093_SB0222sam001

 










                                     LRB093 08816 EFG 12650 a

 1                    AMENDMENT TO SENATE BILL 222

 2        AMENDMENT NO.     .  Amend Senate Bill 222  by  replacing
 3    the title with the following:
 4        "AN  ACT  to  implement  certain  recommendations  of the
 5    Illinois Environmental Regulatory Review Commission."; and

 6    by replacing everything after the enacting  clause  with  the
 7    following:

 8        "Section 5.  The Illinois Administrative Procedure Act is
 9    amended by changing Section 5-75 as follows:

10        (5 ILCS 100/5-75) (from Ch. 127, par. 1005-75)
11        Sec. 5-75.  Incorporation by reference.
12        (a)  An agency may incorporate by reference, in its rules
13    adopted  under  Section  5-35, rules, regulations, standards,
14    and guidelines of  an  agency  of  the  United  States  or  a
15    nationally  or  state  recognized organization or association
16    without publishing the incorporated material  in  full.   The
17    reference  in  the  agency  rules  must  fully  identify  the
18    incorporated matter by publisher address and date in order to
19    specify  how  a copy of the material may be obtained and must
20    state that the rule, regulation, standard, or guideline  does
21    not  include  any later amendments or editions. An agency may
 
                            -2-      LRB093 08816 EFG 12650 a
 1    incorporate by reference these matters in its rules  only  if
 2    the  agency,  organization, or association originally issuing
 3    the matter makes copies  readily  available  to  the  public.
 4    This Section does not apply to any agency internal manual.
 5        For  any law imposing taxes on or measured by income, the
 6    Department of  Revenue  may  promulgate  rules  that  include
 7    incorporations  by  reference of federal rules or regulations
 8    without identifying  the  incorporated  matter  by  date  and
 9    without including a statement that the incorporation does not
10    include later amendments.
11        (b)  Use  of  the  incorporation  by  reference procedure
12    under this Section shall be reviewed by the  Joint  Committee
13    on  Administrative Rules during the rulemaking process as set
14    forth in this Act.
15        (c)  The agency adopting a rule, regulation, standard, or
16    guideline under this Section shall maintain  a  copy  of  the
17    referenced  rule,  regulation,  standard,  or guideline in at
18    least  one  of  its  principal  offices  and  shall  make  it
19    available to the  public  upon  request  for  inspection  and
20    copying  at  no  more  than  cost.   Requests  for  copies of
21    materials incorporated  by  reference  shall  not  be  deemed
22    Freedom  of Information Act requests unless so labeled by the
23    requestor.  The agency shall designate  by  rule  the  agency
24    location  at  which incorporated materials are maintained and
25    made available to the  public  for  inspection  and  copying.
26    These  rules  may  be adopted under the procedures in Section
27    5-15.  In addition, the agency may include the designation of
28    the agency location of incorporated materials in a rulemaking
29    under Section 5-35, but emergency and  peremptory  rulemaking
30    procedures may not be used solely for this purpose.
31        (d)  An  incorporation by reference that is included in a
32    rule adopted by the Environmental Protection  Agency  or  the
33    Pollution  Control  Board  may be updated using the expedited
34    rulemaking  procedure  provided  in  Section  28.6   of   the
 
                            -3-      LRB093 08816 EFG 12650 a
 1    Environmental  Protection Act.  Sections 5-35 through 5-50 of
 2    this Act do not apply to those expedited rulemakings,  except
 3    as may be otherwise provided in that Section 28.6 or in Board
 4    or Agency rules implementing that Section.
 5    (Source: P.A. 90-155, eff. 7-23-97.)

 6        Section  10.  The Environmental Protection Act is amended
 7    by changing Sections 4, 5, 22.2, 30, 31, 33, 35, 36, 37,  42,
 8    and 45 and adding Section 28.6 as follows:

 9        (415 ILCS 5/4) (from Ch. 111 1/2, par. 1004)
10        Sec.  4.  Environmental Protection Agency; establishment;
11    duties.
12        (a)  There is established in the Executive Branch of  the
13    State  Government  an agency to be known as the Environmental
14    Protection  Agency.   This  Agency   shall   be   under   the
15    supervision   and  direction  of  a  Director  who  shall  be
16    appointed by the Governor with the advice and consent of  the
17    Senate.   The  term of office of the Director shall expire on
18    the third Monday of January in odd numbered  years,  provided
19    that  he  or  she  shall  hold  office  until  a successor is
20    appointed and has qualified.  The Director shall  receive  an
21    annual  salary as set by the Governor from time to time or as
22    set by the Compensation Review Board, whichever  is  greater.
23    If  set by the Governor, the Director's annual salary may not
24    exceed 85% of the Governor's annual salary.  The Director, in
25    accord with the Personnel Code, shall employ and direct  such
26    personnel,  and  shall  provide for such laboratory and other
27    facilities, as may be necessary to carry out the purposes  of
28    this  Act.  In addition, the Director may by agreement secure
29    such services as he or she may deem necessary from any  other
30    department,  agency, or unit of the State Government, and may
31    employ  and  compensate  such   consultants   and   technical
32    assistants as may be required.
 
                            -4-      LRB093 08816 EFG 12650 a
 1        (b)  The  Agency  shall  have  the  duty  to  collect and
 2    disseminate such information, acquire  such  technical  data,
 3    and  conduct such experiments as may be required to carry out
 4    the purposes of this  Act,  including  ascertainment  of  the
 5    quantity and nature of discharges from any contaminant source
 6    and data on those sources, and to operate and arrange for the
 7    operation  of  devices  for  the  monitoring of environmental
 8    quality.
 9        (c)  The Agency shall have authority to conduct a program
10    of  continuing  surveillance  and  of  regular  or   periodic
11    inspection  of  actual  or  potential  contaminant  or  noise
12    sources,  of  public  water  supplies, and of refuse disposal
13    sites.
14        (d)  In accordance with constitutional  limitations,  the
15    Agency  shall have authority to enter at all reasonable times
16    upon any private or public property for the purpose of:
17             (1)  Inspecting  and  investigating   to   ascertain
18        possible  violations  of this Act, any rule or regulation
19        adopted under this Act, any permit or term  or  condition
20        of  a  permit,  or  any  Board  order;  or  the Act or of
21        regulations  thereunder,  or  of  permits  or  terms   or
22        conditions thereof; or
23             (2)  In  accordance with the provisions of this Act,
24        taking  whatever   preventive   or   corrective   action,
25        including  but not limited to removal or remedial action,
26        that is necessary or  appropriate  whenever  there  is  a
27        release  or  a  substantial  threat of a release of (A) a
28        hazardous substance or pesticide or (B) petroleum from an
29        underground storage tank.
30        (e)  The  Agency  shall  have  the  duty  to  investigate
31    violations of this Act, any rule or regulation adopted  under
32    this Act, any permit or term or condition of a permit, or any
33    Board  order; Act or of regulations adopted thereunder, or of
34    permits  or   terms   or   conditions   thereof,   to   issue
 
                            -5-      LRB093 08816 EFG 12650 a
 1    administrative  citations as provided in Section 31.1 of this
 2    Act;, and to take  such  summary  enforcement  action  as  is
 3    provided for by Section 34 of this Act.
 4        (f)  The  Agency  shall  appear  before  the Board in any
 5    hearing upon a petition for variance, the denial of a permit,
 6    or the validity or effect of a  rule  or  regulation  of  the
 7    Board,  and  shall  have  the  authority to appear before the
 8    Board in any hearing under the Act.
 9        (g)  The Agency shall have the  duty  to  administer,  in
10    accord   with   Title   X   of  this  Act,  such  permit  and
11    certification systems as may be established by this Act or by
12    regulations adopted thereunder.  The Agency  may  enter  into
13    written delegation agreements with any department, agency, or
14    unit of State or local government under which all or portions
15    of this duty may be delegated for public water supply storage
16    and   transport  systems,  sewage  collection  and  transport
17    systems, air  pollution  control  sources  with  uncontrolled
18    emissions  of  100  tons  per year or less and application of
19    algicides to waters of the State.  Such delegation agreements
20    will require that the work to be performed thereunder will be
21    in accordance with Agency criteria, subject to Agency review,
22    and shall include such financial and program auditing by  the
23    Agency as may be required.
24        (h)  The  Agency  shall  have  authority  to  require the
25    submission of complete  plans  and  specifications  from  any
26    applicant for a permit required by this Act or by regulations
27    thereunder,  and  to  require  the submission of such reports
28    regarding actual or potential violations  of  this  Act,  any
29    rule or regulation adopted under this Act, any permit or term
30    or  condition  of  a permit, or any Board order the Act or of
31    regulations thereunder, or of permits or terms or  conditions
32    thereof, as may be necessary for the purposes of this Act.
33        (i)  The    Agency   shall   have   authority   to   make
34    recommendations to the Board for the adoption of  regulations
 
                            -6-      LRB093 08816 EFG 12650 a
 1    under Title VII of the Act.
 2        (j)  The  Agency  shall  have  the  duty to represent the
 3    State of Illinois in any and all matters pertaining to plans,
 4    procedures, or negotiations for interstate compacts or  other
 5    governmental    arrangements    relating   to   environmental
 6    protection.
 7        (k)  The Agency  shall  have  the  authority  to  accept,
 8    receive,  and  administer  on behalf of the State any grants,
 9    gifts, loans, indirect cost reimbursements,  or  other  funds
10    made  available  to the State from any source for purposes of
11    this Act or for air or water pollution control, public  water
12    supply,  solid  waste  disposal,  noise  abatement,  or other
13    environmental protection activities,  surveys,  or  programs.
14    Any  federal  funds  received  by the Agency pursuant to this
15    subsection shall be deposited in a trust fund with the  State
16    Treasurer  and  held  and disbursed by him in accordance with
17    Treasurer as Custodian  of  Funds  Act,  provided  that  such
18    monies shall be used only for the purposes for which they are
19    contributed  and  any  balance remaining shall be returned to
20    the contributor.
21        The Agency is authorized to promulgate  such  regulations
22    and  enter  into  such contracts as it may deem necessary for
23    carrying out the provisions of this subsection.
24        (l)  The Agency is hereby designated as  water  pollution
25    agency  for  the  state for all purposes of the Federal Water
26    Pollution Control Act, as amended; as implementing agency for
27    the State for all purposes of the Safe  Drinking  Water  Act,
28    Public  Law  93-523,  as  now  or  hereafter  amended, except
29    Section 1425 of that Act; as air  pollution  agency  for  the
30    state  for  all purposes of the Clean Air Act of 1970, Public
31    Law 91-604, approved December 31, 1970, as  amended;  and  as
32    solid  waste  agency  for  the  state for all purposes of the
33    Solid Waste Disposal Act, Public Law 89-272, approved October
34    20, 1965, and amended by the Resource Recovery Act  of  1970,
 
                            -7-      LRB093 08816 EFG 12650 a
 1    Public Law 91-512, approved October 26, 1970, as amended, and
 2    amended  by  the  Resource  Conservation  and Recovery Act of
 3    1976, (P.L. 94-580) approved October 21, 1976, as amended; as
 4    noise control agency for the state for all  purposes  of  the
 5    Noise  Control  Act  of  1972,  Public  Law  92-574, approved
 6    October 27, 1972, as amended; and as implementing agency  for
 7    the State for all purposes of the Comprehensive Environmental
 8    Response,  Compensation,  and  Liability  Act  of  1980 (P.L.
 9    96-510), as  amended;  and  otherwise  as  pollution  control
10    agency for the State pursuant to federal laws integrated with
11    the foregoing laws, for financing purposes or otherwise.  The
12    Agency  is  hereby authorized to take all action necessary or
13    appropriate to secure to  the  State  the  benefits  of  such
14    federal  Acts, provided that the Agency shall transmit to the
15    United States without change any  standards  adopted  by  the
16    Pollution Control Board pursuant to Section 5(c) of this Act.
17    This  subsection  (l)  of Section 4 shall not be construed to
18    bar or  prohibit  the  Environmental  Protection  Trust  Fund
19    Commission  from  accepting, receiving, and  administering on
20    behalf of the State any grants, gifts, loans or  other  funds
21    for   which  the  Commission  is  eligible  pursuant  to  the
22    Environmental Protection  Trust  Fund  Act.   The  Agency  is
23    hereby  designated  as  the  State agency for all purposes of
24    administering the requirements of Section 313 of the  federal
25    Emergency Planning and Community Right-to-Know Act of 1986.
26        Any  municipality,  sanitary district, or other political
27    subdivision, or any Agency of the State or interstate Agency,
28    which makes  application  for  loans  or  grants  under  such
29    federal Acts shall notify the Agency of such application; the
30    Agency  may  participate  in  proceedings  under such federal
31    Acts.
32        (m)  The Agency shall  have  authority,  consistent  with
33    Section  5(c)  and  other  provisions  of  this  Act, and for
34    purposes of Section 303(e) of  the  Federal  Water  Pollution
 
                            -8-      LRB093 08816 EFG 12650 a
 1    Control  Act,  as  now  or  hereafter  amended,  to engage in
 2    planning processes and activities and  to  develop  plans  in
 3    cooperation  with  units  of local government, state agencies
 4    and officers, and other  appropriate  persons  in  connection
 5    with  the  jurisdiction  or duties of each such unit, agency,
 6    officer or person.  Public hearings  shall  be  held  on  the
 7    planning  process,  at which any person shall be permitted to
 8    appear and  be  heard,  pursuant  to  procedural  regulations
 9    promulgated by the Agency.
10        (n)  In  accordance  with  the  powers conferred upon the
11    Agency by Sections 10(g), 13(b), 19, 22(d)  and  25  of  this
12    Act, the Agency shall have authority to establish and enforce
13    minimum  standards for the operation of laboratories relating
14    to analyses and laboratory tests  for  air  pollution,  water
15    pollution,  noise emissions, contaminant discharges onto land
16    and  sanitary,  chemical,  and  mineral  quality   of   water
17    distributed  by  a public water supply.  The Agency may enter
18    into formal working  agreements  with  other  departments  or
19    agencies  of  state government under which all or portions of
20    this authority may be delegated to the cooperating department
21    or agency.
22        (o)  The  Agency  shall  have  the  authority  to   issue
23    certificates   of  competency  to  persons  and  laboratories
24    meeting the minimum standards established by  the  Agency  in
25    accordance  with  Section  4(n) of this Act and to promulgate
26    and enforce regulations relevant to the issuance and  use  of
27    such  certificates.  The Agency may enter into formal working
28    agreements  with  other  departments  or  agencies  of  state
29    government under which all or portions of this authority  may
30    be delegated to the cooperating department or agency.
31        (p)  Except as provided in Section 17.7, the Agency shall
32    have the duty to analyze samples as required from each public
33    water  supply  to  determine  compliance with the contaminant
34    levels specified by the Pollution Control Board.  The maximum
 
