Public Act 93-0152
SB222 Enrolled LRB093 08816 AMC 09048 b
AN ACT in relation to environmental protection.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
ARTICLE I. Recommendations of the Illinois
Environmental Regulatory Review Commission.
Section 10. The Environmental Protection Act is amended
by changing Sections 4, 5, 22.2, 30, 31, 33, 35, 36, 37, 42,
and 45 and adding Section 28.6 as follows:
(415 ILCS 5/4) (from Ch. 111 1/2, par. 1004)
Sec. 4. Environmental Protection Agency; establishment;
duties.
(a) There is established in the Executive Branch of the
State Government an agency to be known as the Environmental
Protection Agency. This Agency shall be under the
supervision and direction of a Director who shall be
appointed by the Governor with the advice and consent of the
Senate. The term of office of the Director shall expire on
the third Monday of January in odd numbered years, provided
that he or she shall hold office until a successor is
appointed and has qualified. The Director shall receive an
annual salary as set by the Governor from time to time or as
set by the Compensation Review Board, whichever is greater.
If set by the Governor, the Director's annual salary may not
exceed 85% of the Governor's annual salary. The Director, in
accord with the Personnel Code, shall employ and direct such
personnel, and shall provide for such laboratory and other
facilities, as may be necessary to carry out the purposes of
this Act. In addition, the Director may by agreement secure
such services as he or she may deem necessary from any other
department, agency, or unit of the State Government, and may
employ and compensate such consultants and technical
assistants as may be required.
(b) The Agency shall have the duty to collect and
disseminate such information, acquire such technical data,
and conduct such experiments as may be required to carry out
the purposes of this Act, including ascertainment of the
quantity and nature of discharges from any contaminant source
and data on those sources, and to operate and arrange for the
operation of devices for the monitoring of environmental
quality.
(c) The Agency shall have authority to conduct a program
of continuing surveillance and of regular or periodic
inspection of actual or potential contaminant or noise
sources, of public water supplies, and of refuse disposal
sites.
(d) In accordance with constitutional limitations, the
Agency shall have authority to enter at all reasonable times
upon any private or public property for the purpose of:
(1) Inspecting and investigating to ascertain
possible violations of this Act, any rule or regulation
adopted under this Act, any permit or term or condition
of a permit, or any Board order; or the Act or of
regulations thereunder, or of permits or terms or
conditions thereof; or
(2) In accordance with the provisions of this Act,
taking whatever preventive or corrective action,
including but not limited to removal or remedial action,
that is necessary or appropriate whenever there is a
release or a substantial threat of a release of (A) a
hazardous substance or pesticide or (B) petroleum from an
underground storage tank.
(e) The Agency shall have the duty to investigate
violations of this Act, any rule or regulation adopted under
this Act, any permit or term or condition of a permit, or any
Board order; Act or of regulations adopted thereunder, or of
permits or terms or conditions thereof, to issue
administrative citations as provided in Section 31.1 of this
Act;, and to take such summary enforcement action as is
provided for by Section 34 of this Act.
(f) The Agency shall appear before the Board in any
hearing upon a petition for variance, the denial of a permit,
or the validity or effect of a rule or regulation of the
Board, and shall have the authority to appear before the
Board in any hearing under the Act.
(g) The Agency shall have the duty to administer, in
accord with Title X of this Act, such permit and
certification systems as may be established by this Act or by
regulations adopted thereunder. The Agency may enter into
written delegation agreements with any department, agency, or
unit of State or local government under which all or portions
of this duty may be delegated for public water supply storage
and transport systems, sewage collection and transport
systems, air pollution control sources with uncontrolled
emissions of 100 tons per year or less and application of
algicides to waters of the State. Such delegation agreements
will require that the work to be performed thereunder will be
in accordance with Agency criteria, subject to Agency review,
and shall include such financial and program auditing by the
Agency as may be required.
(h) The Agency shall have authority to require the
submission of complete plans and specifications from any
applicant for a permit required by this Act or by regulations
thereunder, and to require the submission of such reports
regarding actual or potential violations of this Act, any
rule or regulation adopted under this Act, any permit or term
or condition of a permit, or any Board order the Act or of
regulations thereunder, or of permits or terms or conditions
thereof, as may be necessary for the purposes of this Act.
(i) The Agency shall have authority to make
recommendations to the Board for the adoption of regulations
under Title VII of the Act.
(j) The Agency shall have the duty to represent the
State of Illinois in any and all matters pertaining to plans,
procedures, or negotiations for interstate compacts or other
governmental arrangements relating to environmental
protection.
(k) The Agency shall have the authority to accept,
receive, and administer on behalf of the State any grants,
gifts, loans, indirect cost reimbursements, or other funds
made available to the State from any source for purposes of
this Act or for air or water pollution control, public water
supply, solid waste disposal, noise abatement, or other
environmental protection activities, surveys, or programs.
Any federal funds received by the Agency pursuant to this
subsection shall be deposited in a trust fund with the State
Treasurer and held and disbursed by him in accordance with
Treasurer as Custodian of Funds Act, provided that such
monies shall be used only for the purposes for which they are
contributed and any balance remaining shall be returned to
the contributor.
The Agency is authorized to promulgate such regulations
and enter into such contracts as it may deem necessary for
carrying out the provisions of this subsection.
(l) The Agency is hereby designated as water pollution
agency for the state for all purposes of the Federal Water
Pollution Control Act, as amended; as implementing agency for
the State for all purposes of the Safe Drinking Water Act,
Public Law 93-523, as now or hereafter amended, except
Section 1425 of that Act; as air pollution agency for the
state for all purposes of the Clean Air Act of 1970, Public
Law 91-604, approved December 31, 1970, as amended; and as
solid waste agency for the state for all purposes of the
Solid Waste Disposal Act, Public Law 89-272, approved October
20, 1965, and amended by the Resource Recovery Act of 1970,
Public Law 91-512, approved October 26, 1970, as amended, and
amended by the Resource Conservation and Recovery Act of
1976, (P.L. 94-580) approved October 21, 1976, as amended; as
noise control agency for the state for all purposes of the
Noise Control Act of 1972, Public Law 92-574, approved
October 27, 1972, as amended; and as implementing agency for
the State for all purposes of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (P.L.
96-510), as amended; and otherwise as pollution control
agency for the State pursuant to federal laws integrated with
the foregoing laws, for financing purposes or otherwise. The
Agency is hereby authorized to take all action necessary or
appropriate to secure to the State the benefits of such
federal Acts, provided that the Agency shall transmit to the
United States without change any standards adopted by the
Pollution Control Board pursuant to Section 5(c) of this Act.
This subsection (l) of Section 4 shall not be construed to
bar or prohibit the Environmental Protection Trust Fund
Commission from accepting, receiving, and administering on
behalf of the State any grants, gifts, loans or other funds
for which the Commission is eligible pursuant to the
Environmental Protection Trust Fund Act. The Agency is
hereby designated as the State agency for all purposes of
administering the requirements of Section 313 of the federal
Emergency Planning and Community Right-to-Know Act of 1986.
Any municipality, sanitary district, or other political
subdivision, or any Agency of the State or interstate Agency,
which makes application for loans or grants under such
federal Acts shall notify the Agency of such application; the
Agency may participate in proceedings under such federal
Acts.
(m) The Agency shall have authority, consistent with
Section 5(c) and other provisions of this Act, and for
purposes of Section 303(e) of the Federal Water Pollution
Control Act, as now or hereafter amended, to engage in
planning processes and activities and to develop plans in
cooperation with units of local government, state agencies
and officers, and other appropriate persons in connection
with the jurisdiction or duties of each such unit, agency,
officer or person. Public hearings shall be held on the
planning process, at which any person shall be permitted to
appear and be heard, pursuant to procedural regulations
promulgated by the Agency.
(n) In accordance with the powers conferred upon the
Agency by Sections 10(g), 13(b), 19, 22(d) and 25 of this
Act, the Agency shall have authority to establish and enforce
minimum standards for the operation of laboratories relating
to analyses and laboratory tests for air pollution, water
pollution, noise emissions, contaminant discharges onto land
and sanitary, chemical, and mineral quality of water
distributed by a public water supply. The Agency may enter
into formal working agreements with other departments or
agencies of state government under which all or portions of
this authority may be delegated to the cooperating department
or agency.
(o) The Agency shall have the authority to issue
certificates of competency to persons and laboratories
meeting the minimum standards established by the Agency in
accordance with Section 4(n) of this Act and to promulgate
and enforce regulations relevant to the issuance and use of
such certificates. The Agency may enter into formal working
agreements with other departments or agencies of state
government under which all or portions of this authority may
be delegated to the cooperating department or agency.
(p) Except as provided in Section 17.7, the Agency shall
have the duty to analyze samples as required from each public
water supply to determine compliance with the contaminant
levels specified by the Pollution Control Board. The maximum
number of samples which the Agency shall be required to
analyze for microbiological quality shall be 6 per month, but
the Agency may, at its option, analyze a larger number each
month for any supply. Results of sample analyses for
additional required bacteriological testing, turbidity,
residual chlorine and radionuclides are to be provided to the
Agency in accordance with Section 19. Owners of water
supplies may enter into agreements with the Agency to provide
for reduced Agency participation in sample analyses.
(q) The Agency shall have the authority to provide
notice to any person who may be liable pursuant to Section
22.2(f) of this Act for a release or a substantial threat of
a release of a hazardous substance or pesticide. Such notice
shall include the identified response action and an
opportunity for such person to perform the response action.
(r) The Agency may enter into written delegation
agreements with any unit of local government under which it
may delegate all or portions of its inspecting, investigating
and enforcement functions. Such delegation agreements shall
require that work performed thereunder be in accordance with
Agency criteria and subject to Agency review.
Notwithstanding any other provision of law to the contrary,
no unit of local government shall be liable for any injury
resulting from the exercise of its authority pursuant to such
a delegation agreement unless the injury is proximately
caused by the willful and wanton negligence of an agent or
employee of the unit of local government, and any policy of
insurance coverage issued to a unit of local government may
provide for the denial of liability and the nonpayment of
claims based upon injuries for which the unit of local
government is not liable pursuant to this subsection (r).
