Full Text of SB1841 97th General Assembly
SB1841 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 SB1841 Introduced 2/9/2011, by Sen. Linda Holmes SYNOPSIS AS INTRODUCED: |
|
415 ILCS 5/31 | from Ch. 111 1/2, par. 1031 |
|
Amends the Environmental Protection Act. Requires the Environmental Protection Agency to serve each notice of alleged violation within 90 rather than 180 days after receiving a complaint alleging a violation of the Act, any rule adopted under the Act, a permit granted by the Agency, or a condition of such a permit. Prohibits the Agency from disclosing investigative data until it has served the alleged violator with a notice of the alleged violation. Defines "investigative data". Effective immediately.
|
| |
| | | FISCAL NOTE ACT MAY APPLY | |
| | A BILL FOR |
|
| | | SB1841 | | LRB097 08434 JDS 48561 b |
|
| 1 | | AN ACT concerning safety.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Environmental Protection Act is amended by | 5 | | changing Section 31 as follows:
| 6 | | (415 ILCS 5/31) (from Ch. 111 1/2, par. 1031)
| 7 | | Sec. 31. Notice; complaint; hearing.
| 8 | | (a)(1) Within 90 180 days of becoming aware of an alleged | 9 | | violation of the
Act or any rule adopted under the Act or | 10 | | of a permit granted by the Agency or
condition of the | 11 | | permit, the Agency shall issue and serve, by certified | 12 | | mail,
upon the person complained against a written notice | 13 | | informing that person that
the Agency has evidence of the | 14 | | alleged violation. At a minimum, the written
notice shall | 15 | | contain:
| 16 | | (A) notification to the person complained against | 17 | | of the requirement to
submit a written response | 18 | | addressing the violations alleged and the option to
| 19 | | meet with appropriate agency personnel to resolve any | 20 | | alleged violations that
could lead to the filing of a | 21 | | formal complaint;
| 22 | | (B) a detailed explanation by the Agency of the | 23 | | violations alleged;
|
| | | SB1841 | - 2 - | LRB097 08434 JDS 48561 b |
|
| 1 | | (C) an explanation by the Agency of the actions | 2 | | that the Agency
believes may resolve the alleged | 3 | | violations, including an estimate of a
reasonable time | 4 | | period for the person complained against to complete | 5 | | the
suggested resolution; and
| 6 | | (D) an explanation of any alleged violation that | 7 | | the Agency believes
cannot be resolved without the | 8 | | involvement of the Office of the Illinois
Attorney | 9 | | General or the State's Attorney of the county in which | 10 | | the alleged
violation occurred and the basis for the | 11 | | Agency's belief.
| 12 | | (2) A written response to the violations alleged shall | 13 | | be submitted to
the Agency, by certified mail, within 45 | 14 | | days of receipt of notice by the
person complained against, | 15 | | unless the Agency agrees to an extension. The
written | 16 | | response shall include:
| 17 | | (A) information in rebuttal, explanation or | 18 | | justification of each
alleged violation;
| 19 | | (B) a proposed Compliance Commitment Agreement | 20 | | that includes specified
times for achieving each | 21 | | commitment and which may consist of a statement
| 22 | | indicating that the person complained against believes | 23 | | that compliance has
been achieved; and
| 24 | | (C) a request for a meeting with appropriate Agency | 25 | | personnel if a
meeting is desired by the person | 26 | | complained against.
|
| | | SB1841 | - 3 - | LRB097 08434 JDS 48561 b |
|
| 1 | | (3) If the person complained against fails to respond | 2 | | in accordance with
the requirements of subdivision (2) of | 3 | | this subsection (a), the failure to
respond shall be | 4 | | considered a waiver of the requirements of this subsection
| 5 | | (a) and nothing in this Section shall preclude the Agency | 6 | | from proceeding
pursuant to subsection (b) of this Section.
| 7 | | (4) A meeting requested pursuant to subdivision (2) of | 8 | | this subsection
(a) shall be held without a representative | 9 | | of the Office of the Illinois
Attorney General or the | 10 | | State's Attorney of the county in which the alleged
| 11 | | violation occurred, within 60 days of receipt of notice by | 12 | | the person
complained against, unless the Agency agrees to | 13 | | a postponement. At the
meeting, the Agency shall provide an | 14 | | opportunity for the person complained
against to respond to | 15 | | each alleged violation, suggested resolution, and
| 16 | | suggested implementation time frame, and to suggest | 17 | | alternate resolutions.
| 18 | | (5) If a meeting requested pursuant to subdivision (2) | 19 | | of this subsection
(a) is held, the person complained | 20 | | against shall, within 21 days following the
meeting or | 21 | | within an extended time period as agreed to by the Agency, | 22 | | submit
by certified mail to the Agency a written response | 23 | | to the alleged violations.
