Full Text of HB1441 97th General Assembly
HB1441 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB1441 Introduced , by Rep. Frank J. Mautino SYNOPSIS AS INTRODUCED: |
| 65 ILCS 5/1-2-1 | from Ch. 24, par. 1-2-1 | 415 ILCS 5/42 | from Ch. 111 1/2, par. 1042 |
| Amends the Environmental Protection Act. Provides that a municipality may impose a penalty against any person or organization owning or leasing property that releases a hazardous substance or any other contaminant that the unit of local government finds injures the public health and the safety of the community. Provides that the penalty may not exceed $50,000 for the violation and an additional $10,000 for each day during which the violation continues. Amends the Illinois Municipal Code to make conforming changes. Effective immediately.
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| | | FISCAL NOTE ACT MAY APPLY | |
| | A BILL FOR |
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| 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 Illinois Municipal Code is amended by | 5 | | changing Section 1-2-1 as follows:
| 6 | | (65 ILCS 5/1-2-1) (from Ch. 24, par. 1-2-1)
| 7 | | Sec. 1-2-1. The corporate authorities of each municipality | 8 | | may pass all
ordinances and make all rules and regulations | 9 | | proper or necessary, to carry
into effect the powers granted to | 10 | | municipalities, with such fines or
penalties as may be deemed | 11 | | proper. No fine or penalty, however, except
civil penalties | 12 | | provided for failure to make returns or to pay any taxes
levied | 13 | | by the municipality and penalties imposed under subsection (k) | 14 | | of Section 42 of the Environmental Protection Act, shall exceed | 15 | | $750 and no imprisonment
authorized
in Section 1-2-9 for | 16 | | failure to pay any fine, penalty or cost shall exceed
6 months | 17 | | for one offense.
| 18 | | A penalty imposed for violation of an ordinance may | 19 | | include, or consist
of, a requirement that the defendant do one | 20 | | or both of the following: | 21 | | (1) Complete an education program, except that a holder | 22 | | of a valid commercial driver's license who commits a | 23 | | vehicle weight or size restriction violation shall not be |
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| 1 | | required to complete an education program under this | 2 | | Section. | 3 | | (2) Perform some reasonable public service
work such as | 4 | | but not limited to the picking up of litter in public parks | 5 | | or
along public highways or the maintenance of public | 6 | | facilities.
| 7 | | A default in the payment of a fine or penalty or any | 8 | | installment of a fine or penalty may be collected by any means | 9 | | authorized for the collection of monetary judgments. The | 10 | | municipal attorney of the municipality in which the fine or | 11 | | penalty was imposed may retain attorneys and private collection | 12 | | agents for the purpose of collecting any default in payment of | 13 | | any fine or penalty or installment of that fine or penalty. Any | 14 | | fees or costs incurred by the municipality with respect to | 15 | | attorneys or private collection agents retained by the | 16 | | municipal attorney under this Section shall be charged to the | 17 | | offender.
| 18 | | A low-income individual required to complete an education | 19 | | program under this Section who provides proof of eligibility | 20 | | for the federal earned income tax credit under Section 32 of | 21 | | the Internal Revenue Code or the Illinois earned income tax | 22 | | credit under Section 212 of the Illinois Income Tax Act shall | 23 | | not be required to pay any fee for participating in a required | 24 | | education program. | 25 | | (Source: P.A. 95-389, eff. 1-1-08; 96-288, eff. 8-11-09.)
