Rep. Ann M. Williams

Filed: 3/15/2023

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 2788

2    AMENDMENT NO. ______. Amend House Bill 2788, AS AMENDED,
3by replacing everything after the enacting clause with the
4following:
 
5    "Section 5. The Environmental Protection Act is amended by
6changing Section 31 as follows:
 
7    (415 ILCS 5/31)  (from Ch. 111 1/2, par. 1031)
8    Sec. 31. Notice; complaint; hearing.
9    (a)(1) Within 180 days after becoming aware of an alleged
10violation of the Act, any rule adopted under the Act, a permit
11granted by the Agency, or a condition of such a permit, the
12Agency shall issue and serve, by certified mail, upon the
13person complained against a written notice informing that
14person that the Agency has evidence of the alleged violation.
15At a minimum, the written notice shall contain:
16        (A) a notification to the person complained against of

 

 

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1    the requirement to submit a written response addressing
2    the violations alleged and the option to meet with
3    appropriate agency personnel to resolve any alleged
4    violations that could lead to the filing of a formal
5    complaint;
6        (B) a detailed explanation by the Agency of the
7    violations alleged;
8        (C) an explanation by the Agency of the actions that
9    the Agency believes may resolve the alleged violations,
10    including an estimate of a reasonable time period for the
11    person complained against to complete the suggested
12    resolution; and
13        (D) an explanation of any alleged violation that the
14    Agency believes cannot be resolved without the involvement
15    of the Office of the Illinois Attorney General or the
16    State's Attorney of the county in which the alleged
17    violation occurred and the basis for the Agency's belief.
18    (2) A written response to the violations alleged shall be
19submitted to the Agency, by certified mail, within 45 days
20after receipt of notice by the person complained against, or
21within an extended time period as agreed to by the Agency and
22person complained against unless the Agency agrees to an
23extension. The written response shall include:
24        (A) information in rebuttal, explanation or
25    justification of each alleged violation;
26        (B) if the person complained against desires to enter

 

 

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1    into a Compliance Commitment Agreement, proposed terms for
2    a Compliance Commitment Agreement that includes specified
3    times for achieving each commitment and which may consist
4    of a statement indicating that the person complained
5    against believes that compliance has been achieved; and
6        (C) a request for a meeting with appropriate Agency
7    personnel if a meeting is desired by the person complained
8    against.
9    (3) If the person complained against fails to respond in
10accordance with the requirements of subdivision (2) of this
11subsection (a), the failure to respond shall be considered a
12waiver of the requirements of this subsection (a) and nothing
13in this Section shall preclude the Agency from proceeding
14pursuant to subsection (b) of this Section.
15    (4) A meeting requested pursuant to subdivision (2) of
16this subsection (a) shall be held without a representative of
17the Office of the Illinois Attorney General or the State's
18Attorney of the county in which the alleged violation
19occurred, within 60 days after receipt of notice by the person
20complained against, or within an extended time period as
21agreed to by the Agency and person complained against unless
22the Agency agrees to a postponement. At the meeting, the
23Agency shall provide an opportunity for the person complained
24against to respond to each alleged violation, suggested
25resolution, and suggested implementation time frame, and to
26suggest alternate resolutions.

 

 

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1    (5) If a meeting requested pursuant to subdivision (2) of
2this subsection (a) is held, the person complained against
3shall, within 21 days following the meeting or within an
4extended time period as agreed to by the Agency and person
5complained against, submit by certified mail to the Agency a
6written response to the alleged violations. The written
7response shall include:
8        (A) additional information in rebuttal, explanation,
9    or justification of each alleged violation;
10        (B) if the person complained against desires to enter
11    into a Compliance Commitment Agreement, proposed terms for
12    a Compliance Commitment Agreement that includes specified
13    times for achieving each commitment and which may consist
14    of a statement indicating that the person complained
15    against believes that compliance has been achieved; and
16        (C) a statement indicating that, should the person
17    complained against so wish, the person complained against
18    chooses to rely upon the initial written response
19    submitted pursuant to subdivision (2) of this subsection
20    (a).
21    (6) If the person complained against fails to respond in
22accordance with the requirements of subdivision (5) of this
23subsection (a), the failure to respond shall be considered a
24waiver of the requirements of this subsection (a) and nothing
25in this Section shall preclude the Agency from proceeding
26pursuant to subsection (b) of this Section.

 

 

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

 

 

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1exceed an additional 30 days as agreed to by the Agency and the
2person complained against, the person shall either (i) agree
3to and sign the proposed Compliance Commitment Agreement
4provided by the Agency and submit the signed Compliance
5Commitment Agreement to the Agency by certified mail or (ii)
6notify the Agency in writing by certified mail of the person's
7rejection of the proposed Compliance Commitment Agreement. If
8the person complained against fails to respond to the proposed
9Compliance Commitment Agreement within 30 days as required
10under this paragraph, the proposed Compliance Commitment
11Agreement is deemed rejected by operation of law. Any
12Compliance Commitment Agreement entered into under item (i) of
13this paragraph may be amended subsequently in writing by
14mutual agreement between the Agency and the signatory to the
15Compliance Commitment Agreement, the signatory's legal
16representative, or the signatory's agent.
17    (7.6) No person shall violate the terms or conditions of a
18Compliance Commitment Agreement entered into under subdivision
19(a)(7.5) of this Section. Successful completion of a
20Compliance Commitment Agreement or an amended Compliance
21Commitment Agreement shall be a factor to be weighed, in favor
22of the person completing the Agreement, by the Office of the
23Illinois Attorney General in determining whether to file a
24complaint for the violations that were the subject of the
25Agreement.
26    (7.7) Within 30 days after a Compliance Commitment

