to the State UIC program for Class II
12    wells, as defined by the Board under this Act, shall be
13    liable to a civil penalty of not to exceed $10,000 for the
14    violation and an additional civil penalty of not to exceed
15    $1,000 for each day during which the violation continues.
16        (3) Any person that violates Sections 21(f), 21(g),
17    21(h) or 21(i) of this Act, or any RCRA permit or term or
18    condition thereof, or any filing requirement, regulation
19    or order relating to the State RCRA program, shall be
20    liable to a civil penalty of not to exceed $25,000 per day
21    of violation.
22        (4) In an administrative citation action under Section
23    31.1 of this Act, any person found to have violated any
24    provision of subsection (o) of Section 21 of this Act
25    shall pay a civil penalty of $500 for each violation of
26    each such provision, plus any hearing costs incurred by

 

 

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1    the Board and the Agency. Such penalties shall be made
2    payable to the Environmental Protection Trust Fund, to be
3    used in accordance with the provisions of the
4    Environmental Protection Trust Fund Act; except that if a
5    unit of local government issued the administrative
6    citation, 50% of the civil penalty shall be payable to the
7    unit of local government.
8        (4-5) In an administrative citation action under
9    Section 31.1 of this Act, any person found to have
10    violated any provision of subsection (p) of Section 21,
11    Section 22.38, Section 22.51, Section 22.51a, or
12    subsection (k) of Section 55 of this Act shall pay a civil
13    penalty of $1,500 for each violation of each such
14    provision, plus any hearing costs incurred by the Board
15    and the Agency, except that the civil penalty amount shall
16    be $3,000 for each violation of any provision of
17    subsection (p) of Section 21, Section 22.38, Section
18    22.51, Section 22.51a, or subsection (k) of Section 55
19    that is the person's second or subsequent adjudication
20    violation of that provision. The penalties shall be
21    deposited into the Environmental Protection Trust Fund, to
22    be used in accordance with the provisions of the
23    Environmental Protection Trust Fund Act; except that if a
24    unit of local government issued the administrative
25    citation, 50% of the civil penalty shall be payable to the
26    unit of local government.

 

 

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1        (5) Any person who violates subsection 6 of Section
2    39.5 of this Act or any CAAPP permit, or term or condition
3    thereof, or any fee or filing requirement, or any duty to
4    allow or carry out inspection, entry or monitoring
5    activities, or any regulation or order relating to the
6    CAAPP shall be liable for a civil penalty not to exceed
7    $10,000 per day of violation.
8        (6) Any owner or operator of a community water system
9    that violates subsection (b) of Section 18.1 or subsection
10    (a) of Section 25d-3 of this Act shall, for each day of
11    violation, be liable for a civil penalty not to exceed $5
12    for each of the premises connected to the affected
13    community water system.
14        (7) Any person who violates Section 52.5 of this Act
15    shall be liable for a civil penalty of up to $1,000 for the
16    first violation of that Section and a civil penalty of up
17    to $2,500 for a second or subsequent violation of that
18    Section.
19    (b.5) In lieu of the penalties set forth in subsections
20(a) and (b) of this Section, any person who fails to file, in a
21timely manner, toxic chemical release forms with the Agency
22pursuant to Section 25b-2 of this Act shall be liable for a
23civil penalty of $100 per day for each day the forms are late,
24not to exceed a maximum total penalty of $6,000. This daily
25penalty shall begin accruing on the thirty-first day after the
26date that the person receives the warning notice issued by the

 

 

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1Agency pursuant to Section 25b-6 of this Act; and the penalty
2shall be paid to the Agency. The daily accrual of penalties
3shall cease as of January 1 of the following year. All
4penalties collected by the Agency pursuant to this subsection
5shall be deposited into the Environmental Protection Permit
6and Inspection Fund.
7    (b.7) Unless required by federal law, no more than $50,000
8in civil penalties may be imposed under this Section or any
9other provision of this Act against a municipality for
10violations of Section 12(f), violations of NPDES permit terms
11and conditions, and violations of NPDES permit program rules.
12If the Agency brings an enforcement action under this Act
13against a municipality for a violation of Section 12(f), a
14violation of an NPDES permit term or condition, or a violation
15of an NPDES permit program rule, it is the affirmative
16obligation of the Agency (i) to provide the municipality with
17all technical assistance requested by the municipality and
18necessary to resolve the environmental condition that is
19responsible for the violation and (ii) to make available to
20the municipality financial assistance that the Agency is
21authorized under State or federal law to supply to the
22municipality to resolve that condition. Furthermore, before
23seeking civil penalties against a municipality under this Act
24or before taking any other legal action against a municipality
25under this Act, the Agency shall hold a public hearing within
26the municipality to explain the rationale for the enforcement