                            -9-      LRB093 08816 EFG 12650 a
 1    number of samples which  the  Agency  shall  be  required  to
 2    analyze for microbiological quality shall be 6 per month, but
 3    the  Agency  may, at its option, analyze a larger number each
 4    month  for  any  supply.   Results  of  sample  analyses  for
 5    additional  required  bacteriological   testing,   turbidity,
 6    residual chlorine and radionuclides are to be provided to the
 7    Agency  in  accordance  with  Section  19.   Owners  of water
 8    supplies may enter into agreements with the Agency to provide
 9    for reduced Agency participation in sample analyses.
10        (q)  The Agency  shall  have  the  authority  to  provide
11    notice  to  any  person who may be liable pursuant to Section
12    22.2(f) of this Act for a release or a substantial threat  of
13    a release of a hazardous substance or pesticide.  Such notice
14    shall   include   the   identified  response  action  and  an
15    opportunity for such person to perform the response action.
16        (r)  The  Agency  may  enter  into   written   delegation
17    agreements  with  any unit of local government under which it
18    may delegate all or portions of its inspecting, investigating
19    and enforcement functions.  Such delegation agreements  shall
20    require  that work performed thereunder be in accordance with
21    Agency   criteria   and    subject    to    Agency    review.
22    Notwithstanding  any  other provision of law to the contrary,
23    no unit of local government shall be liable  for  any  injury
24    resulting from the exercise of its authority pursuant to such
25    a  delegation  agreement  unless  the  injury  is proximately
26    caused by the willful and wanton negligence of  an  agent  or
27    employee  of  the unit of local government, and any policy of
28    insurance coverage issued to a unit of local  government  may
29    provide  for  the  denial  of liability and the nonpayment of
30    claims based upon  injuries  for  which  the  unit  of  local
31    government is not liable pursuant to this subsection (r).
32        (s)  The  Agency  shall  have  authority to take whatever
33    preventive or corrective action is necessary or  appropriate,
34    including   but   not   limited   to  expenditure  of  monies
 
                            -10-     LRB093 08816 EFG 12650 a
 1    appropriated from the Build Illinois Bond Fund and the  Build
 2    Illinois  Purposes  Fund  for  removal  or  remedial  action,
 3    whenever  any hazardous substance or pesticide is released or
 4    there is a substantial threat of  such  a  release  into  the
 5    environment.  The State, the Director, and any State employee
 6    shall be indemnified for any damages or injury arising out of
 7    or  resulting  from  any  action taken under this subsection.
 8    The Director of the Agency is authorized to enter  into  such
 9    contracts  and  agreements  as are necessary to carry out the
10    Agency's duties under this subsection.
11        (t)  The  Agency  shall  have  authority  to   distribute
12    grants, subject to appropriation by the General Assembly, for
13    financing    and   construction   of   municipal   wastewater
14    facilities.  With respect to all monies appropriated from the
15    Build Illinois Bond Fund and the Build Illinois Purposes Fund
16    for  wastewater  facility  grants,  the  Agency  shall   make
17    distributions  in  conformity  with the rules and regulations
18    established pursuant to the Anti-Pollution Bond Act,  as  now
19    or hereafter amended.
20        (u)  Pursuant  to  the  Illinois Administrative Procedure
21    Act, the Agency shall have the authority to adopt such  rules
22    as  are  necessary or appropriate for the Agency to implement
23    Section 31.1 of this Act.
24        (v)  (Blank.)
25        (w)  Neither the State, nor the Director, nor the  Board,
26    nor  any  State  employee  shall be liable for any damages or
27    injury arising out of or  resulting  from  any  action  taken
28    under subsection (s).
29        (x)(1)  The  Agency  shall  have  authority to distribute
30        grants, subject to appropriation by the General Assembly,
31        to  units  of  local   government   for   financing   and
32        construction  of  public  water  supply facilities.  With
33        respect  to  all  monies  appropriated  from  the   Build
34        Illinois  Bond  Fund  or the Build Illinois Purposes Fund
 
                            -11-     LRB093 08816 EFG 12650 a
 1        for public water supply grants, such grants shall be made
 2        in accordance with rules promulgated by the Agency.  Such
 3        rules shall include a requirement for a  local  match  of
 4        30% of the total project cost for projects funded through
 5        such grants.
 6             (2)  The  Agency  shall  not  terminate a grant to a
 7        unit  of  local  government   for   the   financing   and
 8        construction of public water supply facilities unless and
 9        until  the Agency adopts rules that set forth precise and
10        complete standards,  pursuant  to  Section  5-20  of  the
11        Illinois    Administrative   Procedure   Act,   for   the
12        termination of such grants.  The Agency  shall  not  make
13        determinations  on  whether specific grant conditions are
14        necessary to ensure the integrity  of  a  project  or  on
15        whether  subagreements  shall be awarded, with respect to
16        grants for the financing and construction of public water
17        supply facilities, unless and  until  the  Agency  adopts
18        rules  that  set  forth  precise  and complete standards,
19        pursuant to Section 5-20 of the  Illinois  Administrative
20        Procedure  Act,  for  making  such  determinations.   The
21        Agency  shall  not issue a stop-work order in relation to
22        such grants unless and until the  Agency  adopts  precise
23        and  complete  standards, pursuant to Section 5-20 of the
24        Illinois Administrative Procedure  Act,  for  determining
25        whether to issue a stop-work order.
26        (y)  The  Agency  shall  have  authority  to  release any
27    person  from  further  responsibility   for   preventive   or
28    corrective   action   under  this  Act  following  successful
29    completion of preventive or corrective action  undertaken  by
30    such person upon written request by the person.
31    (Source: P.A. 91-25, eff. 6-9-99; 92-574, eff. 6-26-02.)

32        (415 ILCS 5/5) (from Ch. 111 1/2, par. 1005)
33        Sec. 5. Pollution Control Board.
 
                            -12-     LRB093 08816 EFG 12650 a
 1        (a)  There  is  hereby created an independent board to be
 2    known  as  the  Pollution  Control  Board,  consisting  of  7
 3    technically qualified members, no more than 4 of whom may  be
 4    of  the same political party, to be appointed by the Governor
 5    with the advice and consent of the Senate.
 6        All members shall hold office for 3 years from the  first
 7    day  of July in the year in which they were appointed, except
 8    in case of an appointment to fill a vacancy.  In  case  of  a
 9    vacancy  in the office when the Senate is not in session, the
10    Governor may make a  temporary  appointment  until  the  next
11    meeting  of  the  Senate,  when he or she shall nominate some
12    person to fill such office; and any person so nominated,  who
13    is  confirmed by the Senate, shall hold the office during the
14    remainder of the term.
15        Members of  the  Board  shall  hold  office  until  their
16    respective  successors have been appointed and qualified. Any
17    member may resign  from  office,  such  resignation  to  take
18    effect when a successor has been appointed and has qualified.
19        Board members shall be paid $37,000 per year or an amount
20    set  by  the Compensation Review Board, whichever is greater,
21    and the Chairman shall be paid $43,000 per year or an  amount
22    set  by  the Compensation Review Board, whichever is greater.
23    Each member shall  be  reimbursed  for  expenses  necessarily
24    incurred, shall devote full time to the performance of his or
25    her  duties  and  shall  make  a  financial  disclosure  upon
26    appointment.   Each Board member may employ one secretary and
27    one  assistant,  and  the  Chairman  one  secretary   and   2
28    assistants.  The Board also may employ and compensate hearing
29    officers  to  preside  at  hearings  under this Act, and such
30    other personnel as may be necessary.  Hearing officers  shall
31    be attorneys licensed to practice law in Illinois.
32        The  Governor  shall  designate  one  Board  member to be
33    Chairman, who shall serve at the pleasure of the Governor.
34        The Board shall hold at least one meeting each month  and
 
                            -13-     LRB093 08816 EFG 12650 a
 1    such additional meetings as may be prescribed by Board rules.
 2    In  addition,  special meetings may be called by the Chairman
 3    or by any 2 Board members, upon delivery of 24 hours  written
 4    notice  to  the  office  of  each member.  All Board meetings
 5    shall be open  to  the  public,  and  public  notice  of  all
 6    meetings  shall be given at least 24 hours in advance of each
 7    meeting.  In emergency situations in which a majority of  the
 8    Board   certifies   that   exigencies  of  time  require  the
 9    requirements of public notice and of 24 hour  written  notice
10    to  members  may  be  dispensed with, and Board members shall
11    receive such notice as is reasonable under the circumstances.
12        Four members of the Board shall constitute a quorum,  and
13    4  votes shall be required for any final determination by the
14    Board,  except  in  a  proceeding  to  remove  a  seal  under
15    paragraph (d) of Section 34 of this  Act.   The  Board  shall
16    keep a complete and accurate record of all its meetings.
17        (b)  The  Board shall determine, define and implement the
18    environmental control standards applicable in  the  State  of
19    Illinois  and  may  adopt rules and regulations in accordance
20    with Title VII of this Act.
21        (c)  The Board shall have authority to act for the  State
22    in  regard to the adoption of standards for submission to the
23    United States under any federal law respecting  environmental
24    protection.   Such  standards  shall be adopted in accordance
25    with Title  VII  of  the  Act  and  upon  adoption  shall  be
26    forwarded   to   the   Environmental  Protection  Agency  for
27    submission to the United States pursuant to  subsections  (l)
28    and  (m) of Section 4 of this Act.  Nothing in this paragraph
29    shall limit  the  discretion  of  the  Governor  to  delegate
30    authority granted to the Governor under any federal law.
31        (d)  The   Board   shall   have   authority   to  conduct
32    proceedings upon complaints charging violations of this  Act,
33    any  rule or regulation adopted under this Act, or any permit
34    or term or condition of a permit, or any  Board  order;  upon
 
                            -14-     LRB093 08816 EFG 12650 a
 1    administrative  citations;  upon  petitions  for variances or
 2    adjusted standards; upon petitions for review of the Agency's
 3    final determinations on  permit  applications  in  accordance
 4    with  Title  X  of  this  Act; upon petitions to remove seals
 5    under Section 34 of this Act; and upon  other  petitions  for
 6    review  of  final  determinations  which are made pursuant to
 7    this Act or Board rule and which involve a subject which  the
 8    Board  is authorized to regulate.  The Board may also conduct
 9    other proceedings as may be provided by this Act or any other
10    statute or rule.
11        (e)  In  connection  with  any  proceeding  pursuant   to
12    subsection (b) or (d) of this Section, the Board may subpoena
13    and  compel the attendance of witnesses and the production of
14    evidence reasonably necessary to  resolution  of  the  matter
15    under  consideration.   The  Board shall issue such subpoenas
16    upon  the  request  of  any  party  to  a  proceeding   under
17    subsection (d) of this Section or upon its own motion.
18        (f)  The  Board may prescribe reasonable fees for permits
19    required pursuant to this Act.  Such fees  in  the  aggregate
20    may  not  exceed  the  total  cost  to  the  Agency  for  its
21    inspection  and  permit systems.  The Board may not prescribe
22    any permit fees which are  different  in  amount  from  those
23    established by this Act.
24    (Source: P.A. 92-574, eff. 6-26-02.)

25        (415 ILCS 5/22.2) (from Ch. 111 1/2, par. 1022.2)
26        Sec. 22.2. Hazardous waste; fees; liability.
27        (a)  There are hereby created within the State Treasury 2
28    special  funds  to  be  known  respectively as the "Hazardous
29    Waste  Fund"  and  the  "Hazardous  Waste   Research   Fund",
30    constituted from the fees collected pursuant to this Section.
31    In  addition  to  the  fees collected under this Section, the
32    Hazardous  Waste  Fund  shall  include  other   moneys   made
33    available from any source for deposit into the Fund.
 
                            -15-     LRB093 08816 EFG 12650 a
 1        (b) (1)  On  and  after January 1, 1989, the Agency shall
 2        collect from  the  owner  or  operator  of  each  of  the
 3        following sites a fee in the amount of:
 4                  (A)  9  cents  per  gallon  or $18.18 per cubic
 5             yard,  if  the  hazardous  waste  disposal  site  is
 6             located off the site where such waste was  produced.
 7             The  maximum  amount  payable under this subdivision
 8             (A) with respect to the hazardous waste generated by
 9             a single generator and  deposited  in  monofills  is
10             $30,000  per  year.   If,  as a result of the use of
11             multiple monofills, waste  fees  in  excess  of  the
12             maximum  are assessed with respect to a single waste
13             generator, the generator may apply to the Agency for
14             a credit.
15                  (B)  9 cents or $18.18 per cubic yard,  if  the
16             hazardous waste disposal site is located on the site
17             where  such waste was produced, provided however the
18             maximum amount of fees payable under this  paragraph
19             (B)  is  $30,000  per  year  for each such hazardous
20             waste disposal site.
21                  (C)  If the hazardous waste disposal site is an
22             underground injection well, $6,000 per year  if  not
23             more  than 10,000,000 gallons per year are injected,
24             $15,000 per year if more than 10,000,000 gallons but
25             not  more  than  50,000,000  gallons  per  year  are
26             injected,  and  $27,000  per  year  if   more   than
27             50,000,000 gallons per year are injected.
28                  (D)  3 cents per gallon or $6.06 per cubic yard
29             of  hazardous  waste  received  for  treatment  at a
30             hazardous waste treatment  site,  if  the  hazardous
31             waste  treatment  site is located off the site where
32             such waste was produced and if such hazardous  waste
33             treatment  site is owned, controlled and operated by
34             a person other than the  generator  of  such  waste.
 
