Full Text of HB2788 103rd General Assembly
HB2788ham002 103RD GENERAL ASSEMBLY | 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, | 3 | | by replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 5. The Environmental Protection Act is amended by | 6 | | changing 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 | 10 | | violation of the
Act, any rule adopted under the Act, a permit | 11 | | granted by the Agency, or
a condition of such a permit, the | 12 | | Agency shall issue and serve, by certified mail,
upon the | 13 | | person complained against a written notice informing that | 14 | | person that
the Agency has evidence of the alleged violation. | 15 | | At 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 | 19 | | submitted to
the Agency, by certified mail, within 45 days | 20 | | after receipt of notice by the
person complained against, or | 21 | | within an extended time period as agreed to by the Agency and | 22 | | person complained against unless the Agency agrees to an | 23 | | extension . 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 | 10 | | accordance with
the requirements of subdivision (2) of this | 11 | | subsection (a), the failure to
respond shall be considered a | 12 | | waiver of the requirements of this subsection
(a) and nothing | 13 | | in this Section shall preclude the Agency from proceeding
| 14 | | pursuant to subsection (b) of this Section.
| 15 | | (4) A meeting requested pursuant to subdivision (2) of | 16 | | this subsection
(a) shall be held without a representative of | 17 | | the Office of the Illinois
Attorney General or the State's | 18 | | Attorney of the county in which the alleged
violation | 19 | | occurred, within 60 days after receipt of notice by the person
| 20 | | complained against, or within an extended time period as | 21 | | agreed to by the Agency and person complained against unless | 22 | | the Agency agrees to a postponement . At the
meeting, the | 23 | | Agency shall provide an opportunity for the person complained
| 24 | | against to respond to each alleged violation, suggested | 25 | | resolution, and
suggested implementation time frame, and to | 26 | | suggest alternate resolutions.
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| 1 | | (5) If a meeting requested pursuant to subdivision (2) of | 2 | | this subsection
(a) is held, the person complained against | 3 | | shall, within 21 days following the
meeting or within an | 4 | | extended time period as agreed to by the Agency and person | 5 | | complained against , submit
by certified mail to the Agency a | 6 | | written response to the alleged violations.
The written | 7 | | response 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 | 22 | | accordance with
the requirements of subdivision (5) of this | 23 | | subsection (a), the failure to
respond shall be considered a | 24 | | waiver of the requirements of this subsection (a)
and nothing | 25 | | in this Section shall preclude the Agency from proceeding | 26 | | pursuant
to subsection (b) of this Section.
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| 1 | | (7) Within 30 days after the Agency's receipt of a written | 2 | | response submitted
by the person complained against pursuant | 3 | | to subdivision (2) of this
subsection (a) if a meeting is not | 4 | | requested or pursuant to subdivision (5) of this
subsection | 5 | | (a) if a meeting is held, or within a later time period as | 6 | | agreed
to by the Agency and the person complained against, the | 7 | | Agency shall issue and
serve, by certified mail, upon the | 8 | | person complained against (i) a proposed Compliance Commitment | 9 | | Agreement or (ii) a notice that one or more violations cannot | 10 | | be resolved without the involvement of the Office of the | 11 | | Attorney General or the State's Attorney of the county in | 12 | | which the alleged violation occurred and that no proposed | 13 | | Compliance Commitment Agreement will be issued by the Agency | 14 | | for those violations. The Agency shall include terms and | 15 | | conditions in the proposed Compliance Commitment Agreement | 16 | | that are, in its discretion, necessary to bring the person | 17 | | complained against into compliance with the Act, any rule | 18 | | adopted under the Act, any permit granted by the Agency, or any | 19 | | condition of such a permit. The Agency shall take into | 20 | | consideration the proposed terms for the proposed Compliance | 21 | | Commitment Agreement that were provided under subdivision | 22 | | (a)(2)(B) or (a)(5)(B) of this Section by the person | 23 | | complained against.