The written response shall | 24 | | include:
| 25 | | (A) additional information in rebuttal, | 26 | | explanation or justification
of each alleged |
| | | SB1841 | - 4 - | LRB097 08434 JDS 48561 b |
|
| 1 | | violation;
| 2 | | (B) a proposed Compliance Commitment Agreement | 3 | | that includes specified
times for achieving each | 4 | | commitment and which may consist of a statement
| 5 | | indicating that the person complained against believes | 6 | | that compliance has
been achieved; and
| 7 | | (C) a statement indicating that, should the person | 8 | | complained against
so wish, the person complained | 9 | | against chooses to rely upon the initial written
| 10 | | response submitted pursuant to subdivision (2) of this | 11 | | subsection (a).
| 12 | | (6) If the person complained against fails to respond | 13 | | in accordance with
the requirements of subdivision (5) of | 14 | | this subsection (a), the failure to
respond shall be | 15 | | considered a waiver of the requirements of this subsection | 16 | | (a)
and nothing in this Section shall preclude the Agency | 17 | | from proceeding pursuant
to subsection (b) of this Section.
| 18 | | (7) Within 30 days of the Agency's receipt of a written | 19 | | response submitted
by the person complained against | 20 | | pursuant to subdivision (2) of this
subsection (a), if a | 21 | | meeting is not requested, or subdivision (5) of this
| 22 | | subsection (a), if a meeting is held, or within a later | 23 | | time period as agreed
to by the Agency and the person | 24 | | complained against, the Agency shall issue and
serve, by | 25 | | certified mail, upon the person complained against a | 26 | | written notice
informing the person of its acceptance, |
| | | SB1841 | - 5 - | LRB097 08434 JDS 48561 b |
|
| 1 | | rejection, or proposed modification to
the proposed | 2 | | Compliance Commitment Agreement as contained within the | 3 | | written
response.
| 4 | | (8) Nothing in this subsection (a) is intended to | 5 | | require the Agency to
enter into Compliance Commitment | 6 | | Agreements for any alleged violation that the
Agency | 7 | | believes cannot be resolved without the involvement of the | 8 | | Office of the
Attorney General or the State's Attorney of | 9 | | the county in which the alleged
violation occurred, for, | 10 | | among other purposes, the imposition of statutory
| 11 | | penalties.
| 12 | | (9) The Agency's failure to respond to a written | 13 | | response submitted
pursuant to subdivision (2) of this | 14 | | subsection (a), if a meeting is not
requested, or | 15 | | subdivision (5) of this subsection (a), if a meeting is | 16 | | held,
within 30 days, or within the time period otherwise | 17 | | agreed to in writing by
the Agency and the person | 18 | | complained against, shall be deemed an acceptance by
the | 19 | | Agency of the proposed Compliance Commitment Agreement for | 20 | | the violations
alleged in the written notice issued under | 21 | | subdivision (1) of this subsection
(a) as contained within | 22 | | the written response.
| 23 | | (10) If the person complained against complies with the | 24 | | terms of a
Compliance
Commitment Agreement accepted | 25 | | pursuant to this subsection (a), the Agency
shall not refer | 26 | | the alleged violations which are the subject of the |
| | | SB1841 | - 6 - | LRB097 08434 JDS 48561 b |
|
| 1 | | Compliance
Commitment Agreement to the Office of the | 2 | | Illinois Attorney General or the
State's Attorney of the | 3 | | county in which the alleged violation occurred.
