Sen. A. J. Wilhelmi

Filed: 4/11/2011

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1357

2    AMENDMENT NO. ______. Amend Senate Bill 1357 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Environmental Protection Act is amended by
5changing Sections 31 and 42 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

 

 

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1        against of the requirement to submit a written response
2        addressing the violations alleged and the option to
3        meet with appropriate agency personnel to resolve any
4        alleged violations that could lead to the filing of a
5        formal complaint;
6            (B) a detailed explanation by the Agency of the
7        violations alleged;
8            (C) an explanation by the Agency of the actions
9        that the Agency believes may resolve the alleged
10        violations, including an estimate of a reasonable time
11        period for the person complained against to complete
12        the suggested resolution; and
13            (D) an explanation of any alleged violation that
14        the Agency believes cannot be resolved without the
15        involvement of the Office of the Illinois Attorney
16        General or the State's Attorney of the county in which
17        the alleged violation occurred and the basis for the
18        Agency's belief.
19        (2) A written response to the violations alleged shall
20    be submitted to the Agency, by certified mail, within 45
21    days after of receipt of notice by the person complained
22    against, unless the Agency agrees to an extension. The
23    written response shall include:
24            (A) information in rebuttal, explanation or
25        justification of each alleged violation;
26            (B) if the person complained against desires to

 

 

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1        enter into a Compliance Commitment Agreement, proposed
2        terms for a proposed Compliance Commitment Agreement
3        that includes specified times for achieving each
4        commitment and which may consist of a statement
5        indicating that the person complained against believes
6        that compliance has been achieved; and
7            (C) a request for a meeting with appropriate Agency
8        personnel if a meeting is desired by the person
9        complained against.
10        (3) If the person complained against fails to respond
11    in accordance with the requirements of subdivision (2) of
12    this subsection (a), the failure to respond shall be
13    considered a waiver of the requirements of this subsection
14    (a) and nothing in this Section shall preclude the Agency
15    from proceeding pursuant to subsection (b) of this Section.
16        (4) A meeting requested pursuant to subdivision (2) of
17    this subsection (a) shall be held without a representative
18    of the Office of the Illinois Attorney General or the
19    State's Attorney of the county in which the alleged
20    violation occurred, within 60 days after of receipt of
21    notice by the person complained against, unless the Agency
22    agrees to a postponement. At the meeting, the Agency shall
23    provide an opportunity for the person complained against to
24    respond to each alleged violation, suggested resolution,
25    and suggested implementation time frame, and to suggest
26    alternate resolutions.

 

 

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1        (5) If a meeting requested pursuant to subdivision (2)
2    of this subsection (a) is held, the person complained
3    against shall, within 21 days following the meeting or
4    within an extended time period as agreed to by the Agency,
5    submit by certified mail to the Agency a written response
6    to the alleged violations. The written response shall
7    include:
8            (A) additional information in rebuttal,
9        explanation, or justification of each alleged
10        violation;
11            (B) if the person complained against desires to
12        enter into a Compliance Commitment Agreement, proposed
13        terms for a proposed Compliance Commitment Agreement
14        that includes specified times for achieving each
15        commitment and which may consist of a statement
16        indicating that the person complained against believes
17        that compliance has been achieved; and
18            (C) a statement indicating that, should the person
19        complained against so wish, the person complained
20        against chooses to rely upon the initial written
21        response submitted pursuant to subdivision (2) of this
22        subsection (a).
23        (6) If the person complained against fails to respond
24    in accordance with the requirements of subdivision (5) of
25    this subsection (a), the failure to respond shall be
26    considered a waiver of the requirements of this subsection

 

 