| 24 | | (7.5) Within 30 days after the receipt of the Agency's | 25 | | proposed Compliance Commitment Agreement by the person | 26 | | complained against , or within a later time period not to |
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| 1 | | exceed an additional 30 days as agreed to by the Agency and the | 2 | | person complained against , the person shall either (i) agree | 3 | | to and sign the proposed Compliance Commitment Agreement | 4 | | provided by the Agency and submit the signed Compliance | 5 | | Commitment Agreement to the Agency by certified mail or (ii) | 6 | | notify the Agency in writing by certified mail of the person's | 7 | | rejection of the proposed Compliance Commitment Agreement. If | 8 | | the person complained against fails to respond to the proposed | 9 | | Compliance Commitment Agreement within 30 days as required | 10 | | under this paragraph, the proposed Compliance Commitment | 11 | | Agreement is deemed rejected by operation of law. Any | 12 | | Compliance Commitment Agreement entered into under item (i) of | 13 | | this paragraph may be amended subsequently in writing by | 14 | | mutual agreement between the Agency and the signatory to the | 15 | | Compliance Commitment Agreement, the signatory's legal | 16 | | representative, or the signatory's agent. | 17 | | (7.6) No person shall violate the terms or conditions of a | 18 | | Compliance Commitment Agreement entered into under subdivision | 19 | | (a)(7.5) of this Section. Successful completion of a | 20 | | Compliance Commitment Agreement or an amended Compliance | 21 | | Commitment Agreement shall be a factor to be weighed, in favor | 22 | | of the person completing the Agreement, by the Office of the | 23 | | Illinois Attorney General in determining whether to file a | 24 | | complaint for the violations that were the subject of the | 25 | | Agreement. | 26 | | (7.7) Within 30 days after a Compliance Commitment |
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| 1 | | Agreement takes effect or is amended in accordance with | 2 | | paragraph (7.5), the Agency shall publish a copy of the final | 3 | | executed Compliance Commitment Agreement on the Agency's | 4 | | website. The Agency shall maintain an Internet database of all | 5 | | Compliance Commitment Agreements entered on or after the | 6 | | effective date of this amendatory Act of the 100th General | 7 | | Assembly. At a minimum, the database shall be searchable by | 8 | | the following categories: the county in which the facility | 9 | | that is subject to the Compliance Commitment Agreement is | 10 | | located; the date of final execution of the Compliance | 11 | | Commitment Agreement; the name of the respondent; and the | 12 | | media involved, including air, water, land, or public water | 13 | | supply.
| 14 | | (8) Nothing in this subsection (a) is intended to require | 15 | | the Agency to
enter into Compliance Commitment Agreements for | 16 | | any alleged violation that the
Agency believes cannot be | 17 | | resolved without the involvement of the Office of the
Attorney | 18 | | General or the State's Attorney of the county in which the | 19 | | alleged
violation occurred, for, among other purposes, the | 20 | | imposition of statutory
penalties.
| 21 | | (9) The Agency's failure to respond within 30 days of | 22 | | receipt to a written response submitted
pursuant to | 23 | | subdivision (2) of this subsection (a) if a meeting is not
| 24 | | requested or pursuant to subdivision (5) of this subsection | 25 | | (a) if a meeting is held,
or within the time period otherwise | 26 | | agreed to in writing by
the Agency and the person complained |
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| 1 | | against, shall be deemed an acceptance by
the Agency of the | 2 | | proposed terms of the Compliance Commitment Agreement for the | 3 | | violations
alleged in the written notice issued under | 4 | | subdivision (1) of this subsection
(a) as contained within the | 5 | | written response.
| 6 | | (10) If the person complained against complies with the | 7 | | terms of a
Compliance
Commitment Agreement accepted pursuant | 8 | | to this subsection (a), the Agency
shall not refer the alleged | 9 | | violations which are the subject of the Compliance
Commitment | 10 | | Agreement to the Office of the Illinois Attorney General or | 11 | | the
State's Attorney of the county in which the alleged | 12 | | violation occurred.
