Public Act 093-0831
 		





HB5823 Enrolled
LRB093 16833 BDD 42485 b






    AN ACT concerning environmental protection. 

 
    Be it enacted by the People of the State of Illinois, 
represented in the General Assembly: 


 
    Section 5. The Environmental Protection Act is amended  by 
changing Section 42 as follows:
 



    (415 ILCS 5/42)  (from Ch. 111 1/2, par. 1042)



    Sec. 42. Civil penalties. 

    (a) Except as provided in this Section, any person that 
violates any
provision of this Act or any regulation adopted by 
the Board, or any permit
or term or condition thereof, or that 
violates any order of the Board pursuant
to this Act, shall be 
liable for a civil penalty of not to exceed
$50,000 for the 
violation and an additional civil penalty of not to exceed

$10,000 for each day during which the violation continues; such 
penalties may,
upon order of the Board or a court of competent 
jurisdiction, be made payable
to the Environmental Protection 
Trust Fund, to be used in accordance with the
provisions of the 
Environmental Protection Trust Fund Act.

    (b) Notwithstanding the provisions of subsection (a) of 
this Section:


        (1) Any person that violates Section 12(f) of this Act 
    or any
NPDES permit or term or condition thereof, or any 
    filing requirement,
regulation or order relating to the 
    NPDES permit program, shall be liable
to a civil penalty of 
    not to exceed $10,000 per day of violation.


        (2) Any person that violates Section 12(g) of this Act 
    or any UIC permit
or term or condition thereof, or any 
    filing requirement, regulation or order
relating to the 
    State UIC program for all wells, except Class II wells as

    defined by the Board under this Act, shall be liable to a 
    civil penalty
not to exceed $2,500 per day of violation; 
    provided, however, that any person
who commits such 
    violations relating to the State UIC program for Class
II 
    wells, as defined by the Board under this Act, shall be 
    liable to a civil
penalty of not to exceed $10,000 for the 
    violation and an additional civil
penalty of not to exceed 
    $1,000 for each day during which the violation
continues.


        (3) Any person that violates Sections 21(f), 21(g), 
    21(h) or 21(i) of
this Act, or any RCRA permit or term or 
    condition thereof, or any filing
requirement, regulation 
    or order relating to the State RCRA program, shall
be 
    liable to a civil penalty of not to exceed $25,000 per day 
    of violation.


        (4) In an administrative citation action under Section 
    31.1 of this Act,
any person found to have violated any 
    provision of subsection (o) of
Section 21 of this Act shall 
    pay a civil penalty of $500 for each
violation of each such 
    provision, plus any hearing costs incurred by the Board
and 
    the Agency.  Such penalties shall be made payable to the 
    Environmental
Protection Trust Fund, to be used in 
    accordance with the provisions of the
Environmental 
    Protection Trust Fund Act; except that if a unit of local

    government issued the administrative citation, 50% of the 
    civil penalty shall
be payable to the unit of local 
    government.


        (4-5) In an administrative citation action under 
    Section 31.1 of this
Act, any person found to have violated 
    any provision of subsection (p) of
Section 21 of this Act 
    shall pay a civil penalty of $1,500 for each violation
of

    each such provision, plus any hearing costs incurred by the 
    Board and the
Agency, except that the civil penalty amount 
    shall be
be a $3,000 for
each violation of any provision of 
    subsection (p) of Section 21 that is the
person's second
a 
    second or subsequent adjudication violation of that

    provision.  The penalties shall be deposited into the

    Environmental Protection Trust Fund, to be used in 
    accordance with the
provisions of the Environmental 
    Protection Trust Fund Act; except that if a
unit of local 
    government issued the administrative citation, 50% of the 
    civil
penalty shall be payable to the unit of local 
    government.


