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| Public Act 100-1080 | ||||
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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
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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 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
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, unless the Agency agrees to an extension. The
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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
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
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(a) and nothing in this Section shall preclude the Agency | ||
from proceeding
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
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violation occurred, within 60 days after receipt of notice | ||
by the person
complained against, unless the Agency agrees | ||
to a postponement. At the
meeting, the Agency shall provide | ||
an opportunity for the person complained
against to respond | ||
to each alleged violation, suggested resolution, and
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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, | ||
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, 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
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
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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
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serve, by certified mail, upon the person complained | ||
against (i) a proposed Compliance Commitment 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, 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 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 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
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penalties.
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(9) The Agency's failure to respond within 30 days to a | ||
written response submitted
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 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 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
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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
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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 | ||
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,
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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
the provisions | ||
of subsection (c) or (d) of this Section or from requesting the
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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 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
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against a written notice, together with a formal complaint, | ||
which shall
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
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correct such violation. A copy of such notice of such
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hearings shall also be sent to any person that has | ||
complained to the
Agency respecting the respondent within | ||
the six months preceding the
date of the complaint, and to | ||
any person in the county in which the
offending activity | ||
occurred that has requested notice of enforcement
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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
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
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 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
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 | ||
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
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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
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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
the | ||
respondent to show that compliance with the Board's regulations
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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 | ||
of this Act.
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(Source: P.A. 97-519, eff. 8-23-11.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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