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1    (a) and nothing in this Section shall preclude the Agency
2    from proceeding pursuant to subsection (b) of this Section.
3        (7) Within 30 days after of the Agency's receipt of a
4    written response submitted by the person complained
5    against pursuant to subdivision (2) of this subsection (a),
6    if a meeting is not requested, or pursuant to subdivision
7    (5) of this subsection (a), if a meeting is held, or within
8    a later time period as agreed to by the Agency and the
9    person complained against, the Agency shall issue and
10    serve, by certified mail, upon the person complained
11    against (i) a written notice informing the person of its
12    acceptance, rejection, or proposed modification to the
13    proposed Compliance Commitment Agreement or (ii) a notice
14    that one or more violations cannot be resolved without the
15    involvement of the Office of the Attorney General or the
16    State's Attorney of the county in which the alleged
17    violation occurred and that no proposed Compliance
18    Commitment Agreement will be issued by the Agency for those
19    violations. The Agency shall include terms and conditions
20    in the proposed Compliance Commitment Agreement that are,
21    in its discretion, necessary to bring the person complained
22    against into compliance with the Act, any rule adopted
23    under the Act, any permit granted by the Agency, or any
24    condition of such a permit. The Agency shall take into
25    consideration the proposed terms for the proposed
26    Compliance Commitment Agreement that were provided under

 

 

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1    subdivision (a)(2)(B) or (a)(5)(B) of this Section by the
2    person complained against as contained within the written
3    response.
4        (7.5) Within 30 days after the receipt of the Agency's
5    proposed Compliance Commitment Agreement by the person
6    complained against, the person shall either (i) agree to
7    and sign the proposed Compliance Commitment Agreement
8    provided by the Agency and submit the signed Compliance
9    Commitment Agreement 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 subsequently in writing by mutual agreement
19    between the Agency and the signatory to the Compliance
20    Commitment Agreement, the signatory's legal
21    representative, or the 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) of this Section. However,
25    notwithstanding any other provision of this Act to the
26    contrary, a person may cure a violation of this subdivision

 

 

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1    (a)(7.6) by entering into a mutually agreed upon written
2    amendment to a Compliance Commitment Agreement under
3    subdivision (a)(7.5) of this Section. Successful
4    completion of a Compliance Commitment Agreement may be
5    considered by the Board or a court as an affirmative
6    defense against an action taken for violations of the Act
7    that were the subject of the Compliance Commitment
8    Agreement.
9        (8) Nothing in this subsection (a) is intended to
10    require the Agency to enter into Compliance Commitment
11    Agreements for any alleged violation that the Agency
12    believes cannot be resolved without the involvement of the
13    Office of the Attorney General or the State's Attorney of
14    the county in which the alleged violation occurred, for,
15    among other purposes, the imposition of statutory
16    penalties.
17        (9) The Agency's failure to respond within 30 days to a
18    written response submitted pursuant to subdivision (2) of
19    this subsection (a), if a meeting is not requested, or
20    pursuant to subdivision (5) of this subsection (a), if a
21    meeting is held, within 30 days, or within the time period
22    otherwise agreed to in writing by the Agency and the person
23    complained against, shall be deemed an acceptance by the
24    Agency of the proposed terms of the Compliance Commitment
25    Agreement for the violations alleged in the written notice
26    issued under subdivision (1) of this subsection (a) as

 

 

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1    contained within the written response.
2        (10) If the person complained against complies with the
3    terms of a Compliance Commitment Agreement accepted
4    pursuant to this subsection (a), the Agency shall not refer
5    the alleged violations which are the subject of the
6    Compliance Commitment Agreement to the Office of the
7    Illinois Attorney General or the State's Attorney of the
8    county in which the alleged violation occurred. However,
9    nothing in this subsection is intended to preclude the
10    Agency from continuing negotiations with the person
11    complained against or from proceeding pursuant to the
12    provisions of subsection (b) of this Section for alleged
13    violations that which remain the subject of disagreement
14    between the Agency and the person complained against
15    following fulfillment of the requirements of this
16    subsection (a).
17        (11) Nothing in this subsection (a) is intended to
18    preclude the person complained against from submitting to
19    the Agency, by certified mail, at any time, notification
20    that the person complained against consents to waiver of
21    the requirements of subsections (a) and (b) of this
22    Section.
23        (12) The Agency shall have the authority to adopt rules
24    for the administration of subsection (a) of this Section.
25    The rules shall be adopted in accordance with the
26    provisions of the Illinois Administrative Procedure Act.