                            -16-     LRB093 08816 EFG 12650 a
 1             After  treatment  at  such hazardous waste treatment
 2             site, the waste shall not be subject  to  any  other
 3             fee imposed by this subsection (b).  For purposes of
 4             this subsection (b), the term "treatment" is defined
 5             as in Section 3.505 but shall not include recycling,
 6             reclamation or reuse.
 7             (2)  The General Assembly shall annually appropriate
 8        to the Fund such amounts as it deems necessary to fulfill
 9        the purposes of this Act.
10             (3)  The  Agency shall have the authority to accept,
11        receive, and administer on behalf of the State any moneys
12        made available to the  State  from  any  source  for  the
13        purposes  of  the  Hazardous  Waste  Fund  set  forth  in
14        subsection (d) of this Section.
15             (4)  Of the amount collected as fees provided for in
16        this  Section,  the  Agency  shall manage the use of such
17        funds to assure that sufficient funds are  available  for
18        match towards federal expenditures for response action at
19        sites  which  are listed on the National Priorities List;
20        provided,  however,  that  this  shall   not   apply   to
21        additional monies appropriated to the Fund by the General
22        Assembly,  nor  shall  it  apply  in  the  event that the
23        Director finds that revenues in the Hazardous Waste  Fund
24        must  be  used  to address conditions which create or may
25        create an immediate danger to the environment  or  public
26        health  or  to  the welfare of the people of the State of
27        Illinois.
28             (5)  Notwithstanding the other  provisions  of  this
29        subsection (b), sludge from a publicly-owned sewage works
30        generated  in  Illinois,  coal  mining  wastes and refuse
31        generated in Illinois, bottom boiler ash, flyash and flue
32        gas desulphurization sludge from public utility  electric
33        generating  facilities  located  in  Illinois, and bottom
34        boiler ash and flyash from all incinerators which process
 
                            -17-     LRB093 08816 EFG 12650 a
 1        solely municipal waste shall not be subject to the fee.
 2             (6)  For  the  purposes  of  this  subsection   (b),
 3        "monofill"  means  a  facility,  or a unit at a facility,
 4        that accepts only wastes bearing the same USEPA hazardous
 5        waste identification  number,  or  compatible  wastes  as
 6        determined by the Agency.
 7        (c)  The  Agency  shall  establish  procedures, not later
 8    than January 1, 1984, relating to the collection of the  fees
 9    authorized  by  this  Section. Such procedures shall include,
10    but not be limited to: (1) necessary records identifying  the
11    quantities  of  hazardous waste received or disposed; (2) the
12    form and submission of reports to accompany  the  payment  of
13    fees to the Agency; and (3) the time and manner of payment of
14    fees  to  the  Agency, which payments shall be not more often
15    than quarterly.
16        (d)  Beginning July 1, 1996, the Agency shall deposit all
17    such receipts in the State Treasury  to  the  credit  of  the
18    Hazardous Waste Fund, except as provided in subsection (e) of
19    this Section. All monies in the Hazardous Waste Fund shall be
20    used by the Agency for the following purposes:
21             (1)  Taking whatever preventive or corrective action
22        is  necessary  or appropriate, in circumstances certified
23        by the Director, including but not limited to removal  or
24        remedial   action   whenever   there   is  a  release  or
25        substantial threat of a release of a hazardous  substance
26        or  pesticide;  provided, the Agency shall expend no more
27        than  $1,000,000   on   any   single   incident   without
28        appropriation by the General Assembly.
29             (2)  To  meet  any requirements which must be met by
30        the State in order to obtain federal  funds  pursuant  to
31        the  Comprehensive  Environmental  Response, Compensation
32        and Liability Act of 1980, (P.L. 96-510).
33             (3)  In an amount up to 30% of the amount  collected
34        as  fees  provided  for  in  this Section, for use by the
 
                            -18-     LRB093 08816 EFG 12650 a
 1        Agency  to  conduct  groundwater  protection  activities,
 2        including providing grants to appropriate units of  local
 3        government which are addressing protection of underground
 4        waters pursuant to the provisions of this Act.
 5             (4)  To  fund  the development and implementation of
 6        the model pesticide collection program under Section 19.1
 7        of the Illinois Pesticide Act.
 8             (5)  To the  extent  the  Agency  has  received  and
 9        deposited  monies  in  the Fund other than fees collected
10        under subsection (b) of this Section, to pay for the cost
11        of Agency employees for services  provided  in  reviewing
12        the  performance  of  response  actions pursuant to Title
13        XVII of this Act.
14             (6)  In an amount up to 15% of  the  fees  collected
15        annually under subsection (b) of this Section, for use by
16        the  Agency  for administration of the provisions of this
17        Section.
18        (e)  The  Agency  shall  deposit  10%  of  all   receipts
19    collected  under  subsection  (b) of this Section, but not to
20    exceed $200,000 per year, in the State Treasury to the credit
21    of the Hazardous Waste Research Fund established by this Act.
22    Pursuant to appropriation, all monies in such Fund  shall  be
23    used  by the Department of Natural Resources for the purposes
24    set forth in this subsection.
25        The  Department  of  Natural  Resources  may  enter  into
26    contracts with business, industrial, university, governmental
27    or other qualified individuals or organizations to assist  in
28    the  research and development intended to recycle, reduce the
29    volume  of,  separate,  detoxify  or  reduce  the   hazardous
30    properties  of  hazardous  wastes in Illinois.  Monies in the
31    Fund may also be used by the Department of Natural  Resources
32    for technical studies, monitoring activities, and educational
33    and  research  activities which are related to the protection
34    of  underground  waters.   Monies  in  the  Hazardous   Waste
 
                            -19-     LRB093 08816 EFG 12650 a
 1    Research  Fund  may be used to administer the Illinois Health
 2    and  Hazardous  Substances  Registry  Act.   Monies  in   the
 3    Hazardous  Waste  Research  Fund  shall  not  be used for any
 4    sanitary landfill or the acquisition or construction  of  any
 5    facility.   This  does not preclude the purchase of equipment
 6    for  the  purpose  of  public  demonstration  projects.   The
 7    Department of Natural Resources shall  adopt  guidelines  for
 8    cost  sharing,  selecting,  and  administering projects under
 9    this subsection.
10        (f)  Notwithstanding any other provision or rule of  law,
11    and  subject only to the defenses set forth in subsection (j)
12    of this Section, the following persons shall  be  liable  for
13    all costs of removal or remedial action incurred by the State
14    of  Illinois or any unit of local government as a result of a
15    release or substantial threat of a  release  of  a  hazardous
16    substance or pesticide:
17             (1)  the  owner and operator of a facility or vessel
18        from which there is a release or  substantial  threat  of
19        release of a hazardous substance or pesticide;
20             (2)  any   person  who  at  the  time  of  disposal,
21        transport, storage or treatment of a hazardous  substance
22        or  pesticide  owned  or  operated the facility or vessel
23        used for such disposal, transport, treatment  or  storage
24        from which there was a release or substantial threat of a
25        release of any such hazardous substance or pesticide;
26             (3)  any  person  who  by  contract,  agreement,  or
27        otherwise  has  arranged with another party or entity for
28        transport, storage, disposal or  treatment  of  hazardous
29        substances  or  pesticides owned, controlled or possessed
30        by such person at a facility owned or operated by another
31        party or entity from which facility there is a release or
32        substantial  threat  of  a  release  of  such   hazardous
33        substances or pesticides; and
34             (4)  any   person   who   accepts  or  accepted  any
 
                            -20-     LRB093 08816 EFG 12650 a
 1        hazardous  substances  or  pesticides  for  transport  to
 2        disposal, storage or treatment facilities or  sites  from
 3        which  there  is  a  release or a substantial threat of a
 4        release of a hazardous substance or pesticide.
 5        Any monies received by the State of Illinois pursuant  to
 6    this  subsection (f) shall be deposited in the State Treasury
 7    to the credit of the Hazardous Waste Fund.
 8        In accordance with the other provisions of this  Section,
 9    costs  of  removal  or  remedial action incurred by a unit of
10    local government may be recovered in  an  action  before  the
11    Board   brought   by  the  unit  of  local  government  under
12    subsection (i) of this  Section.   Any  monies  so  recovered
13    shall be paid to the unit of local government.
14        (g)(1)  No  indemnification,  hold  harmless,  or similar
15        agreement or conveyance shall be  effective  to  transfer
16        from  the  owner or operator of any vessel or facility or
17        from any person who  may  be  liable  for  a  release  or
18        substantial  threat  of  a release under this Section, to
19        any  other  person  the  liability  imposed  under   this
20        Section.  Nothing in this Section shall bar any agreement
21        to  insure,  hold  harmless  or indemnify a party to such
22        agreements for any liability under this Section.
23             (2)  Nothing  in   this   Section,   including   the
24        provisions of paragraph (g)(1) of this Section, shall bar
25        a  cause of action that an owner or operator or any other
26        person subject to liability  under  this  Section,  or  a
27        guarantor, has or would have, by reason of subrogation or
28        otherwise against any person.
29        (h)  For purposes of this Section:
30             (1)  The term "facility" means:
31                  (A)  any   building,  structure,  installation,
32             equipment,  pipe  or  pipeline  including  but   not
33             limited  to  any pipe into a sewer or publicly owned
34             treatment   works,   well,   pit,   pond,    lagoon,
 
                            -21-     LRB093 08816 EFG 12650 a
 1             impoundment,  ditch,  landfill,  storage  container,
 2             motor vehicle, rolling stock, or aircraft; or
 3                  (B)  any   site   or  area  where  a  hazardous
 4             substance has been deposited, stored,  disposed  of,
 5             placed, or otherwise come to be located.
 6             (2)  The term "owner or operator" means:
 7                  (A)  any person owning or operating a vessel or
 8             facility;
 9                  (B)  in  the case of an abandoned facility, any
10             person owning or operating the abandoned facility or
11             any  person  who  owned,  operated,   or   otherwise
12             controlled  activities  at  the  abandoned  facility
13             immediately prior to such abandonment;
14                  (C)  in  the case of a land trust as defined in
15             Section 2 of the Land Trustee as Creditor Act,   the
16             person  owning  the  beneficial interest in the land
17             trust;
18                  (D)  in the case of a fiduciary (other  than  a
19             land  trustee),  the  estate, trust estate, or other
20             interest in property held in a  fiduciary  capacity,
21             and  not  the  fiduciary.   For the purposes of this
22             Section,  "fiduciary"  means  a  trustee,  executor,
23             administrator, guardian,  receiver,  conservator  or
24             other  person  holding  a  facility  or  vessel in a
25             fiduciary capacity;
26                  (E)  in the case of a "financial  institution",
27             meaning  the  Illinois Housing Development Authority
28             and that  term  as  defined  in  Section  2  of  the
29             Illinois  Banking  Act, that has acquired ownership,
30             operation, management, or control  of  a  vessel  or
31             facility through foreclosure or under the terms of a
32             security  interest held by the financial institution
33             or under the terms of an extension of credit made by
34             the financial institution, the financial institution
 
                            -22-     LRB093 08816 EFG 12650 a
 1             only if the financial institution  takes  possession
 2             of   the   vessel  or  facility  and  the  financial
 3             institution exercises actual, direct, and  continual
 4             or  recurrent managerial control in the operation of
 5             the vessel or facility  that  causes  a  release  or
 6             substantial  threat  of  a  release  of  a hazardous
 7             substance  or  pesticide  resulting  in  removal  or
 8             remedial action;
 9                  (F)  In the case of  an  owner  of  residential
10             property,  the  owner if the owner is a person other
11             than an individual, or if the owner is an individual
12             who owns more than 10 dwelling units in Illinois, or
13             if  the  owner,   or   an   agent,   representative,
14             contractor,  or  employee  of the owner, has caused,
15             contributed to, or allowed the release or threatened
16             release of a hazardous substance or  pesticide.  The
17             term  "residential  property"  means  single  family
18             residences  of  one  to  4 dwelling units, including
19             accessory   land,   buildings,    or    improvements
20             incidental  to  those dwellings that are exclusively
21             used for the residential use. For purposes  of  this
22             subparagraph  (F),  the  term  "individual"  means a
23             natural person, and shall not include  corporations,
24             partnerships, trusts, or other non-natural persons.
25                  (G)  In  the  case  of  any  facility, title or
26             control of which was  conveyed  due  to  bankruptcy,
27             foreclosure,   tax   delinquency,   abandonment,  or
28             similar  means  to  a  unit  of   State   or   local
29             government,  any  person  who  owned,  operated,  or
30             otherwise  controlled  activities  at  the  facility
31             immediately beforehand.
32                  (H)  The  term  "owner  or  operator"  does not
33             include a unit of State or  local  government  which
34             acquired  ownership  or  control through bankruptcy,
 