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| 1 | | Section 10. The Environmental Protection Act is amended by | 2 | | changing Section 42 as follows: | 3 | | (415 ILCS 5/42) (from Ch. 111 1/2, par. 1042) | 4 | | Sec. 42. Civil penalties. | 5 | | (a) Except as provided in this Section, any person that | 6 | | violates any
provision of this Act or any regulation adopted by | 7 | | the Board, or any permit
or term or condition thereof, or that | 8 | | violates any order of the Board pursuant
to this Act, shall be | 9 | | liable for a civil penalty of not to exceed
$50,000 for the | 10 | | violation and an additional civil penalty of not to exceed
| 11 | | $10,000 for each day during which the violation continues; such | 12 | | penalties may,
upon order of the Board or a court of competent | 13 | | jurisdiction, be made payable
to the Environmental Protection | 14 | | Trust Fund, to be used in accordance with the
provisions of the | 15 | | Environmental Protection Trust Fund Act. | 16 | | (b) Notwithstanding the provisions of subsection (a) of | 17 | | this Section: | 18 | | (1) Any person that violates Section 12(f) of this Act | 19 | | or any
NPDES permit or term or condition thereof, or any | 20 | | filing requirement,
regulation or order relating to the | 21 | | NPDES permit program, shall be liable
to a civil penalty of | 22 | | not to exceed $10,000 per day of violation. | 23 | | (2) Any person that violates Section 12(g) of this Act | 24 | | or any UIC permit
or term or condition thereof, or any | 25 | | filing requirement, regulation or order
relating to the |
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| 1 | | State UIC program for all wells, except Class II wells as
| 2 | | defined by the Board under this Act, shall be liable to a | 3 | | civil penalty
not to exceed $2,500 per day of violation; | 4 | | provided, however, that any person
who commits such | 5 | | violations relating to the State UIC program for Class
II | 6 | | wells, as defined by the Board under this Act, shall be | 7 | | liable to a civil
penalty of not to exceed $10,000 for the | 8 | | violation and an additional civil
penalty of not to exceed | 9 | | $1,000 for each day during which the violation
continues. | 10 | | (3) Any person that violates Sections 21(f), 21(g), | 11 | | 21(h) or 21(i) of
this Act, or any RCRA permit or term or | 12 | | condition thereof, or any filing
requirement, regulation | 13 | | or order relating to the State RCRA program, shall
be | 14 | | liable to a civil penalty of not to exceed $25,000 per day | 15 | | of violation. | 16 | | (4)
In an administrative citation action under Section | 17 | | 31.1 of this Act,
any person found to have violated any | 18 | | provision of subsection (o) of
Section 21 of this Act shall | 19 | | pay a civil penalty of $500 for each
violation of each such | 20 | | provision, plus any hearing costs incurred by the Board
and | 21 | | the Agency. Such penalties shall be made payable to the | 22 | | Environmental
Protection Trust Fund, to be used in | 23 | | accordance with the provisions of the
Environmental | 24 | | Protection Trust Fund Act; except that if a unit of local
| 25 | | government issued the administrative citation, 50% of the | 26 | | civil penalty shall
be payable to the unit of local |
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| 1 | | government. | 2 | | (4-5) In an administrative citation action under | 3 | | Section 31.1 of this
Act, any person found to have violated | 4 | | any
provision of subsection (p) of
Section 21, Section | 5 | | 22.51, Section 22.51a, or subsection (k) of Section 55 of | 6 | | this Act shall pay a civil penalty of $1,500 for each | 7 | | violation
of
each such provision, plus any hearing costs | 8 | | incurred by the Board and the
Agency, except that the civil | 9 | | penalty amount shall be $3,000 for
each violation of any | 10 | | provision of subsection (p) of Section 21, Section 22.51, | 11 | | Section 22.51a, or subsection (k) of Section 55 that is the
| 12 | | person's second or subsequent adjudication violation of | 13 | | that
provision. The penalties shall be deposited into the
| 14 | | Environmental Protection Trust Fund, to be used in | 15 | | accordance with the
provisions of the Environmental | 16 | | Protection Trust Fund Act; except that if a
unit of local | 17 | | government issued the administrative citation, 50% of the | 18 | | civil
penalty shall be payable to the unit of local | 19 | | government. | 20 | | (5) Any person who violates subsection 6 of Section | 21 | | 39.5 of this Act
or any CAAPP permit, or term or condition | 22 | | thereof, or any fee or filing
requirement, or any duty to | 23 | | allow or carry out inspection, entry or
monitoring | 24 | | activities, or any regulation or order relating to the | 25 | | CAAPP
shall be liable for a civil penalty not to exceed | 26 | | $10,000 per day of violation. |
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| 1 | | (6) Any owner or operator of a community water system | 2 | | that violates subsection (b) of Section 18.1 or subsection | 3 | | (a) of Section 25d-3 of this Act shall, for each day of | 4 | | violation, be liable for a civil penalty not to exceed $5 | 5 | | for each of the premises connected to the affected | 6 | | community water system. | 7 | | (b.5) In lieu of the penalties set forth in subsections (a) | 8 | | and (b) of
this Section, any person who fails to file, in a | 9 | | timely manner, toxic
chemical release forms with the Agency | 10 | | pursuant to Section 25b-2
of this Act
shall be liable for a | 11 | | civil penalty of $100 per day for
each day the forms are
late, | 12 | | not to exceed a maximum total penalty of $6,000. This daily | 13 | | penalty
shall begin accruing on the thirty-first day after the
| 14 | | date that the person receives the warning notice issued by the | 15 | | Agency pursuant
to Section 25b-6 of this Act; and the penalty | 16 | | shall be paid to the Agency. The
daily accrual of penalties | 17 | | shall cease as of January 1 of the following year.
