Public Act 103-0168
Public Act 0168 103RD GENERAL ASSEMBLY
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Public Act 103-0168
| | HB2788 Enrolled | LRB103 29482 CPF 55877 b |
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| AN ACT concerning safety.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Environmental Protection Act is amended by | changing Section 31 as follows:
| (415 ILCS 5/31) (from Ch. 111 1/2, par. 1031)
| Sec. 31. Notice; complaint; hearing.
| (a)(1) Within 180 days after becoming aware of an alleged | violation of the
Act, any rule adopted under the Act, a permit | granted by the Agency, or
a condition of such a permit, the | Agency shall issue and serve, by certified mail,
upon the | person complained against a written notice informing that | person that
the Agency has evidence of the alleged violation. | At a minimum, the written
notice shall contain:
| (A) a notification to the person complained against of | the requirement to
submit a written response addressing | the violations alleged and the option to
meet with | appropriate agency personnel to resolve any alleged | violations that
could lead to the filing of a formal | complaint;
| (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 | after receipt of notice by the
person complained against, or | within an extended time period as agreed to by the Agency and | person complained against unless the Agency agrees to an | extension. The
written response shall include:
| (A) information in rebuttal, explanation or | justification of each
alleged violation;
| (B) if the person complained against desires to enter | into a Compliance Commitment Agreement, proposed terms for | a Compliance Commitment Agreement that includes specified
| times for achieving each commitment and which may consist | of a statement
indicating that the person complained | against believes that compliance has
been achieved; and
| (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 after receipt of notice by the person
| complained against, or within an extended time period as | agreed to by the Agency and person complained against unless | the Agency agrees to 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 and person | complained against, 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) if the person complained against desires to enter | into a Compliance Commitment Agreement, proposed terms for | a Compliance Commitment Agreement that includes specified
| times for achieving each commitment and which may consist | of a statement
indicating that the person complained | against believes that compliance has
been achieved; and
| (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 after the Agency's receipt of a written | response submitted
by the person complained against pursuant | to subdivision (2) of this
subsection (a) if a meeting is not | requested or pursuant to subdivision (5) of this
subsection | (a) if a meeting is held, or within a later time period as | agreed
to by the Agency and the person complained against, the | Agency shall issue and
serve, by certified mail, upon the | person complained against (i) a proposed Compliance Commitment |
| Agreement or (ii) a notice that one or more violations cannot | be resolved without the involvement of the Office of the | Attorney General or the State's Attorney of the county in | which the alleged violation occurred and that no proposed | Compliance Commitment Agreement will be issued by the Agency | for those violations. The Agency shall include terms and | conditions in the proposed Compliance Commitment Agreement | that are, in its discretion, necessary to bring the person | complained against into compliance with the Act, any rule | adopted under the Act, any permit granted by the Agency, or any | condition of such a permit. The Agency shall take into | consideration the proposed terms for the proposed Compliance | Commitment Agreement that were provided under subdivision | (a)(2)(B) or (a)(5)(B) of this Section by the person | complained against.