                            -23-     LRB093 08816 EFG 12650 a
 1             tax delinquency, abandonment, or other circumstances
 2             in which the government acquires title by virtue  of
 3             its  function  as sovereign.  The exclusion provided
 4             under this paragraph shall not apply to any State or
 5             local government which has caused or contributed  to
 6             the  release  or  threatened  release of a hazardous
 7             substance from the facility, and  such  a  State  or
 8             local  government shall be subject to the provisions
 9             of this Act in the  same  manner  and  to  the  same
10             extent,  both procedurally and substantively, as any
11             nongovernmental entity,  including  liability  under
12             Section 22.2(f).
13        (i)  The  costs  and damages provided for in this Section
14    may be imposed by the Board in an action brought  before  the
15    Board  in accordance with Title VIII of this Act, except that
16    Section 33(c) of this Act shall not apply to any such action.
17        (j) (1)  There shall be no liability under  this  Section
18    for  a  person  otherwise  liable  who  can  establish  by  a
19    preponderance of the evidence that the release or substantial
20    threat  of  release  of a hazardous substance and the damages
21    resulting therefrom were caused solely by:
22             (A)  an act of God;
23             (B)  an act of war;
24             (C)  an act or omission of a third party other  than
25        an  employee or agent of the defendant, or other than one
26        whose  act  or  omission  occurs  in  connection  with  a
27        contractual   relationship,    existing    directly    or
28        indirectly,  with  the  defendant  (except where the sole
29        contractual arrangement arises from  a  published  tariff
30        and acceptance for carriage by a common carrier by rail),
31        if  the  defendant  establishes by a preponderance of the
32        evidence that (i) he exercised due care with  respect  to
33        the    hazardous   substance   concerned,   taking   into
34        consideration  the  characteristics  of  such   hazardous
 
                            -24-     LRB093 08816 EFG 12650 a
 1        substance,   in   light   of   all   relevant  facts  and
 2        circumstances,  and  (ii)  he  took  precautions  against
 3        foreseeable acts or omissions of any such third party and
 4        the consequences that could foreseeably result from  such
 5        acts or omissions; or
 6             (D)  any combination of the foregoing paragraphs.
 7        (2)  There  shall  be no liability under this Section for
 8    any release permitted by State or federal law.
 9        (3)  There shall be no liability under this  Section  for
10    damages as a result of actions taken or omitted in the course
11    of  rendering  care, assistance, or advice in accordance with
12    this Section or the National Contingency Plan pursuant to the
13    Comprehensive  Environmental   Response,   Compensation   and
14    Liability Act of 1980 (P.L. 96-510) or at the direction of an
15    on-scene  coordinator appointed under such plan, with respect
16    to an incident creating a danger to public health or  welfare
17    or  the environment as a result of any release of a hazardous
18    substance or a substantial threat thereof.   This  subsection
19    shall  not  preclude  liability  for damages as the result of
20    gross negligence or intentional misconduct  on  the  part  of
21    such  person.   For  the  purposes of the preceding sentence,
22    reckless, willful,  or  wanton  misconduct  shall  constitute
23    gross negligence.
24        (4)  There  shall  be no liability under this Section for
25    any person (including,  but  not  limited  to,  an  owner  of
26    residential   property   who   applies  a  pesticide  to  the
27    residential property  or  who  has  another  person  apply  a
28    pesticide  to the residential property) for response costs or
29    damages as the result of the storage, handling  and  use,  or
30    recommendation  for storage, handling and use, of a pesticide
31    consistent with:
32             (A)  its directions for storage, handling and use as
33        stated in its label or labeling;
34             (B)  its warnings and  cautions  as  stated  in  its
 
                            -25-     LRB093 08816 EFG 12650 a
 1        label or labeling; and
 2             (C)  the  uses  for which it is registered under the
 3        Federal Insecticide, Fungicide and  Rodenticide  Act  and
 4        the Illinois Pesticide Act.
 5        (4.5)  There  shall  be  no  liability  under subdivision
 6    (f)(1) of this Section for response costs or damages  as  the
 7    result  of  a  release  of  a  pesticide from an agrichemical
 8    facility site if the Agency  has  received  notice  from  the
 9    Department  of  Agriculture  pursuant  to Section 19.3 of the
10    Illinois  Pesticide  Act,  the  owner  or  operator  of   the
11    agrichemical  facility is proceeding with a corrective action
12    plan under the Agrichemical Facility Response Action  Program
13    implemented under that Section, and the Agency has provided a
14    written endorsement of a corrective action plan.
15        (4.6)  There  shall  be  no  liability  under subdivision
16    (f)(1) of this Section for response costs or damages  as  the
17    result  of  a  substantial threat of a release of a pesticide
18    from an agrichemical facility site if the Agency has received
19    notice from the Department of Agriculture pursuant to Section
20    19.3 of the Illinois Pesticide Act and the owner or  operator
21    of  the agrichemical facility is proceeding with a corrective
22    action plan under the Agrichemical Facility  Response  Action
23    Program implemented under that Section.
24        (5)  Nothing  in  this  subsection  (j)  shall  affect or
25    modify in any way the obligations or liability of any  person
26    under  any  other  provision  of this Act or State or federal
27    law, including common  law,  for  damages,  injury,  or  loss
28    resulting  from  a release or substantial threat of a release
29    of any hazardous substance or for removal or remedial  action
30    or  the costs of removal or remedial action of such hazardous
31    substance.
32        (6)(A)  The  term  "contractual  relationship",  for  the
33    purpose of this subsection includes, but is not  limited  to,
34    land contracts, deeds or other instruments transferring title
 
                            -26-     LRB093 08816 EFG 12650 a
 1    or possession, unless the real property on which the facility
 2    concerned  is located was acquired by the defendant after the
 3    disposal or placement of the hazardous substance on,  in,  or
 4    at  the  facility,  and  one  or  more  of  the circumstances
 5    described in clause (i), (ii), or (iii) of this paragraph  is
 6    also  established  by the defendant by a preponderance of the
 7    evidence:
 8             (i)  At the time the defendant acquired the facility
 9        the defendant did not know and had no reason to know that
10        any hazardous substance  which  is  the  subject  of  the
11        release  or  threatened release was disposed of on, in or
12        at the facility.
13             (ii)  The defendant is  a  government  entity  which
14        acquired  the  facility  by escheat, or through any other
15        involuntary  transfer  or  acquisition,  or  through  the
16        exercise of  eminent  domain  authority  by  purchase  or
17        condemnation.
18             (iii)  The   defendant   acquired  the  facility  by
19        inheritance or bequest.
20        In addition to establishing the foregoing, the  defendant
21    must  establish  that  he  has  satisfied the requirements of
22    subparagraph (C) of paragraph (l) of this subsection (j).
23        (B)  To establish the defendant had no reason to know, as
24    provided in clause (i) of subparagraph (A) of this paragraph,
25    the  defendant  must  have  undertaken,  at   the   time   of
26    acquisition,   all  appropriate  inquiry  into  the  previous
27    ownership and uses  of  the  property  consistent  with  good
28    commercial  or  customary  practice  in an effort to minimize
29    liability.  For purposes of the preceding sentence, the court
30    shall  take  into  account  any  specialized   knowledge   or
31    experience  on the part of the defendant, the relationship of
32    the  purchase  price  to  the  value  of  the   property   if
33    uncontaminated,  commonly  known  or reasonably ascertainable
34    information  about  the  property,  the  obviousness  of  the
 
                            -27-     LRB093 08816 EFG 12650 a
 1    presence or likely presence of contamination at the property,
 2    and the ability to detect such contamination  by  appropriate
 3    inspection.
 4        (C)  Nothing in this paragraph (6) or in subparagraph (C)
 5    of  paragraph  (1)  of  this  subsection  shall  diminish the
 6    liability of any previous owner or operator of such  facility
 7    who would otherwise be liable under this Act. Notwithstanding
 8    this   paragraph   (6),  if  the  defendant  obtained  actual
 9    knowledge of the release or threatened release of a hazardous
10    substance at such facility when the defendant owned the  real
11    property  and  then subsequently transferred ownership of the
12    property to another person without disclosing such knowledge,
13    such defendant shall be treated as  liable  under  subsection
14    (f)  of this Section and no defense under subparagraph (C) of
15    paragraph (1) of this subsection shall be available  to  such
16    defendant.
17        (D)  Nothing  in  this  paragraph  (6)  shall  affect the
18    liability under this Act of a defendant who, by  any  act  or
19    omission,  caused or contributed to the release or threatened
20    release of a hazardous substance which is the subject of  the
21    action relating to the facility.
22        (E) (i)  Except  as  provided  in  clause  (ii)  of  this
23    subparagraph  (E), a defendant who has acquired real property
24    shall have established a rebuttable presumption  against  all
25    State claims and a conclusive presumption against all private
26    party  claims  that  the  defendant  has made all appropriate
27    inquiry within the meaning  of  subdivision  (6)(B)  of  this
28    subsection (j) if the defendant proves that immediately prior
29    to or at the time of the acquisition:
30             (I)  the  defendant obtained a Phase I Environmental
31        Audit of the real property  that  meets  or  exceeds  the
32        requirements  of  this  subparagraph (E), and the Phase I
33        Environmental Audit did  not  disclose  the  presence  or
34        likely presence of a release or a substantial threat of a
 
                            -28-     LRB093 08816 EFG 12650 a
 1        release of a hazardous substance or pesticide at, on, to,
 2        or from the real property; or
 3             (II)  the    defendant    obtained    a   Phase   II
 4        Environmental Audit of the real property  that  meets  or
 5        exceeds  the  requirements  of this subparagraph (E), and
 6        the Phase II Environmental Audit  did  not  disclose  the
 7        presence or likely presence of a release or a substantial
 8        threat of a release of a hazardous substance or pesticide
 9        at, on, to, or from the real property.
10        (ii)  No presumption shall be created under clause (i) of
11    this  subparagraph  (E),  and  a defendant shall be precluded
12    from  demonstrating  that  the   defendant   has   made   all
13    appropriate  inquiry within the meaning of subdivision (6)(B)
14    of this subsection (j), if:
15             (I)  the defendant fails to obtain all Environmental
16        Audits required under this subparagraph (E) or  any  such
17        Environmental   Audit   fails   to  meet  or  exceed  the
18        requirements of this subparagraph (E);
19             (II)  a Phase I Environmental  Audit  discloses  the
20        presence or likely presence of a release or a substantial
21        threat of a release of a hazardous substance or pesticide
22        at,  on,  to,  or  from  real property, and the defendant
23        fails to obtain a Phase II Environmental Audit;
24             (III)  a Phase II Environmental Audit discloses  the
25        presence or likely presence of a release or a substantial
26        threat of a release of a hazardous substance or pesticide
27        at, on, to, or from the real property;
28             (IV)  the  defendant  fails  to  maintain  a written
29        compilation  and  explanatory  summary  report   of   the
30        information  reviewed in the course of each Environmental
31        Audit under this subparagraph (E); or
32             (V)  there  is  any  evidence  of  fraud,   material
33        concealment,   or   material   misrepresentation  by  the
34        defendant  of  environmental  conditions  or  of  related
 
                            -29-     LRB093 08816 EFG 12650 a
 1        information  discovered   during   the   course   of   an
 2        Environmental Audit.
 3        (iii)  For  purposes  of  this subparagraph (E), the term
 4    "environmental professional" means an individual (other  than
 5    a   practicing  attorney)  who,  through  academic  training,
 6    occupational experience, and reputation (such  as  engineers,
 7    industrial hygienists, or geologists) can objectively conduct
 8    one or more aspects of an Environmental Audit and who either:
 9             (I)  maintains  at  the  time  of  the Environmental
10        Audit and for at  least  one  year  thereafter  at  least
11        $500,000   of   environmental  consultants'  professional
12        liability  insurance  coverage  issued  by  an  insurance
13        company licensed to do business in Illinois; or
14             (II)  is an Illinois licensed professional  engineer
15        or an Illinois licensed industrial hygienist.
16        An  environmental professional may employ persons who are
17    not environmental professionals to assist in the  preparation
18    of  an  Environmental  Audit  if  such  persons are under the
19    direct  supervision  and   control   of   the   environmental
20    professional.
21        (iv)  For  purposes  of  this  subparagraph (E), the term
22    "real property" means any interest in any parcel of land, and
23    includes, but is not limited  to,  buildings,  fixtures,  and
24    improvements.
25        (v)  For  purposes  of  this  subparagraph  (E), the term
26    "Phase I Environmental Audit" means an investigation of  real
27    property,   conducted   by  environmental  professionals,  to
28    discover the presence or likely presence of a  release  or  a
29    substantial  threat  of a release of a hazardous substance or
30    pesticide at, on, to, or from real property,  and  whether  a
31    release  or  a substantial threat of a release of a hazardous
32    substance or pesticide has occurred or may occur at, on,  to,
33    or  from  the  real  property.  Until such time as the United
34    States Environmental Protection Agency establishes  standards
 
                            -30-     LRB093 08816 EFG 12650 a
 1    for  making  appropriate  inquiry into the previous ownership
 2    and  uses  of  the  facility  pursuant  to  42  U.S.C.   Sec.
 3    9601(35)(B)(ii),  the  investigation  shall  comply  with the
 4    procedures of the American Society for Testing and Materials,
 5    including the document known as Standard  E1527-97,  entitled
 6    "Standard Procedures for Environmental Site Assessment: Phase
 7    1   Environmental   Site  Assessment  Process".   Upon  their
 8    adoption, the standards promulgated by USEPA pursuant  to  42
 9    U.S.C.  Sec.  9601(35)(B)(ii) shall govern the performance of
10    Phase I Environmental  Audits.   In  addition  to  the  above
11    requirements, the Phase I Environmental Audit shall include a
12    review  of  recorded  land  title  records for the purpose of
13    determining whether  the  real  property  is  subject  to  an
14    environmental  land  use  restriction  such  as  a No Further
15    Remediation  Letter,  Environmental  Land  Use  Control,   or
16    Highway Authority Agreement.  The investigation shall include
17    a  review  of  at  least  each  of  the  following sources of
18    information concerning the current and previous ownership and
19    use of the real property:
20             (I)  Recorded chain of title documents regarding the
21        real property, including all  deeds,  easements,  leases,
22        restrictions, and covenants for a period of 50 years.
23             (II)  Aerial photographs that may reflect prior uses
24        of  the  real property and that are reasonably obtainable
25        through State, federal, or local government  agencies  or
26        bodies.
27             (III)  Recorded environmental cleanup liens, if any,
28        against  the  real  property that have arisen pursuant to
29        this Act or federal statutes.
30             (IV)  Reasonably  obtainable  State,  federal,   and
31        local  government  records of sites or facilities at, on,
32        or near the real property to  discover  the  presence  or
33        likely  presence  of  a hazardous substance or pesticide,
34        and whether a  release  or  a  substantial  threat  of  a
 