All | 18 | | penalties collected by the Agency pursuant to this subsection | 19 | | shall be
deposited into the Environmental Protection Permit and | 20 | | Inspection Fund. | 21 | | (c) Any person that violates this Act, any rule or | 22 | | regulation adopted under
this Act, any permit or term or | 23 | | condition of a permit, or any Board order and
causes the death | 24 | | of fish
or aquatic life shall, in addition to the other | 25 | | penalties provided by
this Act, be liable to pay to the State | 26 | | an additional sum for the
reasonable value of the fish or |
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| 1 | | aquatic life destroyed. Any money so
recovered shall be placed | 2 | | in the Wildlife and Fish Fund in the State
Treasury. | 3 | | (d) The penalties provided for in this Section may be | 4 | | recovered in a
civil action. | 5 | | (e) The State's Attorney of the county in which the | 6 | | violation
occurred, or the Attorney General, may, at the | 7 | | request of the Agency or
on his own motion, institute a civil | 8 | | action for an injunction, prohibitory or mandatory, to
restrain | 9 | | violations of this Act, any rule or regulation adopted under | 10 | | this Act,
any permit or term or condition of a permit, or any | 11 | | Board order, or to require such other actions as may be | 12 | | necessary to address violations of this Act, any rule or | 13 | | regulation adopted under this Act, any permit or term or | 14 | | condition of a permit, or any Board order. | 15 | | (f) The State's Attorney of the county in which the | 16 | | violation
occurred, or the Attorney General, shall bring such | 17 | | actions in the name
of the people of the State of Illinois.
| 18 | | Without limiting any other authority which may exist for the | 19 | | awarding
of attorney's fees and costs, the Board or a court of | 20 | | competent
jurisdiction may award costs and reasonable | 21 | | attorney's fees, including the
reasonable costs of expert | 22 | | witnesses and consultants, to the State's
Attorney or the | 23 | | Attorney General in a case where he has prevailed against a
| 24 | | person who has committed a wilful, knowing or repeated | 25 | | violation of this Act,
any rule or regulation adopted under | 26 | | this Act, any permit or term or condition
of a permit, or any |
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| 1 | | Board order. | 2 | | Any funds collected under this subsection (f) in which the | 3 | | Attorney
General has prevailed shall be deposited in the
| 4 | | Hazardous Waste Fund created in Section 22.2 of this Act. Any | 5 | | funds
collected under this subsection (f) in which a State's | 6 | | Attorney has
prevailed shall be retained by the county in which | 7 | | he serves. | 8 | | (g) All final orders imposing civil penalties pursuant to | 9 | | this Section
shall prescribe the time for payment of such | 10 | | penalties. If any such
penalty is not paid within the time | 11 | | prescribed, interest on such penalty
at the rate set forth in | 12 | | subsection (a) of Section 1003 of the Illinois Income
Tax Act, | 13 | | shall be paid for the period from the date payment is due until | 14 | | the
date payment is received. However, if the time for payment | 15 | | is stayed during
the pendency of an appeal, interest shall not | 16 | | accrue during such stay. | 17 | | (h) In determining the appropriate civil penalty to be | 18 | | imposed under
subdivisions (a), (b)(1), (b)(2), (b)(3), or | 19 | | (b)(5) of this
Section, the Board is authorized to consider any | 20 | | matters of record in
mitigation or aggravation of penalty, | 21 | | including but not limited to the
following factors: | 22 | | (1) the duration and gravity of the violation; | 23 | | (2) the presence or absence of due diligence on the | 24 | | part of the
respondent in attempting to comply with | 25 | | requirements of this
Act and regulations thereunder or to | 26 | | secure relief therefrom as provided by
this Act; |
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| 1 | | (3) any economic benefits accrued by the respondent
| 2 | | because of delay in compliance with requirements, in which | 3 | | case the economic
benefits shall be determined by the | 4 | | lowest cost alternative for achieving
compliance; | 5 | | (4) the amount of monetary penalty which will serve to | 6 | | deter further
violations by the respondent and to otherwise | 7 | | aid in enhancing
voluntary
compliance with this Act by the | 8 | | respondent and other persons
similarly
subject to the Act; | 9 | | (5) the number, proximity in time, and gravity of | 10 | | previously
adjudicated violations of this Act by the | 11 | | respondent; | 12 | | (6) whether the respondent voluntarily self-disclosed, | 13 | | in accordance
with subsection (i) of this Section, the | 14 | | non-compliance to the Agency; and | 15 | | (7) whether the respondent has agreed to undertake a | 16 | | "supplemental
environmental project," which means an | 17 | | environmentally beneficial project that