(s) The Agency shall have authority to take whatever
preventive or corrective action is necessary or appropriate,
including but not limited to expenditure of monies
appropriated from the Build Illinois Bond Fund and the Build
Illinois Purposes Fund for removal or remedial action,
whenever any hazardous substance or pesticide is released or
there is a substantial threat of such a release into the
environment. The State, the Director, and any State employee
shall be indemnified for any damages or injury arising out of
or resulting from any action taken under this subsection.
The Director of the Agency is authorized to enter into such
contracts and agreements as are necessary to carry out the
Agency's duties under this subsection.
(t) The Agency shall have authority to distribute
grants, subject to appropriation by the General Assembly, for
financing and construction of municipal wastewater
facilities. With respect to all monies appropriated from the
Build Illinois Bond Fund and the Build Illinois Purposes Fund
for wastewater facility grants, the Agency shall make
distributions in conformity with the rules and regulations
established pursuant to the Anti-Pollution Bond Act, as now
or hereafter amended.
(u) Pursuant to the Illinois Administrative Procedure
Act, the Agency shall have the authority to adopt such rules
as are necessary or appropriate for the Agency to implement
Section 31.1 of this Act.
(v) (Blank.)
(w) Neither the State, nor the Director, nor the Board,
nor any State employee shall be liable for any damages or
injury arising out of or resulting from any action taken
under subsection (s).
(x)(1) The Agency shall have authority to distribute
grants, subject to appropriation by the General Assembly,
to units of local government for financing and
construction of public water supply facilities. With
respect to all monies appropriated from the Build
Illinois Bond Fund or the Build Illinois Purposes Fund
for public water supply grants, such grants shall be made
in accordance with rules promulgated by the Agency. Such
rules shall include a requirement for a local match of
30% of the total project cost for projects funded through
such grants.
(2) The Agency shall not terminate a grant to a
unit of local government for the financing and
construction of public water supply facilities unless and
until the Agency adopts rules that set forth precise and
complete standards, pursuant to Section 5-20 of the
Illinois Administrative Procedure Act, for the
termination of such grants. The Agency shall not make
determinations on whether specific grant conditions are
necessary to ensure the integrity of a project or on
whether subagreements shall be awarded, with respect to
grants for the financing and construction of public water
supply facilities, unless and until the Agency adopts
rules that set forth precise and complete standards,
pursuant to Section 5-20 of the Illinois Administrative
Procedure Act, for making such determinations. The
Agency shall not issue a stop-work order in relation to
such grants unless and until the Agency adopts precise
and complete standards, pursuant to Section 5-20 of the
Illinois Administrative Procedure Act, for determining
whether to issue a stop-work order.
(y) The Agency shall have authority to release any
person from further responsibility for preventive or
corrective action under this Act following successful
completion of preventive or corrective action undertaken by
such person upon written request by the person.
(Source: P.A. 91-25, eff. 6-9-99; 92-574, eff. 6-26-02.)
(415 ILCS 5/5) (from Ch. 111 1/2, par. 1005)
Sec. 5. Pollution Control Board.
(a) There is hereby created an independent board to be
known as the Pollution Control Board, consisting of 7
technically qualified members, no more than 4 of whom may be
of the same political party, to be appointed by the Governor
with the advice and consent of the Senate.
All members shall hold office for 3 years from the first
day of July in the year in which they were appointed, except
in case of an appointment to fill a vacancy. In case of a
vacancy in the office when the Senate is not in session, the
Governor may make a temporary appointment until the next
meeting of the Senate, when he or she shall nominate some
person to fill such office; and any person so nominated, who
is confirmed by the Senate, shall hold the office during the
remainder of the term.
Members of the Board shall hold office until their
respective successors have been appointed and qualified. Any
member may resign from office, such resignation to take
effect when a successor has been appointed and has qualified.
Board members shall be paid $37,000 per year or an amount
set by the Compensation Review Board, whichever is greater,
and the Chairman shall be paid $43,000 per year or an amount
set by the Compensation Review Board, whichever is greater.
Each member shall be reimbursed for expenses necessarily
incurred, shall devote full time to the performance of his or
her duties and shall make a financial disclosure upon
appointment. Each Board member may employ one secretary and
one assistant, and the Chairman one secretary and 2
assistants. The Board also may employ and compensate hearing
officers to preside at hearings under this Act, and such
other personnel as may be necessary. Hearing officers shall
be attorneys licensed to practice law in Illinois.
The Governor shall designate one Board member to be
Chairman, who shall serve at the pleasure of the Governor.
The Board shall hold at least one meeting each month and
such additional meetings as may be prescribed by Board rules.
In addition, special meetings may be called by the Chairman
or by any 2 Board members, upon delivery of 24 hours written
notice to the office of each member. All Board meetings
shall be open to the public, and public notice of all
meetings shall be given at least 24 hours in advance of each
meeting. In emergency situations in which a majority of the
Board certifies that exigencies of time require the
requirements of public notice and of 24 hour written notice
to members may be dispensed with, and Board members shall
receive such notice as is reasonable under the circumstances.
Four members of the Board shall constitute a quorum, and
4 votes shall be required for any final determination by the
Board, except in a proceeding to remove a seal under
paragraph (d) of Section 34 of this Act. The Board shall
keep a complete and accurate record of all its meetings.
(b) The Board shall determine, define and implement the
environmental control standards applicable in the State of
Illinois and may adopt rules and regulations in accordance
with Title VII of this Act.
(c) The Board shall have authority to act for the State
in regard to the adoption of standards for submission to the
United States under any federal law respecting environmental
protection. Such standards shall be adopted in accordance
with Title VII of the Act and upon adoption shall be
forwarded to the Environmental Protection Agency for
submission to the United States pursuant to subsections (l)
and (m) of Section 4 of this Act. Nothing in this paragraph
shall limit the discretion of the Governor to delegate
authority granted to the Governor under any federal law.
(d) The Board shall have authority to conduct
proceedings upon complaints charging violations of this Act,
any rule or regulation adopted under this Act, or any permit
or term or condition of a permit, or any Board order; upon
administrative citations; upon petitions for variances or
adjusted standards; upon petitions for review of the Agency's
final determinations on permit applications in accordance
with Title X of this Act; upon petitions to remove seals
under Section 34 of this Act; and upon other petitions for
review of final determinations which are made pursuant to
this Act or Board rule and which involve a subject which the
Board is authorized to regulate. The Board may also conduct
other proceedings as may be provided by this Act or any other
statute or rule.
(e) In connection with any proceeding pursuant to
subsection (b) or (d) of this Section, the Board may subpoena
and compel the attendance of witnesses and the production of
evidence reasonably necessary to resolution of the matter
under consideration. The Board shall issue such subpoenas
upon the request of any party to a proceeding under
subsection (d) of this Section or upon its own motion.
(f) The Board may prescribe reasonable fees for permits
required pursuant to this Act. Such fees in the aggregate
may not exceed the total cost to the Agency for its
inspection and permit systems. The Board may not prescribe
any permit fees which are different in amount from those
established by this Act.
(Source: P.A. 92-574, eff. 6-26-02.)
(415 ILCS 5/22.2) (from Ch. 111 1/2, par. 1022.2)
Sec. 22.2. Hazardous waste; fees; liability.
(a) There are hereby created within the State Treasury 2
special funds to be known respectively as the "Hazardous
Waste Fund" and the "Hazardous Waste Research Fund",
constituted from the fees collected pursuant to this Section.
In addition to the fees collected under this Section, the
Hazardous Waste Fund shall include other moneys made
available from any source for deposit into the Fund.
(b) (1) On and after January 1, 1989, the Agency shall
collect from the owner or operator of each of the
following sites a fee in the amount of:
(A) 9 cents per gallon or $18.18 per cubic
yard, if the hazardous waste disposal site is
located off the site where such waste was produced.
The maximum amount payable under this subdivision
(A) with respect to the hazardous waste generated by
a single generator and deposited in monofills is
$30,000 per year. If, as a result of the use of
multiple monofills, waste fees in excess of the
maximum are assessed with respect to a single waste
generator, the generator may apply to the Agency for
a credit.
(B) 9 cents or $18.18 per cubic yard, if the
hazardous waste disposal site is located on the site
where such waste was produced, provided however the
maximum amount of fees payable under this paragraph
(B) is $30,000 per year for each such hazardous
waste disposal site.
(C) If the hazardous waste disposal site is an
underground injection well, $6,000 per year if not
more than 10,000,000 gallons per year are injected,
$15,000 per year if more than 10,000,000 gallons but
not more than 50,000,000 gallons per year are
injected, and $27,000 per year if more than
50,000,000 gallons per year are injected.
(D) 3 cents per gallon or $6.06 per cubic yard
of hazardous waste received for treatment at a
hazardous waste treatment site, if the hazardous
waste treatment site is located off the site where
such waste was produced and if such hazardous waste
treatment site is owned, controlled and operated by
a person other than the generator of such waste.
After treatment at such hazardous waste treatment
site, the waste shall not be subject to any other
fee imposed by this subsection (b). For purposes of
this subsection (b), the term "treatment" is defined
as in Section 3.505 but shall not include recycling,
reclamation or reuse.
(2) The General Assembly shall annually appropriate
to the Fund such amounts as it deems necessary to fulfill
the purposes of this Act.
(3) The Agency shall have the authority to accept,
receive, and administer on behalf of the State any moneys
made available to the State from any source for the
purposes of the Hazardous Waste Fund set forth in
subsection (d) of this Section.
(4) Of the amount collected as fees provided for in
this Section, the Agency shall manage the use of such
funds to assure that sufficient funds are available for
match towards federal expenditures for response action at
sites which are listed on the National Priorities List;
provided, however, that this shall not apply to
additional monies appropriated to the Fund by the General
Assembly, nor shall it apply in the event that the
Director finds that revenues in the Hazardous Waste Fund
must be used to address conditions which create or may
create an immediate danger to the environment or public
health or to the welfare of the people of the State of
Illinois.
