093_SB1379sam002

 










                                     LRB093 10331 EFG 12976 a

 1                    AMENDMENT TO SENATE BILL 1379

 2        AMENDMENT NO.     .  Amend Senate Bill 1379 by  replacing
 3    everything after the enacting clause with the following:

 4        "Section  5.  The Environmental Protection Act is amended
 5    by adding Sections 39.6 and 44.5 and amending Section  42  as
 6    follows:

 7        (415 ILCS 5/39.6 new)
 8        Sec. 39.6.  Compliance Record.
 9        (a)  Before issuing or renewing any permit the Agency may
10    consider  the previous history of compliance or noncompliance
11    with this Act by the applicant and  any  parent  corporation,
12    subsidiary,  or  other  entity  related  to  the applicant by
13    ownership or  control.   If  the  applicant  (or  any  parent
14    corporation,  subsidiary,  or  other  entity  related  to the
15    applicant by ownership or control) has a  recent  history  of
16    noncompliance  with  this  Act, the Agency may attach special
17    conditions  to  the  permit,  designed  to   promote   future
18    compliance.  The Agency may deny a permit on the grounds that
19    the prospective owner or operator (or any parent corporation,
20    subsidiary,  or  other  entity  related  to  the applicant by
21    ownership  or  control)  has  a  history  of:  (1)   repeated
22    violations  of  federal,  state,  or local laws, regulations,
 
                            -2-      LRB093 10331 EFG 12976 a
 1    standards, or ordinances intended to protect the  environment
 2    in the operation of facilities or sites; or (2) conviction in
 3    this or another state of any crime that is a felony under the
 4    laws  of  this  State, or conviction of a felony in a federal
 5    court; or (3) proof of gross carelessness or incompetence  in
 6    its  construction  or  operation of facilities or sites.  The
 7    Agency  shall  adopt  permit  application  requirements   and
 8    procedures  that  are  necessary and appropriate to carry out
 9    the purposes of this Section.
10        (b)  If  the  Agency  determines  that  the   applicant's
11    history   (or   the   history   of  any  parent  corporation,
12    subsidiary, or other  entity  related  to  the  applicant  by
13    ownership  or  control)  includes a finding within the last 5
14    years by the Board or a court of competent jurisdiction of  2
15    or  more  significant  noncompliance  violations,  and if the
16    applicant can otherwise meet the requirements for issuance of
17    a permit under this Act, the Agency may condition the  permit
18    by  requiring  the applicant to secure an environmental audit
19    by a qualified independent environmental auditor, as  defined
20    by  Board  regulations,  within  3  months of issuance of the
21    permit.  The Board shall adopt regulations  that  define  the
22    qualifications   of  an  independent  environmental  auditor,
23    specify the scope of the audit and the content of  the  audit
24    report,  and require that the audit report include a schedule
25    for implementation of  the  audit  report's  recommendations.
26    Upon  approval  by  the Agency, the applicant shall implement
27    the recommendations of the audit report  in  accordance  with
28    the  schedule contained in the audit report.  Section 52.2 of
29    this Act does not apply  to  an  environmental  audit  report
30    imposed by the Agency under this Section.
31        (c)  The   Agency  or  applicant  may  appeal  the  audit
32    report's recommendations  or  implementation  schedule  in  a
33    permit appeal before the Board.
34        (d)  For  purposes of this Section, the term "significant
 
                            -3-      LRB093 10331 EFG 12976 a
 1    noncompliance violation" means:
 2             (1)  a violation of this Act or regulations  adopted
 3        under  this  Act  that  causes,  threatens, or allows the
 4        release of any contaminant into the environment;
 5             (2)  a violation of  any  condition  of  any  permit
 6        issued by the Agency under this Act; or
 7             (3)  a  violation  of  any order of the Board or any
 8        court.
 9        (e)  The final audit report's  recommendations  shall  be
10    published by the Agency on its web site.
11        (f)  Nothing   in   this   Section  limits  the  Agency's
12    authority under subsection (i) of Section 39 of this Act.

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
16    violates  any provision of this Act or any regulation adopted
17    by the Board, or any permit or term or condition thereof,  or
18    that  violates  any  determination  or  order  of  the  Board
19    pursuant  to  this Act, shall be liable to a civil penalty of
20    not to exceed $50,000 for the  violation  and  an  additional
21    civil  penalty  of  not to exceed $10,000 for each day during
22    which the violation continues; such penalties may, upon order
23    of the Board or a court of competent  jurisdiction,  be  made
24    payable  to  the  Environmental  Protection Trust Fund, to be
25    used in accordance with the provisions of  the  Environmental
26    Protection Trust Fund Act.
27        (b)  Notwithstanding  the provisions of subsection (a) of
28    this Section:
29             (1)  Any person that violates Section 12(f) of  this
30        Act  or any NPDES permit or term or condition thereof, or
31        any filing requirement, regulation or order  relating  to
32        the  NPDES  permit  program,  shall  be liable to a civil
33        penalty of not to exceed $10,000 per day of violation.
 