 

 

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1Agreement takes effect or is amended in accordance with
2paragraph (7.5), the Agency shall publish a copy of the final
3executed Compliance Commitment Agreement on the Agency's
4website. The Agency shall maintain an Internet database of all
5Compliance Commitment Agreements entered on or after the
6effective date of this amendatory Act of the 100th General
7Assembly. At a minimum, the database shall be searchable by
8the following categories: the county in which the facility
9that is subject to the Compliance Commitment Agreement is
10located; the date of final execution of the Compliance
11Commitment Agreement; the name of the respondent; and the
12media involved, including air, water, land, or public water
13supply.
14    (8) Nothing in this subsection (a) is intended to require
15the Agency to enter into Compliance Commitment Agreements for
16any alleged violation that the Agency believes cannot be
17resolved without the involvement of the Office of the Attorney
18General or the State's Attorney of the county in which the
19alleged violation occurred, for, among other purposes, the
20imposition of statutory penalties.
21    (9) The Agency's failure to respond within 30 days of
22receipt to a written response submitted pursuant to
23subdivision (2) of this subsection (a) if a meeting is not
24requested or pursuant to subdivision (5) of this subsection
25(a) if a meeting is held, or within the time period otherwise
26agreed to in writing by the Agency and the person complained

 

 

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

 

 

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1the Illinois Administrative Procedure Act.
2    (b) For alleged violations that remain the subject of
3disagreement between the Agency and the person complained
4against following fulfillment of the requirements of
5subsection (a) of this Section, and for alleged violations of
6the terms or conditions of a Compliance Commitment Agreement
7entered into under subdivision (a)(7.5) of this Section as
8well as the alleged violations that are the subject of the
9Compliance Commitment Agreement, and as a precondition to the
10Agency's referral or request to the Office of the Illinois
11Attorney General or the State's Attorney of the county in
12which the alleged violation occurred for legal representation
13regarding an alleged violation that may be addressed pursuant
14to subsection (c) or (d) of this Section or pursuant to Section
1542 of this Act, the Agency shall issue and serve, by certified
16mail, upon the person complained against a written notice
17informing that person that the Agency intends to pursue legal
18action. Such notice shall notify the person complained against
19of the violations to be alleged and offer the person an
20opportunity to meet with appropriate Agency personnel in an
21effort to resolve any alleged violations that could lead to
22the filing of a formal complaint. The meeting with Agency
23personnel shall be held within 30 days after receipt of notice
24served pursuant to this subsection upon the person complained
25against, unless the Agency agrees to a postponement or the
26person notifies the Agency that he or she will not appear at a

 

 

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1meeting within the 30-day time period. Nothing in this
2subsection is intended to preclude the Agency from following
3the provisions of subsection (c) or (d) of this Section or from
4requesting the legal representation of the Office of the
5Illinois Attorney General or the State's Attorney of the
6county in which the alleged violations occurred for alleged
7violations which remain the subject of disagreement between
8the Agency and the person complained against after the
9provisions of this subsection are fulfilled.
10    (c)(1) For alleged violations which remain the subject of
11disagreement between the Agency and the person complained
12against following waiver pursuant to subdivision (10) of
13subsection (a) of this Section or fulfillment of the
14requirements of subsections (a) and (b) of this Section, the
15Office of the Illinois Attorney General or the State's
16Attorney of the county in which the alleged violation occurred
17shall issue and serve upon the person complained against a
18written notice, together with a formal complaint, which shall
19specify the provision of the Act, rule, regulation, permit, or
20term or condition thereof under which such person is said to be
21in violation and a statement of the manner in and the extent to
22which such person is said to violate the Act, rule,
23regulation, permit, or term or condition thereof and shall
24require the person so complained against to answer the charges
25of such formal complaint at a hearing before the Board at a
26time not less than 21 days after the date of notice by the

 

 

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1Board, except as provided in Section 34 of this Act. Such
2complaint shall be accompanied by a notification to the
3defendant that financing may be available, through the
4Illinois Environmental Facilities Financing Act, to correct
5such violation. A copy of such notice of such hearings shall
6also be sent to any person that has complained to the Agency
7respecting the respondent within the six months preceding the
8date of the complaint, and to any person in the county in which
9the offending activity occurred that has requested notice of
10enforcement proceedings; 21 days notice of such hearings shall
11also be published in a newspaper of general circulation in
12such county. The respondent may file a written answer, and at
13such hearing the rules prescribed in Sections 32 and 33 of this
14Act shall apply. In the case of actual or threatened acts
15outside Illinois contributing to environmental damage in
16Illinois, the extraterritorial service-of-process provisions
17of Sections 2-208 and 2-209 of the Code of Civil Procedure
18shall apply.
19    With respect to notices served pursuant to this subsection
20(c)(1) that involve hazardous material or wastes in any
21manner, the Agency shall annually publish a list of all such
22notices served. The list shall include the date the
23investigation commenced, the date notice was sent, the date
24the matter was referred to the Attorney General, if
25applicable, and the current status of the matter.
26    (2) Notwithstanding the provisions of subdivision (1) of

 

 

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

 

 

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

 

 

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1threatens to violate any provision of this Act or any rule or
2regulation of the Board or permit or term or condition
3thereof. If such proof has been made, the burden shall be on
4the respondent to show that compliance with the Board's
5regulations would impose an arbitrary or unreasonable
6hardship.
7    (f) The provisions of this Section shall not apply to
8administrative citation actions commenced under Section 31.1
9of this Act.
10(Source: P.A. 100-1080, eff. 8-24-18.)
 
11    Section 99. Effective date. This Act takes effect upon
12becoming law.".