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Full Text of SB3156  100th General Assembly

SB3156sam001 100TH GENERAL ASSEMBLY

Sen. Omar Aquino

Filed: 4/13/2018

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3156

2    AMENDMENT NO. ______. Amend Senate Bill 3156 by replacing
3everything after the enacting clause with the following:
 
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
9    violation of the Act, any rule adopted under the Act, a
10    permit granted by the Agency, or a condition of such a
11    permit, the Agency shall issue and serve, by certified
12    mail, upon the person complained against a written notice
13    informing that person that the Agency has evidence of the
14    alleged violation. At a minimum, the written notice shall
15    contain:
16            (A) a notification to the person complained

 

 

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

 

 

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

 

 

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1        (5) If a meeting requested pursuant to subdivision (2)
2    of this subsection (a) is held, the person complained
3    against shall, within 21 days following the meeting or
4    within an extended time period as agreed to by the Agency,
5    submit by certified mail to the Agency a written response
6    to the alleged violations. The written response shall
7    include:
8            (A) additional information in rebuttal,
9        explanation, or justification of each alleged
10        violation;
11            (B) if the person complained against desires to
12        enter into a Compliance Commitment Agreement, proposed
13        terms for a Compliance Commitment Agreement that
14        includes specified times for achieving each commitment
15        and which may consist of a statement indicating that
16        the person complained against believes that compliance
17        has been achieved; and
18            (C) a statement indicating that, should the person
19        complained against so wish, the person complained
20        against chooses to rely upon the initial written
21        response submitted pursuant to subdivision (2) of this
22        subsection (a).
23        (6) If the person complained against fails to respond
24    in accordance with the requirements of subdivision (5) of
25    this subsection (a), the failure to respond shall be
26    considered a waiver of the requirements of this subsection

 

 

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1    (a) and nothing in this Section shall preclude the Agency
2    from proceeding pursuant to subsection (b) of this Section.
3        (7) Within 30 days after the Agency's receipt of a
4    written response submitted by the person complained
5    against pursuant to subdivision (2) of this subsection (a)
6    if a meeting is not requested or pursuant to subdivision
7    (5) of this subsection (a) if a meeting is held, or within
8    a later time period as agreed to by the Agency and the
9    person complained against, the Agency shall issue and
10    serve, by certified mail, upon the person complained
11    against (i) a proposed Compliance Commitment Agreement or
12    (ii) a notice that one or more violations cannot be
13    resolved without the involvement of the Office of the
14    Attorney General or the State's Attorney of the county in
15    which the alleged violation occurred and that no proposed
16    Compliance Commitment Agreement will be issued by the
17    Agency for those violations. The Agency shall include terms
18    and conditions in the proposed Compliance Commitment
19    Agreement that are, in its discretion, necessary to bring
20    the person complained against into compliance with the Act,
21    any rule adopted under the Act, any permit granted by the
22    Agency, or any condition of such a permit. The Agency shall
23    take into consideration the proposed terms for the proposed
24    Compliance Commitment Agreement that were provided under
25    subdivision (a)(2)(B) or (a)(5)(B) of this Section by the
26    person complained against.

 

 

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

 

 

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1    violations that were the subject of the Agreement.
2        (7.7) Within 30 days after a Compliance Commitment
3    Agreement takes effect or is amended in accordance with
4    paragraph (7.5), the Agency shall publish a copy of the
5    final executed Compliance Commitment Agreement on the
6    Agency's website. The Agency shall maintain an Internet
7    database of all Compliance Commitment Agreements entered
8    on or after the effective date of this amendatory Act of
9    the 100th General Assembly. At a minimum, the database
10    shall be searchable by the following categories: the county
11    in which the facility that is subject to the Compliance
12    Commitment Agreement is located; the date of final
13    execution of the Compliance Commitment Agreement; the name
14    of the respondent; and the media involved, including air,
15    water, land, or public water supply.
16        (8) Nothing in this subsection (a) is intended to
17    require the Agency to enter into Compliance Commitment
18    Agreements for any alleged violation that the Agency
19    believes cannot be resolved without the involvement of the
20    Office of the Attorney General or the State's Attorney of
21    the county in which the alleged violation occurred, for,
22    among other purposes, the imposition of statutory
23    penalties.
24        (9) The Agency's failure to respond within 30 days to a
25    written response submitted pursuant to subdivision (2) of
26    this subsection (a) if a meeting is not requested or