                            -31-     LRB093 08816 EFG 12650 a
 1        release   of  a  hazardous  substance  or  pesticide  has
 2        occurred or may occur  at,  on,  to,  or  from  the  real
 3        property.  Such government records shall include, but not
 4        be limited to:  reasonably obtainable State, federal, and
 5        local government investigation reports for those sites or
 6        facilities;  reasonably  obtainable  State,  federal, and
 7        local government records of activities likely to cause or
 8        contribute to a release or  a  threatened  release  of  a
 9        hazardous  substance or pesticide at, on, to, or from the
10        real property, including landfill  and  other  treatment,
11        storage,   and  disposal  location  records,  underground
12        storage tank records,  hazardous  waste  transporter  and
13        generator records, and spill reporting records; and other
14        reasonably   obtainable   State,   federal,   and   local
15        government environmental records that report incidents or
16        activities  that  are  likely to cause or contribute to a
17        release or a threatened release of a hazardous  substance
18        or  pesticide  at, on, to, or from the real property.  In
19        order to be deemed "reasonably  obtainable"  as  required
20        herein, a copy or reasonable facsimile of the record must
21        be  obtainable  from the government agency by request and
22        upon payment of a processing fee, if any, established  by
23        the  government  agency.   The  Agency  is  authorized to
24        establish  a  reasonable  fee  for  processing   requests
25        received  under  this  subparagraph (E) for records.  All
26        fees collected by the Agency under  this  clause  (v)(IV)
27        shall  be  deposited  into  the  Environmental Protection
28        Permit and Inspection Fund  in  accordance  with  Section
29        22.8.
30             Notwithstanding  any  other law, if the fee is paid,
31        the Agency shall process a request  received  under  this
32        subparagraph  (E)  for  records  within  30  days  of the
33        receipt of such request.
34             (V)  A visual site inspection of the  real  property
 
                            -32-     LRB093 08816 EFG 12650 a
 1        and  all facilities and improvements on the real property
 2        and  a  visual  inspection  of   properties   immediately
 3        adjacent to the real property, including an investigation
 4        of  any  use,  storage,  treatment,  spills  from use, or
 5        disposal of hazardous substances, hazardous wastes, solid
 6        wastes, or pesticides.   If  the  person  conducting  the
 7        investigation  is  denied access to any property adjacent
 8        to the real property, the person shall conduct  a  visual
 9        inspection of that adjacent property from the property to
10        which  the  person  does  have  access  and  from  public
11        rights-of-way.
12             (VI)  A review of business records for activities at
13        or on the real property for a period of 50 years.
14        (vi)  For  purposes  of subparagraph (E), the term "Phase
15    II  Environmental  Audit"  means  an  investigation  of  real
16    property,   conducted   by    environmental    professionals,
17    subsequent  to a Phase I Environmental Audit.  If the Phase I
18    Environmental Audit discloses the presence or likely presence
19    of a hazardous substance or a pesticide or  a  release  or  a
20    substantial  threat  of a release of a hazardous substance or
21    pesticide:
22             (I)  In or to soil, the defendant, as  part  of  the
23        Phase  II  Environmental Audit, shall perform a series of
24        soil borings sufficient to determine whether there  is  a
25        presence  or  likely presence of a hazardous substance or
26        pesticide and whether there is or has been a release or a
27        substantial threat of a release of a hazardous  substance
28        or pesticide at, on, to, or from the real property.
29             (II)  In  or  to groundwater, the defendant, as part
30        of  the  Phase  II  Environmental  Audit,  shall:  review
31        information   regarding   local   geology,   water   well
32        locations, and locations of waters of the State as may be
33        obtained  from  State,  federal,  and  local   government
34        records,  including  but not limited to the United States
 
                            -33-     LRB093 08816 EFG 12650 a
 1        Geological Service, the State Geological Survey  Division
 2        of  the  Department  of  Natural Resources, and the State
 3        Water  Survey  Division  of  the  Department  of  Natural
 4        Resources; and perform groundwater monitoring  sufficient
 5        to  determine  whether  there  is  a  presence  or likely
 6        presence of  a  hazardous  substance  or  pesticide,  and
 7        whether  there  is or has been a release or a substantial
 8        threat of a release of a hazardous substance or pesticide
 9        at, on, to, or from the real property.
10             (III)  On  or  to   media   other   than   soil   or
11        groundwater,  the  defendant,  as  part  of  the Phase II
12        Environmental  Audit,  shall  perform  an   investigation
13        sufficient  to  determine  whether there is a presence or
14        likely presence of a hazardous  substance  or  pesticide,
15        and  whether  there  is  or  has  been  a  release  or  a
16        substantial  threat of a release of a hazardous substance
17        or pesticide at, on, to, or from the real property.
18        (vii)  The findings of each Environmental Audit  prepared
19    under  this  subparagraph (E) shall be set forth in a written
20    audit report.  Each audit report shall contain an affirmation
21    by the defendant and by each environmental  professional  who
22    prepared the Environmental Audit that the facts stated in the
23    report  are  true  and are made under a penalty of perjury as
24    defined in Section 32-2 of the Criminal Code of 1961.  It  is
25    perjury  for any person to sign an audit report that contains
26    a false material statement that the person does  not  believe
27    to be true.
28        (viii)  The Agency is not required to review, approve, or
29    certify   the   results  of  any  Environmental  Audit.   The
30    performance of an Environmental Audit shall in no way entitle
31    a  defendant  to  a  presumption  of   Agency   approval   or
32    certification of the results of the Environmental Audit.
33        The presence or absence of a disclosure document prepared
34    under the Responsible Property Transfer Act of 1988 shall not
 
                            -34-     LRB093 08816 EFG 12650 a
 1    be  a  defense  under  this  Act  and  shall  not satisfy the
 2    requirements of subdivision (6)(A) of this subsection (j).
 3        (7)  No person shall be liable  under  this  Section  for
 4    response  costs  or  damages  as  the  result  of a pesticide
 5    release if the Agency has  found  that  a  pesticide  release
 6    occurred  based  on  a  Health  Advisory  issued  by the U.S.
 7    Environmental Protection Agency or an action level  developed
 8    by the Agency, unless the Agency notified the manufacturer of
 9    the pesticide and provided an opportunity of not less than 30
10    days  for  the  manufacturer  to comment on the technical and
11    scientific justification supporting the  Health  Advisory  or
12    action level.
13        (8)  No  person  shall  be  liable under this Section for
14    response costs or  damages  as  the  result  of  a  pesticide
15    release  that  occurs  in  the  course  of  a  farm pesticide
16    collection  program  operated  under  Section  19.1  of   the
17    Illinois Pesticide Act, unless the release results from gross
18    negligence or intentional misconduct.
19        (k)  If  any  person  who  is  liable  for  a  release or
20    substantial threat of release of  a  hazardous  substance  or
21    pesticide  fails  without sufficient cause to provide removal
22    or remedial action upon or in accordance with  a  notice  and
23    request by the Agency or upon or in accordance with any order
24    of  the  Board or any court, such person may be liable to the
25    State for punitive damages in an amount at  least  equal  to,
26    and  not  more than 3 times, the amount of any costs incurred
27    by the State of Illinois as a result of such failure to  take
28    such  removal  or  remedial  action.   The  punitive  damages
29    imposed  by  the  Board  shall  be  in  addition to any costs
30    recovered from such person pursuant to this  Section  and  in
31    addition  to any other penalty or relief provided by this Act
32    or any other law.
33        Any  monies  received  by  the  State  pursuant  to  this
34    subsection (k) shall be  deposited  in  the  Hazardous  Waste
 
                            -35-     LRB093 08816 EFG 12650 a
 1    Fund.
 2        (l)  Beginning January 1, 1988, the Agency shall annually
 3    collect  a  $250  fee  for  each Special Waste Hauling Permit
 4    Application and, in addition, shall collect a fee of $20  for
 5    each  waste  hauling  vehicle identified in the annual permit
 6    application and for each vehicle which is added to the permit
 7    during the annual period. The Agency  shall  deposit  85%  of
 8    such  fees  collected  under  this  subsection  in  the State
 9    Treasury to the credit of the Hazardous Waste Research  Fund;
10    and shall deposit the remaining 15% of such fees collected in
11    the  State  Treasury  to  the  credit  of  the  Environmental
12    Protection  Permit and Inspection Fund.  The majority of such
13    receipts which are deposited in the Hazardous Waste  Research
14    Fund  pursuant  to  this  subsection  shall  be  used  by the
15    Department of Natural Resources for activities  which  relate
16    to  the  protection of underground waters. Persons engaged in
17    the offsite transportation of hazardous waste by highway  and
18    participating  in  the Uniform Program under subsection (l-5)
19    are not required to  file  a  Special  Waste  Hauling  Permit
20    Application.
21        (l-5) (1)  As used in this subsection:
22             "Base   state"   means   the  state  selected  by  a
23        transporter according to the procedures established under
24        the Uniform Program.
25             "Base state agreement" means  an  agreement  between
26        participating  states  electing  to  register  or  permit
27        transporters.
28             "Participating  state"  means  a  state  electing to
29        participate in the Uniform Program  by  entering  into  a
30        base state agreement.
31             "Transporter"  means a person engaged in the offsite
32        transportation of hazardous waste by highway.
33             "Uniform application" means the uniform registration
34        and permit application form prescribed under the  Uniform
 
                            -36-     LRB093 08816 EFG 12650 a
 1        Program.
 2             "Uniform  Program" means the Uniform State Hazardous
 3        Materials Transportation Registration and Permit  Program
 4        established  in the report submitted and amended pursuant
 5        to 49 U.S.C.  Section  5119(b),  as  implemented  by  the
 6        Agency under this subsection.
 7             "Vehicle"  means  any  self-propelled motor vehicle,
 8        except a truck tractor without  a  trailer,  designed  or
 9        used for the transportation of hazardous waste subject to
10        the hazardous waste manifesting requirements of 40 U.S.C.
11        Section 6923(a)(3).
12             (2)  Beginning   July  1,  1998,  the  Agency  shall
13        implement   the   Uniform   State   Hazardous   Materials
14        Transportation Registration and Permit  Program.  On  and
15        after  that  date,  no person shall engage in the offsite
16        transportation of  hazardous  waste  by  highway  without
17        registering  and  obtaining  a  permit  under the Uniform
18        Program.  A  transporter  with  its  principal  place  of
19        business in Illinois shall register  with  and  obtain  a
20        permit  from  the  Agency.  A transporter that designates
21        another participating state in the Uniform Program as its
22        base state shall likewise  register  with  and  obtain  a
23        permit  from  that  state  before  transporting hazardous
24        waste in Illinois.
25             (3)  Beginning  July  1,  1998,  the  Agency   shall
26        annually collect no more than a $250 processing and audit
27        fee  from  each  transporter  of  hazardous waste who has
28        filed a uniform application and, in addition, the  Agency
29        shall    annually    collect   an   apportioned   vehicle
30        registration fee of $20. The amount  of  the  apportioned
31        vehicle  registration  fee shall be calculated consistent
32        with  the  procedures  established  under   the   Uniform
33        Program.
34             All   moneys   received   by  the  Agency  from  the
 
                            -37-     LRB093 08816 EFG 12650 a
 1        collection of fees pursuant to the Uniform Program  shall
 2        be deposited into the Hazardous Waste Transporter account
 3        hereby created within the Environmental Protection Permit
 4        and Inspection Fund.   Moneys remaining in the account at
 5        the  close  of  the  fiscal  year  shall not lapse to the
 6        General Revenue Fund.  The State  Treasurer  may  receive
 7        money  or  other  assets from any source for deposit into
 8        the account.  The  Agency  may  expend  moneys  from  the
 9        account,  upon  appropriation,  for the implementation of
10        the Uniform Program, including the costs to the Agency of
11        fee collection and administration.   In  addition,  funds
12        not  expended  for  the  implementation  of  the  Uniform
13        Program  may  be  utilized  for  emergency  response  and
14        cleanup    activities    related   to   hazardous   waste
15        transportation that are initiated by the Agency.
16             Whenever  the  amount   of   the   Hazardous   Waste
17    Transporter  account  exceeds  by  115%  the  amount annually
18    appropriated by the General Assembly, the Agency shall credit
19    participating transporters an amount,  proportionately  based
20    on the amount of the vehicle fee paid, equal to the excess in
21    the  account,  and  shall  determine  the  need to reduce the
22    amount of the fee  charged  transporters  in  the  subsequent
23    fiscal year by the amount of the credit.
24             (4) (A)  The  Agency may propose and the Board shall
25        adopt rules as necessary to  implement  and  enforce  the
26        Uniform  Program.  The Agency is authorized to enter into
27        agreements with other agencies of this State as necessary
28        to carry out administrative functions or  enforcement  of
29        the Uniform Program.
30             (B)  The  Agency  shall  recognize a Uniform Program
31        registration as valid for one year from the date a notice
32        of registration form is issued and a permit as valid  for
33        3 years from the date issued or until a transporter fails
34        to renew its registration, whichever occurs first.
 
                            -38-     LRB093 08816 EFG 12650 a
 1             (C)  The  Agency  may  inspect  or examine any motor
 2        vehicle or facility operated by a transporter,  including
 3        papers,  books, records, documents, or other materials to
 4        determine if a transporter is complying with the  Uniform
 5        Program.   The Agency may also conduct investigations and
 6        audits as necessary to  determine  if  a  transporter  is
 7        entitled  to a permit or to make suspension or revocation
 8        determinations  consistent  with  the  standards  of  the
 9        Uniform Program.
10             (5)  The  Agency  may  enter  into  agreements  with
11        federal  agencies,  national   repositories,   or   other
12        participating  states  as  necessary  to  allow  for  the
13        reciprocal  registration  and  permitting of transporters
14        pursuant to  the  Uniform  Program.  The  agreements  may
15        include  procedures  for  determining  a  base state, the
16        collection and distribution of registration fees, dispute
17        resolution, the exchange of information for reporting and
18        enforcement purposes, and other provisions  necessary  to
19        fully  implement,  administer,  and  enforce  the Uniform
20        Program.
21        (m)  (Blank).
22        (n)  (Blank).
23    (Source: P.A. 91-36, eff. 6-15-99; 92-574, eff. 6-26-02.)

