103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
HB2788

 

Introduced 2/16/2023, by Rep. Ann M. Williams

 

SYNOPSIS AS INTRODUCED:
 
415 ILCS 5/31  from Ch. 111 1/2, par. 1031

    Amends the Environmental Protection Act. Authorizes the extension of mutually agreed deadlines for the submittal of enforcement-related items. Allows notices, responses, and other items to be submitted or served on a person complained against or the Environmental Protection Agency not only by certified mail but also by personal service or a third-party commercial carrier that requires the receipt of that document to be acknowledged with the recipient's signature. Provides that, whenever a third-party commercial carrier requiring the recipient's signature is used, the date recorded by the third-party commercial carrier that the third-party commercial carrier received the item for delivery shall be deemed the date the item was submitted, and the date recorded by the third-party commercial carrier that the recipient signed for the item shall be deemed the date the item was received by the recipient. Requires records authenticated by a third-party commercial carrier to be considered competent evidence that an item was submitted or received if the item is sent by a third-party commercial carrier requiring the recipient's signature. Effective immediately.


LRB103 29482 CPF 55877 b

 

 

A BILL FOR

 

HB2788LRB103 29482 CPF 55877 b

1    AN ACT concerning safety.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Environmental Protection Act is amended by
5changing Section 31 as follows:
 
6    (415 ILCS 5/31)  (from Ch. 111 1/2, par. 1031)
7    Sec. 31. Notice; complaint; hearing.
8    (a)(1) Within 180 days after becoming aware of an alleged
9violation of the Act, any rule adopted under the Act, a permit
10granted by the Agency, or a condition of such a permit, the
11Agency shall issue and serve, by certified mail, upon the
12person complained against a written notice informing that
13person that the Agency has evidence of the alleged violation.
14At a minimum, the written notice shall contain:
15        (A) a notification to the person complained against of
16    the requirement to submit a written response addressing
17    the violations alleged and the option to meet with
18    appropriate agency personnel to resolve any alleged
19    violations that could lead to the filing of a formal
20    complaint;
21        (B) a detailed explanation by the Agency of the
22    violations alleged;
23        (C) an explanation by the Agency of the actions that

 

 

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1    the Agency believes may resolve the alleged violations,
2    including an estimate of a reasonable time period for the
3    person complained against to complete the suggested
4    resolution; and
5        (D) an explanation of any alleged violation that the
6    Agency believes cannot be resolved without the involvement
7    of the Office of the Illinois Attorney General or the
8    State's Attorney of the county in which the alleged
9    violation occurred and the basis for the Agency's belief.
10    (2) A written response to the violations alleged shall be
11submitted to the Agency, by certified mail, within 45 days
12after receipt of notice by the person complained against or
13within a later time period as agreed to by the Agency and the
14person complained against , unless the Agency agrees to an
15extension. The written response shall include:
16        (A) information in rebuttal, explanation or
17    justification of each alleged violation;
18        (B) if the person complained against desires to enter
19    into a Compliance Commitment Agreement, proposed terms for
20    a Compliance Commitment Agreement that includes specified
21    times for achieving each commitment and which may consist
22    of a statement indicating that the person complained
23    against believes that compliance has been achieved; and
24        (C) a request for a meeting with appropriate Agency
25    personnel if a meeting is desired by the person complained
26    against.

 

 

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1    (3) If the person complained against fails to respond in
2accordance with the requirements of subdivision (2) of this
3subsection (a), the failure to respond shall be considered a
4waiver of the requirements of this subsection (a) and nothing
5in this Section shall preclude the Agency from proceeding
6pursuant to subsection (b) of this Section.
7    (4) A meeting requested pursuant to subdivision (2) of
8this subsection (a) shall be held without a representative of
9the Office of the Illinois Attorney General or the State's
10Attorney of the county in which the alleged violation
11occurred, within 60 days after receipt of notice by the person
12complained against or within a later time period as agreed to
13by the Agency and the person complained against , unless the
14Agency agrees to a postponement. At the meeting, the Agency
15shall provide an opportunity for the person complained against
16to respond to each alleged violation, suggested resolution,
17and suggested implementation time frame, and to suggest
18alternate resolutions.
19    (5) If a meeting requested pursuant to subdivision (2) of
20this subsection (a) is held, the person complained against
21shall, within 21 days following the meeting or within a later
22time period as agreed to by the Agency and the person
23complained against an extended time period as agreed to by the
24Agency, submit by certified mail to the Agency a written
25response to the alleged violations. The written response shall
26include:

 

 

