HB1563 97TH GENERAL ASSEMBLY

LRB097 05383 RLJ 45440 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1563

Introduced 2/15/2011, by Rep. Marlow H. Colvin

SYNOPSIS AS INTRODUCED:

70 ILCS 2605/7a

from Ch. 42, par. 326a

Amends the Metropolitan Water Reclamation District Act. Provides that, after a hearing, the board of commissioners of a sanitary district may order the party responsible for the discharge of sewage, industrial wastes, or other wastes into the district's sewerage system to pay a civil penalty in an amount that is not less than $1,000 (now, $100) nor more than $2,000 per day for each day of discharge in violation of the Act. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Metropolitan Water Reclamation District Act is amended by changing Section 7a as follows:

(70 ILCS 2605/7a) (from Ch. 42, par. 326a)

Sec. 7a. Discharge into sewers of a sanitary district.

(a) The terms used in this Section are defined as follows:

"Board of Commissioners" means the Board of Commissioners of the sanitary district.

"Sewage" means water-carried human wastes or a combination of water-carried wastes from residences, buildings, businesses, industrial establishments, institutions, or other places together with any ground, surface, storm, or other water that may be present.

"Industrial Wastes" means all solids, liquids, or gaseous wastes resulting from any commercial, industrial, manufacturing, agricultural, trade, or business operation or process, or from the development, recovery, or processing of natural resources.

"Other Wastes" means decayed wood, sawdust, shavings, bark, lime, refuse, ashes, garbage, offal, oil, tar, chemicals, and all other substances except sewage and industrial wastes.

"Person" means any individual, firm, association, joint venture, sole proprietorship, company, partnership, estate copartnership, corporation, joint stock company, trust, school district, unit of local government, or private corporation organized or existing under the laws of this or any other state or country.

"Executive Director" means the executive director of the sanitary district.

(b) It shall be unlawful for any person to discharge sewage, industrial waste, or other wastes into the sewerage system of a sanitary district or into any sewer connected therewith, except upon the terms and conditions that the sanitary district might reasonably impose by way of ordinance, permit, or otherwise.

Any sanitary district, in addition to all other powers vested in it and in the interest of public health and safety, or as authorized by subsections (b) and (c) of Section 46 of the Environmental Protection Act, is hereby empowered to pass all ordinances, rules, or regulations necessary to implement this Section, including but not limited to, the imposition of charges based on factors that influence the cost of treatment, including strength and volume, and including the right of access during reasonable hours to the premises of a person for enforcement of adopted ordinances, rules, or regulations.

(c) Whenever the sanitary district acting through the executive director determines that sewage, industrial wastes, or other wastes are being discharged into the sewerage system and when, in the opinion of the executive director the discharge is in violation of an ordinance, rules, or regulations adopted by the Board of Commissioners under this Section governing industrial wastes or other wastes, the executive director shall order the offending party to cease and desist. The order shall be served by certified mail or personally on the owner, officer, registered agent, or individual designated by permit.

In the event the offending party fails or refuses to discontinue the discharge within 90 days after notification of the cease and desist order, the executive director may order the offending party to show cause before the Board of Commissioners of the sanitary district why the discharge should not be discontinued. A notice shall be served on the offending party directing him, her, or it to show cause before the Board of Commissioners why an order should not be entered directing the discontinuance of the discharge. The notice shall specify the time and place where a hearing will be held and shall be served personally or by registered or certified mail at least 10 days before the hearing; and in the case of a unit of local government or a corporation the service shall be upon an officer or agent thereof. After reviewing the evidence, the Board of Commissioners may issue an order to the party responsible for the discharge, directing that within a specified period of time the discharge be discontinued. The Board of Commissioners may also order the party responsible for the discharge to pay a civil penalty in an amount specified by the Board of Commissioners that is not less than $1,000 $100 nor more than $2,000 per day for each day of discharge of effluent in violation of this Act as provided in subsection (d). The Board of Commissioners may also order the party responsible for the violation to pay court reporter costs and hearing officer fees in a total amount not exceeding $3,000.

(d) The Board of Commissioners shall establish procedures for assessing civil penalties and issuing orders under subsection (c) as follows:

(1) In making its orders and determinations, the Board of Commissioners shall take into consideration all the facts and circumstances bearing on the activities involved and the assessment of civil penalties as shown by the record produced at the hearing.

(2) The Board of Commissioners shall establish a panel of independent hearing officers to conduct all hearings on the assessment of civil penalties and issuance of orders under subsection (c). The hearing officers shall be attorneys licensed to practice law in this State.