24        (415 ILCS 5/28.6 new)
25        Sec. 28.6. Expedited rulemaking to  update  incorporation
26    by reference.
27        (a)  Any person may file a proposal with the Board or the
28    Agency,  whichever is appropriate, to update an incorporation
29    by reference included in a Board or Agency rule.   The  Board
30    or  the  Agency  may  also  make  such  a proposal on its own
31    initiative.
32        (b)  An expedited rulemaking to update  an  incorporation
33    by reference under this Section shall be for the sole purpose
 
                            -39-     LRB093 08816 EFG 12650 a
 1    of replacing a reference to an older or obsolete version of a
 2    document  with  a  reference  to  the current version of that
 3    document or its successor document.
 4        (c)  An expedited rulemaking to update  an  incorporation
 5    by reference under this Section shall comply with subsections
 6    (a)  and  (c)  of Section 5-75 of the Illinois Administrative
 7    Procedure Act.  Except as otherwise provided in this  Section
 8    or the rules implementing this Section, Sections 5-35 through
 9    5-50   of  the  Illinois  Administrative  Procedure  Act  and
10    Sections 27 and 28 of this Act do  not  apply  to  rulemaking
11    under this Section.
12        (d)  Within 30 days after receiving a proposal under this
13    Section,  the  Board  or the Agency shall cause notice of the
14    proposal  to  be  filed  with  the  Secretary  of  State  for
15    publication in the Illinois Register.  The  date  upon  which
16    the  notice  appears  in  the  Illinois  Register commences a
17    public comment period of 45 days, during which any person may
18    file comments on the proposal with the Board or  the  Agency,
19    whichever is applicable.
20        (e)  If  no  objection to the proposed amendment is filed
21    during the public comment period, then the proposed amendment
22    may be adopted and filed with  the  Secretary  of  State  for
23    publication  in  the  Illinois Register as a final rule.  The
24    amendment becomes effective immediately upon filing with  the
25    Secretary of State, unless a later effective date is required
26    by statute or is specified in the rulemaking.
27        (f)  If  an  objection to the proposed amendment is filed
28    during the public comment period, then the proposed amendment
29    shall not be adopted pursuant to this  Section.   Nothing  in
30    this  Section  precludes  the  adoption  of  a  change  to an
31    incorporation by reference through  other  lawful  rulemaking
32    procedures.
33        (g)  The  Board  and the Agency may each adopt procedural
34    rules to implement this Section.
 
                            -40-     LRB093 08816 EFG 12650 a
 1        (415 ILCS 5/30) (from Ch. 111 1/2, par. 1030)
 2        Sec.  30.  Investigations.   The   Agency   shall   cause
 3    investigations  to  be  made upon the request of the Board or
 4    upon receipt of information concerning an  alleged  violation
 5    of  this Act, or of any rule or regulation adopted under this
 6    Act, promulgated thereunder, or of any permit granted by  the
 7    Agency  or any term or condition of a any such permit, or any
 8    Board  order,  and  may  cause  to   be   made   such   other
 9    investigations as it shall deem advisable.
10    (Source: P.A. 92-574, eff. 6-26-02.)

11        (415 ILCS 5/31) (from Ch. 111 1/2, par. 1031)
12        Sec. 31. Notice; complaint; hearing.
13        (a)(1)  Within  180  days of becoming aware of an alleged
14        violation of the Act or any rule adopted under the Act or
15        of a permit granted by the Agency  or  condition  of  the
16        permit,  the  Agency  shall issue and serve, by certified
17        mail, upon the person complained against a written notice
18        informing that person that the Agency has evidence of the
19        alleged violation.  At  a  minimum,  the  written  notice
20        shall contain:
21                  (A)  notification   to  the  person  complained
22             against of  the  requirement  to  submit  a  written
23             response  addressing  the violations alleged and the
24             option to meet with appropriate agency personnel  to
25             resolve  any  alleged  violations that could lead to
26             the filing of a formal complaint;
27                  (B)  a detailed explanation by  the  Agency  of
28             the violations alleged;
29                  (C)  an   explanation  by  the  Agency  of  the
30             actions that the Agency  believes  may  resolve  the
31             alleged  violations,  including  an  estimate  of  a
32             reasonable  time  period  for  the person complained
33             against to complete the suggested resolution; and
 
                            -41-     LRB093 08816 EFG 12650 a
 1                  (D)  an explanation of  any  alleged  violation
 2             that  the Agency believes cannot be resolved without
 3             the  involvement  of  the  Office  of  the  Illinois
 4             Attorney General or  the  State's  Attorney  of  the
 5             county  in  which the alleged violation occurred and
 6             the basis for the Agency's belief.
 7             (2)  A written response to  the  violations  alleged
 8        shall  be  submitted  to  the  Agency, by certified mail,
 9        within 45  days  of  receipt  of  notice  by  the  person
10        complained  against,  unless  the  Agency  agrees  to  an
11        extension.  The written response shall include:
12                  (A)  information  in  rebuttal,  explanation or
13             justification of each alleged violation;
14                  (B)  a proposed Compliance Commitment Agreement
15             that includes specified  times  for  achieving  each
16             commitment  and  which  may  consist  of a statement
17             indicating  that  the  person   complained   against
18             believes that compliance has been achieved; and
19                  (C)  a  request  for a meeting with appropriate
20             Agency personnel if a  meeting  is  desired  by  the
21             person complained against.
22             (3)  If  the  person  complained  against  fails  to
23        respond   in   accordance   with   the   requirements  of
24        subdivision (2) of this subsection (a),  the  failure  to
25        respond  shall be considered a waiver of the requirements
26        of this subsection (a) and nothing in this Section  shall
27        preclude   the   Agency   from   proceeding  pursuant  to
28        subsection (b) of this Section.
29             (4)  A meeting requested pursuant to subdivision (2)
30        of  this  subsection  (a)  shall  be   held   without   a
31        representative  of  the  Office  of the Illinois Attorney
32        General or the State's Attorney of the  county  in  which
33        the alleged violation occurred, within 60 days of receipt
34        of  notice  by  the person complained against, unless the
 
                            -42-     LRB093 08816 EFG 12650 a
 1        Agency agrees to a postponement.   At  the  meeting,  the
 2        Agency  shall  provide  an  opportunity  for  the  person
 3        complained  against to respond to each alleged violation,
 4        suggested resolution, and suggested  implementation  time
 5        frame, and to suggest alternate resolutions.
 6             (5)  If  a meeting requested pursuant to subdivision
 7        (2) of this subsection (a) is held, the person complained
 8        against shall, within 21 days following  the  meeting  or
 9        within  an  extended  time  period  as  agreed  to by the
10        Agency, submit by certified mail to the Agency a  written
11        response  to the alleged violations. The written response
12        shall include:
13                  (A)  additional   information   in    rebuttal,
14             explanation   or   justification   of  each  alleged
15             violation;
16                  (B)  a proposed Compliance Commitment Agreement
17             that includes specified  times  for  achieving  each
18             commitment  and  which  may  consist  of a statement
19             indicating  that  the  person   complained   against
20             believes that compliance has been achieved; and
21                  (C)  a  statement  indicating  that, should the
22             person  complained  against  so  wish,  the   person
23             complained  against chooses to rely upon the initial
24             written response submitted pursuant  to  subdivision
25             (2) of this subsection (a).
26             (6)  If  the  person  complained  against  fails  to
27        respond   in   accordance   with   the   requirements  of
28        subdivision (5) of this subsection (a),  the  failure  to
29        respond  shall be considered a waiver of the requirements
30        of this subsection (a) and nothing in this Section  shall
31        preclude   the   Agency   from   proceeding  pursuant  to
32        subsection (b) of this Section.
33             (7)  Within 30 days of the  Agency's  receipt  of  a
34        written  response  submitted  by  the  person  complained
 
                            -43-     LRB093 08816 EFG 12650 a
 1        against  pursuant  to  subdivision (2) of this subsection
 2        (a), if a meeting is not requested, or subdivision (5) of
 3        this subsection (a), if a meeting is held,  or  within  a
 4        later  time  period  as  agreed  to by the Agency and the
 5        person complained against, the  Agency  shall  issue  and
 6        serve,  by  certified  mail,  upon  the person complained
 7        against a written notice  informing  the  person  of  its
 8        acceptance,  rejection,  or  proposed modification to the
 9        proposed Compliance  Commitment  Agreement  as  contained
10        within the written response.
11             (8)  Nothing  in  this subsection (a) is intended to
12        require the Agency to enter  into  Compliance  Commitment
13        Agreements  for  any  alleged  violation  that the Agency
14        believes cannot be resolved without  the  involvement  of
15        the  Office  of  the  Attorney  General  or  the  State's
16        Attorney  of  the  county  in which the alleged violation
17        occurred, for, among other purposes,  the  imposition  of
18        statutory penalties.
19             (9)  The  Agency's  failure  to respond to a written
20        response submitted pursuant to subdivision  (2)  of  this
21        subsection  (a),  if  a  meeting  is  not  requested,  or
22        subdivision  (5)  of this subsection (a), if a meeting is
23        held, within 30 days, or within the time period otherwise
24        agreed to  in  writing  by  the  Agency  and  the  person
25        complained  against, shall be deemed an acceptance by the
26        Agency of the proposed  Compliance  Commitment  Agreement
27        for  the  violations alleged in the written notice issued
28        under subdivision (1) of this subsection (a) as contained
29        within the written response.
30             (10)  If the person complained against complies with
31        the terms of a Compliance Commitment  Agreement  accepted
32        pursuant  to  this  subsection  (a), the Agency shall not
33        refer the alleged violations which are the subject of the
34        Compliance Commitment Agreement  to  the  Office  of  the
 
                            -44-     LRB093 08816 EFG 12650 a
 1        Illinois  Attorney General or the State's Attorney of the
 2        county in which the alleged violation occurred.  However,
 3        nothing  in  this  subsection is intended to preclude the
 4        Agency  from  continuing  negotiations  with  the  person
 5        complained against or from  proceeding  pursuant  to  the
 6        provisions  of subsection (b) of this Section for alleged
 7        violations  which  remain  the  subject  of  disagreement
 8        between the Agency  and  the  person  complained  against
 9        following   fulfillment   of  the  requirements  of  this
10        subsection (a).
11             (11)  Nothing in this subsection (a) is intended  to
12        preclude the person complained against from submitting to
13        the  Agency, by certified mail, at any time, notification
14        that the person complained against consents to waiver  of
15        the  requirements  of  subsections  (a)  and  (b) of this
16        Section.
17        (b)  For alleged violations that remain  the  subject  of
18    disagreement  between  the  Agency  and the person complained
19    against  following  fulfillment  of   the   requirements   of
20    subsection  (a) of this Section, and as a precondition to the
21    Agency's referral or request to the Office  of  the  Illinois
22    Attorney  General  or  the  State's Attorney of the county in
23    which the alleged violation occurred for legal representation
24    regarding an alleged violation that may be addressed pursuant
25    to subsection (c) or (d)  of  this  Section  or  pursuant  to
26    Section  42 of this Act, the Agency shall issue and serve, by
27    certified mail, upon the person complained against a  written
28    notice  informing  that  person  that  the  Agency intends to
29    pursue legal action.   Such notice shall  notify  the  person
30    complained  against of the violations to be alleged and offer
31    the person an opportunity to  meet  with  appropriate  Agency
32    personnel in an effort to resolve any alleged violations that
33    could  lead  to the filing of a formal complaint. The meeting
34    with Agency personnel shall be held within 30 days of receipt
 
                            -45-     LRB093 08816 EFG 12650 a
 1    of notice served pursuant to this subsection upon the  person
 2    complained   against,   unless   the   Agency   agrees  to  a
 3    postponement or the person notifies the Agency that he or she
 4    will not appear at a meeting within the 30 day  time  period.
 5    Nothing in this subsection is intended to preclude the Agency
 6    from  following  the  provisions  of subsection (c) or (d) of
 7    this Section or from requesting the legal  representation  of
 8    the  Office  of  the Illinois Attorney General or the State's
 9    Attorney of  the  county  in  which  the  alleged  violations
10    occurred  for  alleged violations which remain the subject of
11    disagreement between the Agency  and  the  person  complained
12    against   after   the   provisions  of  this  subsection  are
13    fulfilled.
14          (c)(1) For alleged violations which remain the  subject
15        of   disagreement  between  the  Agency  and  the  person
16        complained  against   following   waiver,   pursuant   to
17        subdivision  (10)  of  subsection (a) of this Section, or
18        fulfillment of the requirements of  subsections  (a)  and
19        (b)  of this Section, the Office of the Illinois Attorney
20        General or the State's Attorney of the  county  in  which
21        the alleged violation occurred shall issue and serve upon
22        the  person complained against a written notice, together
23        with  a  formal  complaint,  which  shall   specify   the
24        provision  of the Act or the rule or regulation or permit
25        or term or condition thereof under which such  person  is
26        said  to  be  in violation, and a statement of the manner
27        in, and the extent  to  which  such  person  is  said  to
28        violate  the  Act or such rule or regulation or permit or
29        term or condition thereof and shall require the person so
30        complained against to answer the charges of  such  formal
31        complaint  at  a  hearing  before the Board at a time not
32        less than 21 days after the date of notice by the  Board,
33        except  as  provided  in  Section  34  of  this Act. Such
34        complaint shall be accompanied by a notification  to  the
 