 

 

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1action. Public notice of the meeting shall be provided by
2publication of an advertisement in a newspaper of general
3circulation in the affected municipality.
4    (c) Any person that violates this Act, any rule or
5regulation adopted under this Act, any permit or term or
6condition of a permit, or any Board order and causes the death
7of fish or aquatic life shall, in addition to the other
8penalties provided by this Act, be liable to pay to the State
9an additional sum for the reasonable value of the fish or
10aquatic life destroyed. Any money so recovered shall be placed
11in the Wildlife and Fish Fund in the State Treasury.
12    (d) The penalties provided for in this Section may be
13recovered in a civil action.
14    (e) The State's Attorney of the county in which the
15violation occurred, or the Attorney General, may, at the
16request of the Agency or on his own motion, institute a civil
17action for an injunction, prohibitory or mandatory, to
18restrain violations of this Act, any rule or regulation
19adopted under this Act, any permit or term or condition of a
20permit, or any Board order, or to require such other actions as
21may be necessary to address violations of this Act, any rule or
22regulation adopted under this Act, any permit or term or
23condition of a permit, or any Board order.
24    (f) The State's Attorney of the county in which the
25violation occurred, or the Attorney General, shall bring such
26actions in the name of the people of the State of Illinois.

 

 

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1Without limiting any other authority which may exist for the
2awarding of attorney's fees and costs, the Board or a court of
3competent jurisdiction may award costs and reasonable
4attorney's fees, including the reasonable costs of expert
5witnesses and consultants, to the State's Attorney or the
6Attorney General in a case where he has prevailed against a
7person who has committed a willful, knowing, or repeated
8violation of this Act, any rule or regulation adopted under
9this Act, any permit or term or condition of a permit, or any
10Board order.
11    Any funds collected under this subsection (f) in which the
12Attorney General has prevailed shall be deposited in the
13Hazardous Waste Fund created in Section 22.2 of this Act. Any
14funds collected under this subsection (f) in which a State's
15Attorney has prevailed shall be retained by the county in
16which he serves.
17    (g) All final orders imposing civil penalties pursuant to
18this Section shall prescribe the time for payment of such
19penalties. If any such penalty is not paid within the time
20prescribed, interest on such penalty at the rate set forth in
21subsection (a) of Section 1003 of the Illinois Income Tax Act,
22shall be paid for the period from the date payment is due until
23the date payment is received. However, if the time for payment
24is stayed during the pendency of an appeal, interest shall not
25accrue during such stay.
26    (h) In determining the appropriate civil penalty to be

 

 

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1imposed under subdivisions (a), (b)(1), (b)(2), (b)(3),
2(b)(5), (b)(6), or (b)(7) of this Section, the Board is
3authorized to consider any matters of record in mitigation or
4aggravation of penalty, including, but not limited to, the
5following factors:
6        (1) the duration and gravity of the violation;
7        (2) the presence or absence of due diligence on the
8    part of the respondent in attempting to comply with
9    requirements of this Act and regulations thereunder or to
10    secure relief therefrom as provided by this Act;
11        (3) any economic benefits accrued by the respondent
12    because of delay in compliance with requirements, in which
13    case the economic benefits shall be determined by the
14    lowest cost alternative for achieving compliance;
15        (4) the amount of monetary penalty which will serve to
16    deter further violations by the respondent and to
17    otherwise aid in enhancing voluntary compliance with this
18    Act by the respondent and other persons similarly subject
19    to the Act;
20        (5) the number, proximity in time, and gravity of
21    previously adjudicated violations of this Act by the
22    respondent;
23        (6) whether the respondent voluntarily self-disclosed,
24    in accordance with subsection (i) of this Section, the
25    non-compliance to the Agency;
26        (7) whether the respondent has agreed to undertake a

