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Public Act 103-0168
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| HB2788 Enrolled | LRB103 29482 CPF 55877 b |
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AN ACT concerning safety.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Environmental Protection Act is amended by |
changing Section 31 as follows:
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(415 ILCS 5/31) (from Ch. 111 1/2, par. 1031)
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Sec. 31. Notice; complaint; hearing.
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(a)(1) Within 180 days after becoming aware of an alleged |
violation of the
Act, any rule adopted under the Act, a permit |
granted by the Agency, or
a condition of such a permit, the |
Agency shall issue and serve, by certified mail,
upon the |
person complained against a written notice informing that |
person that
the Agency has evidence of the alleged violation. |
At a minimum, the written
notice shall contain:
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(A) a notification to the person complained against of |
the requirement to
submit a written response addressing |
the violations alleged and the option to
meet with |
appropriate agency personnel to resolve any alleged |
violations that
could lead to the filing of a formal |
complaint;
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(B) a detailed explanation by the Agency of the |
violations alleged;
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(C) an explanation by the Agency of the actions that |
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the Agency
believes may resolve the alleged violations, |
including an estimate of a
reasonable time period for the |
person complained against to complete the
suggested |
resolution; and
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(D) an explanation of any alleged violation that the |
Agency believes
cannot be resolved without the involvement |
of the Office of the Illinois
Attorney General or the |
State's Attorney of the county in which the alleged
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violation occurred and the basis for the Agency's belief.
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(2) A written response to the violations alleged shall be |
submitted to
the Agency, by certified mail, within 45 days |
after receipt of notice by the
person complained against, or |
within an extended time period as agreed to by the Agency and |
person complained against unless the Agency agrees to an |
extension. The
written response shall include:
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(A) information in rebuttal, explanation or |
justification of each
alleged violation;
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(B) if the person complained against desires to enter |
into a Compliance Commitment Agreement, proposed terms for |
a Compliance Commitment Agreement that includes specified
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times for achieving each commitment and which may consist |
of a statement
indicating that the person complained |
against believes that compliance has
been achieved; and
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(C) a request for a meeting with appropriate Agency |
personnel if a
meeting is desired by the person complained |
against.
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(3) If the person complained against fails to respond in |
accordance with
the requirements of subdivision (2) of this |
subsection (a), the failure to
respond shall be considered a |
waiver of the requirements of this subsection
(a) and nothing |
in this Section shall preclude the Agency from proceeding
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pursuant to subsection (b) of this Section.
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(4) A meeting requested pursuant to subdivision (2) of |
this subsection
(a) shall be held without a representative of |
the Office of the Illinois
Attorney General or the State's |
Attorney of the county in which the alleged
violation |
occurred, within 60 days after receipt of notice by the person
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complained against, or within an extended time period as |
agreed to by the Agency and person complained against unless |
the Agency agrees to a postponement. At the
meeting, the |
Agency shall provide an opportunity for the person complained
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against to respond to each alleged violation, suggested |
resolution, and
suggested implementation time frame, and to |
suggest alternate resolutions.
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(5) If a meeting requested pursuant to subdivision (2) of |
this subsection
(a) is held, the person complained against |
shall, within 21 days following the
meeting or within an |
extended time period as agreed to by the Agency and person |
complained against, submit
by certified mail to the Agency a |
written response to the alleged violations.
The written |
response shall include:
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(A) additional information in rebuttal, explanation, |
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or justification
of each alleged violation;
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(B) if the person complained against desires to enter |
into a Compliance Commitment Agreement, proposed terms for |
a Compliance Commitment Agreement that includes specified
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times for achieving each commitment and which may consist |
of a statement
indicating that the person complained |
against believes that compliance has
been achieved; and
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(C) a statement indicating that, should the person |
complained against
so wish, the person complained against |
chooses to rely upon the initial written
response |
submitted pursuant to subdivision (2) of this subsection |
(a).
