97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
SB1357

 

Introduced 2/8/2011, by Sen. A. J. Wilhelmi

 

SYNOPSIS AS INTRODUCED:
 
415 ILCS 5/31  from Ch. 111 1/2, par. 1031

    Amends the Environmental Protection Act. Requires the person complained against, when filing certain responses with the Environmental Protection Agency, to provide the proposed terms for a Compliance Commitment Agreement (CCA) rather than the proposed CCA. Requires the Agency to provide the proposed CCA or a notice that certain violations cannot be resolved without the involvement of the Office of the Attorney General or the State's Attorney of the county in which the alleged violation occurred (now, the party complained against provides the proposed CCA). Authorizes the Agency's proposed CCA to include a proposed administrative penalty of not more than $10,000. Requires the person complained against to accept or reject the proposed CCA within 30 days after receiving it. Provides that if the person complained against fails to respond to the proposed CCA within that time frame, then the proposed CCA is deemed rejected by operation of law. Authorizes written amendments to CCAs. Prohibits violations of CCAs. Grants the Agency certain rulemaking authority. Makes technical changes. Effective immediately.


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CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY
FISCAL NOTE ACT MAY APPLY

 

 

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 31 as follows:
 
6    (415 ILCS 5/31)  (from Ch. 111 1/2, par. 1031)
7    Sec. 31. Notice; complaint; hearing.
8    (a)(1) Within 180 days after of becoming aware of an
9    alleged violation of the Act, or any rule adopted under the
10    Act, or of a permit granted by the Agency, or a condition
11    of such a the permit, the Agency shall issue and serve, by
12    certified mail, upon the person complained against a
13    written notice informing that person that the Agency has
14    evidence of the alleged violation. At a minimum, the
15    written notice shall contain:
16            (A) a notification to the person complained
17        against of the requirement to submit a written response
18        addressing the violations alleged and the option to
19        meet with appropriate agency personnel to resolve any
20        alleged violations that could lead to the filing of a
21        formal complaint;
22            (B) a detailed explanation by the Agency of the
23        violations alleged;

 

 

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1            (C) an explanation by the Agency of the actions
2        that the Agency believes may resolve the alleged
3        violations, including an estimate of a reasonable time
4        period for the person complained against to complete
5        the suggested resolution; and
6            (D) an explanation of any alleged violation that
7        the Agency believes cannot be resolved without the
8        involvement of the Office of the Illinois Attorney
9        General or the State's Attorney of the county in which
10        the alleged violation occurred and the basis for the
11        Agency's belief.
12        (2) A written response to the violations alleged shall
13    be submitted to the Agency, by certified mail, within 45
14    days after of receipt of notice by the person complained
15    against, unless the Agency agrees to an extension. The
16    written response shall include:
17            (A) information in rebuttal, explanation or
18        justification of each alleged violation;
19            (B) proposed terms for a proposed Compliance
20        Commitment Agreement that includes specified times for
21        achieving each commitment and which may consist of a
22        statement indicating that the person complained
23        against believes that compliance has been achieved;
24        and
25            (C) a request for a meeting with appropriate Agency
26        personnel if a meeting is desired by the person

 

 

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1        complained against.
2        (3) If the person complained against fails to respond
3    in accordance with the requirements of subdivision (2) of
4    this subsection (a), the failure to respond shall be
5    considered a waiver of the requirements of this subsection
6    (a) and nothing in this Section shall preclude the Agency
7    from proceeding pursuant to subsection (b) of this Section.
8        (4) A meeting requested pursuant to subdivision (2) of
9    this subsection (a) shall be held without a representative
10    of the Office of the Illinois Attorney General or the
11    State's Attorney of the county in which the alleged
12    violation occurred, within 60 days after of receipt of
13    notice by the person complained against, unless the Agency
14    agrees to a postponement. At the meeting, the Agency shall
15    provide an opportunity for the person complained against to
16    respond to each alleged violation, suggested resolution,
17    and suggested implementation time frame, and to suggest
18    alternate resolutions.
19        (5) If a meeting requested pursuant to subdivision (2)
20    of this subsection (a) is held, the person complained
21    against shall, within 21 days following the meeting or
22    within an extended time period as agreed to by the Agency,
23    submit by certified mail to the Agency a written response
24    to the alleged violations. The written response shall
25    include:
26            (A) additional information in rebuttal,