                            -4-      LRB093 10331 EFG 12976 a
 1             (2)  Any person that violates Section 12(g) of  this
 2        Act  or  any  UIC permit or term or condition thereof, or
 3        any filing requirement, regulation or order  relating  to
 4        the  State  UIC  program  for  all wells, except Class II
 5        wells as defined by the Board under this  Act,  shall  be
 6        liable to a civil penalty not to exceed $2,500 per day of
 7        violation; provided, however, that any person who commits
 8        such  violations  relating  to  the State UIC program for
 9        Class II wells, as defined by the Board under  this  Act,
10        shall  be  liable  to  a  civil  penalty of not to exceed
11        $10,000 for the violation and an additional civil penalty
12        of not to exceed $1,000 for each  day  during  which  the
13        violation continues.
14             (3)  Any person that violates Sections 21(f), 21(g),
15        21(h) or 21(i) of this Act, or any RCRA permit or term or
16        condition  thereof, or any filing requirement, regulation
17        or order relating to the State  RCRA  program,  shall  be
18        liable  to  a  civil penalty of not to exceed $25,000 per
19        day of violation.
20             (4)  In  an  administrative  citation  action  under
21        Section 31.1 of  this  Act,  any  person  found  to  have
22        violated any provision of subsection (o) of Section 21 of
23        this  Act shall pay a civil penalty of $1,500 for a first
24        offense or $3,000 for a second or subsequent offense $500
25        for each violation  of  each  such  provision,  plus  any
26        hearing costs incurred by the Board and the Agency.  Such
27        penalties  shall  be  made  payable  to the Environmental
28        Protection Trust Fund, to be used in accordance with  the
29        provisions  of  the  Environmental  Protection Trust Fund
30        Act; except that if a unit of local government issued the
31        administrative citation, 50% of the civil  penalty  shall
32        be payable to the unit of local government.
33             (4-5)  In  an  administrative  citation action under
34        Section 31.1 of  this  Act,  any  person  found  to  have
 
                            -5-      LRB093 10331 EFG 12976 a
 1        violated any provision of subsection (p) of Section 21 of
 2        this  Act shall pay a civil penalty of $1,500 for a first
 3        offense and $3,000 for a second  or  subsequent  offense,
 4        plus  any  hearing  costs  incurred  by the Board and the
 5        Agency.   The  penalties  shall  be  deposited  into  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             (5)  Any person who violates subsection 6 of Section
13        39.5  of  this  Act  or  any  CAAPP  permit,  or  term or
14        condition thereof, or any fee or filing  requirement,  or
15        any  duty  to  allow  or  carry  out inspection, entry or
16        monitoring  activities,  or  any  regulation   or   order
17        relating to the CAAPP shall be liable for a civil penalty
18        not to exceed $10,000 per day of violation.
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
21    a timely manner, toxic chemical release forms with the Agency
22    pursuant to Section 25b-2 of this Act shall be liable  for  a
23    civil  penalty  of  $100  per  day for each day the forms are
24    late, not to exceed a maximum total penalty of  $6,000.  This
25    daily  penalty  shall  begin accruing on the thirty-first day
26    after the date that the person receives  the  warning  notice
27    issued  by  the Agency pursuant to Section 25b-6 of this Act;
28    and the penalty shall  be  paid  to  the  Agency.  The  daily
29    accrual  of  penalties  shall  cease  as  of January 1 of the
30    following  year.  All  penalties  collected  by  the   Agency
31    pursuant  to  this  subsection  shall  be  deposited into the
32    Environmental Protection Permit and Inspection Fund.
33        (c)  Any person that violates this Act, or  an  order  or
34    other  determination  of  the Board under this Act and causes
 
                            -6-      LRB093 10331 EFG 12976 a
 1    the death of fish or aquatic life shall, in addition  to  the
 2    other penalties provided by this Act, be liable to pay to the
 3    State  an additional sum for the reasonable value of the fish
 4    or aquatic life destroyed. Any money so  recovered  shall  be
 5    placed in the Wildlife and Fish Fund in the State Treasury.
 6        (d)  The  penalties  provided  for in this Section may be
 7    recovered in a civil action.
 8        (e)  The State's Attorney of  the  county  in  which  the
 9    violation  occurred,  or  the  Attorney  General, may, at the
10    request of the Agency or on his own motion, institute a civil
11    action for an injunction to restrain violations of this Act.
12        (f)  The State's Attorney of  the  county  in  which  the
13    violation occurred, or the Attorney General, shall bring such
14    actions  in  the name of the people of the State of Illinois.
15    Without limiting any other authority which may exist for  the
16    awarding  of  attorney's fees and costs, the Board or a court
17    of competent jurisdiction  may  award  costs  and  reasonable
18    attorney's  fees,  including  the  reasonable costs of expert
19    witnesses and consultants, to the  State's  Attorney  or  the
20    Attorney  General  in a case where he has prevailed against a
21    person who  has  committed  a  wilful,  knowing  or  repeated
22    violation of the Act.
23        Any  funds  collected  under this subsection (f) in which
24    the Attorney General has prevailed shall be deposited in  the
25    Hazardous Waste Fund created in Section 22.2 of this Act. Any
26    funds  collected under this subsection (f) in which a State's
27    Attorney has prevailed shall be retained  by  the  county  in
28    which he serves.
29        (g)  All  final  orders imposing civil penalties pursuant
30    to this Section shall prescribe the time for payment of  such
31    penalties.   If  any such penalty is not paid within the time
32    prescribed, interest on such penalty at the rate set forth in
33    subsection (a) of Section 1003 of  the  Illinois  Income  Tax
34    Act,  shall  be  paid for the period from the date payment is
 
