Sen. Omar Aquino
Filed: 4/13/2018
 
 


 




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1
AMENDMENT TO SENATE BILL 3156




2 AMENDMENT NO. ______. Amend Senate Bill 3156 by replacing 
3everything after the enacting clause with the following:


4 "Section 5. The Environmental Protection Act is amended by 
5changing 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 180 days after becoming aware of an alleged 
9 violation of the
Act, any rule adopted under the Act, a 
10 permit granted by the Agency, or
a condition of such a 
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) a notification to the person complained 
 
 
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1 against of the requirement to
submit a written response 
2 addressing the violations alleged and the option to

3 meet with appropriate agency personnel to resolve any 
4 alleged violations that
could lead to the filing of a 
5 formal complaint;


6   (B) a detailed explanation by the Agency of the 
7 violations alleged;


8   (C) an explanation by the Agency of the actions 
9 that the Agency
believes may resolve the alleged 
10 violations, including an estimate of a
reasonable time 
11 period for the person complained against to complete 
12 the
suggested resolution; and


13   (D) an explanation of any alleged violation that 
14 the Agency believes
cannot be resolved without the 
15 involvement of the Office of the Illinois
Attorney 
16 General or the State's Attorney of the county in which 
17 the alleged
violation occurred and the basis for the 
18 Agency's belief.


19  (2) A written response to the violations alleged shall 
20 be submitted to
the Agency, by certified mail, within 45 
21 days after receipt of notice by the
person complained 
22 against, unless the Agency agrees to an extension. The

23 written response shall include:


24   (A) information in rebuttal, explanation or 
25 justification of each
alleged violation;


26   (B) if the person complained against desires to 
 
 
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1 enter into a Compliance Commitment Agreement, proposed 
2 terms for a Compliance Commitment Agreement that 
3 includes specified
times for achieving each commitment 
4 and which may consist of a statement
indicating that 
5 the person complained against believes that compliance 
6 has
been achieved; and


7   (C) a request for a meeting with appropriate Agency 
8 personnel if a
meeting is desired by the person 
9 complained against.


10  (3) If the person complained against fails to respond 
11 in accordance with
the requirements of subdivision (2) of 
12 this subsection (a), the failure to
respond shall be 
13 considered a waiver of the requirements of this subsection

14 (a) and nothing in this Section shall preclude the Agency 
15 from proceeding
pursuant to subsection (b) of this Section.


16  (4) A meeting requested pursuant to subdivision (2) of 
17 this subsection
(a) shall be held without a representative 
18 of the Office of the Illinois
Attorney General or the 
19 State's Attorney of the county in which the alleged

20 violation occurred, within 60 days after receipt of notice 
21 by the person
complained against, unless the Agency agrees 
22 to a postponement. At the
meeting, the Agency shall provide 
23 an opportunity for the person complained
against to respond 
24 to each alleged violation, suggested resolution, and

25 suggested implementation time frame, and to suggest 
26 alternate resolutions.


 
 
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1  (5) If a meeting requested pursuant to subdivision (2) 
2 of this subsection
(a) is held, the person complained 
3 against shall, within 21 days following the
meeting or 
4 within an extended time period as agreed to by the Agency, 
5 submit
by certified mail to the Agency a written response 
6 to the alleged violations.
The written response shall 
7 include:


8   (A) additional information in rebuttal, 
9 explanation, or justification
of each alleged 
10 violation;


11   (B) if the person complained against desires to 
12 enter into a Compliance Commitment Agreement, proposed 
13 terms for a Compliance Commitment Agreement that 
14 includes specified
times for achieving each commitment 
15 and which may consist of a statement
indicating that 
16 the person complained against believes that compliance 
17 has
been achieved; and


18   (C) a statement indicating that, should the person 
19 complained against
so wish, the person complained 
20 against chooses to rely upon the initial written

21 response submitted pursuant to subdivision (2) of this 
22 subsection (a).


23  (6) If the person complained against fails to respond 
24 in accordance with
the requirements of subdivision (5) of 
25 this subsection (a), the failure to
respond shall be 
26 considered a waiver of the requirements of this subsection 
 
 
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1 (a)
and nothing in this Section shall preclude the Agency 
2 from proceeding pursuant
to subsection (b) of this Section.