(3) The Board of Commissioners shall promulgate procedural rules governing the proceedings, the assessment of civil penalties, and the issuance of orders.

(4) All hearings shall be on the record, and testimony taken must be under oath and recorded stenographically. Transcripts so recorded must be made available to any member of the public or any party to the hearing upon payment of the usual charges for transcripts. At the hearing, the hearing officer may issue, in the name of the Board of Commissioners, notices of hearing requesting the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in the hearing and may examine witnesses.

(5) The hearing officer shall conduct a full and impartial hearing on the record, with an opportunity for the presentation of evidence and cross-examination of the witnesses. The hearing officer shall issue findings of fact, conclusions of law, a recommended civil penalty, and an order based solely on the record. The hearing officer may also recommend, as part of the order, that the discharge of industrial waste be discontinued within a specified time.

(6) The findings of fact, conclusions of law, recommended civil penalty, and order shall be transmitted to the Board of Commissioners along with a complete record of the hearing.

(7) The Board of Commissioners shall either approve or disapprove the findings of fact, conclusions of law, recommended civil penalty, and order. If the findings of fact, conclusions of law, recommended civil penalty, or order are rejected, the Board of Commissioners shall remand the matter to the hearing officer for further proceedings. If the order is accepted by the Board of Commissioners, it shall constitute the final order of the Board of Commissioners.

(8) (Blank).

(9) The civil penalty specified by the Board of Commissioners shall be paid within 35 days after the party on whom it is imposed receives a written copy of the order of the Board of Commissioners, unless the person or persons to whom the order is issued seeks judicial review.

(10) If the respondent seeks judicial review of the order assessing civil penalties, the respondent shall, within 35 days after the date of the final order, pay the amount of the civil penalties into an escrow account maintained by the district for that purpose or file a bond guaranteeing payment of the civil penalties if the civil penalties are upheld on review.

(11) Civil penalties not paid by the times specified above shall be delinquent and subject to a lien recorded against the property of the person ordered to pay the penalty. The foregoing provisions for asserting liens against real estate by the sanitary district shall be in addition to and not in derogation of any other remedy or right of recovery, in law or equity, that the sanitary district may have with respect to the collection or recovery of penalties and charges imposed by the sanitary district. Judgment in a civil action brought by the sanitary district to recover or collect the charges shall not operate as a release and waiver of the lien upon the real estate for the amount of the judgment. Only satisfaction of the judgment or the filing of a release or satisfaction of lien shall release the lien.

(e) The executive director may order a person to cease the discharge of industrial waste upon a finding by the executive director that the final order of the Board of Commissioners entered after a hearing to show cause has been violated. The executive director shall serve the person with a copy of his or her order either by certified mail or personally by serving the owner, officer, registered agent, or individual designated by permit. The order of the executive director shall also schedule an expedited hearing before a hearing officer designated by the Board of Commissioners for the purpose of determining whether the company has violated the final order of the Board of Commissioners. The Board of Commissioners shall adopt rules of procedure governing expedited hearings. In no event shall the hearing be conducted less than 7 days after receipt by the person of the executive director's order.

At the conclusion of the expedited hearing, the hearing officer shall prepare a report with his or her findings and recommendations and transmit it to the Board of Commissioners. If the Board of Commissioners, after reviewing the findings and recommendations, and the record produced at the hearings, determines that the person has violated the Board of Commissioner's final order, the Board of Commissioners may authorize the plugging of the sewer. The executive director shall give not less than 10 days written notice of the Board of Commissioner's order to the owner, officer, registered agent, or individual designated by permit, as well as the owner of record of the real estate and other parties known to be affected, that the sewer will be plugged.

The foregoing provision for plugging a sewer shall be in addition to and not in derogation of any other remedy, in law or in equity, that the district may have to prevent violation of its ordinances and orders of its Board of Commissioners.

(f) A violation of the final order of the Board of Commissioners shall be considered a nuisance. If any person discharges sewage, industrial wastes, or other wastes into any waters contrary to the final order of the Board of Commissioners, the sanitary district acting through the executive director has the power to commence an action or proceeding in the circuit court in and for the county in which the sanitary district is located for the purpose of having the discharge stopped either by mandamus or injunction, or to remedy the violation in any manner provided for in this Section.