a respondent | 18 | | agrees to undertake in settlement of an enforcement action | 19 | | brought
under this Act, but which the respondent is not | 20 | | otherwise legally required to
perform. | 21 | | In determining the appropriate civil penalty to be imposed | 22 | | under subsection
(a) or paragraph (1), (2), (3), or (5) of | 23 | | subsection (b) of this Section, the
Board shall ensure, in all | 24 | | cases, that the penalty is at least as great as the
economic | 25 | | benefits, if any, accrued by the respondent as a result of the
| 26 | | violation, unless the Board finds that imposition of such |
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| 1 | | penalty would result
in an arbitrary or unreasonable financial | 2 | | hardship. However, such civil
penalty
may be off-set in whole | 3 | | or in part pursuant to a supplemental
environmental project | 4 | | agreed to by the complainant and the respondent. | 5 | | (i) A person who voluntarily self-discloses non-compliance | 6 | | to the Agency,
of which the Agency had been unaware, is | 7 | | entitled to a 100% reduction in the
portion of the penalty that | 8 | | is not based on the economic benefit of
non-compliance if the | 9 | | person can
establish the following: | 10 | | (1) that the non-compliance was discovered through an | 11 | | environmental
audit or a compliance management system | 12 | | documented by the regulated entity as
reflecting the | 13 | | regulated entity's due diligence in preventing, detecting, | 14 | | and
correcting violations; | 15 | | (2) that the non-compliance was disclosed in writing | 16 | | within 30 days of
the date on which the person discovered | 17 | | it; | 18 | | (3) that the non-compliance was discovered and | 19 | | disclosed prior to: | 20 | | (i) the commencement of an Agency inspection, | 21 | | investigation, or request
for information; | 22 | | (ii) notice of a citizen suit; | 23 | | (iii) the filing of a complaint by a citizen, the | 24 | | Illinois Attorney
General, or the State's Attorney of | 25 | | the county in which the violation occurred; | 26 | | (iv) the reporting of the non-compliance by an |
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| 1 | | employee of the person
without that person's | 2 | | knowledge; or | 3 | | (v) imminent discovery of the non-compliance by | 4 | | the Agency; | 5 | | (4) that the non-compliance is being corrected and any | 6 | | environmental
harm is being remediated in a timely fashion; | 7 | | (5) that the person agrees to prevent a recurrence of | 8 | | the non-compliance; | 9 | | (6) that no related non-compliance events have | 10 | | occurred in the
past 3 years at the same facility or in the | 11 | | past 5 years as part of a
pattern at multiple facilities | 12 | | owned or operated by the person; | 13 | | (7) that the non-compliance did not result in serious | 14 | | actual
harm or present an imminent and substantial | 15 | | endangerment to human
health or the environment or violate | 16 | | the specific terms of any judicial or
administrative order | 17 | | or consent agreement; | 18 | | (8) that the person cooperates as reasonably requested | 19 | | by the Agency
after the disclosure; and | 20 | | (9) that the non-compliance was identified voluntarily | 21 | | and not through a
monitoring, sampling, or auditing | 22 | | procedure that is required by statute, rule,
permit, | 23 | | judicial or administrative order, or consent agreement. | 24 | | If a person can establish all of the elements under this | 25 | | subsection except
the element set forth in paragraph (1) of | 26 | | this subsection, the person is
entitled to a 75% reduction in |
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| 1 | | the portion of the penalty that is not based
upon the economic | 2 | | benefit of non-compliance. | 3 | | (j) In addition to an other remedy or penalty that may
| 4 | | apply, whether civil or criminal, any person who violates | 5 | | Section 22.52 of this Act shall be liable for an additional | 6 | | civil penalty of up to 3 times the gross amount of any | 7 | | pecuniary gain resulting from the violation.
| 8 | | (k) In addition to remedies afforded the State of Illinois | 9 | | under this Act, a unit of local government is specifically | 10 | | authorized to adopt an ordinance imposing a civil penalty | 11 | | against any person or organization owning or leasing property | 12 | | that releases any hazardous substance, as defined in Section | 13 | | 3.215 of this Act, or any other contaminant that the unit of | 14 | | local government finds injures the public health and the safety | 15 | | of the community. The penalty may not exceed $50,000 for the | 16 | | violation and an additional $10,000 for each day during which | 17 | | the violation continues. | 18 | | (Source: P.A. 95-331, eff. 8-21-07; 96-603, eff. 8-24-09; | 19 | | 96-737, eff. 8-25-09; 96-1000, eff. 7-2-10; 96-1416, eff. | 20 | | 7-30-10.)
| 21 | | Section 99. Effective date. This Act takes effect upon | 22 | | becoming law.
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