(5) Notwithstanding the other provisions of this
subsection (b), sludge from a publicly-owned sewage works
generated in Illinois, coal mining wastes and refuse
generated in Illinois, bottom boiler ash, flyash and flue
gas desulphurization sludge from public utility electric
generating facilities located in Illinois, and bottom
boiler ash and flyash from all incinerators which process
solely municipal waste shall not be subject to the fee.
(6) For the purposes of this subsection (b),
"monofill" means a facility, or a unit at a facility,
that accepts only wastes bearing the same USEPA hazardous
waste identification number, or compatible wastes as
determined by the Agency.
(c) The Agency shall establish procedures, not later
than January 1, 1984, relating to the collection of the fees
authorized by this Section. Such procedures shall include,
but not be limited to: (1) necessary records identifying the
quantities of hazardous waste received or disposed; (2) the
form and submission of reports to accompany the payment of
fees to the Agency; and (3) the time and manner of payment of
fees to the Agency, which payments shall be not more often
than quarterly.
(d) Beginning July 1, 1996, the Agency shall deposit all
such receipts in the State Treasury to the credit of the
Hazardous Waste Fund, except as provided in subsection (e) of
this Section. All monies in the Hazardous Waste Fund shall be
used by the Agency for the following purposes:
(1) Taking whatever preventive or corrective action
is necessary or appropriate, in circumstances certified
by the Director, including but not limited to removal or
remedial action whenever there is a release or
substantial threat of a release of a hazardous substance
or pesticide; provided, the Agency shall expend no more
than $1,000,000 on any single incident without
appropriation by the General Assembly.
(2) To meet any requirements which must be met by
the State in order to obtain federal funds pursuant to
the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, (P.L. 96-510).
(3) In an amount up to 30% of the amount collected
as fees provided for in this Section, for use by the
Agency to conduct groundwater protection activities,
including providing grants to appropriate units of local
government which are addressing protection of underground
waters pursuant to the provisions of this Act.
(4) To fund the development and implementation of
the model pesticide collection program under Section 19.1
of the Illinois Pesticide Act.
(5) To the extent the Agency has received and
deposited monies in the Fund other than fees collected
under subsection (b) of this Section, to pay for the cost
of Agency employees for services provided in reviewing
the performance of response actions pursuant to Title
XVII of this Act.
(6) In an amount up to 15% of the fees collected
annually under subsection (b) of this Section, for use by
the Agency for administration of the provisions of this
Section.
(e) The Agency shall deposit 10% of all receipts
collected under subsection (b) of this Section, but not to
exceed $200,000 per year, in the State Treasury to the credit
of the Hazardous Waste Research Fund established by this Act.
Pursuant to appropriation, all monies in such Fund shall be
used by the Department of Natural Resources for the purposes
set forth in this subsection.
The Department of Natural Resources may enter into
contracts with business, industrial, university, governmental
or other qualified individuals or organizations to assist in
the research and development intended to recycle, reduce the
volume of, separate, detoxify or reduce the hazardous
properties of hazardous wastes in Illinois. Monies in the
Fund may also be used by the Department of Natural Resources
for technical studies, monitoring activities, and educational
and research activities which are related to the protection
of underground waters. Monies in the Hazardous Waste
Research Fund may be used to administer the Illinois Health
and Hazardous Substances Registry Act. Monies in the
Hazardous Waste Research Fund shall not be used for any
sanitary landfill or the acquisition or construction of any
facility. This does not preclude the purchase of equipment
for the purpose of public demonstration projects. The
Department of Natural Resources shall adopt guidelines for
cost sharing, selecting, and administering projects under
this subsection.
(f) Notwithstanding any other provision or rule of law,
and subject only to the defenses set forth in subsection (j)
of this Section, the following persons shall be liable for
all costs of removal or remedial action incurred by the State
of Illinois or any unit of local government as a result of a
release or substantial threat of a release of a hazardous
substance or pesticide:
(1) the owner and operator of a facility or vessel
from which there is a release or substantial threat of
release of a hazardous substance or pesticide;
(2) any person who at the time of disposal,
transport, storage or treatment of a hazardous substance
or pesticide owned or operated the facility or vessel
used for such disposal, transport, treatment or storage
from which there was a release or substantial threat of a
release of any such hazardous substance or pesticide;
(3) any person who by contract, agreement, or
otherwise has arranged with another party or entity for
transport, storage, disposal or treatment of hazardous
substances or pesticides owned, controlled or possessed
by such person at a facility owned or operated by another
party or entity from which facility there is a release or
substantial threat of a release of such hazardous
substances or pesticides; and
(4) any person who accepts or accepted any
hazardous substances or pesticides for transport to
disposal, storage or treatment facilities or sites from
which there is a release or a substantial threat of a
release of a hazardous substance or pesticide.
Any monies received by the State of Illinois pursuant to
this subsection (f) shall be deposited in the State Treasury
to the credit of the Hazardous Waste Fund.
In accordance with the other provisions of this Section,
costs of removal or remedial action incurred by a unit of
local government may be recovered in an action before the
Board brought by the unit of local government under
subsection (i) of this Section. Any monies so recovered
shall be paid to the unit of local government.
(g)(1) No indemnification, hold harmless, or similar
agreement or conveyance shall be effective to transfer
from the owner or operator of any vessel or facility or
from any person who may be liable for a release or
substantial threat of a release under this Section, to
any other person the liability imposed under this
Section. Nothing in this Section shall bar any agreement
to insure, hold harmless or indemnify a party to such
agreements for any liability under this Section.
(2) Nothing in this Section, including the
provisions of paragraph (g)(1) of this Section, shall bar
a cause of action that an owner or operator or any other
person subject to liability under this Section, or a
guarantor, has or would have, by reason of subrogation or
otherwise against any person.
(h) For purposes of this Section:
(1) The term "facility" means:
(A) any building, structure, installation,
equipment, pipe or pipeline including but not
limited to any pipe into a sewer or publicly owned
treatment works, well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container,
motor vehicle, rolling stock, or aircraft; or
(B) any site or area where a hazardous
substance has been deposited, stored, disposed of,
placed, or otherwise come to be located.
(2) The term "owner or operator" means:
(A) any person owning or operating a vessel or
facility;
(B) in the case of an abandoned facility, any
person owning or operating the abandoned facility or
any person who owned, operated, or otherwise
controlled activities at the abandoned facility
immediately prior to such abandonment;
(C) in the case of a land trust as defined in
Section 2 of the Land Trustee as Creditor Act, the
person owning the beneficial interest in the land
trust;
(D) in the case of a fiduciary (other than a
land trustee), the estate, trust estate, or other
interest in property held in a fiduciary capacity,
and not the fiduciary. For the purposes of this
Section, "fiduciary" means a trustee, executor,
administrator, guardian, receiver, conservator or
other person holding a facility or vessel in a
fiduciary capacity;
(E) in the case of a "financial institution",
meaning the Illinois Housing Development Authority
and that term as defined in Section 2 of the
Illinois Banking Act, that has acquired ownership,
operation, management, or control of a vessel or
facility through foreclosure or under the terms of a
security interest held by the financial institution
or under the terms of an extension of credit made by
the financial institution, the financial institution
only if the financial institution takes possession
of the vessel or facility and the financial
institution exercises actual, direct, and continual
or recurrent managerial control in the operation of
the vessel or facility that causes a release or
substantial threat of a release of a hazardous
substance or pesticide resulting in removal or
remedial action;
(F) In the case of an owner of residential
property, the owner if the owner is a person other
than an individual, or if the owner is an individual
who owns more than 10 dwelling units in Illinois, or
if the owner, or an agent, representative,
contractor, or employee of the owner, has caused,
contributed to, or allowed the release or threatened
release of a hazardous substance or pesticide. The
term "residential property" means single family
residences of one to 4 dwelling units, including
accessory land, buildings, or improvements
incidental to those dwellings that are exclusively
used for the residential use. For purposes of this
subparagraph (F), the term "individual" means a
natural person, and shall not include corporations,
partnerships, trusts, or other non-natural persons.
(G) In the case of any facility, title or
control of which was conveyed due to bankruptcy,
foreclosure, tax delinquency, abandonment, or
similar means to a unit of State or local
government, any person who owned, operated, or
otherwise controlled activities at the facility
immediately beforehand.
(H) The term "owner or operator" does not
include a unit of State or local government which
acquired ownership or control through bankruptcy,
tax delinquency, abandonment, or other circumstances
in which the government acquires title by virtue of
its function as sovereign. The exclusion provided
under this paragraph shall not apply to any State or
local government which has caused or contributed to
the release or threatened release of a hazardous
substance from the facility, and such a State or
local government shall be subject to the provisions
of this Act in the same manner and to the same
extent, both procedurally and substantively, as any
nongovernmental entity, including liability under
Section 22.2(f).
(i) The costs and damages provided for in this Section
may be imposed by the Board in an action brought before the
Board in accordance with Title VIII of this Act, except that
Section 33(c) of this Act shall not apply to any such action.
(j) (1) There shall be no liability under this Section
for a person otherwise liable who can establish by a
preponderance of the evidence that the release or substantial
threat of release of a hazardous substance and the damages
resulting therefrom were caused solely by:
(A) an act of God;
(B) an act of war;
(C) an act or omission of a third party other than
an employee or agent of the defendant, or other than one
whose act or omission occurs in connection with a
contractual relationship, existing directly or
indirectly, with the defendant (except where the sole
contractual arrangement arises from a published tariff
and acceptance for carriage by a common carrier by rail),
if the defendant establishes by a preponderance of the
evidence that (i) he exercised due care with respect to
the hazardous substance concerned, taking into
consideration the characteristics of such hazardous
substance, in light of all relevant facts and
circumstances, and (ii) he took precautions against
foreseeable acts or omissions of any such third party and
the consequences that could foreseeably result from such
acts or omissions; or
(D) any combination of the foregoing paragraphs.
(2) There shall be no liability under this Section for
any release permitted by State or federal law.
