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Environment & Energy Committee
Adopted in House Comm. on Mar 31, 2004
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09300HB5823ham001 |
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LRB093 16833 RAS 49336 a |
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| AMENDMENT TO HOUSE BILL 5823
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| AMENDMENT NO. ______. Amend House Bill 5823 by replacing |
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| everything after the enacting clause with the following:
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| "Section 5. The Environmental Protection Act is amended by |
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| changing Section 42 as follows:
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| (415 ILCS 5/42) (from Ch. 111 1/2, par. 1042)
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| Sec. 42. Civil penalties.
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| (a) Except as provided in this Section, any person that |
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| violates any
provision of this Act or any regulation adopted by |
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| the Board, or any permit
or term or condition thereof, or that |
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| violates any order of the Board pursuant
to this Act, shall be |
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| liable for a civil penalty of not to exceed
$50,000 for the |
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| violation and an additional civil penalty of not to exceed
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| $10,000 for each day during which the violation continues; such |
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| penalties may,
upon order of the Board or a court of competent |
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| jurisdiction, be made payable
to the Environmental Protection |
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| Trust Fund, to be used in accordance with the
provisions of the |
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| Environmental Protection Trust Fund Act.
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| (b) Notwithstanding the provisions of subsection (a) of |
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| this Section:
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| (1) Any person that violates Section 12(f) of this Act |
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| or any
NPDES permit or term or condition thereof, or any |
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| filing requirement,
regulation or order relating to the |
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| NPDES permit program, shall be liable
to a civil penalty of |
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LRB093 16833 RAS 49336 a |
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| not to exceed $10,000 per day of violation.
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| (2) Any person that violates Section 12(g) of this Act |
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| or any UIC permit
or term or condition thereof, or any |
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| filing requirement, regulation or order
relating to the |
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| State UIC program for all wells, except Class II wells as
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| defined by the Board under this Act, shall be liable to a |
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| civil penalty
not to exceed $2,500 per day of violation; |
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| provided, however, that any person
who commits such |
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| violations relating to the State UIC program for Class
II |
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| wells, as defined by the Board under this Act, shall be |
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| liable to a civil
penalty of not to exceed $10,000 for the |
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| violation and an additional civil
penalty of not to exceed |
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| $1,000 for each day during which the violation
continues.
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| (3) Any person that violates Sections 21(f), 21(g), |
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| 21(h) or 21(i) of
this Act, or any RCRA permit or term or |
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| condition thereof, or any filing
requirement, regulation |
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| or order relating to the State RCRA program, shall
be |
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| liable to a civil penalty of not to exceed $25,000 per day |
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| of violation.
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| (4) In an administrative citation action under Section |
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| 31.1 of this Act,
any person found to have violated any |
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| provision of subsection (o) of
Section 21 of this Act shall |
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| pay a civil penalty of $500 for each
violation of each such |
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| provision, plus any hearing costs incurred by the Board
and |
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| the Agency. Such penalties shall be made payable to the |
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| Environmental
Protection Trust Fund, to be used in |
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| accordance with the provisions of the
Environmental |
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| Protection Trust Fund Act; except that if a unit of local
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| government issued the administrative citation, 50% of the |
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| civil penalty shall
be payable to the unit of local |
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| government.
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| (4-5) In an administrative citation action under |
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| Section 31.1 of this
Act, any person found to have violated |
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| any provision of subsection (p) of
Section 21 of this Act |
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LRB093 16833 RAS 49336 a |
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| shall pay a civil penalty of $1,500 for each violation
of
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| each such provision, plus any hearing costs incurred by the |
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| Board and the
Agency, except that the civil penalty amount |
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| shall be
be a $3,000 for
each violation of any provision of |
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| subsection (p) of Section 21 that is the
person's second
a |
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| second or subsequent adjudication violation of that
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| provision. The penalties shall be deposited into the
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| Environmental Protection Trust Fund, to be used in |
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| accordance with the
provisions of the Environmental |
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| Protection Trust Fund Act; except that if a
unit of local |
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| government issued the administrative citation, 50% of the |
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| civil
penalty shall be payable to the unit of local |
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| government.