        (5) Any person who violates subsection 6 of Section 
    39.5 of this Act
or any CAAPP permit, or term or condition 
    thereof, or any fee or filing
requirement, or any duty to 
    allow or carry out inspection, entry or
monitoring 
    activities, or any regulation or order relating to the 
    CAAPP
shall be liable for a civil penalty not to exceed 
    $10,000 per day of violation.

    (b.5) In lieu of the penalties set forth in subsections (a) 
and (b) of
this Section, any person who fails to file, in a 
timely manner, toxic
chemical release forms with the Agency 
pursuant to Section 25b-2
of this Act
shall be liable for a 
civil penalty of $100 per day for
each day the forms are
late, 
not to exceed a maximum total penalty of $6,000. This daily 
penalty
shall begin accruing on the thirty-first day after the

date that the person receives the warning notice issued by the 
Agency pursuant
to Section 25b-6 of this Act; and the penalty 
shall be paid to the Agency. The
daily accrual of penalties 
shall cease as of January 1 of the following year.
All 
penalties collected by the Agency pursuant to this subsection 
shall be
deposited into the Environmental Protection Permit and 
Inspection Fund.

    (c) Any person that violates this Act, any rule or 
regulation adopted under
this Act, any permit or term or 
condition of a permit, or any Board order and
causes the death 
of fish
or aquatic life shall, in addition to the other 
penalties provided by
this Act, be liable to pay to the State 
an additional sum for the
reasonable value of the fish or 
aquatic life destroyed. Any money so
recovered shall be placed 
in the Wildlife and Fish Fund in the State
Treasury.

    (d) The penalties provided for in this Section may be 
recovered in a
civil action.

    (e) The State's Attorney of the county in which the 
violation
occurred, or the Attorney General, may, at the 
request of the Agency or
on his own motion, institute a civil 
action for an injunction, prohibitory or mandatory, to
restrain 
violations of this Act, any rule or regulation adopted under 
this Act,
any permit or term or condition of a permit, or any 
Board order, or to require such other actions as may be 
necessary to address violations of this Act, any rule or 
regulation adopted under this Act, any permit or term or 
condition of a permit, or any Board order.

    (f) The State's Attorney of the county in which the 
violation
occurred, or the Attorney General, shall bring such 
actions in the name
of the people of the State of Illinois.

Without limiting any other authority which may exist for the 
awarding
of attorney's fees and costs, the Board or a court of 
competent
jurisdiction may award costs and reasonable 
attorney's fees, including the
reasonable costs of expert 
witnesses and consultants, to the State's
Attorney or the 
Attorney General in a case where he has prevailed against a

person who has committed a wilful, knowing or repeated 
violation of this Act,
any rule or regulation adopted under 
this Act, any permit or term or condition
of a permit, or any 
Board order.

    Any funds collected under this subsection (f) in which the 
Attorney
General has prevailed shall be deposited in the

Hazardous Waste Fund created in Section 22.2 of this Act. Any 
funds
collected under this subsection (f) in which a State's 
Attorney has
prevailed shall be retained by the county in which 
he serves.

    (g) All final orders imposing civil penalties pursuant to 
this Section
shall prescribe the time for payment of such 
penalties.  If any such
penalty is not paid within the time 
prescribed, interest on such penalty
at the rate set forth in 
subsection (a) of Section 1003 of the Illinois Income
Tax Act, 
shall be paid for the period from the date payment is due until 
the
date payment is received.  However, if the time for payment 
is stayed during
the pendency of an appeal, interest shall not 
accrue during such stay.