(3) There shall be no liability under this Section for
damages as a result of actions taken or omitted in the course
of rendering care, assistance, or advice in accordance with
this Section or the National Contingency Plan pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (P.L. 96-510) or at the direction of an
on-scene coordinator appointed under such plan, with respect
to an incident creating a danger to public health or welfare
or the environment as a result of any release of a hazardous
substance or a substantial threat thereof. This subsection
shall not preclude liability for damages as the result of
gross negligence or intentional misconduct on the part of
such person. For the purposes of the preceding sentence,
reckless, willful, or wanton misconduct shall constitute
gross negligence.
(4) There shall be no liability under this Section for
any person (including, but not limited to, an owner of
residential property who applies a pesticide to the
residential property or who has another person apply a
pesticide to the residential property) for response costs or
damages as the result of the storage, handling and use, or
recommendation for storage, handling and use, of a pesticide
consistent with:
(A) its directions for storage, handling and use as
stated in its label or labeling;
(B) its warnings and cautions as stated in its
label or labeling; and
(C) the uses for which it is registered under the
Federal Insecticide, Fungicide and Rodenticide Act and
the Illinois Pesticide Act.
(4.5) There shall be no liability under subdivision
(f)(1) of this Section for response costs or damages as the
result of a release of a pesticide from an agrichemical
facility site if the Agency has received notice from the
Department of Agriculture pursuant to Section 19.3 of the
Illinois Pesticide Act, the owner or operator of the
agrichemical facility is proceeding with a corrective action
plan under the Agrichemical Facility Response Action Program
implemented under that Section, and the Agency has provided a
written endorsement of a corrective action plan.
(4.6) There shall be no liability under subdivision
(f)(1) of this Section for response costs or damages as the
result of a substantial threat of a release of a pesticide
from an agrichemical facility site if the Agency has received
notice from the Department of Agriculture pursuant to Section
19.3 of the Illinois Pesticide Act and the owner or operator
of the agrichemical facility is proceeding with a corrective
action plan under the Agrichemical Facility Response Action
Program implemented under that Section.
(5) Nothing in this subsection (j) shall affect or
modify in any way the obligations or liability of any person
under any other provision of this Act or State or federal
law, including common law, for damages, injury, or loss
resulting from a release or substantial threat of a release
of any hazardous substance or for removal or remedial action
or the costs of removal or remedial action of such hazardous
substance.
(6)(A) The term "contractual relationship", for the
purpose of this subsection includes, but is not limited to,
land contracts, deeds or other instruments transferring title
or possession, unless the real property on which the facility
concerned is located was acquired by the defendant after the
disposal or placement of the hazardous substance on, in, or
at the facility, and one or more of the circumstances
described in clause (i), (ii), or (iii) of this paragraph is
also established by the defendant by a preponderance of the
evidence:
(i) At the time the defendant acquired the facility
the defendant did not know and had no reason to know that
any hazardous substance which is the subject of the
release or threatened release was disposed of on, in or
at the facility.
(ii) The defendant is a government entity which
acquired the facility by escheat, or through any other
involuntary transfer or acquisition, or through the
exercise of eminent domain authority by purchase or
condemnation.
(iii) The defendant acquired the facility by
inheritance or bequest.
In addition to establishing the foregoing, the defendant
must establish that he has satisfied the requirements of
subparagraph (C) of paragraph (l) of this subsection (j).
(B) To establish the defendant had no reason to know, as
provided in clause (i) of subparagraph (A) of this paragraph,
the defendant must have undertaken, at the time of
acquisition, all appropriate inquiry into the previous
ownership and uses of the property consistent with good
commercial or customary practice in an effort to minimize
liability. For purposes of the preceding sentence, the court
shall take into account any specialized knowledge or
experience on the part of the defendant, the relationship of
the purchase price to the value of the property if
uncontaminated, commonly known or reasonably ascertainable
information about the property, the obviousness of the
presence or likely presence of contamination at the property,
and the ability to detect such contamination by appropriate
inspection.
(C) Nothing in this paragraph (6) or in subparagraph (C)
of paragraph (1) of this subsection shall diminish the
liability of any previous owner or operator of such facility
who would otherwise be liable under this Act. Notwithstanding
this paragraph (6), if the defendant obtained actual
knowledge of the release or threatened release of a hazardous
substance at such facility when the defendant owned the real
property and then subsequently transferred ownership of the
property to another person without disclosing such knowledge,
such defendant shall be treated as liable under subsection
(f) of this Section and no defense under subparagraph (C) of
paragraph (1) of this subsection shall be available to such
defendant.
(D) Nothing in this paragraph (6) shall affect the
liability under this Act of a defendant who, by any act or
omission, caused or contributed to the release or threatened
release of a hazardous substance which is the subject of the
action relating to the facility.
(E) (i) Except as provided in clause (ii) of this
subparagraph (E), a defendant who has acquired real property
shall have established a rebuttable presumption against all
State claims and a conclusive presumption against all private
party claims that the defendant has made all appropriate
inquiry within the meaning of subdivision (6)(B) of this
subsection (j) if the defendant proves that immediately prior
to or at the time of the acquisition:
(I) the defendant obtained a Phase I Environmental
Audit of the real property that meets or exceeds the
requirements of this subparagraph (E), and the Phase I
Environmental Audit did not disclose the presence or
likely presence of a release or a substantial threat of a
release of a hazardous substance or pesticide at, on, to,
or from the real property; or
(II) the defendant obtained a Phase II
Environmental Audit of the real property that meets or
exceeds the requirements of this subparagraph (E), and
the Phase II Environmental Audit did not disclose the
presence or likely presence of a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from the real property.
(ii) No presumption shall be created under clause (i) of
this subparagraph (E), and a defendant shall be precluded
from demonstrating that the defendant has made all
appropriate inquiry within the meaning of subdivision (6)(B)
of this subsection (j), if:
(I) the defendant fails to obtain all Environmental
Audits required under this subparagraph (E) or any such
Environmental Audit fails to meet or exceed the
requirements of this subparagraph (E);
(II) a Phase I Environmental Audit discloses the
presence or likely presence of a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from real property, and the defendant
fails to obtain a Phase II Environmental Audit;
(III) a Phase II Environmental Audit discloses the
presence or likely presence of a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from the real property;
(IV) the defendant fails to maintain a written
compilation and explanatory summary report of the
information reviewed in the course of each Environmental
Audit under this subparagraph (E); or
(V) there is any evidence of fraud, material
concealment, or material misrepresentation by the
defendant of environmental conditions or of related
information discovered during the course of an
Environmental Audit.
(iii) For purposes of this subparagraph (E), the term
"environmental professional" means an individual (other than
a practicing attorney) who, through academic training,
occupational experience, and reputation (such as engineers,
industrial hygienists, or geologists) can objectively conduct
one or more aspects of an Environmental Audit and who either:
(I) maintains at the time of the Environmental
Audit and for at least one year thereafter at least
$500,000 of environmental consultants' professional
liability insurance coverage issued by an insurance
company licensed to do business in Illinois; or
(II) is an Illinois licensed professional engineer
or an Illinois licensed industrial hygienist.
An environmental professional may employ persons who are
not environmental professionals to assist in the preparation
of an Environmental Audit if such persons are under the
direct supervision and control of the environmental
professional.
(iv) For purposes of this subparagraph (E), the term
"real property" means any interest in any parcel of land, and
includes, but is not limited to, buildings, fixtures, and
improvements.
(v) For purposes of this subparagraph (E), the term
"Phase I Environmental Audit" means an investigation of real
property, conducted by environmental professionals, to
discover the presence or likely presence of a release or a
substantial threat of a release of a hazardous substance or
pesticide at, on, to, or from real property, and whether a
release or a substantial threat of a release of a hazardous
substance or pesticide has occurred or may occur at, on, to,
or from the real property. Until such time as the United
States Environmental Protection Agency establishes standards
for making appropriate inquiry into the previous ownership
and uses of the facility pursuant to 42 U.S.C. Sec.
9601(35)(B)(ii), the investigation shall comply with the
procedures of the American Society for Testing and Materials,
including the document known as Standard E1527-97, entitled
"Standard Procedures for Environmental Site Assessment: Phase
1 Environmental Site Assessment Process". Upon their
adoption, the standards promulgated by USEPA pursuant to 42
U.S.C. Sec. 9601(35)(B)(ii) shall govern the performance of
Phase I Environmental Audits. In addition to the above
requirements, the Phase I Environmental Audit shall include a
review of recorded land title records for the purpose of
determining whether the real property is subject to an
environmental land use restriction such as a No Further
Remediation Letter, Environmental Land Use Control, or
Highway Authority Agreement. The investigation shall include
a review of at least each of the following sources of
information concerning the current and previous ownership and
use of the real property:
(I) Recorded chain of title documents regarding the
real property, including all deeds, easements, leases,
restrictions, and covenants for a period of 50 years.
(II) Aerial photographs that may reflect prior uses
of the real property and that are reasonably obtainable
through State, federal, or local government agencies or
bodies.
(III) Recorded environmental cleanup liens, if any,
against the real property that have arisen pursuant to
this Act or federal statutes.
(IV) Reasonably obtainable State, federal, and
local government records of sites or facilities at, on,
or near the real property to discover the presence or
likely presence of a hazardous substance or pesticide,
and whether a release or a substantial threat of a
release of a hazardous substance or pesticide has
occurred or may occur at, on, to, or from the real
property. Such government records shall include, but not
be limited to: reasonably obtainable State, federal, and
local government investigation reports for those sites or
facilities; reasonably obtainable State, federal, and
local government records of activities likely to cause or
contribute to a release or a threatened release of a
hazardous substance or pesticide at, on, to, or from the
real property, including landfill and other treatment,
storage, and disposal location records, underground
storage tank records, hazardous waste transporter and
generator records, and spill reporting records; and other
reasonably obtainable State, federal, and local
government environmental records that report incidents or
activities that are likely to cause or contribute to a
release or a threatened release of a hazardous substance
or pesticide at, on, to, or from the real property. In
order to be deemed "reasonably obtainable" as required
herein, a copy or reasonable facsimile of the record must
be obtainable from the government agency by request and
upon payment of a processing fee, if any, established by
the government agency. The Agency is authorized to
establish a reasonable fee for processing requests
received under this subparagraph (E) for records. All
fees collected by the Agency under this clause (v)(IV)
shall be deposited into the Environmental Protection
Permit and Inspection Fund in accordance with Section
22.8.