 

 

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1        explanation, or justification of each alleged
2        violation;
3            (B) proposed terms for a proposed Compliance
4        Commitment Agreement that includes specified times for
5        achieving each commitment and which may consist of a
6        statement indicating that the person complained
7        against believes that compliance has been achieved;
8        and
9            (C) a statement indicating that, should the person
10        complained against so wish, the person complained
11        against chooses to rely upon the initial written
12        response submitted pursuant to subdivision (2) of this
13        subsection (a).
14        (6) If the person complained against fails to respond
15    in accordance with the requirements of subdivision (5) of
16    this subsection (a), the failure to respond shall be
17    considered a waiver of the requirements of this subsection
18    (a) and nothing in this Section shall preclude the Agency
19    from proceeding pursuant to subsection (b) of this Section.
20        (7) Within 30 days after of the Agency's receipt of a
21    written response submitted by the person complained
22    against pursuant to subdivision (2) of this subsection (a),
23    if a meeting is not requested, or pursuant to subdivision
24    (5) of this subsection (a), if a meeting is held, or within
25    a later time period as agreed to by the Agency and the
26    person complained against, the Agency shall issue and

 

 

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1    serve, by certified mail, upon the person complained
2    against (i) a written notice informing the person of its
3    acceptance, rejection, or proposed modification to the
4    proposed Compliance Commitment Agreement or (ii) a notice
5    that one or more violations cannot be resolved without the
6    involvement of the Office of the Attorney General or the
7    State's Attorney of the county in which the alleged
8    violation occurred and that no proposed Compliance
9    Commitment Agreement will be issued by the Agency for those
10    violations. The Agency shall include terms and conditions
11    in the proposed Compliance Commitment Agreement that are,
12    in its discretion, necessary to bring the person complained
13    against into compliance with the Act, any rule adopted
14    under the Act, any permit granted by the Agency, or any
15    condition of such a permit. The Agency shall take into
16    consideration the proposed terms for the proposed
17    Compliance Commitment Agreement that were provided under
18    subdivision (a)(2)(B) or (a)(5)(B) of this Section by the
19    person complained against. In addition, the Agency may
20    include in the proposed Compliance Commitment Agreement a
21    proposed administrative penalty not to exceed $10,000,
22    payable to the Environmental Protection Trust Fund. The
23    administrative penalty shall be based on the type of
24    violations, the length of time during which the violations
25    occurred, and the potential risk to human health and the
26    environment caused by the violations as contained within

 

 

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1    the written response.
2        (7.5) Within 30 days after the receipt of the Agency's
3    proposed Compliance Commitment Agreement by the person
4    complained against, the person shall either (i) agree to
5    and sign the proposed Compliance Commitment Agreement
6    provided by the Agency and submit the signed Compliance
7    Commitment Agreement, along with the specified agreed
8    administrative penalty payable to the Environmental
9    Protection Trust Fund, to the Agency by certified mail or
10    (ii) notify the Agency in writing by certified mail of the
11    person's rejection of the proposed Compliance Commitment
12    Agreement. If the person complained against fails to
13    respond to the proposed Compliance Commitment Agreement
14    within 30 days as required under this paragraph, the
15    proposed Compliance Commitment Agreement is deemed
16    rejected by operation of law. Any Compliance Commitment
17    Agreement entered into under item (i) of this paragraph may
18    be amended in writing by mutual agreement between the
19    Agency and the signatory to the Compliance Commitment
20    Agreement, the signatory's legal representative, or the
21    signatory's agent.
22        (7.6) No person shall violate the terms or conditions
23    of a Compliance Commitment Agreement entered into under
24    subdivision (a)(7.5)(i) of this Section.
25        (8) Nothing in this subsection (a) is intended to
26    require the Agency to enter into Compliance Commitment

 

 