 

 

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

 

 

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1    the requirements of subsections (a) and (b) of this
2    Section.
3        (12) The Agency shall have the authority to adopt rules
4    for the administration of subsection (a) of this Section.
5    The rules shall be adopted in accordance with the
6    provisions of the Illinois Administrative Procedure Act.
7    (b) For alleged violations that remain the subject of
8disagreement between the Agency and the person complained
9against following fulfillment of the requirements of
10subsection (a) of this Section, and for alleged violations of
11the terms or conditions of a Compliance Commitment Agreement
12entered into under subdivision (a)(7.5) of this Section as well
13as the alleged violations that are the subject of the
14Compliance Commitment Agreement, and as a precondition to the
15Agency's referral or request to the Office of the Illinois
16Attorney General or the State's Attorney of the county in which
17the alleged violation occurred for legal representation
18regarding an alleged violation that may be addressed pursuant
19to subsection (c) or (d) of this Section or pursuant to Section
2042 of this Act, the Agency shall issue and serve, by certified
21mail, upon the person complained against a written notice
22informing that person that the Agency intends to pursue legal
23action. Such notice shall notify the person complained against
24of the violations to be alleged and offer the person an
25opportunity to meet with appropriate Agency personnel in an
26effort to resolve any alleged violations that could lead to the

 

 

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1filing of a formal complaint. The meeting with Agency personnel
2shall be held within 30 days after receipt of notice served
3pursuant to this subsection upon the person complained against,
4unless the Agency agrees to a postponement or the person
5notifies the Agency that he or she will not appear at a meeting
6within the 30-day time period. Nothing in this subsection is
7intended to preclude the Agency from following the provisions
8of subsection (c) or (d) of this Section or from requesting the
9legal representation of the Office of the Illinois Attorney
10General or the State's Attorney of the county in which the
11alleged violations occurred for alleged violations which
12remain the subject of disagreement between the Agency and the
13person complained against after the provisions of this
14subsection are fulfilled.
15     (c)(1) For alleged violations which remain the subject of
16    disagreement between the Agency and the person complained
17    against following waiver pursuant to subdivision (10) of
18    subsection (a) of this Section or fulfillment of the
19    requirements of subsections (a) and (b) of this Section,
20    the Office of the Illinois Attorney General or the State's
21    Attorney of the county in which the alleged violation
22    occurred shall issue and serve upon the person complained
23    against a written notice, together with a formal complaint,
24    which shall specify the provision of the Act, rule,
25    regulation, permit, or term or condition thereof under
26    which such person is said to be in violation and a

 

 

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1    statement of the manner in and the extent to which such
2    person is said to violate the Act, rule, regulation,
3    permit, or term or condition thereof and shall require the
4    person so complained against to answer the charges of such
5    formal complaint at a hearing before the Board at a time
6    not less than 21 days after the date of notice by the
7    Board, except as provided in Section 34 of this Act. Such
8    complaint shall be accompanied by a notification to the
9    defendant that financing may be available, through the
10    Illinois Environmental Facilities Financing Act, to
11    correct such violation. A copy of such notice of such
12    hearings shall also be sent to any person that has
13    complained to the Agency respecting the respondent within
14    the six months preceding the date of the complaint, and to
15    any person in the county in which the offending activity
16    occurred that has requested notice of enforcement
17    proceedings; 21 days notice of such hearings shall also be
18    published in a newspaper of general circulation in such
19    county. The respondent may file a written answer, and at
20    such hearing the rules prescribed in Sections 32 and 33 of
21    this Act shall apply. In the case of actual or threatened
22    acts outside Illinois contributing to environmental damage
23    in Illinois, the extraterritorial service-of-process
24    provisions of Sections 2-208 and 2-209 of the Code of Civil
25    Procedure shall apply.
26        With respect to notices served pursuant to this