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| (5) Any person who violates subsection 6 of Section |
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| 39.5 of this Act
or any CAAPP permit, or term or condition |
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| thereof, or any fee or filing
requirement, or any duty to |
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| allow or carry out inspection, entry or
monitoring |
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| activities, or any regulation or order relating to the |
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| CAAPP
shall be liable for a civil penalty not to exceed |
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| $10,000 per day of violation.
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| (b.5) In lieu of the penalties set forth in subsections (a) |
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| and (b) of
this Section, any person who fails to file, in a |
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| timely manner, toxic
chemical release forms with the Agency |
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| pursuant to Section 25b-2
of this Act
shall be liable for a |
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| civil penalty of $100 per day for
each day the forms are
late, |
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| not to exceed a maximum total penalty of $6,000. This daily |
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| penalty
shall begin accruing on the thirty-first day after the
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| date that the person receives the warning notice issued by the |
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| Agency pursuant
to Section 25b-6 of this Act; and the penalty |
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| shall be paid to the Agency. The
daily accrual of penalties |
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| shall cease as of January 1 of the following year.
All |
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| penalties collected by the Agency pursuant to this subsection |
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| shall be
deposited into the Environmental Protection Permit and |
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| Inspection Fund.
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LRB093 16833 RAS 49336 a |
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| (c) Any person that violates this Act, any rule or |
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| regulation adopted under
this Act, any permit or term or |
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| condition of a permit, or any Board order and
causes the death |
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| of fish
or aquatic life shall, in addition to the other |
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| penalties provided by
this Act, be liable to pay to the State |
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| an additional sum for the
reasonable value of the fish or |
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| aquatic life destroyed. Any money so
recovered shall be placed |
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| in the Wildlife and Fish Fund in the State
Treasury.
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| (d) The penalties provided for in this Section may be |
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| recovered in a
civil action.
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| (e) The State's Attorney of the county in which the |
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| violation
occurred, or the Attorney General, may, at the |
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| request of the Agency or
on his own motion, institute a civil |
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| action for an injunction , prohibitory or mandatory, to
restrain |
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| violations of this Act, any rule or regulation adopted under |
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| this Act,
any permit or term or condition of a permit, or any |
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| Board order , or to require such other actions as may be |
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| necessary to address violations of this Act, any rule or |
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| regulation adopted under this Act, any permit or term or |
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| condition of a permit, or any Board order .
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| (f) The State's Attorney of the county in which the |
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| violation
occurred, or the Attorney General, shall bring such |
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| actions in the name
of the people of the State of Illinois.
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| Without limiting any other authority which may exist for the |
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| awarding
of attorney's fees and costs, the Board or a court of |
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| competent
jurisdiction may award costs and reasonable |
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| attorney's fees, including the
reasonable costs of expert |
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| witnesses and consultants, to the State's
Attorney or the |
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| Attorney General in a case where he has prevailed against a
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| person who has committed a wilful, knowing or repeated |
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| violation of this Act,
any rule or regulation adopted under |
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| this Act, any permit or term or condition
of a permit, or any |
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| Board order.
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| Any funds collected under this subsection (f) in which the |
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LRB093 16833 RAS 49336 a |
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| Attorney
General has prevailed shall be deposited in the
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| Hazardous Waste Fund created in Section 22.2 of this Act. Any |
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| funds
collected under this subsection (f) in which a State's |
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| Attorney has
prevailed shall be retained by the county in which |
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| he serves.
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| (g) All final orders imposing civil penalties pursuant to |
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| this Section
shall prescribe the time for payment of such |
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| penalties. If any such
penalty is not paid within the time |
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| prescribed, interest on such penalty
at the rate set forth in |
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| subsection (a) of Section 1003 of the Illinois Income
Tax Act, |
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| shall be paid for the period from the date payment is due until |
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| the
date payment is received. However, if the time for payment |
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| is stayed during
the pendency of an appeal, interest shall not |
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| accrue during such stay.