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1    Agreements for any alleged violation that the Agency
2    believes cannot be resolved without the involvement of the
3    Office of the Attorney General or the State's Attorney of
4    the county in which the alleged violation occurred, for,
5    among other purposes, the imposition of statutory
6    penalties.
7        (9) The Agency's failure to respond within 30 days to a
8    written response submitted pursuant to subdivision (2) of
9    this subsection (a), if a meeting is not requested, or
10    pursuant to subdivision (5) of this subsection (a), if a
11    meeting is held, within 30 days, or within the time period
12    otherwise agreed to in writing by the Agency and the person
13    complained against, shall be deemed an acceptance by the
14    Agency of the proposed terms of the Compliance Commitment
15    Agreement for the violations alleged in the written notice
16    issued under subdivision (1) of this subsection (a) as
17    contained within the written response.
18        (10) If the person complained against complies with the
19    terms of a Compliance Commitment Agreement accepted
20    pursuant to this subsection (a), the Agency shall not refer
21    the alleged violations which are the subject of the
22    Compliance Commitment Agreement to the Office of the
23    Illinois Attorney General or the State's Attorney of the
24    county in which the alleged violation occurred. However,
25    nothing in this subsection is intended to preclude the
26    Agency from continuing negotiations with the person

 

 

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1    complained against or from proceeding pursuant to the
2    provisions of subsection (b) of this Section for alleged
3    violations that which remain the subject of disagreement
4    between the Agency and the person complained against
5    following fulfillment of the requirements of this
6    subsection (a).
7        (11) Nothing in this subsection (a) is intended to
8    preclude the person complained against from submitting to
9    the Agency, by certified mail, at any time, notification
10    that the person complained against consents to waiver of
11    the requirements of subsections (a) and (b) of this
12    Section.
13        (12) Agreed administrative penalties paid to the
14    Environmental Protection Trust Fund under this Section
15    shall be used in accordance with the provisions of the
16    Environmental Protection Trust Fund Act.
17        (13) The Agency shall have the authority to adopt rules
18    for the administration of subsection (a) of this Section.
19    The rules shall be adopted in accordance with the
20    provisions of the Illinois Administrative Procedure Act.
21    (b) For alleged violations that remain the subject of
22disagreement between the Agency and the person complained
23against following fulfillment of the requirements of
24subsection (a) of this Section, and as a precondition to the
25Agency's referral or request to the Office of the Illinois
26Attorney General or the State's Attorney of the county in which

 

 

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1the alleged violation occurred for legal representation
2regarding an alleged violation that may be addressed pursuant
3to subsection (c) or (d) of this Section or pursuant to Section
442 of this Act, the Agency shall issue and serve, by certified
5mail, upon the person complained against a written notice
6informing that person that the Agency intends to pursue legal
7action. Such notice shall notify the person complained against
8of the violations to be alleged and offer the person an
9opportunity to meet with appropriate Agency personnel in an
10effort to resolve any alleged violations that could lead to the
11filing of a formal complaint. The meeting with Agency personnel
12shall be held within 30 days after of receipt of notice served
13pursuant to this subsection upon the person complained against,
14unless the Agency agrees to a postponement or the person
15notifies the Agency that he or she will not appear at a meeting
16within the 30-day time period. Nothing in this subsection is
17intended to preclude the Agency from following the provisions
18of subsection (c) or (d) of this Section or from requesting the
19legal representation of the Office of the Illinois Attorney
20General or the State's Attorney of the county in which the
21alleged violations occurred for alleged violations which
22remain the subject of disagreement between the Agency and the
23person complained against after the provisions of this
24subsection are fulfilled.
25     (c)(1) For alleged violations which remain the subject of
26    disagreement between the Agency and the person complained

 

 

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1    against following waiver, pursuant to subdivision (10) of
2    subsection (a) of this Section, or fulfillment of the
3    requirements of subsections (a) and (b) of this Section,
4    the Office of the Illinois Attorney General or the State's
5    Attorney of the county in which the alleged violation
6    occurred shall issue and serve upon the person complained
7    against a written notice, together with a formal complaint,
8    which shall specify the provision of the Act, or the rule,
9    or regulation, or permit, or term or condition thereof
10    under which such person is said to be in violation, and a
11    statement of the manner in, and the extent to which such
12    person is said to violate the Act, or such rule, or
13    regulation, or permit, or term or condition thereof and
14    shall require the person so complained against to answer
15    the charges of such formal complaint at a hearing before
16    the Board at a time not less than 21 days after the date of
17    notice by the Board, except as provided in Section 34 of
18    this Act. Such complaint shall be accompanied by a
19    notification to the defendant that financing may be
20    available, through the Illinois Environmental Facilities
21    Financing Act, to correct such violation. A copy of such
22    notice of such hearings shall also be sent to any person
23    that has complained to the Agency respecting the respondent
24    within the six months preceding the date of the complaint,
25    and to any person in the county in which the offending
26    activity occurred that has requested notice of enforcement