| (7.5) Within 30 days after the receipt of the Agency's | proposed Compliance Commitment Agreement by the person | complained against, or within a later time period not to | exceed an additional 30 days as agreed to by the Agency and the | person complained against, the person shall either (i) agree | to and sign the proposed Compliance Commitment Agreement | provided by the Agency and submit the signed Compliance | Commitment Agreement to the Agency by certified mail or (ii) | notify the Agency in writing by certified mail of the person's | rejection of the proposed Compliance Commitment Agreement. If | the person complained against fails to respond to the proposed |
| Compliance Commitment Agreement within 30 days as required | under this paragraph, the proposed Compliance Commitment | Agreement is deemed rejected by operation of law. Any | Compliance Commitment Agreement entered into under item (i) of | this paragraph may be amended subsequently in writing by | mutual agreement between the Agency and the signatory to the | Compliance Commitment Agreement, the signatory's legal | representative, or the signatory's agent. | (7.6) No person shall violate the terms or conditions of a | Compliance Commitment Agreement entered into under subdivision | (a)(7.5) of this Section. Successful completion of a | Compliance Commitment Agreement or an amended Compliance | Commitment Agreement shall be a factor to be weighed, in favor | of the person completing the Agreement, by the Office of the | Illinois Attorney General in determining whether to file a | complaint for the violations that were the subject of the | Agreement. | (7.7) Within 30 days after a Compliance Commitment | Agreement takes effect or is amended in accordance with | paragraph (7.5), the Agency shall publish a copy of the final | executed Compliance Commitment Agreement on the Agency's | website. The Agency shall maintain an Internet database of all | Compliance Commitment Agreements entered on or after the | effective date of this amendatory Act of the 100th General | Assembly. At a minimum, the database shall be searchable by | the following categories: the county in which the facility |
| that is subject to the Compliance Commitment Agreement is | located; the date of final execution of the Compliance | Commitment Agreement; the name of the respondent; and the | media involved, including air, water, land, or public water | supply.
| (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 within 30 days of | receipt to a written response submitted
pursuant to | subdivision (2) of this subsection (a) if a meeting is not
| requested or pursuant to subdivision (5) of this subsection | (a) if a meeting is held,
or within the time period otherwise | agreed to in writing by
the Agency and the person complained | against, shall be deemed an acceptance by
the Agency of the | proposed terms of the Compliance Commitment Agreement for the | violations
alleged in the written notice issued under | subdivision (1) of this subsection
(a) as contained within the | written response.
| (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 that 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.
| (12) The Agency shall have the authority to adopt rules | for the administration of subsection (a) of this Section. The | rules shall be adopted in accordance with the provisions of | the Illinois Administrative Procedure Act. | (b) For alleged violations that remain the subject of | disagreement
between the Agency and the person complained | against following fulfillment of
the requirements of | subsection (a) of this Section, and for alleged violations of | the terms or conditions of a Compliance Commitment Agreement | entered into under subdivision (a)(7.5) of this Section as | well as the alleged violations that are the subject of the |
| Compliance Commitment Agreement, and as a precondition to
the | Agency's referral or request to the Office of the Illinois | Attorney General
or the State's Attorney of the county in | which the alleged violation occurred
for legal representation | regarding an alleged violation that may be addressed
pursuant | to subsection (c) or (d) of this Section or pursuant to Section | 42 of
this Act, the Agency shall issue and serve, by certified | mail, upon the person
complained against a written notice | informing that person that the Agency
intends to pursue legal | action. Such notice shall notify the person
complained against | of the violations to be alleged and offer the person an
| opportunity to meet with appropriate Agency personnel in an | effort to resolve
any alleged violations that could lead to | the filing of a formal complaint.
The meeting with Agency | personnel shall be held within 30 days after receipt of
notice | served pursuant to this subsection upon the person complained | against,
unless the Agency agrees to a postponement or the | person notifies the Agency
that he or she will not appear at a | meeting within the 30-day time period.
Nothing in this | subsection is intended to preclude the Agency from following
| 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, rule, regulation, permit, or | term
or condition thereof under which such person is said to be | in violation and
a statement of the manner in and the extent to | which such person is said to
violate the Act, rule, | regulation, permit, or term or condition
thereof and shall | require the person so complained
against to answer the charges | of such formal complaint at a hearing before
the Board at a | time not less than 21 days after the date of notice by the
| 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) that
involve hazardous material or wastes in any | manner, the Agency shall
annually publish a list of all such | notices served. The list shall include
the date the | investigation commenced, the date notice was sent, the date
| the matter was referred to the Attorney General, if | applicable, and the
current status of the matter.
| (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. 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. 100-1080, eff. 8-24-18.)
| Section 99. Effective date. This Act takes effect upon | becoming law.
|
Effective Date: 6/30/2023
|