 

 

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1    "supplemental environmental project", which means an
2    environmentally beneficial project that a respondent
3    agrees to undertake in settlement of an enforcement action
4    brought under this Act, but which the respondent is not
5    otherwise legally required to perform; and
6        (8) whether the respondent has successfully completed
7    a Compliance Commitment Agreement under subsection (a) of
8    Section 31 of this Act to remedy the violations that are
9    the subject of the complaint.
10    In determining the appropriate civil penalty to be imposed
11under subsection (a) or paragraph (1), (2), (3), (5), (6), or
12(7) of subsection (b) of this Section, the Board shall ensure,
13in all cases, that the penalty is at least as great as the
14economic benefits, if any, accrued by the respondent as a
15result of the violation, unless the Board finds that
16imposition of such penalty would result in an arbitrary or
17unreasonable financial hardship. However, such civil penalty
18may be off-set in whole or in part pursuant to a supplemental
19environmental project agreed to by the complainant and the
20respondent.
21    (i) A person who voluntarily self-discloses non-compliance
22to the Agency, of which the Agency had been unaware, is
23entitled to a 100% reduction in the portion of the penalty that
24is not based on the economic benefit of non-compliance if the
25person can establish the following:
26        (1) that either the regulated entity is a small entity

 

 

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1    or the non-compliance was discovered through an
2    environmental audit or a compliance management system
3    documented by the regulated entity as reflecting the
4    regulated entity's due diligence in preventing, detecting,
5    and correcting violations;
6        (2) that the non-compliance was disclosed in writing
7    within 30 days of the date on which the person discovered
8    it;
9        (3) that the non-compliance was discovered and
10    disclosed prior to:
11            (i) the commencement of an Agency inspection,
12        investigation, or request for information;
13            (ii) notice of a citizen suit;
14            (iii) the filing of a complaint by a citizen, the
15        Illinois Attorney General, or the State's Attorney of
16        the county in which the violation occurred;
17            (iv) the reporting of the non-compliance by an
18        employee of the person without that person's
19        knowledge; or
20            (v) imminent discovery of the non-compliance by
21        the Agency;
22        (4) that the non-compliance is being corrected and any
23    environmental harm is being remediated in a timely
24    fashion;
25        (5) that the person agrees to prevent a recurrence of
26    the non-compliance;

 

 

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1        (6) that no related non-compliance events have
2    occurred in the past 3 years at the same facility or in the
3    past 5 years as part of a pattern at multiple facilities
4    owned or operated by the person;
5        (7) that the non-compliance did not result in serious
6    actual harm or present an imminent and substantial
7    endangerment to human health or the environment or violate
8    the specific terms of any judicial or administrative order
9    or consent agreement;
10        (8) that the person cooperates as reasonably requested
11    by the Agency after the disclosure; and
12        (9) that the non-compliance was identified voluntarily
13    and not through a monitoring, sampling, or auditing
14    procedure that is required by statute, rule, permit,
15    judicial or administrative order, or consent agreement.
16    If a person can establish all of the elements under this
17subsection except the element set forth in paragraph (1) of
18this subsection, the person is entitled to a 75% reduction in
19the portion of the penalty that is not based upon the economic
20benefit of non-compliance.
21    For the purposes of this subsection (i), "small entity"
22has the same meaning as in Section 221 of the federal Small
23Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
24601).
25    (j) In addition to any other remedy or penalty that may
26apply, whether civil or criminal, any person who violates

 

 

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1Section 22.52 of this Act shall be liable for an additional
2civil penalty of up to 3 times the gross amount of any
3pecuniary gain resulting from the violation.
4    (k) In addition to any other remedy or penalty that may
5apply, whether civil or criminal, any person who violates
6subdivision (a)(7.6) of Section 31 of this Act shall be liable
7for an additional civil penalty of $2,000.
8(Source: P.A. 102-310, eff. 8-6-21.)