Notwithstanding any other law, if the fee is paid,
the Agency shall process a request received under this
subparagraph (E) for records within 30 days of the
receipt of such request.
(V) A visual site inspection of the real property
and all facilities and improvements on the real property
and a visual inspection of properties immediately
adjacent to the real property, including an investigation
of any use, storage, treatment, spills from use, or
disposal of hazardous substances, hazardous wastes, solid
wastes, or pesticides. If the person conducting the
investigation is denied access to any property adjacent
to the real property, the person shall conduct a visual
inspection of that adjacent property from the property to
which the person does have access and from public
rights-of-way.
(VI) A review of business records for activities at
or on the real property for a period of 50 years.
(vi) For purposes of subparagraph (E), the term "Phase
II Environmental Audit" means an investigation of real
property, conducted by environmental professionals,
subsequent to a Phase I Environmental Audit. If the Phase I
Environmental Audit discloses the presence or likely presence
of a hazardous substance or a pesticide or a release or a
substantial threat of a release of a hazardous substance or
pesticide:
(I) In or to soil, the defendant, as part of the
Phase II Environmental Audit, shall perform a series of
soil borings sufficient to determine whether there is a
presence or likely presence of a hazardous substance or
pesticide and whether there is or has been a release or a
substantial threat of a release of a hazardous substance
or pesticide at, on, to, or from the real property.
(II) In or to groundwater, the defendant, as part
of the Phase II Environmental Audit, shall: review
information regarding local geology, water well
locations, and locations of waters of the State as may be
obtained from State, federal, and local government
records, including but not limited to the United States
Geological Service, the State Geological Survey Division
of the Department of Natural Resources, and the State
Water Survey Division of the Department of Natural
Resources; and perform groundwater monitoring sufficient
to determine whether there is a presence or likely
presence of a hazardous substance or pesticide, and
whether there is or has been a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from the real property.
(III) On or to media other than soil or
groundwater, the defendant, as part of the Phase II
Environmental Audit, shall perform an investigation
sufficient to determine whether there is a presence or
likely presence of a hazardous substance or pesticide,
and whether there is or has been a release or a
substantial threat of a release of a hazardous substance
or pesticide at, on, to, or from the real property.
(vii) The findings of each Environmental Audit prepared
under this subparagraph (E) shall be set forth in a written
audit report. Each audit report shall contain an affirmation
by the defendant and by each environmental professional who
prepared the Environmental Audit that the facts stated in the
report are true and are made under a penalty of perjury as
defined in Section 32-2 of the Criminal Code of 1961. It is
perjury for any person to sign an audit report that contains
a false material statement that the person does not believe
to be true.
(viii) The Agency is not required to review, approve, or
certify the results of any Environmental Audit. The
performance of an Environmental Audit shall in no way entitle
a defendant to a presumption of Agency approval or
certification of the results of the Environmental Audit.
The presence or absence of a disclosure document prepared
under the Responsible Property Transfer Act of 1988 shall not
be a defense under this Act and shall not satisfy the
requirements of subdivision (6)(A) of this subsection (j).
(7) No person shall be liable under this Section for
response costs or damages as the result of a pesticide
release if the Agency has found that a pesticide release
occurred based on a Health Advisory issued by the U.S.
Environmental Protection Agency or an action level developed
by the Agency, unless the Agency notified the manufacturer of
the pesticide and provided an opportunity of not less than 30
days for the manufacturer to comment on the technical and
scientific justification supporting the Health Advisory or
action level.
(8) No person shall be liable under this Section for
response costs or damages as the result of a pesticide
release that occurs in the course of a farm pesticide
collection program operated under Section 19.1 of the
Illinois Pesticide Act, unless the release results from gross
negligence or intentional misconduct.
(k) If any person who is liable for a release or
substantial threat of release of a hazardous substance or
pesticide fails without sufficient cause to provide removal
or remedial action upon or in accordance with a notice and
request by the Agency or upon or in accordance with any order
of the Board or any court, such person may be liable to the
State for punitive damages in an amount at least equal to,
and not more than 3 times, the amount of any costs incurred
by the State of Illinois as a result of such failure to take
such removal or remedial action. The punitive damages
imposed by the Board shall be in addition to any costs
recovered from such person pursuant to this Section and in
addition to any other penalty or relief provided by this Act
or any other law.
Any monies received by the State pursuant to this
subsection (k) shall be deposited in the Hazardous Waste
Fund.
(l) Beginning January 1, 1988, the Agency shall annually
collect a $250 fee for each Special Waste Hauling Permit
Application and, in addition, shall collect a fee of $20 for
each waste hauling vehicle identified in the annual permit
application and for each vehicle which is added to the permit
during the annual period. The Agency shall deposit 85% of
such fees collected under this subsection in the State
Treasury to the credit of the Hazardous Waste Research Fund;
and shall deposit the remaining 15% of such fees collected in
the State Treasury to the credit of the Environmental
Protection Permit and Inspection Fund. The majority of such
receipts which are deposited in the Hazardous Waste Research
Fund pursuant to this subsection shall be used by the
Department of Natural Resources for activities which relate
to the protection of underground waters. Persons engaged in
the offsite transportation of hazardous waste by highway and
participating in the Uniform Program under subsection (l-5)
are not required to file a Special Waste Hauling Permit
Application.
(l-5) (1) As used in this subsection:
"Base state" means the state selected by a
transporter according to the procedures established under
the Uniform Program.
"Base state agreement" means an agreement between
participating states electing to register or permit
transporters.
"Participating state" means a state electing to
participate in the Uniform Program by entering into a
base state agreement.
"Transporter" means a person engaged in the offsite
transportation of hazardous waste by highway.
"Uniform application" means the uniform registration
and permit application form prescribed under the Uniform
Program.
"Uniform Program" means the Uniform State Hazardous
Materials Transportation Registration and Permit Program
established in the report submitted and amended pursuant
to 49 U.S.C. Section 5119(b), as implemented by the
Agency under this subsection.
"Vehicle" means any self-propelled motor vehicle,
except a truck tractor without a trailer, designed or
used for the transportation of hazardous waste subject to
the hazardous waste manifesting requirements of 40 U.S.C.
Section 6923(a)(3).
(2) Beginning July 1, 1998, the Agency shall
implement the Uniform State Hazardous Materials
Transportation Registration and Permit Program. On and
after that date, no person shall engage in the offsite
transportation of hazardous waste by highway without
registering and obtaining a permit under the Uniform
Program. A transporter with its principal place of
business in Illinois shall register with and obtain a
permit from the Agency. A transporter that designates
another participating state in the Uniform Program as its
base state shall likewise register with and obtain a
permit from that state before transporting hazardous
waste in Illinois.
(3) Beginning July 1, 1998, the Agency shall
annually collect no more than a $250 processing and audit
fee from each transporter of hazardous waste who has
filed a uniform application and, in addition, the Agency
shall annually collect an apportioned vehicle
registration fee of $20. The amount of the apportioned
vehicle registration fee shall be calculated consistent
with the procedures established under the Uniform
Program.
All moneys received by the Agency from the
collection of fees pursuant to the Uniform Program shall
be deposited into the Hazardous Waste Transporter account
hereby created within the Environmental Protection Permit
and Inspection Fund. Moneys remaining in the account at
the close of the fiscal year shall not lapse to the
General Revenue Fund. The State Treasurer may receive
money or other assets from any source for deposit into
the account. The Agency may expend moneys from the
account, upon appropriation, for the implementation of
the Uniform Program, including the costs to the Agency of
fee collection and administration. In addition, funds
not expended for the implementation of the Uniform
Program may be utilized for emergency response and
cleanup activities related to hazardous waste
transportation that are initiated by the Agency.
Whenever the amount of the Hazardous Waste
Transporter account exceeds by 115% the amount annually
appropriated by the General Assembly, the Agency shall credit
participating transporters an amount, proportionately based
on the amount of the vehicle fee paid, equal to the excess in
the account, and shall determine the need to reduce the
amount of the fee charged transporters in the subsequent
fiscal year by the amount of the credit.
(4) (A) The Agency may propose and the Board shall
adopt rules as necessary to implement and enforce the
Uniform Program. The Agency is authorized to enter into
agreements with other agencies of this State as necessary
to carry out administrative functions or enforcement of
the Uniform Program.
(B) The Agency shall recognize a Uniform Program
registration as valid for one year from the date a notice
of registration form is issued and a permit as valid for
3 years from the date issued or until a transporter fails
to renew its registration, whichever occurs first.
(C) The Agency may inspect or examine any motor
vehicle or facility operated by a transporter, including
papers, books, records, documents, or other materials to
determine if a transporter is complying with the Uniform
Program. The Agency may also conduct investigations and
audits as necessary to determine if a transporter is
entitled to a permit or to make suspension or revocation
determinations consistent with the standards of the
Uniform Program.
(5) The Agency may enter into agreements with
federal agencies, national repositories, or other
participating states as necessary to allow for the
reciprocal registration and permitting of transporters
pursuant to the Uniform Program. The agreements may
include procedures for determining a base state, the
collection and distribution of registration fees, dispute
resolution, the exchange of information for reporting and
enforcement purposes, and other provisions necessary to
fully implement, administer, and enforce the Uniform
Program.
(m) (Blank).
(n) (Blank).
(Source: P.A. 91-36, eff. 6-15-99; 92-574, eff. 6-26-02.)
(415 ILCS 5/28.6 new)
Sec. 28.6. Rulemaking to update incorporation by
reference.
(a) Any person may file a proposal with the Board to
update an incorporation by reference included in a Board
rule. The Board or the Agency may also make such a proposal
on its own initiative.