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(6) If the person complained against fails to respond in |
accordance with
the requirements of subdivision (5) of this |
subsection (a), the failure to
respond shall be considered a |
waiver of the requirements of this subsection (a)
and nothing |
in this Section shall preclude the Agency from proceeding |
pursuant
to subsection (b) of this Section.
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(7) Within 30 days after the Agency's receipt of a written |
response submitted
by the person complained against pursuant |
to subdivision (2) of this
subsection (a) if a meeting is not |
requested or pursuant to subdivision (5) of this
subsection |
(a) if a meeting is held, or within a later time period as |
agreed
to by the Agency and the person complained against, the |
Agency shall issue and
serve, by certified mail, upon the |
person complained against (i) a proposed Compliance Commitment |
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Agreement or (ii) a notice that one or more 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 and that no proposed |
Compliance Commitment Agreement will be issued by the Agency |
for those violations. The Agency shall include terms and |
conditions in the proposed Compliance Commitment Agreement |
that are, in its discretion, necessary to bring the person |
complained against into compliance with the Act, any rule |
adopted under the Act, any permit granted by the Agency, or any |
condition of such a permit. The Agency shall take into |
consideration the proposed terms for the proposed Compliance |
Commitment Agreement that were provided under subdivision |
(a)(2)(B) or (a)(5)(B) of this Section by the person |
complained against.
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(7.5) Within 30 days after the receipt of the Agency's |
proposed Compliance Commitment Agreement by the person |
complained against, or within a later time period not to |
exceed an additional 30 days as agreed to by the Agency and the |
person complained against, the person shall either (i) agree |
to and sign the proposed Compliance Commitment Agreement |
provided by the Agency and submit the signed Compliance |
Commitment Agreement to the Agency by certified mail or (ii) |
notify the Agency in writing by certified mail of the person's |
rejection of the proposed Compliance Commitment Agreement. If |
the person complained against fails to respond to the proposed |
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Compliance Commitment Agreement within 30 days as required |
under this paragraph, the proposed Compliance Commitment |
Agreement is deemed rejected by operation of law. Any |
Compliance Commitment Agreement entered into under item (i) of |
this paragraph may be amended subsequently in writing by |
mutual agreement between the Agency and the signatory to the |
Compliance Commitment Agreement, the signatory's legal |
representative, or the signatory's agent. |
(7.6) No person shall violate the terms or conditions of a |
Compliance Commitment Agreement entered into under subdivision |
(a)(7.5) of this Section. Successful completion of a |
Compliance Commitment Agreement or an amended Compliance |
Commitment Agreement shall be a factor to be weighed, in favor |
of the person completing the Agreement, by the Office of the |
Illinois Attorney General in determining whether to file a |
complaint for the violations that were the subject of the |
Agreement. |
(7.7) Within 30 days after a Compliance Commitment |
Agreement takes effect or is amended in accordance with |
paragraph (7.5), the Agency shall publish a copy of the final |
executed Compliance Commitment Agreement on the Agency's |
website. The Agency shall maintain an Internet database of all |
Compliance Commitment Agreements entered on or after the |
effective date of this amendatory Act of the 100th General |
Assembly. At a minimum, the database shall be searchable by |
the following categories: the county in which the facility |
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that is subject to the Compliance Commitment Agreement is |
located; the date of final execution of the Compliance |
Commitment Agreement; the name of the respondent; and the |
media involved, including air, water, land, or public water |
supply.
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(8) Nothing in this subsection (a) is intended to require |
the Agency to
enter into Compliance Commitment Agreements for |
any alleged violation that the
Agency believes 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, for, among other purposes, the |
imposition of statutory
penalties.
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(9) The Agency's failure to respond within 30 days of |
receipt to a written response submitted
pursuant to |
subdivision (2) of this subsection (a) if a meeting is not
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requested or pursuant to subdivision (5) of this subsection |
(a) if a meeting is held,
or within the time period otherwise |
agreed to in writing by
the Agency and the person complained |
against, shall be deemed an acceptance by
the Agency of the |
proposed terms of the Compliance Commitment Agreement for the |
violations
alleged in the written notice issued under |
subdivision (1) of this subsection
(a) as contained within the |
written response.