 

 

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1    subsection (c)(1) that involve hazardous material or
2    wastes in any manner, the Agency shall annually publish a
3    list of all such notices served. The list shall include the
4    date the investigation commenced, the date notice was sent,
5    the date the matter was referred to the Attorney General,
6    if applicable, and the current status of the matter.
7        (2) Notwithstanding the provisions of subdivision (1)
8    of this subsection (c), whenever a complaint has been filed
9    on behalf of the Agency or by the People of the State of
10    Illinois, the parties may file with the Board a stipulation
11    and proposal for settlement accompanied by a request for
12    relief from the requirement of a hearing pursuant to
13    subdivision (1). Unless the Board, in its discretion,
14    concludes that a hearing will be held, the Board shall
15    cause notice of the stipulation, proposal and request for
16    relief to be published and sent in the same manner as is
17    required for hearing pursuant to subdivision (1) of this
18    subsection. The notice shall include a statement that any
19    person may file a written demand for hearing within 21 days
20    after receiving the notice. If any person files a timely
21    written demand for hearing, the Board shall deny the
22    request for relief from a hearing and shall hold a hearing
23    in accordance with the provisions of subdivision (1).
24        (3) Notwithstanding the provisions of subdivision (1)
25    of this subsection (c), if the Agency becomes aware of a
26    violation of this Act arising from, or as a result of,

 

 

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1    voluntary pollution prevention activities, the Agency
2    shall not proceed with the written notice required by
3    subsection (a) of this Section unless:
4            (A) the person fails to take corrective action or
5        eliminate the reported violation within a reasonable
6        time; or
7            (B) the Agency believes that the violation poses a
8        substantial and imminent danger to the public health or
9        welfare or the environment. For the purposes of this
10        item (B), "substantial and imminent danger" means a
11        danger with a likelihood of serious or irreversible
12        harm.
13        (d)(1) Any person may file with the Board a complaint,
14    meeting the requirements of subsection (c) of this Section,
15    against any person allegedly violating this Act, any rule
16    or regulation adopted under this Act, any permit or term or
17    condition of a permit, or any Board order. The complainant
18    shall immediately serve a copy of such complaint upon the
19    person or persons named therein. Unless the Board
20    determines that such complaint is duplicative or
21    frivolous, it shall schedule a hearing and serve written
22    notice thereof upon the person or persons named therein, in
23    accord with subsection (c) of this Section.
24        (2) Whenever a complaint has been filed by a person
25    other than the Attorney General or the State's Attorney,
26    the parties may file with the Board a stipulation and

 

 

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1    proposal for settlement accompanied by a request for relief
2    from the hearing requirement of subdivision (c)(1) of this
3    Section. Unless the Board, in its discretion, concludes
4    that a hearing should be held, no hearing on the
5    stipulation and proposal for settlement is required.
6    (e) In hearings before the Board under this Title the
7burden shall be on the Agency or other complainant to show
8either that the respondent has caused or threatened to cause
9air or water pollution or that the respondent has violated or
10threatens to violate any provision of this Act or any rule or
11regulation of the Board or permit or term or condition thereof.
12If such proof has been made, the burden shall be on the
13respondent to show that compliance with the Board's regulations
14would impose an arbitrary or unreasonable hardship.
15    (f) The provisions of this Section shall not apply to
16administrative citation actions commenced under Section 31.1
17of this Act.
18(Source: P.A. 97-519, eff. 8-23-11.)
 
19    Section 99. Effective date. This Act takes effect upon
20becoming law.".