 

 

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1    (b) For alleged violations that remain the subject of
2disagreement between the Agency and the person complained
3against following fulfillment of the requirements of
4subsection (a) of this Section, and for alleged violations of
5the terms or conditions of a Compliance Commitment Agreement
6entered into under subdivision (a)(7.5) of this Section as well
7as the alleged violations that are the subject of the
8Compliance Commitment Agreement, and as a precondition to the
9Agency's referral or request to the Office of the Illinois
10Attorney General or the State's Attorney of the county in which
11the alleged violation occurred for legal representation
12regarding an alleged violation that may be addressed pursuant
13to subsection (c) or (d) of this Section or pursuant to Section
1442 of this Act, the Agency shall issue and serve, by certified
15mail, upon the person complained against a written notice
16informing that person that the Agency intends to pursue legal
17action. Such notice shall notify the person complained against
18of the violations to be alleged and offer the person an
19opportunity to meet with appropriate Agency personnel in an
20effort to resolve any alleged violations that could lead to the
21filing of a formal complaint. The meeting with Agency personnel
22shall be held within 30 days after of receipt of notice served
23pursuant to this subsection upon the person complained against,
24unless the Agency agrees to a postponement or the person
25notifies the Agency that he or she will not appear at a meeting
26within the 30-day time period. Nothing in this subsection is

 

 

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1intended to preclude the Agency from following the provisions
2of subsection (c) or (d) of this Section or from requesting the
3legal representation of the Office of the Illinois Attorney
4General or the State's Attorney of the county in which the
5alleged violations occurred for alleged violations which
6remain the subject of disagreement between the Agency and the
7person complained against after the provisions of this
8subsection are fulfilled.
9     (c)(1) For alleged violations which remain the subject of
10    disagreement between the Agency and the person complained
11    against following waiver, pursuant to subdivision (10) of
12    subsection (a) of this Section, or fulfillment of the
13    requirements of subsections (a) and (b) of this Section,
14    the Office of the Illinois Attorney General or the State's
15    Attorney of the county in which the alleged violation
16    occurred shall issue and serve upon the person complained
17    against a written notice, together with a formal complaint,
18    which shall specify the provision of the Act, or the rule,
19    or regulation, or permit, or term or condition thereof
20    under which such person is said to be in violation, and a
21    statement of the manner in, and the extent to which such
22    person is said to violate the Act, or such rule, or
23    regulation, or permit, or term or condition thereof and
24    shall require the person so complained against to answer
25    the charges of such formal complaint at a hearing before
26    the Board at a time not less than 21 days after the date of

 

 

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1    notice by the Board, except as provided in Section 34 of
2    this Act. Such complaint shall be accompanied by a
3    notification to the defendant that financing may be
4    available, through the Illinois Environmental Facilities
5    Financing Act, to correct such violation. A copy of such
6    notice of such hearings shall also be sent to any person
7    that has complained to the Agency respecting the respondent
8    within the six months preceding the date of the complaint,
9    and to any person in the county in which the offending
10    activity occurred that has requested notice of enforcement
11    proceedings; 21 days notice of such hearings shall also be
12    published in a newspaper of general circulation in such
13    county. The respondent may file a written answer, and at
14    such hearing the rules prescribed in Sections 32 and 33 of
15    this Act shall apply. In the case of actual or threatened
16    acts outside Illinois contributing to environmental damage
17    in Illinois, the extraterritorial service-of-process
18    provisions of Sections 2-208 and 2-209 of the Code of Civil
19    Procedure shall apply.
20        With respect to notices served pursuant to this
21    subsection (c)(1) that which involve hazardous material or
22    wastes in any manner, the Agency shall annually publish a
23    list of all such notices served. The list shall include the
24    date the investigation commenced, the date notice was sent,
25    the date the matter was referred to the Attorney General,
26    if applicable, and the current status of the matter.