(b) A rulemaking to update an incorporation by reference
under this Section shall be for the sole purpose of replacing
a reference to an older or obsolete version of a document
with a reference to the current version of that document or
its successor document.
(c) A rulemaking to update an incorporation by reference
under this Section shall comply with Sections 5-40 and 5-75
of the Illinois Administrative Procedure Act. Sections 27 and
28 of this Act do not apply to rulemaking under this Section.
(d) If an objection to the proposed amendment is filed
during the public comment period required under Section 5-40
of the Illinois Administrative Procedure Act, then the
proposed amendment shall not be adopted pursuant to this
Section. Nothing in this Section precludes the adoption of a
change to an incorporation by reference through other lawful
rulemaking procedures.
(e) The Board may adopt procedural rules to implement
this Section.
(415 ILCS 5/30) (from Ch. 111 1/2, par. 1030)
Sec. 30. Investigations. The Agency shall cause
investigations to be made upon the request of the Board or
upon receipt of information concerning an alleged violation
of this Act, or of any rule or regulation adopted under this
Act, promulgated thereunder, or of any permit granted by the
Agency or any term or condition of a any such permit, or any
Board order, and may cause to be made such other
investigations as it shall deem advisable.
(Source: P.A. 92-574, eff. 6-26-02.)
(415 ILCS 5/31) (from Ch. 111 1/2, par. 1031)
Sec. 31. Notice; complaint; hearing.
(a)(1) Within 180 days of becoming aware of an alleged
violation of the Act or any rule adopted under the Act or
of a permit granted by the Agency or condition of the
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:
(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;
(B) a detailed explanation by the Agency of
the violations alleged;
(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
(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.
(2) A written response to the violations alleged
shall be submitted to the Agency, by certified mail,
within 45 days of receipt of notice by the person
complained against, unless the Agency agrees to an
extension. The written response shall include:
(A) information in rebuttal, explanation or
justification of each alleged violation;
(B) a proposed 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
(C) a request for a meeting with appropriate
Agency personnel if a meeting is desired by the
person complained against.
(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 pursuant to
subsection (b) of this Section.
(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 of 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 suggested implementation time
frame, and to suggest alternate resolutions.
(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:
(A) additional information in rebuttal,
explanation or justification of each alleged
violation;
(B) a proposed 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
(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).
(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.
(7) Within 30 days of 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 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 a written notice informing the person of its
acceptance, rejection, or proposed modification to the
proposed Compliance Commitment Agreement as contained
within the written response.
(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.
(9) The Agency's failure to respond to a written
response submitted pursuant to subdivision (2) of this
subsection (a), if a meeting is not requested, or
subdivision (5) of this subsection (a), if a meeting is
held, within 30 days, 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 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.
(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
violations which remain the subject of disagreement
between the Agency and the person complained against
following fulfillment of the requirements of this
subsection (a).
(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.
(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 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 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 of 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 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 provisions of this subsection are
fulfilled.
(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 specify the
provision of the Act or the rule or regulation or 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 or such rule or regulation or 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 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 date of the complaint, and
to any person in the county in which 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 Illinois, the
extraterritorial service-of-process provisions of
Sections 2-208 and 2-209 of the Code of Civil Procedure
shall apply.
With respect to notices served pursuant to this
subsection (c)(1) which 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.
(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).
(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:
(A) the person fails to take corrective action
or eliminate the reported violation within a
reasonable time; or
(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.
(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. or any rule or regulation thereunder or any permit
or term or condition thereof. 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 accord with subsection (c) of this Section.
(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.
(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 would impose an arbitrary or unreasonable
hardship.
(f) The provisions of this Section shall not apply to
administrative citation actions commenced under Section 31.1
of this Act.
(Source: P.A. 92-574, eff. 6-26-02.)
(415 ILCS 5/33) (from Ch. 111 1/2, par. 1033)
Sec. 33. Board orders.
(a) After due consideration of the written and oral
statements, the testimony and arguments that shall be
submitted at the hearing, or upon default in appearance of
the respondent on return day specified in the notice, the
Board shall issue and enter such final order, or make such
final determination, as it shall deem appropriate under the
circumstances. It shall not be a defense to findings of
violations of the provisions of this Act, any rule or
regulation adopted under this Act, any permit or term or
condition of a permit, or any Board order, the Act or Board
regulations or a bar to the assessment of civil penalties
that the person has come into compliance subsequent to the
violation, except where such action is barred by any
applicable State or federal statute of limitation. In all
such matters the Board shall file and publish a written
opinion stating the facts and reasons leading to its
decision. The Board shall immediately notify the respondent
of such order in writing by registered mail.
(b) Such order may include a direction to cease and
desist from violations of this Act, any rule or regulation
adopted under this Act, any permit or term or condition of a
permit, or any Board order the Act or of the Board's rules
and regulations any permit or term or condition thereof,
and/or the imposition by the Board of civil penalties in
accord with Section 42 of this Act. The Board may also
revoke the permit as a penalty for violation. If such order
includes a reasonable delay during which to correct a
violation, the Board may require the posting of sufficient
performance bond or other security to assure the correction
of such violation within the time prescribed.
(c) In making its orders and determinations, the Board
shall take into consideration all the facts and circumstances
bearing upon the reasonableness of the emissions, discharges
or deposits involved including, but not limited to:
(i) the character and degree of injury to, or
interference with the protection of the health, general
welfare and physical property of the people;
(ii) the social and economic value of the pollution
source;
(iii) the suitability or unsuitability of the
pollution source to the area in which it is located,
including the question of priority of location in the
area involved;
(iv) the technical practicability and economic
reasonableness of reducing or eliminating the emissions,
discharges or deposits resulting from such pollution
source; and
(v) any subsequent compliance.
Whenever a proceeding before the Board may affect the
right of the public individually or collectively to the use
of community sewer or water facilities provided by a
municipally owned or publicly regulated company, the Board
shall at least 30 days prior to the scheduled date of the
first hearing in such proceeding, give notice of the date,
time, place, and purpose of such hearing by public
advertisement in a newspaper of general circulation in the
area of the State concerned. The Board shall conduct a full
and complete hearing into the social and economic impact
which would result from restriction or denial of the right to
use such facilities and allow all persons claiming an
interest to intervene as parties and present evidence of such
social and economic impact.
(d) All orders issued and entered by the Board pursuant
to this Section shall be enforceable by injunction, mandamus,
or other appropriate remedy, in accordance with Section 42 of
this Act.
(Source: P.A. 85-1041; 86-1363.)
(415 ILCS 5/35) (from Ch. 111 1/2, par. 1035)
Sec. 35. Variances; general provisions. To the extent
consistent with applicable provisions of the Federal Water
Pollution Control Act, as now or hereafter amended, the
Federal Safe Drinking Water Act (P.L. 93-523), as now or
hereafter amended, the Clean Air Act as amended in 1977 (P.L.
95-95), and regulations pursuant thereto, and to the extent
consistent with applicable provisions of the Federal Resource
Conservation and Recovery Act of 1976 (P.L. 94-580), and
regulations pursuant thereto:,
(a) The Board may grant individual variances beyond the
limitations prescribed in this Act, whenever it is found,
upon presentation of adequate proof, that compliance with any
rule or regulation, requirement or order of the Board would
impose an arbitrary or unreasonable hardship. However, the
Board is not required to find that an arbitrary or
unreasonable hardship exists exclusively because the
regulatory standard is under review and the costs of
compliance are substantial and certain. In granting or
denying a variance the Board shall file and publish a written
opinion stating the facts and reasons leading to its
decision.
(b) The Agency Board shall grant provisional variances
whenever it is found, upon presentation of adequate proof,
only upon notification from the Agency that compliance on a
short term basis with any rule or regulation, requirement or
order of the Board, or with any permit requirement, would
impose an arbitrary or unreasonable hardship. Such
provisional variances shall be issued within 2 working days
of notification from the Agency.
(Source: P.A. 86-671.)
(415 ILCS 5/36) (from Ch. 111 1/2, par. 1036)
Sec. 36. Variances and provisional variances.
(a) In granting a variance the Board may impose such
conditions as the policies of this Act may require. If the
hardship complained of consists solely of the need for a
reasonable delay in which to correct a violation of this Act
or of the Board regulations, the Board shall condition the
grant of such variance upon the posting of sufficient
performance bond or other security to assure the completion
of the work covered by the variance. The Board shall have no
authority to delegate to the Agency its powers to require
such performance bond. The original amount of such
performance bond shall not exceed the reasonable cost of the
work to be completed pursuant to the variance. The obligation
under such bond shall at no time exceed the reasonable cost
of work remaining pursuant to the variance.
(b) Except as provided by Section 38 of this Act, any
variance granted pursuant to the provisions of this Section
shall be granted for such period of time, not exceeding five
years, as shall be specified by the Board at the time of the
grant of such variance, and upon the condition that the
person who receives such variance shall make such periodic
progress reports as the Board shall specify. Such variance
may be extended from year to year by affirmative action of
the Board, but only if satisfactory progress has been shown.
(c) Any provisional variance granted by the Agency Board
pursuant to subsection (b) of Section 35 shall be for a
period of time not to exceed 45 days. A provisional variance
may be extended Upon receipt of a recommendation from the
Agency to extend this time period, the Board shall grant up
to an additional 45 days by written decision of the Agency.
The provisional variances granted to any one person shall not
exceed a total of 90 days during any calendar year.
(Source: P.A. 81-1442.)
(415 ILCS 5/37) (from Ch. 111 1/2, par. 1037)
Sec. 37. Variances; procedures.
(a) Any person seeking a variance pursuant to subsection
(a) of Section 35 shall do so by filing a petition for
variance with the Board and the Agency. Any person filing
such a petition shall pay a filing fee. The Agency shall
promptly give written notice of such petition to any person
in the county in which the installation or property for which
variance is sought is located who has in writing requested
notice of variance petitions, the State's attorney of such
county, the Chairman of the County Board of such county, and
to each member of the General Assembly from the legislative
district in which that installation or property is located,
and shall publish a single notice of such petition in a
newspaper of general circulation in such county. The notices
required by this Section shall include the street address,
and if there is no street address then the legal description
or the location with reference to any well known landmark,
highway, road, thoroughfare or intersection.