                            -46-     LRB093 08816 EFG 12650 a
 1        defendant  that  financing  may be available, through the
 2        Illinois  Environmental  Facilities  Financing  Act,   to
 3        correct  such  violation.   A copy of such notice of such
 4        hearings shall also  be  sent  to  any  person  that  has
 5        complained to the Agency respecting the respondent within
 6        the  six  months preceding the date of the complaint, and
 7        to any person  in  the  county  in  which  the  offending
 8        activity   occurred   that   has   requested   notice  of
 9        enforcement proceedings; 21 days notice of such  hearings
10        shall  also  be  published  in  a  newspaper  of  general
11        circulation  in  such  county.  The respondent may file a
12        written answer, and at such hearing the rules  prescribed
13        in  Sections  32  and 33 of this Act shall apply.  In the
14        case  of  actual  or  threatened  acts  outside  Illinois
15        contributing to environmental  damage  in  Illinois,  the
16        extraterritorial    service-of-process    provisions   of
17        Sections 2-208 and 2-209 of the Code of  Civil  Procedure
18        shall apply.
19             With  respect  to  notices  served  pursuant to this
20        subsection (c)(1) which  involve  hazardous  material  or
21        wastes in any manner, the Agency shall annually publish a
22        list  of all such notices served.  The list shall include
23        the date the investigation commenced, the date notice was
24        sent, the date the matter was referred  to  the  Attorney
25        General,  if  applicable,  and  the current status of the
26        matter.
27             (2)  Notwithstanding the provisions  of  subdivision
28        (1) of this subsection (c), whenever a complaint has been
29        filed  on  behalf  of  the Agency or by the People of the
30        State of Illinois, the parties may file with the Board  a
31        stipulation  and proposal for settlement accompanied by a
32        request for relief from  the  requirement  of  a  hearing
33        pursuant  to  subdivision  (1).  Unless the Board, in its
34        discretion, concludes that a hearing will  be  held,  the
 
                            -47-     LRB093 08816 EFG 12650 a
 1        Board shall cause notice of the stipulation, proposal and
 2        request  for  relief to be published and sent in the same
 3        manner as is required for hearing pursuant to subdivision
 4        (1) of  this  subsection.  The  notice  shall  include  a
 5        statement  that  any person may file a written demand for
 6        hearing within 21 days after receiving the notice. If any
 7        person files a timely written  demand  for  hearing,  the
 8        Board  shall  deny  the request for relief from a hearing
 9        and  shall  hold  a  hearing  in  accordance   with   the
10        provisions of subdivision (1).
11             (3)  Notwithstanding  the  provisions of subdivision
12        (1) of this subsection (c), if the Agency  becomes  aware
13        of  a  violation of this Act arising from, or as a result
14        of, voluntary pollution prevention activities, the Agency
15        shall not proceed with the  written  notice  required  by
16        subsection (a) of this Section unless:
17                  (A)  the person fails to take corrective action
18             or   eliminate   the  reported  violation  within  a
19             reasonable time; or
20                  (B)  the Agency  believes  that  the  violation
21             poses  a  substantial  and  imminent  danger  to the
22             public health or welfare or  the  environment.   For
23             the  purposes  of  this  item  (B), "substantial and
24             imminent danger" means a danger with a likelihood of
25             serious or irreversible harm.
26             (d)(1)  Any  person  may  file  with  the  Board   a
27        complaint,  meeting the requirements of subsection (c) of
28        this Section, against any person allegedly violating this
29        Act, any rule or regulation adopted under this  Act,  any
30        permit  or  term  or  condition of a permit, or any Board
31        order. or any rule or regulation thereunder or any permit
32        or term or  condition  thereof.   The  complainant  shall
33        immediately  serve  a  copy  of  such  complaint upon the
34        person  or  persons  named  therein.   Unless  the  Board
 
                            -48-     LRB093 08816 EFG 12650 a
 1        determines  that  such  complaint   is   duplicative   or
 2        frivolous,  it shall schedule a hearing and serve written
 3        notice thereof upon the person or persons named  therein,
 4        in accord with subsection (c) of this Section.
 5             (2)  Whenever a complaint has been filed by a person
 6        other  than the Attorney General or the State's Attorney,
 7        the parties may file with the  Board  a  stipulation  and
 8        proposal  for  settlement  accompanied  by  a request for
 9        relief from the hearing requirement of subdivision (c)(1)
10        of this Section.  Unless the Board,  in  its  discretion,
11        concludes  that  a  hearing should be held, no hearing on
12        the stipulation and proposal for settlement is required.
13        (e)  In hearings before the Board under  this  Title  the
14    burden  shall  be  on the Agency or other complainant to show
15    either that the respondent has caused or threatened to  cause
16    air or water pollution or that the respondent has violated or
17    threatens to violate any provision of this Act or any rule or
18    regulation  of  the  Board  or  permit  or  term or condition
19    thereof.  If such proof has been made, the burden shall be on
20    the respondent to  show  that  compliance  with  the  Board's
21    regulations   would   impose  an  arbitrary  or  unreasonable
22    hardship.
23        (f)  The provisions of this Section shall  not  apply  to
24    administrative  citation actions commenced under Section 31.1
25    of this Act.
26    (Source: P.A. 92-574, eff. 6-26-02.)

27        (415 ILCS 5/33) (from Ch. 111 1/2, par. 1033)
28        Sec. 33. Board orders.
29        (a)  After due consideration  of  the  written  and  oral
30    statements,   the  testimony  and  arguments  that  shall  be
31    submitted at the hearing, or upon default  in  appearance  of
32    the  respondent  on  return  day specified in the notice, the
33    Board shall issue and enter such final order,  or  make  such
 
                            -49-     LRB093 08816 EFG 12650 a
 1    final  determination,  as it shall deem appropriate under the
 2    circumstances.  It shall not be  a  defense  to  findings  of
 3    violations  of  the  provisions  of  this  Act,  any  rule or
 4    regulation adopted under this Act,  any  permit  or  term  or
 5    condition  of  a permit, or any Board order, the Act or Board
 6    regulations or a bar to the  assessment  of  civil  penalties
 7    that  the  person  has come into compliance subsequent to the
 8    violation,  except  where  such  action  is  barred  by   any
 9    applicable  State  or  federal statute of limitation.  In all
10    such matters the Board  shall  file  and  publish  a  written
11    opinion   stating  the  facts  and  reasons  leading  to  its
12    decision.  The Board shall immediately notify the  respondent
13    of such order in writing by registered mail.
14        (b)  Such  order  may  include  a  direction to cease and
15    desist from violations of this Act, any  rule  or  regulation
16    adopted  under this Act, any permit or term or condition of a
17    permit, or any Board order the Act or of  the  Board's  rules
18    and  regulations  any  permit  or  term or condition thereof,
19    and/or the imposition by the  Board  of  civil  penalties  in
20    accord  with  Section  42  of  this  Act.  The Board may also
21    revoke the permit as a penalty for violation.  If such  order
22    includes  a  reasonable  delay  during  which  to  correct  a
23    violation,  the  Board  may require the posting of sufficient
24    performance bond or other security to assure  the  correction
25    of such violation within the time prescribed.
26        (c)  In  making  its orders and determinations, the Board
27    shall take into consideration all the facts and circumstances
28    bearing upon the reasonableness of the emissions,  discharges
29    or deposits involved including, but not limited to:
30             (i)  the  character  and  degree  of  injury  to, or
31        interference with the protection of the  health,  general
32        welfare and physical property of the people;
33             (ii)  the social and economic value of the pollution
34        source;
 
                            -50-     LRB093 08816 EFG 12650 a
 1             (iii)  the   suitability  or  unsuitability  of  the
 2        pollution source to the area  in  which  it  is  located,
 3        including  the  question  of  priority of location in the
 4        area involved;
 5             (iv)  the  technical  practicability  and   economic
 6        reasonableness  of reducing or eliminating the emissions,
 7        discharges or  deposits  resulting  from  such  pollution
 8        source; and
 9             (v)  any subsequent compliance.
10        Whenever  a  proceeding  before  the Board may affect the
11    right of the public individually or collectively to  the  use
12    of   community  sewer  or  water  facilities  provided  by  a
13    municipally owned or publicly regulated  company,  the  Board
14    shall  at  least  30  days prior to the scheduled date of the
15    first hearing in such proceeding, give notice  of  the  date,
16    time,   place,   and   purpose  of  such  hearing  by  public
17    advertisement in a newspaper of general  circulation  in  the
18    area  of  the State concerned. The Board shall conduct a full
19    and complete hearing into  the  social  and  economic  impact
20    which would result from restriction or denial of the right to
21    use  such  facilities  and  allow  all  persons  claiming  an
22    interest to intervene as parties and present evidence of such
23    social and economic impact.
24        (d)  All  orders issued and entered by the Board pursuant
25    to this Section shall be enforceable by injunction, mandamus,
26    or other appropriate remedy, in accordance with Section 42 of
27    this Act.
28    (Source: P.A. 85-1041; 86-1363.)

29        (415 ILCS 5/35) (from Ch. 111 1/2, par. 1035)
30        Sec. 35.  Variances; general provisions.  To  the  extent
31    consistent  with  applicable  provisions of the Federal Water
32    Pollution Control Act,  as  now  or  hereafter  amended,  the
33    Federal  Safe  Drinking  Water  Act  (P.L. 93-523), as now or
 
                            -51-     LRB093 08816 EFG 12650 a
 1    hereafter amended, the Clean Air Act as amended in 1977 (P.L.
 2    95-95), and regulations pursuant thereto, and to  the  extent
 3    consistent with applicable provisions of the Federal Resource
 4    Conservation  and  Recovery  Act  of  1976 (P.L. 94-580), and
 5    regulations pursuant thereto:,
 6        (a)  The Board may grant individual variances beyond  the
 7    limitations  prescribed  in  this  Act, whenever it is found,
 8    upon presentation of adequate proof, that compliance with any
 9    rule or regulation, requirement or order of the  Board  would
10    impose  an  arbitrary or unreasonable hardship.  However, the
11    Board  is  not  required  to  find  that  an   arbitrary   or
12    unreasonable   hardship   exists   exclusively   because  the
13    regulatory  standard  is  under  review  and  the  costs   of
14    compliance  are  substantial  and  certain.   In  granting or
15    denying a variance the Board shall file and publish a written
16    opinion  stating  the  facts  and  reasons  leading  to   its
17    decision.
18        (b)  The  Agency  Board shall grant provisional variances
19    whenever it is found, upon presentation  of  adequate  proof,
20    only  upon  notification from the Agency that compliance on a
21    short term basis with any rule or regulation, requirement  or
22    order  of  the  Board,  or with any permit requirement, would
23    impose  an   arbitrary   or   unreasonable   hardship.   Such
24    provisional  variances  shall be issued within 2 working days
25    of notification from the Agency.
26    (Source: P.A. 86-671.)

27        (415 ILCS 5/36) (from Ch. 111 1/2, par. 1036)
28        Sec. 36. Variances and provisional variances.
29        (a)  In granting a variance the  Board  may  impose  such
30    conditions  as  the policies of this Act may require.  If the
31    hardship complained of consists solely  of  the  need  for  a
32    reasonable  delay in which to correct a violation of this Act
33    or of the Board regulations, the Board  shall  condition  the
 
                            -52-     LRB093 08816 EFG 12650 a
 1    grant  of  such  variance  upon  the  posting  of  sufficient
 2    performance  bond  or other security to assure the completion
 3    of the work covered by the variance.  The Board shall have no
 4    authority to delegate to the Agency  its  powers  to  require
 5    such   performance   bond.   The   original  amount  of  such
 6    performance bond shall not exceed the reasonable cost of  the
 7    work to be completed pursuant to the variance. The obligation
 8    under  such  bond shall at no time exceed the reasonable cost
 9    of work remaining pursuant to the variance.
10        (b)  Except as provided by Section 38 of  this  Act,  any
11    variance  granted  pursuant to the provisions of this Section
12    shall be granted for such period of time, not exceeding  five
13    years,  as shall be specified by the Board at the time of the
14    grant of such variance,  and  upon  the  condition  that  the
15    person  who  receives  such variance shall make such periodic
16    progress reports as the Board shall specify.   Such  variance
17    may  be  extended  from year to year by affirmative action of
18    the Board, but only if satisfactory progress has been shown.
19        (c)  Any provisional variance granted by the Agency Board
20    pursuant to subsection (b) of  Section  35  shall  be  for  a
21    period of time not to exceed 45 days.  A provisional variance
22    may  be  extended  Upon  receipt of a recommendation from the
23    Agency to extend this time period, the Board shall  grant  up
24    to  an  additional 45 days by written decision of the Agency.
25    The provisional variances granted to any one person shall not
26    exceed a total of 90 days during any calendar year.
27    (Source: P.A. 81-1442.)

28        (415 ILCS 5/37) (from Ch. 111 1/2, par. 1037)
29        Sec. 37. Variances; procedures.
30        (a) Any person seeking a variance pursuant to  subsection
31    (a)  of  Section  35  shall  do  so  by filing a petition for
32    variance with the Board and the Agency.   Any  person  filing
33    such  a  petition  shall  pay a filing fee.  The Agency shall
 
                            -53-     LRB093 08816 EFG 12650 a
 1    promptly give written notice of such petition to  any  person
 2    in the county in which the installation or property for which
 3    variance  is  sought  is located who has in writing requested
 4    notice of variance petitions, the State's  attorney  of  such
 5    county,  the Chairman of the County Board of such county, and
 6    to each member of the General Assembly from  the  legislative
 7    district  in  which that installation or property is located,
 8    and shall publish a single  notice  of  such  petition  in  a
 9    newspaper of general circulation in such county.  The notices
10    required  by  this  Section shall include the street address,
11    and if there is no street address then the legal  description
12    or  the  location  with reference to any well known landmark,
13    highway, road, thoroughfare or intersection.
14        The Agency shall promptly investigate such  petition  and
15    consider the views of persons who might be adversely affected
16    by  the  grant  of  a  variance.  The  Agency  shall  make  a
17    recommendation  to  the  Board  as  to the disposition of the
18    petition.  If the Board, in its discretion, concludes that  a
19    hearing  would  be  advisable,  or if the Agency or any other
20    person files  a  written  objection  to  the  grant  of  such
21    variance  within 21 days, together with a written request for
22    hearing, then a  hearing  shall  be  held,  under  the  rules
23    prescribed  in  Sections  32  and 33 (a) of this Act, and the
24    burden of proof shall be on the petitioner.
25        (b)  Any person seeking a provisional  variance  pursuant
26    to  subsection  (b) of Section 35 shall make a request to the
27    Agency.  The Agency shall promptly investigate  and  consider
28    the  merits  of the request.  The Agency may notify the Board
29    of its recommendation.  If the Agency  fails  to  take  final
30    action  within  30  days  after  receipt of the request for a
31    provisional variance, or if the Agency  denies  the  request,
32    the  person  may  initiate  a proceeding with the Board under
33    subsection (a) of Section 35.
34        If the Agency grants a  provisional variance, the  Agency
 
                            -54-     LRB093 08816 EFG 12650 a
 1    must  promptly  file  a copy of its written decision with the
 2    Board, and the Board shall give prompt notice of  its  action
 3    to  the public by issuing a press release for distribution to
 4    newspapers of general circulation in the county.   The  Board
 5    must maintain for public inspection copies of all provisional
 6    variances filed with it by the Agency.
 7    (Source: P.A. 87-914; 88-474.)