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1        (A) additional information in rebuttal, explanation,
2    or justification of each alleged violation;
3        (B) if the person complained against desires to enter
4    into a Compliance Commitment Agreement, proposed terms for
5    a Compliance Commitment Agreement that includes specified
6    times for achieving each commitment and which may consist
7    of a statement indicating that the person complained
8    against believes that compliance has been achieved; and
9        (C) a statement indicating that, should the person
10    complained against so wish, the person complained against
11    chooses to rely upon the initial written response
12    submitted pursuant to subdivision (2) of this subsection
13    (a).
14    (6) If the person complained against fails to respond in
15accordance with the requirements of subdivision (5) of this
16subsection (a), the failure to respond shall be considered a
17waiver of the requirements of this subsection (a) and nothing
18in this Section shall preclude the Agency from proceeding
19pursuant to subsection (b) of this Section.
20    (7) Within 30 days after the Agency's receipt of a written
21response submitted by the person complained against pursuant
22to subdivision (2) of this subsection (a) if a meeting is not
23requested or pursuant to subdivision (5) of this subsection
24(a) if a meeting is held, or within a later time period as
25agreed to by the Agency and the person complained against, the
26Agency shall issue and serve, by certified mail, upon the

 

 

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1person complained against (i) a proposed Compliance Commitment
2Agreement or (ii) a notice that one or more violations cannot
3be resolved without the involvement of the Office of the
4Attorney General or the State's Attorney of the county in
5which the alleged violation occurred and that no proposed
6Compliance Commitment Agreement will be issued by the Agency
7for those violations. The Agency shall include terms and
8conditions in the proposed Compliance Commitment Agreement
9that are, in its discretion, necessary to bring the person
10complained against into compliance with the Act, any rule
11adopted under the Act, any permit granted by the Agency, or any
12condition of such a permit. The Agency shall take into
13consideration the proposed terms for the proposed Compliance
14Commitment Agreement that were provided under subdivision
15(a)(2)(B) or (a)(5)(B) of this Section by the person
16complained against.
17    (7.5) Within 30 days after the receipt of the Agency's
18proposed Compliance Commitment Agreement by the person
19complained against or within a later time period as agreed to
20by the Agency and the person complained against, the person
21shall either (i) agree to and sign the proposed Compliance
22Commitment Agreement provided by the Agency and submit the
23signed Compliance Commitment Agreement to the Agency by
24certified mail or (ii) notify the Agency in writing by
25certified mail of the person's rejection of the proposed
26Compliance Commitment Agreement. If the person complained

 

 

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1against fails to respond to the proposed Compliance Commitment
2Agreement within 30 days or within the later time period
3agreed to by the Agency and the person complained against as
4required under this paragraph, the proposed Compliance
5Commitment Agreement is deemed rejected by operation of law.
6Any Compliance Commitment Agreement entered into under item
7(i) of this paragraph may be amended subsequently in writing
8by mutual agreement between the Agency and the signatory to
9the Compliance Commitment Agreement, the signatory's legal
10representative, or the signatory's agent.
11    (7.6) No person shall violate the terms or conditions of a
12Compliance Commitment Agreement entered into under subdivision
13(a)(7.5) of this Section. Successful completion of a
14Compliance Commitment Agreement or an amended Compliance
15Commitment Agreement shall be a factor to be weighed, in favor
16of the person completing the Agreement, by the Office of the
17Illinois Attorney General in determining whether to file a
18complaint for the violations that were the subject of the
19Agreement.
20    (7.7) Within 30 days after a Compliance Commitment
21Agreement takes effect or is amended in accordance with
22paragraph (7.5), the Agency shall publish a copy of the final
23executed Compliance Commitment Agreement on the Agency's
24website. The Agency shall maintain an Internet database of all
25Compliance Commitment Agreements entered on or after the
26effective date of this amendatory Act of the 100th General

 

 

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1Assembly. At a minimum, the database shall be searchable by
2the following categories: the county in which the facility
3that is subject to the Compliance Commitment Agreement is
4located; the date of final execution of the Compliance
5Commitment Agreement; the name of the respondent; and the
6media involved, including air, water, land, or public water
7supply.
8    (8) Nothing in this subsection (a) is intended to require
9the Agency to enter into Compliance Commitment Agreements for
10any alleged violation that the Agency believes cannot be
11resolved without the involvement of the Office of the Attorney
12General or the State's Attorney of the county in which the
13alleged violation occurred, for, among other purposes, the
14imposition of statutory penalties.
15    (9) The Agency's failure to respond within 30 days to a
16written response submitted pursuant to subdivision (2) of this
17subsection (a) if a meeting is not requested or pursuant to
18subdivision (5) of this subsection (a) if a meeting is held, or
19within a later the time period as otherwise agreed to in
20writing by the Agency and the person complained against, shall
21be deemed an acceptance by the Agency of the proposed terms of
22the Compliance Commitment Agreement for the violations alleged
23in the written notice issued under subdivision (1) of this
24subsection (a) as contained within the written response.
25    (10) If the person complained against complies with the
26terms of a Compliance Commitment Agreement accepted pursuant