However, nothing in this subsection is | 13 | | intended to preclude the Agency from
continuing negotiations | 14 | | with the person complained against or from proceeding
pursuant | 15 | | to the provisions of subsection (b) of this Section for | 16 | | alleged
violations that remain the subject of disagreement | 17 | | between the Agency and the
person complained against following | 18 | | fulfillment of the requirements of this
subsection (a).
| 19 | | (11) Nothing in this subsection (a) is intended to | 20 | | preclude the person
complained against from submitting to the | 21 | | Agency, by certified mail, at any
time, notification that the | 22 | | person complained against consents to waiver of
the | 23 | | requirements of subsections (a) and (b) of this Section.
| 24 | | (12) The Agency shall have the authority to adopt rules | 25 | | for the administration of subsection (a) of this Section. The | 26 | | rules shall be adopted in accordance with the provisions of |
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| 1 | | the Illinois Administrative Procedure Act. | 2 | | (b) For alleged violations that remain the subject of | 3 | | disagreement
between the Agency and the person complained | 4 | | against following fulfillment of
the requirements of | 5 | | subsection (a) of this Section, and for alleged violations of | 6 | | the terms or conditions of a Compliance Commitment Agreement | 7 | | entered into under subdivision (a)(7.5) of this Section as | 8 | | well as the alleged violations that are the subject of the | 9 | | Compliance Commitment Agreement, and as a precondition to
the | 10 | | Agency's referral or request to the Office of the Illinois | 11 | | Attorney General
or the State's Attorney of the county in | 12 | | which the alleged violation occurred
for legal representation | 13 | | regarding an alleged violation that may be addressed
pursuant | 14 | | to subsection (c) or (d) of this Section or pursuant to Section | 15 | | 42 of
this Act, the Agency shall issue and serve, by certified | 16 | | mail, upon the person
complained against a written notice | 17 | | informing that person that the Agency
intends to pursue legal | 18 | | action. Such notice shall notify the person
complained against | 19 | | of the violations to be alleged and offer the person an
| 20 | | opportunity to meet with appropriate Agency personnel in an | 21 | | effort to resolve
any alleged violations that could lead to | 22 | | the filing of a formal complaint.
The meeting with Agency | 23 | | personnel shall be held within 30 days after receipt of
notice | 24 | | served pursuant to this subsection upon the person complained | 25 | | against,
unless the Agency agrees to a postponement or the | 26 | | person notifies the Agency
that he or she will not appear at a |
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| 1 | | meeting within the 30-day time period.
Nothing in this | 2 | | subsection is intended to preclude the Agency from following
| 3 | | the provisions of subsection (c) or (d) of this Section or from | 4 | | requesting the
legal representation of the Office of the | 5 | | Illinois Attorney General or the
State's Attorney of the | 6 | | county in which the alleged violations occurred for
alleged | 7 | | violations which remain the subject of disagreement between | 8 | | the Agency
and the person complained against after the | 9 | | provisions of this subsection are
fulfilled.
| 10 | | (c)(1) For alleged violations which remain the subject of | 11 | | disagreement
between the Agency and the person complained | 12 | | against following waiver pursuant
to subdivision (10) of | 13 | | subsection (a) of this Section or fulfillment of
the | 14 | | requirements of subsections (a) and (b) of this Section, the | 15 | | Office of the
Illinois Attorney General or the State's | 16 | | Attorney of the county in which the
alleged violation occurred | 17 | | shall issue and serve upon the person complained
against a | 18 | | written notice, together with a formal complaint, which shall
| 19 | | specify the provision of the Act, rule, regulation, permit, or | 20 | | term
or condition thereof under which such person is said to be | 21 | | in violation and
a statement of the manner in and the extent to | 22 | | which such person is said to
violate the Act, rule, | 23 | | regulation, permit, or term or condition
thereof and shall | 24 | | require the person so complained
against to answer the charges | 25 | | of such formal complaint at a hearing before
the Board at a | 26 | | time not less than 21 days after the date of notice by the
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| 1 | | Board, except as provided in Section 34 of this Act. Such | 2 | | complaint shall
be accompanied by a notification to the | 3 | | defendant that financing may be
available, through the | 4 | | Illinois Environmental Facilities Financing Act, to
correct | 5 | | such violation. A copy of such notice of such
hearings shall | 6 | | also be sent to any person that has complained to the
Agency | 7 | | respecting the respondent within the six months preceding the
| 8 | | date of the complaint, and to any person in the county in which | 9 | | the
offending activity occurred that has requested notice of | 10 | | enforcement
proceedings; 21 days notice of such hearings shall | 11 | | also be published in
a newspaper of general circulation in | 12 | | such county. The respondent may
file a written answer, and at | 13 | | such hearing the rules prescribed in
Sections 32 and 33 of this | 14 | | Act shall apply. In the case of actual or
threatened acts | 15 | | outside Illinois contributing to environmental damage in
| 16 | | Illinois, the extraterritorial service-of-process provisions | 17 | | of Sections
2-208 and 2-209 of the Code of Civil Procedure | 18 | | shall apply.