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(10) If the person complained against complies with the |
terms of a
Compliance
Commitment Agreement accepted pursuant |
to this subsection (a), the Agency
shall not refer the alleged |
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violations which are the subject of the Compliance
Commitment |
Agreement to the Office of the Illinois Attorney General or |
the
State's Attorney of the county in which the alleged |
violation occurred.
However, nothing in this subsection is |
intended to preclude the Agency from
continuing negotiations |
with the person complained against or from proceeding
pursuant |
to the provisions of subsection (b) of this Section for |
alleged
violations that remain the subject of disagreement |
between the Agency and the
person complained against following |
fulfillment of the requirements of this
subsection (a).
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(11) Nothing in this subsection (a) is intended to |
preclude the person
complained against from submitting to the |
Agency, by certified mail, at any
time, notification that the |
person complained against consents to waiver of
the |
requirements of subsections (a) and (b) of this Section.
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(12) The Agency shall have the authority to adopt rules |
for the administration of subsection (a) of this Section. The |
rules shall be adopted in accordance with the provisions of |
the Illinois Administrative Procedure Act. |
(b) For alleged violations that remain the subject of |
disagreement
between the Agency and the person complained |
against following fulfillment of
the requirements of |
subsection (a) of this Section, and for alleged violations of |
the terms or conditions of a Compliance Commitment Agreement |
entered into under subdivision (a)(7.5) of this Section as |
well as the alleged violations that are the subject of the |
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Compliance Commitment Agreement, and as a precondition to
the |
Agency's referral or request to the Office of the Illinois |
Attorney General
or the State's Attorney of the county in |
which the alleged violation occurred
for legal representation |
regarding an alleged violation that may be addressed
pursuant |
to subsection (c) or (d) of this Section or pursuant to Section |
42 of
this Act, the Agency shall issue and serve, by certified |
mail, upon the person
complained against a written notice |
informing that person that the Agency
intends to pursue legal |
action. Such notice shall notify the person
complained against |
of the violations to be alleged and offer the person an
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opportunity to meet with appropriate Agency personnel in an |
effort to resolve
any alleged violations that could lead to |
the filing of a formal complaint.
The meeting with Agency |
personnel shall be held within 30 days after receipt of
notice |
served pursuant to this subsection upon the person complained |
against,
unless the Agency agrees to a postponement or the |
person notifies the Agency
that he or she will not appear at a |
meeting within the 30-day time period.
Nothing in this |
subsection is intended to preclude the Agency from following
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the provisions of subsection (c) or (d) of this Section or from |
requesting the
legal representation of the Office of the |
Illinois Attorney General or the
State's Attorney of the |
county in which the alleged violations occurred for
alleged |
violations which remain the subject of disagreement between |
the Agency
and the person complained against after the |
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provisions of this subsection are
fulfilled.
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(c)(1) For alleged violations which remain the subject of |
disagreement
between the Agency and the person complained |
against following waiver pursuant
to subdivision (10) of |
subsection (a) of this Section or fulfillment of
the |
requirements of subsections (a) and (b) of this Section, the |
Office of the
Illinois Attorney General or the State's |
Attorney of the county in which the
alleged violation occurred |
shall issue and serve upon the person complained
against a |
written notice, together with a formal complaint, which shall
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specify the provision of the Act, rule, regulation, permit, or |
term
or condition thereof under which such person is said to be |
in violation and
a statement of the manner in and the extent to |
which such person is said to
violate the Act, rule, |
regulation, permit, or term or condition
thereof and shall |
require the person so complained
against to answer the charges |
of such formal complaint at a hearing before
the Board at a |
time not less than 21 days after the date of notice by the
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Board, except as provided in Section 34 of this Act. Such |
complaint shall
be accompanied by a notification to the |
defendant that financing may be
available, through the |
Illinois Environmental Facilities Financing Act, to
correct |
such violation. A copy of such notice of such
hearings shall |
also be sent to any person that has complained to the
Agency |
respecting the respondent within the six months preceding the
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date of the complaint, and to any person in the county in which |
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the
offending activity occurred that has requested notice of |
enforcement
proceedings; 21 days notice of such hearings shall |
also be published in
a newspaper of general circulation in |
such county. The respondent may
file a written answer, and at |
such hearing the rules prescribed in
Sections 32 and 33 of this |
Act shall apply. In the case of actual or
threatened acts |
outside Illinois contributing to environmental damage in
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Illinois, the extraterritorial service-of-process provisions |
of Sections
2-208 and 2-209 of the Code of Civil Procedure |
shall apply.