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| (h) In determining the appropriate civil penalty to be |
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| imposed under
subdivisions (a), (b)(1), (b)(2), (b)(3), or |
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| (b)(5) of this
Section, the Board is authorized to consider any |
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| matters of record in
mitigation or aggravation of penalty, |
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| including but not limited to the
following factors:
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| (1) the duration and gravity of the violation;
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| (2) the presence or absence of due diligence on the |
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| part of the
respondent in attempting to comply with |
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| requirements of this
Act and regulations thereunder or to |
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| secure relief therefrom as provided by
this Act;
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| (3) any economic benefits accrued by the respondent
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| because of delay in compliance with requirements, in which |
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| case the economic
benefits shall be determined by the |
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| lowest cost alternative for achieving
compliance;
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| (4) the amount of monetary penalty which will serve to |
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| deter further
violations by the respondent and to otherwise |
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| aid in enhancing
voluntary
compliance with this Act by the |
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| respondent and other persons
similarly
subject to the Act;
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| (5) the number, proximity in time, and gravity of |
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| previously
adjudicated violations of this Act by the |
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LRB093 16833 RAS 49336 a |
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| respondent;
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| (6) whether the respondent voluntarily self-disclosed, |
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| in accordance
with subsection (i) of this Section, the |
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| non-compliance to the Agency; and
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| (7) whether the respondent has agreed to undertake a |
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| "supplemental
environmental project," which means an |
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| environmentally beneficial project that
a respondent |
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| agrees to undertake in settlement of an enforcement action |
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| brought
under this Act, but which the respondent is not |
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| otherwise legally required to
perform.
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| In determining the appropriate civil penalty to be imposed |
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| under subsection
(a) or paragraph (1), (2), (3), or (5) of |
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| subsection (b) of this Section, the
Board shall ensure, in all |
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| cases, that the penalty is at least as great as the
economic |
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| benefits, if any, accrued by the respondent as a result of the
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| violation, unless the Board finds that imposition of such |
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| penalty would result
in an arbitrary or unreasonable financial |
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| hardship. However, such civil
penalty
may be off-set in whole |
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| or in part pursuant to a supplemental
environmental project |
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| agreed to by the complainant and the respondent.
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| (i) A person who voluntarily self-discloses non-compliance |
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| to the Agency,
of which the Agency had been unaware, is |
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| entitled to a 100% reduction in the
portion of the penalty that |
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| is not based on the economic benefit of
non-compliance if the |
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| person can
establish the following:
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| (1) that the non-compliance was discovered through an |
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| environmental
audit, as defined in Section 52.2 of this |
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| Act, and the person waives the
environmental audit |
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| privileges as provided in that Section with respect to that
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| non-compliance;
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| (2) that the non-compliance was disclosed in writing |
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| within 30 days of
the date on which the person discovered |
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| it;
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| (3) that the non-compliance was discovered and |
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LRB093 16833 RAS 49336 a |
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| disclosed prior to:
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| (i) the commencement of an Agency inspection, |
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| investigation, or request
for information;
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| (ii) notice of a citizen suit;
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| (iii) the filing of a complaint by a citizen, the |
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| Illinois Attorney
General, or the State's Attorney of |
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| the county in which the violation occurred;
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| (iv) the reporting of the non-compliance by an |
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| employee of the person
without that person's |
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| knowledge; or
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| (v) imminent discovery of the non-compliance by |
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| the Agency;
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| (4) that the non-compliance is being corrected and any |
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| environmental
harm is being remediated in a timely fashion;
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| (5) that the person agrees to prevent a recurrence of |
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| the non-compliance;
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| (6) that no related non-compliance events have |
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| occurred in the
past 3 years at the same facility or in the |
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| past 5 years as part of a
pattern at multiple facilities |
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| owned or operated by the person;
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| (7) that the non-compliance did not result in serious |
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| actual
harm or present an imminent and substantial |
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| endangerment to human
health or the environment or violate |
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| the specific terms of any judicial or
administrative order |
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| or consent agreement;
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| (8) that the person cooperates as reasonably requested |
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| by the Agency
after the disclosure; and
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| (9) that the non-compliance was identified voluntarily |
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| and not through a
monitoring, sampling, or auditing |
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| procedure that is required by statute, rule,
permit, |
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| judicial or administrative order, or consent agreement.
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| If a person can establish all of the elements under this |
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| subsection except
the element set forth in paragraph (1) of |
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| this subsection, the person is
entitled to a 75% reduction in |