 

 

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1        (2) Notwithstanding the provisions of subdivision (1)
2    of this subsection (c), whenever a complaint has been filed
3    on behalf of the Agency or by the People of the State of
4    Illinois, the parties may file with the Board a stipulation
5    and proposal for settlement accompanied by a request for
6    relief from the requirement of a hearing pursuant to
7    subdivision (1). Unless the Board, in its discretion,
8    concludes that a hearing will be held, the Board shall
9    cause notice of the stipulation, proposal and request for
10    relief to be published and sent in the same manner as is
11    required for hearing pursuant to subdivision (1) of this
12    subsection. The notice shall include a statement that any
13    person may file a written demand for hearing within 21 days
14    after receiving the notice. If any person files a timely
15    written demand for hearing, the Board shall deny the
16    request for relief from a hearing and shall hold a hearing
17    in accordance with the provisions of subdivision (1).
18        (3) Notwithstanding the provisions of subdivision (1)
19    of this subsection (c), if the Agency becomes aware of a
20    violation of this Act arising from, or as a result of,
21    voluntary pollution prevention activities, the Agency
22    shall not proceed with the written notice required by
23    subsection (a) of this Section unless:
24            (A) the person fails to take corrective action or
25        eliminate the reported violation within a reasonable
26        time; or

 

 

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1            (B) the Agency believes that the violation poses a
2        substantial and imminent danger to the public health or
3        welfare or the environment. For the purposes of this
4        item (B), "substantial and imminent danger" means a
5        danger with a likelihood of serious or irreversible
6        harm.
7        (d)(1) Any person may file with the Board a complaint,
8    meeting the requirements of subsection (c) of this Section,
9    against any person allegedly violating this Act, any rule
10    or regulation adopted under this Act, any permit or term or
11    condition of a permit, or any Board order. The complainant
12    shall immediately serve a copy of such complaint upon the
13    person or persons named therein. Unless the Board
14    determines that such complaint is duplicative or
15    frivolous, it shall schedule a hearing and serve written
16    notice thereof upon the person or persons named therein, in
17    accord with subsection (c) of this Section.
18        (2) Whenever a complaint has been filed by a person
19    other than the Attorney General or the State's Attorney,
20    the parties may file with the Board a stipulation and
21    proposal for settlement accompanied by a request for relief
22    from the hearing requirement of subdivision (c)(1) of this
23    Section. Unless the Board, in its discretion, concludes
24    that a hearing should be held, no hearing on the
25    stipulation and proposal for settlement is required.
26    (e) In hearings before the Board under this Title the

 

 

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1burden shall be on the Agency or other complainant to show
2either that the respondent has caused or threatened to cause
3air or water pollution or that the respondent has violated or
4threatens to violate any provision of this Act or any rule or
5regulation of the Board or permit or term or condition thereof.
6If such proof has been made, the burden shall be on the
7respondent to show that compliance with the Board's regulations
8would impose an arbitrary or unreasonable hardship.
9    (f) The provisions of this Section shall not apply to
10administrative citation actions commenced under Section 31.1
11of this Act.
12(Source: P.A. 92-574, eff. 6-26-02; 93-152, eff. 7-10-03.)
 
13    (415 ILCS 5/42)  (from Ch. 111 1/2, par. 1042)
14    Sec. 42. Civil penalties.
15    (a) Except as provided in this Section, any person that
16violates any provision of this Act or any regulation adopted by
17the Board, or any permit or term or condition thereof, or that
18violates any order of the Board pursuant to this Act, shall be
19liable for a civil penalty of not to exceed $50,000 for the
20violation and an additional civil penalty of not to exceed
21$10,000 for each day during which the violation continues; such
22penalties may, upon order of the Board or a court of competent
23jurisdiction, be made payable to the Environmental Protection
24Trust Fund, to be used in accordance with the provisions of the
25Environmental Protection Trust Fund Act.

 

 

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

 

 

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

 

 

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1    government issued the administrative citation, 50% of the
2    civil penalty shall be payable to the unit of local
3    government.
4        (5) Any person who violates subsection 6 of Section
5    39.5 of this Act or any CAAPP permit, or term or condition
6    thereof, or any fee or filing requirement, or any duty to
7    allow or carry out inspection, entry or monitoring
8    activities, or any regulation or order relating to the
9    CAAPP shall be liable for a civil penalty not to exceed
10    $10,000 per day of violation.
11        (6) Any owner or operator of a community water system
12    that violates subsection (b) of Section 18.1 or subsection
13    (a) of Section 25d-3 of this Act shall, for each day of
14    violation, be liable for a civil penalty not to exceed $5
15    for each of the premises connected to the affected
16    community water system.
17    (b.5) In lieu of the penalties set forth in subsections (a)
18and (b) of this Section, any person who fails to file, in a
19timely manner, toxic chemical release forms with the Agency
20pursuant to Section 25b-2 of this Act shall be liable for a
21civil penalty of $100 per day for each day the forms are late,
22not to exceed a maximum total penalty of $6,000. This daily
23penalty shall begin accruing on the thirty-first day after the
24date that the person receives the warning notice issued by the
25Agency pursuant to Section 25b-6 of this Act; and the penalty
26shall be paid to the Agency. The daily accrual of penalties