The court shall specify a time, not exceeding 20 days after the service of the copy of the complaint, in which the party complained of must plead to the complaint, and in the meantime, the party may be restrained. In case of default or after pleading, the court shall immediately inquire into the facts and circumstances of the case and enter an appropriate judgment in respect to the matters complained of. Appeals may be taken as in other civil cases.

(g) The sanitary district, acting through the executive director, has the power to commence an action or proceeding for mandamus or injunction in the circuit court ordering a person to cease its discharge, when, in the opinion of the executive director, the person's discharge presents an imminent danger to the public health, welfare, or safety, presents or may present an endangerment to the environment, or threatens to interfere with the operation of the sewerage system or a water reclamation plant under the jurisdiction of the sanitary district. The initiation of a show cause hearing is not a prerequisite to the commencement by the sanitary district of an action or proceeding for mandamus or injunction in the circuit court. The court shall specify a time, not exceeding 20 days after the service of a copy of the petition, in which the party complained of must answer the petition, and in the meantime, the party may be restrained. In case of default in answer or after answer, the court shall immediately inquire into the facts and circumstances of the case and enter an appropriate judgment order in respect to the matters complained of. An appeal may be taken from the final judgment in the same manner and with the same effect as appeals are taken from judgment of the circuit court in other actions for mandamus or injunction.

(h) Whenever the sanitary district commences an action under subsection (f) of this Section, the court shall assess a civil penalty of not less than $1,000 nor more than $10,000 for each day the person violates a Board order. Whenever the sanitary district commences an action under subsection (g) of this Section, the court shall assess a civil penalty of not less than $1,000 nor more than $10,000 for each day the person violates the ordinance. Each day's continuance of the violation is a separate offense. The penalties provided in this Section plus interest at the rate set forth in the Interest Act on unpaid penalties, costs, and fees, imposed by the Board of Commissioners under subsection (d), the reasonable costs to the sanitary district of removal or other remedial action caused by discharges in violation of this Act, reasonable attorney's fees, court costs, and other expenses of litigation together with costs for inspection, sampling, analysis, and administration related to the enforcement action against the offending party are recoverable by the sanitary district in a civil action.

(i) The Board of Commissioners may establish fees for late filing of reports with the sanitary district required by an ordinance governing discharges. The sanitary district shall provide by certified mail a written notice of the fee assessment that states the person has 30 days after the receipt of the notice to request a conference with the executive director's designee to discuss or dispute the appropriateness of the assessed fee. Unless a person objects to paying the fee for filing a report late by timely requesting in writing a conference with a designee of the executive director, that person waives his or her right to a conference and the sanitary district may impose a lien recorded against the property of the person for the amount of the unpaid fee.

If a person requests a conference and the matter is not resolved at the conference, the person subject to the fee may request an administrative hearing before an impartial hearing officer appointed under subsection (d) to determine the person's liability for and the amount of the fee.

If the hearing officer finds that the late filing fees are owed to the sanitary district, the sanitary district shall notify the responsible person or persons of the hearing officer's decision. If payment is not made within 30 days after the notice, the sanitary district may impose a lien on the property of the person or persons.

Any liens filed under this subsection shall apply only to the property to which the late filing fees are related. A claim for lien shall be filed in the office of the recorder of the county in which the property is located. The filing of a claim for lien by the district does not prevent the sanitary district from pursuing other means for collecting late filing fees. If a claim for lien is filed, the sanitary district shall notify the person whose property is subject to the lien, and the person may challenge the lien by filing an action in the circuit court. The action shall be filed within 90 days after the person receives the notice of the filing of the claim for lien. The court shall hear evidence concerning the underlying reasons for the lien only if an administrative hearing has not been held under this subsection.

(j) If the provisions of any paragraph of this Section are declared unconstitutional or invalid by the final decision of any court of competent jurisdiction, the provisions of the remaining paragraphs continue in effect.

(k) Nothing in this Section eliminates any of the powers now granted to municipalities having a population of 500,000 or more as to design, preparation of plans, and construction, maintenance, and operation of sewers and sewerage systems, or for the control and elimination or prevention of the pollution of their waters or waterways, in the Illinois Municipal Code or any other Act of the State of Illinois.

(l) The provisions of the Administrative Review Law and all amendments and rules adopted pursuant to that Law apply to and govern all proceedings for the judicial review of final administrative decisions of the Board of Commissioners in the enforcement of any ordinance, rule, or regulation adopted under this Act.

(Source: P.A. 95-923, eff. 1-1-09; 96-328, eff. 8-11-09.)

Section 99. Effective date. This Act takes effect upon becoming law.