HB2788 EnrolledLRB103 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 an extended time period as agreed to by the Agency and
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 an extended time period as
13agreed to by the Agency and person complained against unless
14the Agency agrees to a postponement. At the meeting, the
15Agency shall provide an opportunity for the person complained
16against to respond to each alleged violation, suggested
17resolution, and suggested implementation time frame, and to
18suggest alternate 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 an
22extended time period as agreed to by the Agency and person
23complained against, submit by certified mail to the Agency a
24written response to the alleged violations. The written
25response shall include:
26        (A) additional information in rebuttal, explanation,

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1violations which are the subject of the Compliance Commitment
2Agreement to the Office of the Illinois Attorney General or
3the State's Attorney of the county in which the alleged
4violation occurred. However, nothing in this subsection is
5intended to preclude the Agency from continuing negotiations
6with the person complained against or from proceeding pursuant
7to the provisions of subsection (b) of this Section for
8alleged violations that remain the subject of disagreement
9between the Agency and the person complained against following
10fulfillment of the requirements of this subsection (a).
11    (11) Nothing in this subsection (a) is intended to
12preclude the person complained against from submitting to the
13Agency, by certified mail, at any time, notification that the
14person complained against consents to waiver of the
15requirements of subsections (a) and (b) of this Section.
16    (12) The Agency shall have the authority to adopt rules
17for the administration of subsection (a) of this Section. The
18rules shall be adopted in accordance with the provisions of
19the Illinois Administrative Procedure Act.
20    (b) For alleged violations that remain the subject of
21disagreement between the Agency and the person complained
22against following fulfillment of the requirements of
23subsection (a) of this Section, and for alleged violations of
24the terms or conditions of a Compliance Commitment Agreement
25entered into under subdivision (a)(7.5) of this Section as
26well as the alleged violations that are the subject of the

 

 

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1Compliance Commitment Agreement, and as a precondition to the
2Agency's referral or request to the Office of the Illinois
3Attorney General or the State's Attorney of the county in
4which the alleged violation occurred for legal representation
5regarding an alleged violation that may be addressed pursuant
6to subsection (c) or (d) of this Section or pursuant to Section
742 of this Act, the Agency shall issue and serve, by certified
8mail, upon the person complained against a written notice
9informing that person that the Agency intends to pursue legal
10action. Such notice shall notify the person complained against
11of the violations to be alleged and offer the person an
12opportunity to meet with appropriate Agency personnel in an
13effort to resolve any alleged violations that could lead to
14the filing of a formal complaint. The meeting with Agency
15personnel shall be held within 30 days after receipt of notice
16served pursuant to this subsection upon the person complained
17against, unless the Agency agrees to a postponement or the
18person notifies the Agency that he or she will not appear at a
19meeting within the 30-day time period. Nothing in this
20subsection is intended to preclude the Agency from following
21the provisions of subsection (c) or (d) of this Section or from
22requesting the legal representation of the Office of the
23Illinois Attorney General or the State's Attorney of the
24county in which the alleged violations occurred for alleged
25violations which remain the subject of disagreement between
26the Agency and the person complained against after the

 

 

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

 

 

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

 

 

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

 

 

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1shall immediately serve a copy of such complaint upon the
2person or persons named therein. Unless the Board determines
3that such complaint is duplicative or frivolous, it shall
4schedule a hearing and serve written notice thereof upon the
5person or persons named therein, in accord with subsection (c)
6of this Section.
7    (2) Whenever a complaint has been filed by a person other
8than the Attorney General or the State's Attorney, the parties
9may file with the Board a stipulation and proposal for
10settlement accompanied by a request for relief from the
11hearing requirement of subdivision (c)(1) of this Section.
12Unless the Board, in its discretion, concludes that a hearing
13should be held, no hearing on the stipulation and proposal for
14settlement is required.
15    (e) In hearings before the Board under this Title the
16burden shall be on the Agency or other complainant to show
17either that the respondent has caused or threatened to cause
18air or water pollution or that the respondent has violated or
19threatens to violate any provision of this Act or any rule or
20regulation of the Board or permit or term or condition
21thereof. If such proof has been made, the burden shall be on
22the respondent to show that compliance with the Board's
23regulations would impose an arbitrary or unreasonable
24hardship.
25    (f) The provisions of this Section shall not apply to
26administrative citation actions commenced under Section 31.1

 

 

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1of this Act.
2(Source: P.A. 100-1080, eff. 8-24-18.)
 
3    Section 99. Effective date. This Act takes effect upon
4becoming law.