 

 

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1to this subsection (a), the Agency shall not refer the alleged
2violations which are the subject of the Compliance Commitment
3Agreement to the Office of the Illinois Attorney General or
4the State's Attorney of the county in which the alleged
5violation occurred. However, nothing in this subsection is
6intended to preclude the Agency from continuing negotiations
7with the person complained against or from proceeding pursuant
8to the provisions of subsection (b) of this Section for
9alleged violations that remain the subject of disagreement
10between the Agency and the person complained against following
11fulfillment of the requirements of this subsection (a).
12    (11) Nothing in this subsection (a) is intended to
13preclude the person complained against from submitting to the
14Agency, by certified mail, at any time, notification that the
15person complained against consents to waiver of the
16requirements of subsections (a) and (b) of this Section.
17    (12) The Agency shall have the authority to adopt rules
18for the administration of subsection (a) of this Section. The
19rules shall be adopted in accordance with the provisions of
20the Illinois Administrative Procedure Act.
21    (b) For alleged violations that remain the subject of
22disagreement between the Agency and the person complained
23against following fulfillment of the requirements of
24subsection (a) of this Section, and for alleged violations of
25the terms or conditions of a Compliance Commitment Agreement
26entered into under subdivision (a)(7.5) of this Section as

 

 

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1well as the alleged violations that are the subject of the
2Compliance Commitment Agreement, and as a precondition to the
3Agency's referral or request to the Office of the Illinois
4Attorney General or the State's Attorney of the county in
5which the alleged violation occurred for legal representation
6regarding an alleged violation that may be addressed pursuant
7to subsection (c) or (d) of this Section or pursuant to Section
842 of this Act, the Agency shall issue and serve, by certified
9mail, upon the person complained against a written notice
10informing that person that the Agency intends to pursue legal
11action. Such notice shall notify the person complained against
12of the violations to be alleged and offer the person an
13opportunity to meet with appropriate Agency personnel in an
14effort to resolve any alleged violations that could lead to
15the filing of a formal complaint. The meeting with Agency
16personnel shall be held within 30 days after receipt of notice
17served pursuant to this subsection upon the person complained
18against, or within a later time period as agreed to by the
19Agency and the person complained against, unless the Agency
20agrees to a postponement or the person notifies the Agency
21that he or she will not appear at a meeting within the 30-day
22time period or the agreed upon time period. Nothing in this
23subsection is intended to preclude the Agency from following
24the provisions of subsection (c) or (d) of this Section or from
25requesting the legal representation of the Office of the
26Illinois Attorney General or the State's Attorney of the

 

 

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1county in which the alleged violations occurred for alleged
2violations which remain the subject of disagreement between
3the Agency and the person complained against after the
4provisions of this subsection are fulfilled.
5    (c)(1) For alleged violations which remain the subject of
6disagreement between the Agency and the person complained
7against following waiver pursuant to subdivision (10) of
8subsection (a) of this Section or fulfillment of the
9requirements of subsections (a) and (b) of this Section, the
10Office of the Illinois Attorney General or the State's
11Attorney of the county in which the alleged violation occurred
12shall issue and serve upon the person complained against a
13written notice, together with a formal complaint, which shall
14specify the provision of the Act, rule, regulation, permit, or
15term or condition thereof under which such person is said to be
16in violation and a statement of the manner in and the extent to
17which such person is said to violate the Act, rule,
18regulation, permit, or term or condition thereof and shall
19require the person so complained against to answer the charges
20of such formal complaint at a hearing before the Board at a
21time not less than 21 days after the date of notice by the
22Board, except as provided in Section 34 of this Act. Such
23complaint shall be accompanied by a notification to the
24defendant that financing may be available, through the
25Illinois Environmental Facilities Financing Act, to correct
26such violation. A copy of such notice of such hearings shall

 

 