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With respect to notices served pursuant to this subsection |
(c)(1) that
involve hazardous material or wastes in any |
manner, the Agency shall
annually publish a list of all such |
notices served. The list shall include
the date the |
investigation commenced, the date notice was sent, the date
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the matter was referred to the Attorney General, if |
applicable, and the
current status of the matter.
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(2) Notwithstanding the provisions of subdivision (1) of |
this subsection
(c), whenever a complaint has been filed on |
behalf of the Agency or by the
People of the State of Illinois, |
the parties may file with the Board a
stipulation and proposal |
for settlement accompanied by a request for relief
from the |
requirement of a hearing pursuant to subdivision (1). Unless |
the
Board, in its discretion, concludes that a hearing will be |
held, the Board
shall cause notice of the stipulation, |
proposal and request for relief to
be published and sent in the |
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same manner as is required for hearing
pursuant to subdivision |
(1) of this subsection. The notice shall include a
statement |
that any person may file a written demand for hearing within 21
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days after receiving the notice. If any person files a timely |
written
demand for hearing, the Board shall deny the request |
for relief from a
hearing and shall hold a hearing in |
accordance with the provisions of
subdivision (1).
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(3) Notwithstanding the provisions of subdivision (1) of |
this subsection
(c), if the Agency becomes aware of a |
violation of this Act arising from, or
as a result of, |
voluntary pollution prevention activities, the Agency shall |
not
proceed with the written notice required by subsection (a) |
of this Section
unless:
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(A) the person fails to take corrective action or |
eliminate the reported
violation within a reasonable time; |
or
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(B) the Agency believes that the violation poses a |
substantial and
imminent danger to the public health or |
welfare or the environment. For the
purposes of this item |
(B), "substantial and imminent danger" means a danger
with |
a likelihood of serious or irreversible harm.
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(d)(1) Any person may file with the Board a complaint, |
meeting
the requirements of subsection (c) of this Section, |
against any person
allegedly violating this Act, any rule or |
regulation adopted under this
Act, any permit or term or |
condition of a permit, or any Board order. The complainant |
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shall immediately serve a copy of such complaint
upon the |
person or persons named therein. Unless the Board determines |
that
such complaint is duplicative or frivolous, it shall |
schedule a hearing and
serve written notice thereof upon the |
person or persons named therein, in
accord with subsection (c) |
of this Section.
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(2) Whenever a complaint has been filed by a person other |
than the
Attorney General or the State's Attorney, the parties |
may file with the Board
a stipulation and proposal for |
settlement accompanied by a request for relief
from the |
hearing requirement of subdivision (c)(1) of this Section. |
Unless
the Board, in its discretion, concludes that a hearing |
should be held, no
hearing on the stipulation and proposal for |
settlement is required.
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(e) In hearings before the Board under this Title the |
burden shall
be on the Agency or other complainant to show |
either that the respondent
has caused or threatened to cause |
air or water pollution or that the
respondent has violated or |
threatens to violate any provision of this
Act or any rule or |
regulation of the Board or permit or term or
condition |
thereof. If such proof has been made, the burden shall be on
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the respondent to show that compliance with the Board's |
regulations
would impose an arbitrary or unreasonable |
hardship.
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(f) The provisions of this Section shall not apply to |
administrative
citation actions commenced under Section 31.1 |