    (h) In determining the appropriate civil penalty to be 
imposed  under
subdivisions  (a), (b)(1), (b)(2),  (b)(3), or 
(b)(5) of this
Section, the Board is authorized to consider any 
matters of record in
mitigation or aggravation of penalty, 
including but not limited to the
following factors:


        (1) the duration and gravity of the violation;


        (2) the presence or absence of due diligence on the 
    part of the
respondent in attempting to comply with 
    requirements of this
Act and regulations thereunder or to 
    secure relief therefrom as provided by
this Act;


        (3) any economic benefits accrued by the respondent

    because of delay in compliance with requirements, in which 
    case the economic
benefits shall be determined by the 
    lowest cost alternative for achieving
compliance;


        (4) the amount of monetary penalty which will serve to 
    deter further
violations by the respondent and to otherwise 
    aid in enhancing
voluntary
compliance with this Act by the 
    respondent and other persons
similarly
subject to the Act;


        (5) the number, proximity in time, and gravity of 
    previously
adjudicated violations of this Act by the 
    respondent;


        (6) whether the respondent voluntarily self-disclosed, 
    in accordance
with subsection (i) of this Section, the 
    non-compliance to the Agency; and


        (7) whether the respondent has agreed to undertake a 
    "supplemental
environmental project," which means an 
    environmentally beneficial project that
a respondent 
    agrees to undertake in settlement of an enforcement action 
    brought
under this Act, but which the respondent is not 
    otherwise legally required to
perform.

    In determining the appropriate civil penalty to be imposed 
under subsection
(a) or paragraph (1), (2), (3), or (5) of 
subsection (b) of this Section, the
Board shall ensure, in all 
cases, that the penalty is at least as great as the
economic 
benefits, if any, accrued by the respondent as a result of the

violation, unless the Board finds that imposition of such 
penalty would result
in an arbitrary or unreasonable financial 
hardship. However, such civil
penalty
may be off-set in whole 
or in part pursuant to a supplemental
environmental project 
agreed to by the complainant and the respondent.

    (i) A person who voluntarily self-discloses non-compliance 
to the Agency,
of which the Agency had been unaware, is 
entitled to a 100% reduction in the
portion of the penalty that 
is not based on the economic benefit of
non-compliance if the 
person can
establish the following:


        (1) that the non-compliance was discovered through an 
    environmental
audit, as defined in Section 52.2 of this 
    Act, and the person waives the
environmental audit 
    privileges as provided in that Section with respect to that

    non-compliance;


        (2) that the non-compliance was disclosed in writing 
    within 30 days of
the date on which the person discovered 
    it;


        (3) that the non-compliance was discovered and 
    disclosed prior to:


            (i) the commencement of an Agency inspection, 
        investigation, or request
for information;


            (ii) notice of a citizen suit;


            (iii) the filing of a complaint by a citizen, the 
        Illinois Attorney
General, or the State's Attorney of 
        the county in which the violation occurred;


            (iv) the reporting of the non-compliance by an 
        employee of the person
without that person's 
        knowledge; or


            (v) imminent discovery of the non-compliance by 
        the Agency;


        (4) that the non-compliance is being corrected and any 
    environmental
harm is being remediated in a timely fashion;


        (5) that the person agrees to prevent a recurrence of 
    the non-compliance;


        (6) that no related non-compliance events have 
    occurred in the
past 3 years at the same facility or in the 
    past 5 years as part of a
pattern at multiple facilities 
    owned or operated by the person;


        (7) that the non-compliance did not result in serious 
    actual
harm or present an imminent and substantial 
    endangerment to human
health or the environment or violate 
    the specific terms of any judicial or
administrative order 
    or consent agreement;


        (8) that the person cooperates as reasonably requested 
    by the Agency
after the disclosure; and


        (9) that the non-compliance was identified voluntarily 
    and not through a
monitoring, sampling, or auditing 
    procedure that is required by statute, rule,
permit, 
    judicial or administrative order, or consent agreement.

    If a person can establish all of the elements under this 
subsection except
the element set forth in paragraph (1) of 
this subsection, the person is
entitled to a 75% reduction in 
the portion of the penalty that is not based
upon the economic 
benefit of non-compliance.

(Source: P.A. 93-152, eff. 7-10-03; 93-575, eff. 1-1-04; 
revised 9-11-03.)


 
    Section 99. Effective date. This Act takes effect upon 
becoming law.



Effective Date:  7/28/2004