Full Text of HB5387 96th General Assembly
HB5387 96TH GENERAL ASSEMBLY
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96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010 HB5387
Introduced 2/5/2010, by Rep. Thomas Holbrook SYNOPSIS AS INTRODUCED: |
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415 ILCS 5/42 |
from Ch. 111 1/2, par. 1042 |
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Amends the Environmental Protection Act. Makes a technical change in a
Section concerning civil penalties.
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A BILL FOR
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HB5387 |
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LRB096 18440 JDS 33818 b |
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| AN ACT concerning safety.
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| Be it enacted by the People of the State of Illinois, | 3 |
| represented in the General Assembly:
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| Section 5. The Environmental Protection Act is amended by | 5 |
| changing Section 42 as follows:
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| (415 ILCS 5/42) (from Ch. 111 1/2, par. 1042)
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| Sec. 42. Civil penalties.
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| (a) Except as provided in this Section, any person that | 9 |
| that violates any
provision of this Act or any regulation | 10 |
| adopted by the Board, or any permit
or term or condition | 11 |
| thereof, or that violates any order of the Board pursuant
to | 12 |
| this Act, shall be liable for a civil penalty of not to exceed
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| $50,000 for the violation and an additional civil penalty of | 14 |
| not to exceed
$10,000 for each day during which the violation | 15 |
| continues; such penalties may,
upon order of the Board or a | 16 |
| court of competent jurisdiction, be made payable
to the | 17 |
| Environmental Protection Trust Fund, to be used in accordance | 18 |
| with the
provisions of the Environmental Protection Trust Fund | 19 |
| Act.
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| (b) Notwithstanding the provisions of subsection (a) of | 21 |
| this Section:
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| (1) Any person that violates Section 12(f) of this Act | 23 |
| or any
NPDES permit or term or condition thereof, or any |
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| filing requirement,
regulation or order relating to the | 2 |
| NPDES permit program, shall be liable
to a civil penalty of | 3 |
| not to exceed $10,000 per day of violation.
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| (2) Any person that violates Section 12(g) of this Act | 5 |
| or any UIC permit
or term or condition thereof, or any | 6 |
| filing requirement, regulation or order
relating to the | 7 |
| State UIC program for all wells, except Class II wells as
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| defined by the Board under this Act, shall be liable to a | 9 |
| civil penalty
not to exceed $2,500 per day of violation; | 10 |
| provided, however, that any person
who commits such | 11 |
| violations relating to the State UIC program for Class
II | 12 |
| wells, as defined by the Board under this Act, shall be | 13 |
| liable to a civil
penalty of not to exceed $10,000 for the | 14 |
| violation and an additional civil
penalty of not to exceed | 15 |
| $1,000 for each day during which the violation
continues.
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| (3) Any person that violates Sections 21(f), 21(g), | 17 |
| 21(h) or 21(i) of
this Act, or any RCRA permit or term or | 18 |
| condition thereof, or any filing
requirement, regulation | 19 |
| or order relating to the State RCRA program, shall
be | 20 |
| liable to a civil penalty of not to exceed $25,000 per day | 21 |
| of violation.
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| (4)
In an administrative citation action under Section | 23 |
| 31.1 of this Act,
any person found to have violated any | 24 |
| provision of subsection (o) of
Section 21 of this Act shall | 25 |
| pay a civil penalty of $500 for each
violation of each such | 26 |
| provision, plus any hearing costs incurred by the Board
and |
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| the Agency. Such penalties shall be made payable to the | 2 |
| Environmental
Protection Trust Fund, to be used in | 3 |
| accordance with the provisions of the
Environmental | 4 |
| Protection Trust Fund Act; except that if a unit of local
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| government issued the administrative citation, 50% of the | 6 |
| civil penalty shall
be payable to the unit of local | 7 |
| government.
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| (4-5) In an administrative citation action under | 9 |
| Section 31.1 of this
Act, any person found to have violated | 10 |
| any
provision of subsection (p) of
Section 21 or subsection | 11 |
| (k) of Section 55 of this Act shall pay a civil penalty of | 12 |
| $1,500 for each violation
of
each such provision, plus any | 13 |
| hearing costs incurred by the Board and the
Agency, except | 14 |
| that the civil penalty amount shall be $3,000 for
each | 15 |
| violation of any provision of subsection (p) of Section 21 | 16 |
| or subsection (k) of Section 55 that is the
person's second | 17 |
| or subsequent adjudication violation of that
provision. | 18 |
| The penalties shall be deposited into the
Environmental | 19 |
| Protection Trust Fund, to be used in accordance with the
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| provisions of the Environmental Protection Trust Fund Act; | 21 |
| except that if a
unit of local government issued the | 22 |
| administrative citation, 50% of the civil
penalty shall be | 23 |
| payable to the unit of local government.