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1also be sent to any person that has complained to the Agency
2respecting the respondent within the six months preceding the
3date of the complaint, and to any person in the county in which
4the offending activity occurred that has requested notice of
5enforcement proceedings; 21 days notice of such hearings shall
6also be published in a newspaper of general circulation in
7such county. The respondent may file a written answer, and at
8such hearing the rules prescribed in Sections 32 and 33 of this
9Act shall apply. In the case of actual or threatened acts
10outside Illinois contributing to environmental damage in
11Illinois, the extraterritorial service-of-process provisions
12of Sections 2-208 and 2-209 of the Code of Civil Procedure
13shall apply.
14    With respect to notices served pursuant to this subsection
15(c)(1) that involve hazardous material or wastes in any
16manner, the Agency shall annually publish a list of all such
17notices served. The list shall include the date the
18investigation commenced, the date notice was sent, the date
19the matter was referred to the Attorney General, if
20applicable, and the current status of the matter.
21    (2) Notwithstanding the provisions of subdivision (1) of
22this subsection (c), whenever a complaint has been filed on
23behalf of the Agency or by the People of the State of Illinois,
24the parties may file with the Board a stipulation and proposal
25for settlement accompanied by a request for relief from the
26requirement of a hearing pursuant to subdivision (1). Unless

 

 

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1the Board, in its discretion, concludes that a hearing will be
2held, the Board shall cause notice of the stipulation,
3proposal and request for relief to be published and sent in the
4same manner as is required for hearing pursuant to subdivision
5(1) of this subsection. The notice shall include a statement
6that any person may file a written demand for hearing within 21
7days after receiving the notice. If any person files a timely
8written demand for hearing, the Board shall deny the request
9for relief from a hearing and shall hold a hearing in
10accordance with the provisions of subdivision (1).
11    (3) Notwithstanding the provisions of subdivision (1) of
12this subsection (c), if the Agency becomes aware of a
13violation of this Act arising from, or as a result of,
14voluntary pollution prevention activities, the Agency shall
15not proceed with the written notice required by subsection (a)
16of this Section unless:
17        (A) the person fails to take corrective action or
18    eliminate the reported violation within a reasonable time;
19    or
20        (B) the Agency believes that the violation poses a
21    substantial and imminent danger to the public health or
22    welfare or the environment. For the purposes of this item
23    (B), "substantial and imminent danger" means a danger with
24    a likelihood of serious or irreversible harm.
25    (d)(1) Any person may file with the Board a complaint,
26meeting the requirements of subsection (c) of this Section,

 

 

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1against any person allegedly violating this Act, any rule or
2regulation adopted under this Act, any permit or term or
3condition of a permit, or any Board order. The complainant
4shall immediately serve a copy of such complaint upon the
5person or persons named therein. Unless the Board determines
6that such complaint is duplicative or frivolous, it shall
7schedule a hearing and serve written notice thereof upon the
8person or persons named therein, in accord with subsection (c)
9of this Section.
10    (2) Whenever a complaint has been filed by a person other
11than the Attorney General or the State's Attorney, the parties
12may file with the Board a stipulation and proposal for
13settlement accompanied by a request for relief from the
14hearing requirement of subdivision (c)(1) of this Section.
15Unless the Board, in its discretion, concludes that a hearing
16should be held, no hearing on the stipulation and proposal for
17settlement is required.
18    (e) In hearings before the Board under this Title the
19burden shall be on the Agency or other complainant to show
20either that the respondent has caused or threatened to cause
21air or water pollution or that the respondent has violated or
22threatens to violate any provision of this Act or any rule or
23regulation of the Board or permit or term or condition
24thereof. If such proof has been made, the burden shall be on
25the respondent to show that compliance with the Board's
26regulations would impose an arbitrary or unreasonable

 

 

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1hardship.
2    (f) The provisions of this Section shall not apply to
3administrative citation actions commenced under Section 31.1
4of this Act.
5    (g) Notices, responses, and other items required to be
6submitted to or served on a person complained against or the
7Agency by certified mail under this Section may also be served
8by personal service or by a third-party commercial carrier
9that requires the receipt of that document to be acknowledged
10with the recipient's signature.
11    (h) If a third-party commercial carrier requiring the
12recipient's signature is used to serve an item under
13subsection (a) or (b), the date recorded by the third-party
14commercial carrier that the third-party commercial carrier
15received the item for delivery shall be deemed the date the
16item was submitted, and the date recorded by the third-party
17commercial carrier that the recipient signed for the item
18shall be deemed the date the item was received by the
19recipient. If an item is sent by a third-party commercial
20carrier that requires the recipient's signature, a record
21authenticated by the third-party commercial carrier shall be
22considered competent evidence that the item was submitted or
23received.
24(Source: P.A. 100-1080, eff. 8-24-18.)
 
25    Section 99. Effective date. This Act takes effect upon
26becoming law.