However, | 4 | | nothing in this subsection is intended to preclude the | 5 | | Agency from
continuing negotiations with the person | 6 | | complained against or from proceeding
pursuant to the | 7 | | provisions of subsection (b) of this Section for alleged
| 8 | | violations which remain the subject of disagreement | 9 | | between the Agency and the
person complained against | 10 | | following fulfillment of the requirements of this
| 11 | | subsection (a).
| 12 | | (11) Nothing in this subsection (a) is intended to | 13 | | preclude the person
complained against from submitting to | 14 | | the Agency, by certified mail, at any
time, notification | 15 | | that the person complained against consents to waiver of
| 16 | | the requirements of subsections (a) and (b) of this | 17 | | Section.
| 18 | | (b) For alleged violations that remain the subject of | 19 | | disagreement
between the Agency and the person complained | 20 | | against following fulfillment of
the requirements of | 21 | | subsection (a) of this Section, and as a precondition to
the | 22 | | Agency's referral or request to the Office of the Illinois | 23 | | Attorney General
or the State's Attorney of the county in which | 24 | | the alleged violation occurred
for legal representation | 25 | | regarding an alleged violation that may be addressed
pursuant | 26 | | to subsection (c) or (d) of this Section or pursuant to Section |
| | | SB1841 | - 7 - | LRB097 08434 JDS 48561 b |
|
| 1 | | 42 of
this Act, the Agency shall issue and serve, by certified | 2 | | mail, upon the person
complained against a written notice | 3 | | informing that person that the Agency
intends to pursue legal | 4 | | action. Such notice shall notify the person
complained against | 5 | | of the violations to be alleged and offer the person an
| 6 | | opportunity to meet with appropriate Agency personnel in an | 7 | | effort to resolve
any alleged violations that could lead to the | 8 | | filing of a formal complaint.
The meeting with Agency personnel | 9 | | shall be held within 30 days of receipt of
notice served | 10 | | pursuant to this subsection upon the person complained against,
| 11 | | unless the Agency agrees to a postponement or the person | 12 | | notifies the Agency
that he or she will not appear at a meeting | 13 | | within the 30 day time period.
Nothing in this subsection is | 14 | | intended to preclude the Agency from following
the provisions | 15 | | of subsection (c) or (d) of this Section or from requesting the
| 16 | | legal representation of the Office of the Illinois Attorney | 17 | | General or the
State's Attorney of the county in which the | 18 | | alleged violations occurred for
alleged violations which | 19 | | remain the subject of disagreement between the Agency
and the | 20 | | person complained against after the provisions of this | 21 | | subsection are
fulfilled.
| 22 | | (c)(1) For alleged violations which remain the subject of | 23 | | disagreement
between the Agency and the person complained | 24 | | against following waiver, pursuant
to subdivision (10) of | 25 | | subsection (a) of this Section, or fulfillment of
the | 26 | | requirements of subsections (a) and (b) of this Section, |
| | | SB1841 | - 8 - | LRB097 08434 JDS 48561 b |
|
| 1 | | the Office of the
Illinois Attorney General or the State's | 2 | | Attorney of the county in which the
alleged violation | 3 | | occurred shall issue and serve upon the person complained
| 4 | | against a written notice, together with a formal complaint, | 5 | | which shall
specify the provision of the Act or the rule or | 6 | | regulation or permit or term
or condition thereof under | 7 | | which such person is said to be in violation, and
a | 8 | | statement of the manner in, and the extent to which such | 9 | | person is said to
violate the Act or such rule or | 10 | | regulation or permit or term or condition
thereof and shall | 11 | | require the person so complained
against to answer the | 12 | | charges of such formal complaint at a hearing before
the | 13 | | Board at a time not less than 21 days after the date of | 14 | | notice by the
Board, except as provided in Section 34 of | 15 | | this Act. Such complaint shall
be accompanied by a | 16 | | notification to the defendant that financing may be
| 17 | | available, through the Illinois Environmental Facilities | 18 | | Financing Act, to
correct such violation. A copy of such | 19 | | notice of such
hearings shall also be sent to any person | 20 | | that has complained to the
Agency respecting the respondent | 21 | | within the six months preceding the
date of the complaint, | 22 | | and to any person in the county in which the
offending | 23 | | activity occurred that has requested notice of enforcement
| 24 | | proceedings; 21 days notice of such hearings shall also be | 25 | | published in
a newspaper of general circulation in such | 26 | | county. The respondent may
file a written answer, and at |
| | | SB1841 | - 9 - | LRB097 08434 JDS 48561 b |
|
| 1 | | such hearing the rules prescribed in
Sections 32 and 33 of | 2 | | this Act shall apply. In the case of actual or
threatened | 3 | | acts outside Illinois contributing to environmental damage | 4 | | in
Illinois, the extraterritorial service-of-process | 5 | | provisions of Sections
2-208 and 2-209 of the Code of Civil | 6 | | Procedure shall apply.