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| (5) Any person who violates subsection 6 of Section | 25 |
| 39.5 of this Act
or any CAAPP permit, or term or condition | 26 |
| thereof, or any fee or filing
requirement, or any duty to |
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| allow or carry out inspection, entry or
monitoring | 2 |
| activities, or any regulation or order relating to the | 3 |
| CAAPP
shall be liable for a civil penalty not to exceed | 4 |
| $10,000 per day of violation.
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| (6) Any owner or operator of a community water system | 6 |
| that violates subsection (b) of Section 18.1 or subsection | 7 |
| (a) of Section 25d-3 of this Act shall, for each day of | 8 |
| violation, be liable for a civil penalty not to exceed $5 | 9 |
| for each of the premises connected to the affected | 10 |
| community water system. | 11 |
| (b.5) In lieu of the penalties set forth in subsections (a) | 12 |
| and (b) of
this Section, any person who fails to file, in a | 13 |
| timely manner, toxic
chemical release forms with the Agency | 14 |
| pursuant to Section 25b-2
of this Act
shall be liable for a | 15 |
| civil penalty of $100 per day for
each day the forms are
late, | 16 |
| not to exceed a maximum total penalty of $6,000. This daily | 17 |
| penalty
shall begin accruing on the thirty-first day after the
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| date that the person receives the warning notice issued by the | 19 |
| Agency pursuant
to Section 25b-6 of this Act; and the penalty | 20 |
| shall be paid to the Agency. The
daily accrual of penalties | 21 |
| shall cease as of January 1 of the following year.
All | 22 |
| penalties collected by the Agency pursuant to this subsection | 23 |
| shall be
deposited into the Environmental Protection Permit and | 24 |
| Inspection Fund.
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| (c) Any person that violates this Act, any rule or | 26 |
| regulation adopted under
this Act, any permit or term or |
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| condition of a permit, or any Board order and
causes the death | 2 |
| of fish
or aquatic life shall, in addition to the other | 3 |
| penalties provided by
this Act, be liable to pay to the State | 4 |
| an additional sum for the
reasonable value of the fish or | 5 |
| aquatic life destroyed. Any money so
recovered shall be placed | 6 |
| in the Wildlife and Fish Fund in the State
Treasury.
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| (d) The penalties provided for in this Section may be | 8 |
| recovered in a
civil action.
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| (e) The State's Attorney of the county in which the | 10 |
| violation
occurred, or the Attorney General, may, at the | 11 |
| request of the Agency or
on his own motion, institute a civil | 12 |
| action for an injunction, prohibitory or mandatory, to
restrain | 13 |
| violations of this Act, any rule or regulation adopted under | 14 |
| this Act,
any permit or term or condition of a permit, or any | 15 |
| Board order, or to require such other actions as may be | 16 |
| necessary to address violations of this Act, any rule or | 17 |
| regulation adopted under this Act, any permit or term or | 18 |
| condition of a permit, or any Board order.
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| (f) The State's Attorney of the county in which the | 20 |
| violation
occurred, or the Attorney General, shall bring such | 21 |
| actions in the name
of the people of the State of Illinois.
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| Without limiting any other authority which may exist for the | 23 |
| awarding
of attorney's fees and costs, the Board or a court of | 24 |
| competent
jurisdiction may award costs and reasonable | 25 |
| attorney's fees, including the
reasonable costs of expert | 26 |
| witnesses and consultants, to the State's
Attorney or the |
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| Attorney General in a case where he has prevailed against a
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| person who has committed a wilful, knowing or repeated | 3 |
| violation of this Act,
any rule or regulation adopted under | 4 |
| this Act, any permit or term or condition
of a permit, or any | 5 |
| Board order.
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| Any funds collected under this subsection (f) in which the | 7 |
| Attorney
General has prevailed shall be deposited in the
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| Hazardous Waste Fund created in Section 22.2 of this Act. Any | 9 |
| funds
collected under this subsection (f) in which a State's | 10 |
| Attorney has
prevailed shall be retained by the county in which | 11 |
| he serves.
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| (g) All final orders imposing civil penalties pursuant to | 13 |
| this Section
shall prescribe the time for payment of such | 14 |
| penalties. If any such
penalty is not paid within the time | 15 |
| prescribed, interest on such penalty
at the rate set forth in | 16 |
| subsection (a) of Section 1003 of the Illinois Income
Tax Act, | 17 |
| shall be paid for the period from the date payment is due until | 18 |
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date payment is received. However, if the time for payment | 19 |
| is stayed during
the pendency of an appeal, interest shall not | 20 |
| accrue during such stay.