The Agency shall promptly investigate such petition and
consider the views of persons who might be adversely affected
by the grant of a variance. The Agency shall make a
recommendation to the Board as to the disposition of the
petition. If the Board, in its discretion, concludes that a
hearing would be advisable, or if the Agency or any other
person files a written objection to the grant of such
variance within 21 days, together with a written request for
hearing, then a hearing shall be held, under the rules
prescribed in Sections 32 and 33 (a) of this Act, and the
burden of proof shall be on the petitioner.
(b) Any person seeking a provisional variance pursuant
to subsection (b) of Section 35 shall make a request to the
Agency. The Agency shall promptly investigate and consider
the merits of the request. The Agency may notify the Board
of its recommendation. If the Agency fails to take final
action within 30 days after receipt of the request for a
provisional variance, or if the Agency denies the request,
the person may initiate a proceeding with the Board under
subsection (a) of Section 35.
If the Agency grants a provisional variance, the Agency
must promptly file a copy of its written decision with the
Board, and the Board shall give prompt notice of its action
to the public by issuing a press release for distribution to
newspapers of general circulation in the county. The Board
must maintain for public inspection copies of all provisional
variances filed with it by the Agency.
(Source: P.A. 87-914; 88-474.)
(415 ILCS 5/42) (from Ch. 111 1/2, par. 1042)
Sec. 42. Civil penalties.
(a) Except as provided in this Section, any person that
violates any provision of this Act or any regulation adopted
by the Board, or any permit or term or condition thereof, or
that violates any determination or order of the Board
pursuant to this Act, shall be liable for to a civil penalty
of not to exceed $50,000 for the violation and an additional
civil penalty of not to exceed $10,000 for each day during
which the violation continues; such penalties may, upon order
of the Board or a court of competent jurisdiction, be made
payable to the Environmental Protection Trust Fund, to be
used in accordance with the provisions of the Environmental
Protection Trust Fund Act.
(b) Notwithstanding the provisions of subsection (a) of
this Section:
(1) Any person that violates Section 12(f) of this
Act or any NPDES permit or term or condition thereof, or
any filing requirement, regulation or order relating to
the NPDES permit program, shall be liable to a civil
penalty of not to exceed $10,000 per day of violation.
(2) Any person that violates Section 12(g) of this
Act or any UIC permit or term or condition thereof, or
any filing requirement, regulation or order relating to
the State UIC program for all wells, except Class II
wells as defined by the Board under this Act, shall be
liable to a civil penalty not to exceed $2,500 per day of
violation; provided, however, that any person who commits
such violations relating to the State UIC program for
Class II wells, as defined by the Board under this Act,
shall be liable to a civil penalty of not to exceed
$10,000 for the violation and an additional civil penalty
of not to exceed $1,000 for each day during which the
violation continues.
(3) Any person that violates Sections 21(f), 21(g),
21(h) or 21(i) of this Act, or any RCRA permit or term or
condition thereof, or any filing requirement, regulation
or order relating to the State RCRA program, shall be
liable to a civil penalty of not to exceed $25,000 per
day of violation.
(4) In an administrative citation action under
Section 31.1 of this Act, any person found to have
violated any provision of subsection (o) of Section 21 of
this Act shall pay a civil penalty of $500 for each
violation of each such provision, plus any hearing costs
incurred by the Board and the Agency. Such penalties
shall be made payable to the Environmental Protection
Trust Fund, to be used in accordance with the provisions
of the Environmental Protection Trust Fund Act; except
that if a unit of local government issued the
administrative citation, 50% of the civil penalty shall
be payable to the unit of local government.
(4-5) In an administrative citation action under
Section 31.1 of this Act, any person found to have
violated any provision of subsection (p) of Section 21 of
this Act shall pay a civil penalty of $1,500 for each
violation of each such provision, plus any hearing costs
incurred by the Board and the Agency, except that the
civil penalty amount shall be a first offense and $3,000
for each violation of any provision of subsection (p) of
Section 21 that is the person's a second or subsequent
adjudicated violation of that provision offense, plus any
hearing costs incurred by the Board and the Agency. The
penalties shall be deposited into the Environmental
Protection Trust Fund, to be used in accordance with the
provisions of the Environmental Protection Trust Fund
Act; except that if a unit of local government issued the
administrative citation, 50% of the civil penalty shall
be payable to the unit of local government.
(5) Any person who violates subsection 6 of Section
39.5 of this Act or any CAAPP permit, or term or
condition thereof, or any fee or filing requirement, or
any duty to allow or carry out inspection, entry or
monitoring activities, or any regulation or order
relating to the CAAPP shall be liable for a civil penalty
not to exceed $10,000 per day of violation.
(b.5) In lieu of the penalties set forth in subsections
(a) and (b) of this Section, any person who fails to file, in
a timely manner, toxic chemical release forms with the Agency
pursuant to Section 25b-2 of this Act shall be liable for a
civil penalty of $100 per day for each day the forms are
late, not to exceed a maximum total penalty of $6,000. This
daily penalty shall begin accruing on the thirty-first day
after the date that the person receives the warning notice
issued by the Agency pursuant to Section 25b-6 of this Act;
and the penalty shall be paid to the Agency. The daily
accrual of penalties shall cease as of January 1 of the
following year. All penalties collected by the Agency
pursuant to this subsection shall be deposited into the
Environmental Protection Permit and Inspection Fund.
(c) Any person that violates this Act, any rule or
regulation adopted under this Act, any permit or term or
condition of a permit, or any Board order or an order or
other determination of the Board under this Act and causes
the death of fish or aquatic life shall, in addition to the
other penalties provided by this Act, be liable to pay to the
State an additional sum for the reasonable value of the fish
or aquatic life destroyed. Any money so recovered shall be
placed in the Wildlife and Fish Fund in the State Treasury.
(d) The penalties provided for in this Section may be
recovered in a civil action.
(e) The State's Attorney of the county in which the
violation occurred, or the Attorney General, may, at the
request of the Agency or on his own motion, institute a civil
action for an injunction to restrain violations of this Act,
any rule or regulation adopted under this Act, any permit or
term or condition of a permit, or any Board order.
(f) The State's Attorney of the county in which the
violation occurred, or the Attorney General, shall bring such
actions in the name of the people of the State of Illinois.
Without limiting any other authority which may exist for the
awarding of attorney's fees and costs, the Board or a court
of competent jurisdiction may award costs and reasonable
attorney's fees, including the reasonable costs of expert
witnesses and consultants, to the State's Attorney or the
Attorney General in a case where he has prevailed against a
person who has committed a wilful, knowing or repeated
violation of this Act, any rule or regulation adopted under
this Act, any permit or term or condition of a permit, or any
Board order the Act.
Any funds collected under this subsection (f) in which
the Attorney General has prevailed shall be deposited in the
Hazardous Waste Fund created in Section 22.2 of this Act.
Any funds collected under this subsection (f) in which a
State's Attorney has prevailed shall be retained by the
county in which he serves.
(g) All final orders imposing civil penalties pursuant
to this Section shall prescribe the time for payment of such
penalties. If any such penalty is not paid within the time
prescribed, interest on such penalty at the rate set forth in
subsection (a) of Section 1003 of the Illinois Income Tax
Act, shall be paid for the period from the date payment is
due until the date payment is received. However, if the time
for payment is stayed during the pendency of an appeal,
interest shall not accrue during such stay.
(h) In determining the appropriate civil penalty to be
imposed under subdivisions (a), (b)(1), (b)(2), (b)(3), or
(b)(5) of this Section, the Board is authorized to consider
any matters of record in mitigation or aggravation of
penalty, including but not limited to the following factors:
(1) the duration and gravity of the violation;
(2) the presence or absence of due diligence on the
part of the violator in attempting to comply with
requirements of this Act and regulations thereunder or to
secure relief therefrom as provided by this Act;
(3) any economic benefits accrued by the violator
because of delay in compliance with requirements;
(4) the amount of monetary penalty which will serve
to deter further violations by the violator and to
otherwise aid in enhancing voluntary compliance with this
Act by the violator and other persons similarly subject
to the Act; and
(5) the number, proximity in time, and gravity of
previously adjudicated violations of this Act by the
violator.
(Source: P.A. 90-773, eff. 8-14-98; 91-82, eff. 1-1-00.)
(415 ILCS 5/45) (from Ch. 111 1/2, par. 1045)
Sec. 45. Injunctive and other relief.
(a) No existing civil or criminal remedy for any
wrongful action shall be excluded or impaired by this Act.
Nothing in this Act shall be construed to limit or supersede
the provisions of the Illinois Oil and Gas Act and the powers
therein granted to prevent the intrusion of water into oil,
gas or coal strata and to prevent the pollution of fresh
water supplies by oil, gas or salt water or oil field wastes,
except that water quality standards as set forth by the
Pollution Control Board apply to and are effective within the
areas covered by and affected by permits issued by the
Department of Natural Resources. However, if the Department
of Natural Resources fails to act upon any complaint within a
period of 10 working days following the receipt of a
complaint by the Department, the Environmental Protection
Agency may proceed under the provisions of this Act.
(b) Any person adversely affected in fact by a violation
of this Act, any rule or regulation adopted under this Act,
or any permit or term or condition of a permit, or any Board
order may sue for injunctive relief against such violation.
However, except as provided in subsections subsection (d) and
(e), no action shall be brought under this Section until 30
days after the plaintiff has been denied relief by the Board
in a proceeding brought under subdivision (d)(1) subsection
(d) of Section 31 of this Act. The prevailing party shall be
awarded costs and reasonable attorneys' fees.
(c) Nothing in Section 39.4 of this Act shall limit the
authority of the Agency to proceed with enforcement under the
provisions of this Act for violations of terms and conditions
of an endorsed agrichemical facility permit, an endorsed
lawncare containment permit, or this Act or regulations
hereunder caused or threatened by an agrichemical facility or
a lawncare wash water containment area, provided that prior
notice is given to the Department of Agriculture which
provides that Department an opportunity to respond as
appropriate.