 

 

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1    proceedings; 21 days notice of such hearings shall also be
2    published in a newspaper of general circulation in such
3    county. The respondent may file a written answer, and at
4    such hearing the rules prescribed in Sections 32 and 33 of
5    this Act shall apply. In the case of actual or threatened
6    acts outside Illinois contributing to environmental damage
7    in Illinois, the extraterritorial service-of-process
8    provisions of Sections 2-208 and 2-209 of the Code of Civil
9    Procedure shall apply.
10        With respect to notices served pursuant to this
11    subsection (c)(1) that which involve hazardous material or
12    wastes in any manner, the Agency shall annually publish a
13    list of all such notices served. The list shall include the
14    date the investigation commenced, the date notice was sent,
15    the date the matter was referred to the Attorney General,
16    if applicable, and the current status of the matter.
17        (2) Notwithstanding the provisions of subdivision (1)
18    of this subsection (c), whenever a complaint has been filed
19    on behalf of the Agency or by the People of the State of
20    Illinois, the parties may file with the Board a stipulation
21    and proposal for settlement accompanied by a request for
22    relief from the requirement of a hearing pursuant to
23    subdivision (1). Unless the Board, in its discretion,
24    concludes that a hearing will be held, the Board shall
25    cause notice of the stipulation, proposal and request for
26    relief to be published and sent in the same manner as is

 

 

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1    required for hearing pursuant to subdivision (1) of this
2    subsection. The notice shall include a statement that any
3    person may file a written demand for hearing within 21 days
4    after receiving the notice. If any person files a timely
5    written demand for hearing, the Board shall deny the
6    request for relief from a hearing and shall hold a hearing
7    in accordance with the provisions of subdivision (1).
8        (3) Notwithstanding the provisions of subdivision (1)
9    of this subsection (c), if the Agency becomes aware of a
10    violation of this Act arising from, or as a result of,
11    voluntary pollution prevention activities, the Agency
12    shall not proceed with the written notice required by
13    subsection (a) of this Section unless:
14            (A) the person fails to take corrective action or
15        eliminate the reported violation within a reasonable
16        time; or
17            (B) the Agency believes that the violation poses a
18        substantial and imminent danger to the public health or
19        welfare or the environment. For the purposes of this
20        item (B), "substantial and imminent danger" means a
21        danger with a likelihood of serious or irreversible
22        harm.
23        (d)(1) Any person may file with the Board a complaint,
24    meeting the requirements of subsection (c) of this Section,
25    against any person allegedly violating this Act, any rule
26    or regulation adopted under this Act, any permit or term or

 

 

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1    condition of a permit, or any Board order. The complainant
2    shall immediately serve a copy of such complaint upon the
3    person or persons named therein. Unless the Board
4    determines that such complaint is duplicative or
5    frivolous, it shall schedule a hearing and serve written
6    notice thereof upon the person or persons named therein, in
7    accord with subsection (c) of this Section.
8        (2) Whenever a complaint has been filed by a person
9    other than the Attorney General or the State's Attorney,
10    the parties may file with the Board a stipulation and
11    proposal for settlement accompanied by a request for relief
12    from the hearing requirement of subdivision (c)(1) of this
13    Section. Unless the Board, in its discretion, concludes
14    that a hearing should be held, no hearing on the
15    stipulation and proposal for settlement is required.
16    (e) In hearings before the Board under this Title the
17burden shall be on the Agency or other complainant to show
18either that the respondent has caused or threatened to cause
19air or water pollution or that the respondent has violated or
20threatens to violate any provision of this Act or any rule or
21regulation of the Board or permit or term or condition thereof.
22If such proof has been made, the burden shall be on the
23respondent to show that compliance with the Board's regulations
24would impose an arbitrary or unreasonable hardship.
25    (f) The provisions of this Section shall not apply to
26administrative citation actions commenced under Section 31.1

 

 

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1of this Act.
2(Source: P.A. 92-574, eff. 6-26-02; 93-152, eff. 7-10-03.)
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.