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| (h) In determining the appropriate civil penalty to be | 22 |
| imposed under
subdivisions (a), (b)(1), (b)(2), (b)(3), or | 23 |
| (b)(5) of this
Section, the Board is authorized to consider any | 24 |
| matters of record in
mitigation or aggravation of penalty, | 25 |
| including but not limited to the
following factors:
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| (1) the duration and gravity of the violation;
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| (2) the presence or absence of due diligence on the | 2 |
| part of the
respondent in attempting to comply with | 3 |
| requirements of this
Act and regulations thereunder or to | 4 |
| secure relief therefrom as provided by
this Act;
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| (3) any economic benefits accrued by the respondent
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| because of delay in compliance with requirements, in which | 7 |
| case the economic
benefits shall be determined by the | 8 |
| lowest cost alternative for achieving
compliance;
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| (4) the amount of monetary penalty which will serve to | 10 |
| deter further
violations by the respondent and to otherwise | 11 |
| aid in enhancing
voluntary
compliance with this Act by the | 12 |
| respondent and other persons
similarly
subject to the Act;
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| (5) the number, proximity in time, and gravity of | 14 |
| previously
adjudicated violations of this Act by the | 15 |
| respondent;
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| (6) whether the respondent voluntarily self-disclosed, | 17 |
| in accordance
with subsection (i) of this Section, the | 18 |
| non-compliance to the Agency; and
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| (7) whether the respondent has agreed to undertake a | 20 |
| "supplemental
environmental project," which means an | 21 |
| environmentally beneficial project that
a respondent | 22 |
| agrees to undertake in settlement of an enforcement action | 23 |
| brought
under this Act, but which the respondent is not | 24 |
| otherwise legally required to
perform.
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| In determining the appropriate civil penalty to be imposed | 26 |
| under subsection
(a) or paragraph (1), (2), (3), or (5) of |
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| subsection (b) of this Section, the
Board shall ensure, in all | 2 |
| cases, that the penalty is at least as great as the
economic | 3 |
| benefits, if any, accrued by the respondent as a result of the
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| violation, unless the Board finds that imposition of such | 5 |
| penalty would result
in an arbitrary or unreasonable financial | 6 |
| hardship. However, such civil
penalty
may be off-set in whole | 7 |
| or in part pursuant to a supplemental
environmental project | 8 |
| agreed to by the complainant and the respondent.
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| (i) A person who voluntarily self-discloses non-compliance | 10 |
| to the Agency,
of which the Agency had been unaware, is | 11 |
| entitled to a 100% reduction in the
portion of the penalty that | 12 |
| is not based on the economic benefit of
non-compliance if the | 13 |
| person can
establish the following:
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| (1) that the non-compliance was discovered through an | 15 |
| environmental
audit or a compliance management system | 16 |
| documented by the regulated entity as
reflecting the | 17 |
| regulated entity's due diligence in preventing, detecting, | 18 |
| and
correcting violations;
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| (2) that the non-compliance was disclosed in writing | 20 |
| within 30 days of
the date on which the person discovered | 21 |
| it;
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| (3) that the non-compliance was discovered and | 23 |
| disclosed prior to:
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| (i) the commencement of an Agency inspection, | 25 |
| investigation, or request
for information;
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| (ii) notice of a citizen suit;
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| (iii) the filing of a complaint by a citizen, the | 2 |
| Illinois Attorney
General, or the State's Attorney of | 3 |
| the county in which the violation occurred;
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| (iv) the reporting of the non-compliance by an | 5 |
| employee of the person
without that person's | 6 |
| knowledge; or
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| (v) imminent discovery of the non-compliance by | 8 |
| the Agency;
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| (4) that the non-compliance is being corrected and any | 10 |
| environmental
harm is being remediated in a timely fashion;
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| (5) that the person agrees to prevent a recurrence of | 12 |
| the non-compliance;
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| (6) that no related non-compliance events have | 14 |
| occurred in the
past 3 years at the same facility or in the | 15 |
| past 5 years as part of a
pattern at multiple facilities | 16 |
| owned or operated by the person;
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| (7) that the non-compliance did not result in serious | 18 |
| actual
harm or present an imminent and substantial | 19 |
| endangerment to human
health or the environment or violate | 20 |
| the specific terms of any judicial or
administrative order | 21 |
| or consent agreement;
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| (8) that the person cooperates as reasonably requested | 23 |
| by the Agency
after the disclosure; and
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| (9) that the non-compliance was identified voluntarily | 25 |
| and not through a
monitoring, sampling, or auditing | 26 |
| procedure that is required by statute, rule,
permit, |
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| judicial or administrative order, or consent agreement.
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| If a person can establish all of the elements under this | 3 |
| subsection except
the element set forth in paragraph (1) of | 4 |
| this subsection, the person is
entitled to a 75% reduction in | 5 |
| the portion of the penalty that is not based
upon the economic | 6 |
| benefit of non-compliance.
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| (j) In addition to an other remedy or penalty that may
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| apply, whether civil or criminal, any person who violates | 9 |
| Section 22.52 of this Act shall be liable for an additional | 10 |
| civil penalty of up to 3 times the gross amount of any | 11 |
| pecuniary gain resulting from the violation.
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| (Source: P.A. 95-331, eff. 8-21-07; 96-603, eff. 8-24-09; | 13 |
| 96-737, eff. 8-25-09; revised 9-15-09.)
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