| 7 | | With respect to notices served pursuant to this | 8 | | subsection (c)(1) which
involve hazardous material or | 9 | | wastes in any manner, the Agency shall
annually publish a | 10 | | list of all such notices served. The list shall include
the | 11 | | date the investigation commenced, the date notice was sent, | 12 | | the date
the matter was referred to the Attorney General, | 13 | | if applicable, and the
current status of the matter.
| 14 | | (2) Notwithstanding the provisions of subdivision (1) | 15 | | of this subsection
(c), whenever a complaint has been filed | 16 | | on behalf of the Agency or by the
People of the State of | 17 | | Illinois, the parties may file with the Board a
stipulation | 18 | | and proposal for settlement accompanied by a request for | 19 | | relief
from the requirement of a hearing pursuant to | 20 | | subdivision (1). Unless the
Board, in its discretion, | 21 | | concludes that a hearing will be held, the Board
shall | 22 | | cause notice of the stipulation, proposal and request for | 23 | | relief to
be published and sent in the same manner as is | 24 | | required for hearing
pursuant to subdivision (1) of this | 25 | | subsection. The notice shall include a
statement that any | 26 | | person may file a written demand for hearing within 21
days |
| | | SB1841 | - 10 - | LRB097 08434 JDS 48561 b |
|
| 1 | | after receiving the notice. If any person files a timely | 2 | | written
demand for hearing, the Board shall deny the | 3 | | request for relief from a
hearing and shall hold a hearing | 4 | | in accordance with the provisions of
subdivision (1).
| 5 | | (3) Notwithstanding the provisions of subdivision (1) | 6 | | of this subsection
(c), if the Agency becomes aware of a | 7 | | violation of this Act arising from, or
as a result of, | 8 | | voluntary pollution prevention activities, the Agency | 9 | | shall not
proceed with the written notice required by | 10 | | subsection (a) of this Section
unless:
| 11 | | (A) the person fails to take corrective action or | 12 | | eliminate the reported
violation within a reasonable | 13 | | time; or
| 14 | | (B) the Agency believes that the violation poses a | 15 | | substantial and
imminent danger to the public health or | 16 | | welfare or the environment. For the
purposes of this | 17 | | item (B), "substantial and imminent danger" means a | 18 | | danger
with a likelihood of serious or irreversible | 19 | | harm.
| 20 | | (d)(1) Any person may file with the Board a complaint, | 21 | | meeting
the requirements of subsection (c) of this Section, | 22 | | against any person
allegedly violating this Act, any rule | 23 | | or regulation adopted under this
Act, any permit or term or | 24 | | condition of a permit, or any Board order. The complainant | 25 | | shall immediately serve a copy of such complaint
upon the | 26 | | person or persons named therein. Unless the Board |
| | | SB1841 | - 11 - | LRB097 08434 JDS 48561 b |
|
| 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, in
| 4 | | 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 relief
| 9 | | from the hearing requirement of subdivision (c)(1) of this | 10 | | Section. Unless
the Board, in its discretion, concludes | 11 | | that a hearing should be held, no
hearing on the | 12 | | 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 thereof. | 19 | | If such proof has been made, the burden shall be on
the | 20 | | respondent to show that compliance with the Board's regulations
| 21 | | would impose an arbitrary or unreasonable hardship.
| 22 | | (f) The provisions of this Section shall not apply to | 23 | | administrative
citation actions commenced under Section 31.1 | 24 | | of this Act.
| 25 | | (g) Until the Agency issues and serves upon a person | 26 | | complained against a written notice pursuant to subdivision |
| | | SB1841 | - 12 - | LRB097 08434 JDS 48561 b |
|
| 1 | | (a)(1) of this Section informing that person that the Agency | 2 | | has evidence of an alleged violation, the Agency shall not | 3 | | disclose any investigative data concerning the alleged | 4 | | violation of the Act, any rule adopted under the Act, a permit | 5 | | granted by the Agency, or a condition of such a permit. For the | 6 | | purposes of this subsection (g), "investigative data" means the | 7 | | identity of an individual, data on individuals which is | 8 | | non-public, and all data collected by the Agency as part of an | 9 | | active investigation undertaken for the purposes set forth in | 10 | | subdivision (a)(1) of this Section. | 11 | | (Source: P.A. 92-574, eff. 6-26-02; 93-152, eff. 7-10-03.)
| 12 | | Section 99. Effective date. This Act takes effect upon | 13 | | becoming law.
|
|