 

 

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

 

 

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

 

 

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1    (h) In determining the appropriate civil penalty to be
2imposed under subdivisions (a), (b)(1), (b)(2), (b)(3), or
3(b)(5) of this Section, the Board is authorized to consider any
4matters of record in mitigation or aggravation of penalty,
5including but not limited to the following 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 otherwise
17    aid in enhancing voluntary compliance with this Act by the
18    respondent and other persons similarly subject to the Act;
19        (5) the number, proximity in time, and gravity of
20    previously adjudicated violations of this Act by the
21    respondent;
22        (6) whether the respondent voluntarily self-disclosed,
23    in accordance with subsection (i) of this Section, the
24    non-compliance to the Agency; and
25        (7) whether the respondent has agreed to undertake a
26    "supplemental environmental project," which means an

 

 

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

 

 

09700SB1357sam002- 22 -LRB097 00021 JDS 54364 a

1    regulated entity's due diligence in preventing, detecting,
2    and correcting violations;
3        (2) that the non-compliance was disclosed in writing
4    within 30 days of the date on which the person discovered
5    it;
6        (3) that the non-compliance was discovered and
7    disclosed prior to:
8            (i) the commencement of an Agency inspection,
9        investigation, or request for information;
10            (ii) notice of a citizen suit;
11            (iii) the filing of a complaint by a citizen, the
12        Illinois Attorney General, or the State's Attorney of
13        the county in which the violation occurred;
14            (iv) the reporting of the non-compliance by an
15        employee of the person without that person's
16        knowledge; or
17            (v) imminent discovery of the non-compliance by
18        the Agency;
19        (4) that the non-compliance is being corrected and any
20    environmental harm is being remediated in a timely fashion;
21        (5) that the person agrees to prevent a recurrence of
22    the non-compliance;
23        (6) that no related non-compliance events have
24    occurred in the past 3 years at the same facility or in the
25    past 5 years as part of a pattern at multiple facilities
26    owned or operated by the person;

 

 

09700SB1357sam002- 23 -LRB097 00021 JDS 54364 a

1        (7) that the non-compliance did not result in serious
2    actual harm or present an imminent and substantial
3    endangerment to human health or the environment or violate
4    the specific terms of any judicial or administrative order
5    or consent agreement;
6        (8) that the person cooperates as reasonably requested
7    by the Agency after the disclosure; and
8        (9) that the non-compliance was identified voluntarily
9    and not through a monitoring, sampling, or auditing
10    procedure that is required by statute, rule, permit,
11    judicial or administrative order, or consent agreement.
12    If a person can establish all of the elements under this
13subsection except the element set forth in paragraph (1) of
14this subsection, the person is entitled to a 75% reduction in
15the portion of the penalty that is not based upon the economic
16benefit of non-compliance.
17    (j) In addition to any an other remedy or penalty that may
18apply, whether civil or criminal, any person who violates
19Section 22.52 of this Act shall be liable for an additional
20civil penalty of up to 3 times the gross amount of any
21pecuniary gain resulting from the violation.
22    (k) In addition to any other remedy or penalty that may
23apply, whether civil or criminal, any person who violates
24subdivision (a)(7.6) of Section 31 of this Act shall be liable
25for an additional civil penalty of $3,000.
26(Source: P.A. 95-331, eff. 8-21-07; 96-603, eff. 8-24-09;

 

 

09700SB1357sam002- 24 -LRB097 00021 JDS 54364 a

196-737, eff. 8-25-09; 96-1000, eff. 7-2-10; 96-1416, eff.
27-30-10.)
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.".