                            -7-      LRB093 10331 EFG 12976 a
 1    due until the date payment is received.  However, if the time
 2    for payment is stayed  during  the  pendency  of  an  appeal,
 3    interest shall not accrue during such stay.
 4        (h)  In  determining  the appropriate civil penalty to be
 5    imposed under subdivisions  (a), (b)(1), (b)(2),  (b)(3),  or
 6    (b)(5)  of this Section, the Board shall in every adjudicated
 7    case  following  an  evidentiary  hearing  ensure  that   the
 8    economic  benefits  of  the  violation  shown  to  have  been
 9    realized  by the violator do not exceed the monetary value of
10    the penalties and  any  supplemental  environmental  projects
11    imposed  for  the violation, and it is authorized to consider
12    any  matters  of  record  in  mitigation  or  aggravation  of
13    penalty, including but not limited to the following factors:
14             (1)  the duration and gravity of the violation;
15             (2)  the presence or absence of due diligence on the
16        part  of  the  violator  in  attempting  to  comply  with
17        requirements of this Act and regulations thereunder or to
18        secure relief therefrom as provided by this Act;
19             (3)  any economic benefits accrued by  the  violator
20        because of delay in compliance with requirements;
21             (4)  the amount of monetary penalty which will serve
22        to  deter  further  violations  by  the  violator  and to
23        otherwise aid in enhancing voluntary compliance with this
24        Act by the violator and other persons  similarly  subject
25        to the Act; and
26             (5)  the  number,  proximity in time, and gravity of
27        previously adjudicated violations  of  this  Act  by  the
28        violator.
29        (i)  In   this   Section,   "supplemental   environmental
30    projects"  means  environmentally  beneficial projects that a
31    respondent  agrees  to  undertake   in   settlement   of   an
32    environmental enforcement action, but which the respondent is
33    not otherwise legally required to perform.
34    (Source: P.A. 90-773, eff. 8-14-98; 91-82, eff. 1-1-00.)
 
                            -8-      LRB093 10331 EFG 12976 a
 1        (415 ILCS 5/44.5 new)
 2        Sec. 44.5.  Violator list.
 3        (a)  Beginning  one year after the effective date of this
 4    amendatory Act of the 93rd General Assembly, the Agency shall
 5    at least annually update and publish on its web site,  or  by
 6    other  appropriate  means,  a list of violators who have been
 7    found within the last 5 years by the  Board  or  a  court  of
 8    competent jurisdiction to have caused, threatened, or allowed
 9    2 or more significant noncompliance violations of this Act or
10    Board  regulations,  or  have been convicted of a crime under
11    this Act.  The date of a significant noncompliance  violation
12    shall  be  deemed  to be the date of the Board or court order
13    finding the violation.
14        (b)  Within one year after the  effective  date  of  this
15    amendatory  Act of the 93rd General Assembly, the Board shall
16    promulgate rules providing that, to  the  extent  allowed  by
17    law,  a  person  listed  on  the Agency's violator list under
18    subsection (a) and any  parent  corporation,  subsidiary,  or
19    other  entity  related  to the person by ownership or control
20    shall be prohibited from receiving any State contract for  as
21    long  as  it  continues  to be listed by the Agency as having
22    within the last 5 years been found by the Board or a court of
23    competent jurisdiction to have caused, threatened, or allowed
24    2 or  more  significant  violations  of  this  Act  or  Board
25    regulations,  or  having been convicted of a crime under this
26    Act.  The Board rules may allow a person to be  removed  from
27    the  violator  list if the person shows that it has come into
28    compliance with the Act.  Further, the  rules  shall  provide
29    that  a  person  listed  on  the  violator  list shall not be
30    prohibited from receiving a State contract  if  it  is  shown
31    that  there  is  no  practical  alternative  to  the State to
32    contracting with that person.
33        (c)  For purposes of this Section, the term  "significant
34    noncompliance  violation"  means: (1) a violation of this Act
 
                            -9-      LRB093 10331 EFG 12976 a
 1    or regulations adopted under this Act that causes, threatens,
 2    or  allows  the  release  of   any   contaminant   into   the
 3    environment;  (2)  a violation of any condition of any permit
 4    issued by the Agency under this Act; or (3)  a  violation  of
 5    any order of the Board or any court.

 6        Section  99.  Effective date.  This Act takes effect upon
 7    becoming law.".