(d) If the State brings an action under this Act against
a person with an interest in real property upon which the
person is alleged to have allowed open dumping or open
burning by a third party in violation of this Act, which
action seeks to compel the defendant to remove the waste or
otherwise clean up the site, the defendant may, in the manner
provided by law for third-party complaints, bring in as a
third-party defendant a person who with actual knowledge
caused or contributed to the illegal open dumping or open
burning, or who is or may be liable for all or part of the
removal and cleanup costs. The court may include any of the
parties which it determines to have, with actual knowledge,
allowed, caused or contributed to the illegal open dumping or
open burning in any order that it may issue to compel removal
of the waste and cleanup of the site, and may apportion the
removal and cleanup costs among such parties, as it deems
appropriate. However, a person may not seek to recover any
fines or civil penalties imposed upon him under this Act from
a third-party defendant in an action brought under this
subsection.
(e) A final order issued by the Board pursuant to
Section 33 of this Act may be enforced through a civil action
for injunctive or other relief instituted by a person who was
a party to the Board enforcement proceeding in which the
Board issued the final order.
(Source: P.A. 91-357, eff. 7-29-99; 92-574, eff. 6-26-02.)
ARTICLE II. Non-IERRC provisions.
Section 25. The State Finance Act is amended by adding
Section 5.595 as follows:
(30 ILCS 105/5.595 new)
Sec. 5.595. The Oil Spill Response Fund.
Section 30. The Environmental Protection Act is amended
by adding Title VI-C as follows:
(415 ILCS 5/Tit. VI-C heading new)
TITLE VI-C: OIL SPILL RESPONSE
(415 ILCS 5/25c-1 new)
Sec. 25c-1. Oil Spill Response Fund.
(a) There is hereby created within the State treasury an
interest-bearing special fund to be known as the Oil Spill
Response Fund. There shall be deposited into the Fund all
monies recovered as reimbursement for response costs incurred
by the Agency from parties responsible for releases or
threats of release of petroleum, monies provided to the State
from the federal Oil Spill Liability Trust Fund, and such
other monies as may be received for this purpose through
contributions, gifts, or supplemental environmental projects,
pursuant to court orders or decrees, or from any other
source.
(b) Pursuant to appropriation, all monies in the Oil
Spill Response Fund may be used by the Agency for all of the
following purposes:
(1) Responding to releases or threats of release of
petroleum that may constitute a substantial danger to the
environment or human health or welfare.
(2) Contractual expenses and purchases of equipment
or supplies necessary to enable prompt response to
releases or threats of release of petroleum and to
provide effective mitigation of such releases or threats
of release.
(3) Costs of investigation and assessment of the
source, nature, and extent of a release or threatened
release of petroleum and any resulting injuries or
damages.
(4) Costs associated with planning and training for
response to releases and threats of release of petroleum.
(5) Costs associated with preparing and submitting
claims of the Agency to the federal Oil Spill Liability
Trust Fund.
(c) For the purposes of implementing this Section,
"petroleum" means crude oil, refined petroleum,
intermediates, fractions or constituents of petroleum, brine
or salt water from oil production, oil sheens, hydrocarbon
vapors, and any other form of oil or petroleum.
(d) In addition to any other authority provided by State
or federal law, the Agency shall be entitled to recovery of
costs incurred by it in response to releases and threats of
release of petroleum from any persons who are responsible for
causing, allowing, or threatening such releases.
Section 35. The Response Action Contractor
Indemnification Act is amended by changing Sections 4 and 5
as follows:
(415 ILCS 100/4) (from Ch. 111 1/2, par. 7204)
Sec. 4. (a) In the event that any civil proceeding
arising out of a State response action contract is commenced
against any response action contractor, the Attorney General
shall, upon timely and appropriate notice to him by such
contractor, appear on behalf of such contractor and defend
the action. Any such notice shall be in writing, shall be
mailed within 15 days after the date of receipt by the
contractor of service of process, and shall authorize the
Attorney General to represent and defend the contractor in
the proceeding. The giving of this notice to the Attorney
General shall constitute an agreement by the contractor to
cooperate with the Attorney General in his defense of the
action and a consent that the Attorney General shall conduct
the defense as he deems advisable and in the best interests
of the contractor and the State, including settlement in the
Attorney General's discretion. In any such proceeding, the
State shall pay the court costs and litigation expenses of
defending such action, to the extent approved by the Attorney
General as reasonable, as they are incurred.
In the event that the Attorney General determines either
(1) that so appearing and defending a contractor involves an
actual or potential conflict of interest, or (2) that the act
or omission which gave rise to the claim was not within the
scope of the State response action contract, or was
intentional, willful or wanton misconduct, the Attorney
General shall decline in writing to appear or defend or shall
promptly take appropriate action to withdraw as attorney for
such contractor. Upon receipt of such declination or
withdrawal by the Attorney General on the basis of an actual
or potential conflict of interest, the contractor may employ
his own attorney to appear and defend, in which event the
State shall pay the contractor's court costs, litigation
expenses and attorneys' fees to the extent approved by the
Attorney General as reasonable, as they are incurred.
(b) In any civil proceeding arising out of a State
response action contract in which notice was given to the
Attorney General under subsection (a), if the court or jury
finds that the act or omission of the response action
contractor was within the scope of the State response action
contract and was not intentional, willful or wanton
misconduct, the court shall so state in its judgement, and
the State shall indemnify the contractor for any damages
awarded and court costs and attorneys' fees assessed as part
of the final and unreversed judgment. In such event, if the
Attorney General declined to appear or withdrew on the
grounds that the act or omission was not within the scope of
the State response action contract, or was intentional,
willful or wanton misconduct, the State shall also pay the
contractor's court costs, litigation expenses and attorneys
fees to the extent approved by the Attorney General as
reasonable.
(c) Unless the Attorney General determines that the
conduct or inaction which gave rise to the claim or cause of
action was not within the scope of the State response action
contract, or was intentional, willful or wanton misconduct,
any case in which notice was given pursuant to subsection (a)
may be settled, in the Attorney General's discretion, and the
State shall indemnify the contractor for any damages, court
costs and attorneys' fees agreed to as part of the
settlement. If the contractor is represented by private
counsel, any settlement which obligates the State to
indemnify the contractor must be approved by the Attorney
General and the court having jurisdiction.
(d) Court costs and litigation expenses and other costs
of providing a defense, including attorneys' fees, paid or
obligated under this Section, and the costs of
indemnification, including the payment of any final judgment
or final settlement under this Section, shall be paid by
warrant from the Response Contractors Indemnification Fund
pursuant to vouchers certified by the Attorney General.
(e) Nothing contained or implied in this Section shall
operate, or be construed or applied, to deprive the State, or
any response action contractor, of any defense otherwise
available.
(f) Any judgment subject to State indemnification under
this Section shall not be enforceable against the response
action contractor, but shall be paid by the State in the
following manner. Upon receipt of a certified copy of the
judgment, the Attorney General shall review it to determine
if the judgment is (1) final, unreversed and no longer
subject to appeal, and (2) subject to indemnification under
this Section. If he determines that it is, he shall submit a
voucher for the amount of the judgment and any interest
thereon to the State Comptroller, and the amount shall be
paid by warrant to the judgment creditor solely out of funds
available in the Response Contractors Indemnification Fund.
If the balance in such Fund is insufficient to pay any
properly certified voucher for a warrant drawn thereon, the
Comptroller shall transfer the necessary amount to the Fund
from the General Revenue Fund. In no event will the amount
paid for a single occurrence surpass $100,000 $2,000,000,
provided that this limitation shall not render any portion of
the judgment enforceable against the response action
contractor.
(Source: P.A. 84-1445.)
(415 ILCS 100/5) (from Ch. 111 1/2, par. 7205)
Sec. 5. Response Contractors Indemnification Fund.
(a) There is hereby created the Response Contractors
Indemnification Fund. The State Treasurer, ex officio, shall
be custodian of the Fund, and the Comptroller shall direct
payments from the Fund upon vouchers properly certified by
the Attorney General in accordance with Section 4. The
Treasurer shall credit interest on the Fund to the Fund.
(b) Every State response action contract shall provide
that 5% of each payment to be made by the State under the
contract shall be paid by the State directly into the
Response Contractors Indemnification Fund rather than to the
contractor, except that when there is at least $100,000 more
than $2,000,000 in the Fund at the beginning of a State
fiscal year, State response action contracts during that
fiscal year need not provide that 5% of each payment made
under the contract be paid into the Fund. When only a
portion of a contract relates to a remedial or response
action, or to the identification, handling, storage,
treatment or disposal of a pollutant, the contract shall
provide that only that portion is subject to this subsection.
(c) Within 30 days after the effective date of this
amendatory Act of 1997, the Comptroller shall order
transferred and the Treasurer shall transfer $1,200,000 from
the Response Contractors Indemnification Fund to the
Brownfields Redevelopment Fund. The Comptroller shall order
transferred and the Treasurer shall transfer $1,200,000 from
the Response Contractors Indemnification Fund to the
Brownfields Redevelopment Fund on the first day of fiscal
years 1999, 2000, 2001, 2002, and 2003, 2004, and 2005.
(d) Within 30 days after the effective date of this
amendatory Act of the 91st General Assembly, the Comptroller
shall order transferred and the Treasurer shall transfer
$2,000,000 from the Response Contractors Indemnification Fund
to the Asbestos Abatement Fund.
(e) Within 30 days after the effective date of this
amendatory Act of the 93rd General Assembly, the Comptroller
shall order transferred and the Treasurer shall transfer all
monies in the Response Action Contractor Indemnification Fund
in excess of $100,000 from the Response Action Contractor
Indemnification Fund to the Brownfields Redevelopment Fund.
(Source: P.A. 91-704, eff. 7-1-00; 92-486, eff. 1-1-02.)
Section 99. Effective date. This Act takes effect upon
becoming law.