 8        (415 ILCS 5/42) (from Ch. 111 1/2, par. 1042)
 9        Sec. 42. Civil penalties.
10        (a)  Except  as provided in this Section, any person that
11    violates any provision of this Act or any regulation  adopted
12    by  the Board, or any permit or term or condition thereof, or
13    that  violates  any  determination  or  order  of  the  Board
14    pursuant to this Act, shall be liable for to a civil  penalty
15    of  not to exceed $50,000 for the violation and an additional
16    civil penalty of not to exceed $10,000 for  each  day  during
17    which the violation continues; such penalties may, upon order
18    of  the  Board  or a court of competent jurisdiction, be made
19    payable to the Environmental Protection  Trust  Fund,  to  be
20    used  in  accordance with the provisions of the Environmental
21    Protection Trust Fund Act.
22        (b)  Notwithstanding the provisions of subsection (a)  of
23    this Section:
24             (1)  Any  person that violates Section 12(f) of this
25        Act or any NPDES permit or term or condition thereof,  or
26        any  filing  requirement, regulation or order relating to
27        the NPDES permit program, shall  be  liable  to  a  civil
28        penalty of not to exceed $10,000 per day of violation.
29             (2)  Any  person that violates Section 12(g) of this
30        Act or any UIC permit or term or  condition  thereof,  or
31        any  filing  requirement, regulation or order relating to
32        the State UIC program for  all  wells,  except  Class  II
33        wells  as  defined  by the Board under this Act, shall be
 
                            -55-     LRB093 08816 EFG 12650 a
 1        liable to a civil penalty not to exceed $2,500 per day of
 2        violation; provided, however, that any person who commits
 3        such violations relating to the  State  UIC  program  for
 4        Class  II  wells, as defined by the Board under this Act,
 5        shall be liable to a  civil  penalty  of  not  to  exceed
 6        $10,000 for the violation and an additional civil penalty
 7        of  not  to  exceed  $1,000 for each day during which the
 8        violation continues.
 9             (3)  Any person that violates Sections 21(f), 21(g),
10        21(h) or 21(i) of this Act, or any RCRA permit or term or
11        condition thereof, or any filing requirement,  regulation
12        or  order  relating  to  the State RCRA program, shall be
13        liable to a civil penalty of not to  exceed  $25,000  per
14        day of violation.
15             (4)  In  an  administrative  citation  action  under
16        Section  31.1  of  this  Act,  any  person  found to have
17        violated any provision of subsection (o) of Section 21 of
18        this Act shall pay a  civil  penalty  of  $500  for  each
19        violation  of each such provision, plus any hearing costs
20        incurred by the Board and  the  Agency.   Such  penalties
21        shall  be  made  payable  to the Environmental Protection
22        Trust Fund, to be used in accordance with the  provisions
23        of  the  Environmental  Protection Trust Fund Act; except
24        that  if  a  unit  of   local   government   issued   the
25        administrative  citation,  50% of the civil penalty shall
26        be payable to the unit of local government.
27             (4-5)  In an administrative  citation  action  under
28        Section  31.1  of  this  Act,  any  person  found to have
29        violated any provision of subsection (p) of Section 21 of
30        this Act shall pay a civil penalty  of  $1,500  for  each
31        violation  of each such provision, plus any hearing costs
32        incurred by the Board and the  Agency,  except  that  the
33        civil  penalty amount shall be a first offense and $3,000
34        for each violation of any provision of subsection (p)  of
 
                            -56-     LRB093 08816 EFG 12650 a
 1        Section  21  that  is the person's a second or subsequent
 2        adjudicated violation of that provision offense, plus any
 3        hearing costs incurred by the Board and the Agency.   The
 4        penalties  shall  be  deposited  into  the  Environmental
 5        Protection  Trust Fund, to be used in accordance with the
 6        provisions of the  Environmental  Protection  Trust  Fund
 7        Act; except that if a unit of local government issued the
 8        administrative  citation,  50% of the civil penalty shall
 9        be payable to the unit of local government.
10             (5)  Any person who violates subsection 6 of Section
11        39.5 of  this  Act  or  any  CAAPP  permit,  or  term  or
12        condition  thereof,  or any fee or filing requirement, or
13        any duty to allow  or  carry  out  inspection,  entry  or
14        monitoring   activities,   or  any  regulation  or  order
15        relating to the CAAPP shall be liable for a civil penalty
16        not to exceed $10,000 per day of violation.
17        (b.5)  In lieu of the penalties set forth in  subsections
18    (a) and (b) of this Section, any person who fails to file, in
19    a timely manner, toxic chemical release forms with the Agency
20    pursuant  to  Section 25b-2 of this Act shall be liable for a
21    civil penalty of $100 per day for  each  day  the  forms  are
22    late,  not to exceed a maximum total penalty of $6,000.  This
23    daily penalty shall begin accruing on  the  thirty-first  day
24    after  the  date  that the person receives the warning notice
25    issued by the Agency pursuant to Section 25b-6 of  this  Act;
26    and  the  penalty  shall  be  paid  to  the Agency. The daily
27    accrual of penalties shall cease  as  of  January  1  of  the
28    following   year.  All  penalties  collected  by  the  Agency
29    pursuant to this  subsection  shall  be  deposited  into  the
30    Environmental Protection Permit and Inspection Fund.
31        (c)  Any  person  that  violates  this  Act,  any rule or
32    regulation adopted under this Act,  any  permit  or  term  or
33    condition  of  a  permit,  or  any Board order or an order or
34    other determination of the Board under this  Act  and  causes
 
                            -57-     LRB093 08816 EFG 12650 a
 1    the  death  of fish or aquatic life shall, in addition to the
 2    other penalties provided by this Act, be liable to pay to the
 3    State an additional sum for the reasonable value of the  fish
 4    or  aquatic  life destroyed.  Any money so recovered shall be
 5    placed in the Wildlife and Fish Fund in the State Treasury.
 6        (d)  The penalties provided for in this  Section  may  be
 7    recovered in a civil action.
 8        (e)  The  State's  Attorney  of  the  county in which the
 9    violation occurred, or the  Attorney  General,  may,  at  the
10    request of the Agency or on his own motion, institute a civil
11    action  for an injunction to restrain violations of this Act,
12    any rule or regulation adopted under this Act, any permit  or
13    term or condition of a permit, or any Board order.
14        (f)  The  State's  Attorney  of  the  county in which the
15    violation occurred, or the Attorney General, shall bring such
16    actions in the name of the people of the State  of  Illinois.
17    Without  limiting any other authority which may exist for the
18    awarding of attorney's fees and costs, the Board or  a  court
19    of  competent  jurisdiction  may  award  costs and reasonable
20    attorney's fees, including the  reasonable  costs  of  expert
21    witnesses  and  consultants,  to  the State's Attorney or the
22    Attorney General in a case where he has prevailed  against  a
23    person  who  has  committed  a  wilful,  knowing  or repeated
24    violation of this Act, any rule or regulation  adopted  under
25    this Act, any permit or term or condition of a permit, or any
26    Board order the Act.
27        Any  funds  collected  under this subsection (f) in which
28    the Attorney General has prevailed shall be deposited in  the
29    Hazardous  Waste  Fund  created  in Section 22.2 of this Act.
30    Any funds collected under this  subsection  (f)  in  which  a
31    State's  Attorney  has  prevailed  shall  be  retained by the
32    county in which he serves.
33        (g)  All final orders imposing civil  penalties  pursuant
34    to  this Section shall prescribe the time for payment of such
 
                            -58-     LRB093 08816 EFG 12650 a
 1    penalties.  If any such penalty is not paid within  the  time
 2    prescribed, interest on such penalty at the rate set forth in
 3    subsection  (a)  of  Section  1003 of the Illinois Income Tax
 4    Act, shall be paid for the period from the  date  payment  is
 5    due until the date payment is received.  However, if the time
 6    for  payment  is  stayed  during  the  pendency of an appeal,
 7    interest shall not accrue during such stay.
 8        (h)  In determining the appropriate civil penalty  to  be
 9    imposed  under subdivisions  (a), (b)(1), (b)(2),  (b)(3), or
10    (b)(5)  of  this Section, the Board is authorized to consider
11    any  matters  of  record  in  mitigation  or  aggravation  of
12    penalty, including but not limited to the following factors:
13             (1)  the duration and gravity of the violation;
14             (2)  the presence or absence of due diligence on the
15        part  of  the  violator  in  attempting  to  comply  with
16        requirements of this Act and regulations thereunder or to
17        secure relief therefrom as provided by this Act;
18             (3)  any economic benefits accrued by  the  violator
19        because of delay in compliance with requirements;
20             (4)  the amount of monetary penalty which will serve
21        to  deter  further  violations  by  the  violator  and to
22        otherwise aid in enhancing voluntary compliance with this
23        Act by the violator and other persons  similarly  subject
24        to the Act; and
25             (5)  the  number,  proximity in time, and gravity of
26        previously adjudicated violations  of  this  Act  by  the
27        violator.
28    (Source: P.A. 90-773, eff. 8-14-98; 91-82, eff. 1-1-00.)

29        (415 ILCS 5/45) (from Ch. 111 1/2, par. 1045)
30        Sec. 45. Injunctive and other relief.
31        (a)  No   existing  civil  or  criminal  remedy  for  any
32    wrongful action shall be excluded or impaired  by  this  Act.
33    Nothing  in this Act shall be construed to limit or supersede
 
                            -59-     LRB093 08816 EFG 12650 a
 1    the provisions of the Illinois Oil and Gas Act and the powers
 2    therein granted to prevent the intrusion of water  into  oil,
 3    gas  or  coal  strata  and  to prevent the pollution of fresh
 4    water supplies by oil, gas or salt water or oil field wastes,
 5    except that water quality  standards  as  set  forth  by  the
 6    Pollution Control Board apply to and are effective within the
 7    areas  covered  by  and  affected  by  permits  issued by the
 8    Department of Natural Resources.  However, if the  Department
 9    of Natural Resources fails to act upon any complaint within a
10    period  of  10  working  days  following  the  receipt  of  a
11    complaint  by  the  Department,  the Environmental Protection
12    Agency may proceed under the provisions of this Act.
13        (b)  Any person adversely affected in fact by a violation
14    of this Act, any rule or regulation adopted under  this  Act,
15    or  any permit or term or condition of a permit, or any Board
16    order may sue for injunctive relief against  such  violation.
17    However, except as provided in subsections subsection (d) and
18    (e),  no  action shall be brought under this Section until 30
19    days after the plaintiff has been denied relief by the  Board
20    in  a  proceeding brought under subdivision (d)(1) subsection
21    (d) of Section 31 of this Act.  The prevailing party shall be
22    awarded costs and reasonable attorneys' fees.
23        (c)  Nothing in Section 39.4 of this Act shall limit  the
24    authority of the Agency to proceed with enforcement under the
25    provisions of this Act for violations of terms and conditions
26    of  an  endorsed  agrichemical  facility  permit, an endorsed
27    lawncare containment  permit,  or  this  Act  or  regulations
28    hereunder caused or threatened by an agrichemical facility or
29    a  lawncare  wash water containment area, provided that prior
30    notice is  given  to  the  Department  of  Agriculture  which
31    provides   that  Department  an  opportunity  to  respond  as
32    appropriate.
33        (d)  If the State brings an action under this Act against
34    a person with an interest in real  property  upon  which  the
 
                            -60-     LRB093 08816 EFG 12650 a
 1    person  is  alleged  to  have  allowed  open  dumping or open
 2    burning by a third party in  violation  of  this  Act,  which
 3    action  seeks  to compel the defendant to remove the waste or
 4    otherwise clean up the site, the defendant may, in the manner
 5    provided by law for third-party complaints,  bring  in  as  a
 6    third-party  defendant  a  person  who  with actual knowledge
 7    caused or contributed to the illegal  open  dumping  or  open
 8    burning,  or  who  is or may be liable for all or part of the
 9    removal and cleanup costs.  The court may include any of  the
10    parties  which  it determines to have, with actual knowledge,
11    allowed, caused or contributed to the illegal open dumping or
12    open burning in any order that it may issue to compel removal
13    of the waste and cleanup of the site, and may  apportion  the
14    removal  and  cleanup  costs  among such parties, as it deems
15    appropriate. However, a person may not seek  to  recover  any
16    fines or civil penalties imposed upon him under this Act from
17    a  third-party  defendant  in  an  action  brought under this
18    subsection.
19        (e)  A final  order  issued  by  the  Board  pursuant  to
20    Section 33 of this Act may be enforced through a civil action
21    for injunctive or other relief instituted by a person who was
22    a  party  to  the  Board  enforcement proceeding in which the
23    Board issued the final order.
24    (Source: P.A. 91-357, eff. 7-29-99; 92-574, eff. 6-26-02.)

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