| 19 | | With respect to notices served pursuant to this subsection | 20 | | (c)(1) that
involve hazardous material or wastes in any | 21 | | manner, the Agency shall
annually publish a list of all such | 22 | | notices served. The list shall include
the date the | 23 | | investigation commenced, the date notice was sent, the date
| 24 | | the matter was referred to the Attorney General, if | 25 | | applicable, and the
current status of the matter.
| 26 | | (2) Notwithstanding the provisions of subdivision (1) of |
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| 1 | | this subsection
(c), whenever a complaint has been filed on | 2 | | behalf of the Agency or by the
People of the State of Illinois, | 3 | | the parties may file with the Board a
stipulation and proposal | 4 | | for settlement accompanied by a request for relief
from the | 5 | | requirement of a hearing pursuant to subdivision (1). Unless | 6 | | the
Board, in its discretion, concludes that a hearing will be | 7 | | held, the Board
shall cause notice of the stipulation, | 8 | | proposal and request for relief to
be published and sent in the | 9 | | same manner as is required for hearing
pursuant to subdivision | 10 | | (1) of this subsection. The notice shall include a
statement | 11 | | that any person may file a written demand for hearing within 21
| 12 | | days after receiving the notice. If any person files a timely | 13 | | written
demand for hearing, the Board shall deny the request | 14 | | for relief from a
hearing and shall hold a hearing in | 15 | | accordance with the provisions of
subdivision (1).
| 16 | | (3) Notwithstanding the provisions of subdivision (1) of | 17 | | this subsection
(c), if the Agency becomes aware of a | 18 | | violation of this Act arising from, or
as a result of, | 19 | | voluntary pollution prevention activities, the Agency shall | 20 | | not
proceed with the written notice required by subsection (a) | 21 | | of 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, | 5 | | meeting
the requirements of subsection (c) of this Section, | 6 | | against any person
allegedly violating this Act, any rule or | 7 | | regulation adopted under this
Act, any permit or term or | 8 | | condition of a permit, or any Board order. The complainant | 9 | | shall immediately serve a copy of such complaint
upon the | 10 | | person or persons named therein. Unless the Board determines | 11 | | that
such complaint is duplicative or frivolous, it shall | 12 | | schedule a hearing and
serve written notice thereof upon the | 13 | | person or persons named therein, in
accord with subsection (c) | 14 | | of this Section.
| 15 | | (2) Whenever a complaint has been filed by a person other | 16 | | than the
Attorney General or the State's Attorney, the parties | 17 | | may file with the Board
a stipulation and proposal for | 18 | | settlement accompanied by a request for relief
from the | 19 | | hearing requirement of subdivision (c)(1) of this Section. | 20 | | Unless
the Board, in its discretion, concludes that a hearing | 21 | | should be held, no
hearing on the stipulation and proposal for | 22 | | settlement is required.
| 23 | | (e) In hearings before the Board under this Title the | 24 | | burden shall
be on the Agency or other complainant to show | 25 | | either that the respondent
has caused or threatened to cause | 26 | | air or water pollution or that the
respondent has violated or |
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| 1 | | threatens to violate any provision of this
Act or any rule or | 2 | | regulation of the Board or permit or term or
condition | 3 | | thereof. If such proof has been made, the burden shall be on
| 4 | | the respondent to show that compliance with the Board's | 5 | | regulations
would impose an arbitrary or unreasonable | 6 | | hardship.
| 7 | | (f) The provisions of this Section shall not apply to | 8 | | administrative
citation actions commenced under Section 31.1 | 9 | | of this Act.
| 10 | | (Source: P.A. 100-1080, eff. 8-24-18.)
| 11 | | Section 99. Effective date. This Act takes effect upon | 12 | | becoming law.".
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