3  (7) Within 30 days after the Agency's receipt of a 
4 written response submitted
by the person complained 
5 against pursuant to subdivision (2) of this
subsection (a) 
6 if a meeting is not requested or pursuant to subdivision 
7 (5) of this
subsection (a) if a meeting is held, or within 
8 a later time period as agreed
to by the Agency and the 
9 person complained against, the Agency shall issue and

10 serve, by certified mail, upon the person complained 
11 against (i) a proposed Compliance Commitment Agreement or 
12 (ii) a notice that one or more violations cannot be 
13 resolved without the involvement of the Office of the 
14 Attorney General or the State's Attorney of the county in 
15 which the alleged violation occurred and that no proposed 
16 Compliance Commitment Agreement will be issued by the 
17 Agency for those violations. The Agency shall include terms 
18 and conditions in the proposed Compliance Commitment 
19 Agreement that are, in its discretion, necessary to bring 
20 the person complained against into compliance with the Act, 
21 any rule adopted under the Act, any permit granted by the 
22 Agency, or any condition of such a permit. The Agency shall 
23 take into consideration the proposed terms for the proposed 
24 Compliance Commitment Agreement that were provided under 
25 subdivision (a)(2)(B) or (a)(5)(B) of this Section by the 
26 person complained against.

 
 
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1  (7.5) Within 30 days after the receipt of the Agency's 
2 proposed Compliance Commitment Agreement by the person 
3 complained against, the person shall either (i) agree to 
4 and sign the proposed Compliance Commitment Agreement 
5 provided by the Agency and submit the signed Compliance 
6 Commitment Agreement to the Agency by certified mail or 
7 (ii) notify the Agency in writing by certified mail of the 
8 person's rejection of the proposed Compliance Commitment 
9 Agreement. If the person complained against fails to 
10 respond to the proposed Compliance Commitment Agreement 
11 within 30 days as required under this paragraph, the 
12 proposed Compliance Commitment Agreement is deemed 
13 rejected by operation of law. Any Compliance Commitment 
14 Agreement entered into under item (i) of this paragraph may 
15 be amended subsequently in writing by mutual agreement 
16 between the Agency and the signatory to the Compliance 
17 Commitment Agreement, the signatory's legal 
18 representative, or the signatory's agent.
19  (7.6) No person shall violate the terms or conditions 
20 of a Compliance Commitment Agreement entered into under 
21 subdivision (a)(7.5) of this Section. Successful 
22 completion of a Compliance Commitment Agreement or an 
23 amended Compliance Commitment Agreement shall be a factor 
24 to be weighed, in favor of the person completing the 
25 Agreement, by the Office of the Illinois Attorney General 
26 in determining whether to file a complaint for the 
 
 
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1 violations that were the subject of the Agreement. 
2  (7.7) Within 30 days after a Compliance Commitment 
3 Agreement takes effect or is amended in accordance with 
4 paragraph (7.5), the Agency shall publish a copy of the 
5 final executed Compliance Commitment Agreement on the 
6 Agency's website. The Agency shall maintain an Internet 
7 database of all Compliance Commitment Agreements entered 
8 on or after the effective date of this amendatory Act of 
9 the 100th General Assembly. At a minimum, the database 
10 shall be searchable by the following categories: the county 
11 in which the facility that is subject to the Compliance 
12 Commitment Agreement is located; the date of final 
13 execution of the Compliance Commitment Agreement; the name 
14 of the respondent; and the media involved, including air, 
15 water, land, or public water supply. 

16  (8) Nothing in this subsection (a) is intended to 
17 require the Agency to
enter into Compliance Commitment 
18 Agreements for any alleged violation that the
Agency 
19 believes cannot be resolved without the involvement of the 
20 Office of the
Attorney General or the State's Attorney of 
21 the county in which the alleged
violation occurred, for, 
22 among other purposes, the imposition of statutory

23 penalties.


24  (9) The Agency's failure to respond within 30 days to a 
25 written response submitted
pursuant to subdivision (2) of 
26 this subsection (a) if a meeting is not
requested or 
 
 
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1 pursuant to subdivision (5) of this subsection (a) if a 
2 meeting is held,
or within the time period otherwise agreed 
3 to in writing by
the Agency and the person complained 
4 against, shall be deemed an acceptance by
the Agency of the 
5 proposed terms of the Compliance Commitment Agreement for 
6 the violations
alleged in the written notice issued under 
7 subdivision (1) of this subsection
(a) as contained within 
8 the written response.


9  (10) If the person complained against complies with the 
10 terms of a
Compliance
Commitment Agreement accepted 
11 pursuant to this subsection (a), the Agency
shall not refer 
12 the alleged violations which are the subject of the 
13 Compliance
Commitment Agreement to the Office of the 
14 Illinois Attorney General or the
State's Attorney of the 
15 county in which the alleged violation occurred.
However, 
16 nothing in this subsection is intended to preclude the 
17 Agency from
continuing negotiations with the person 
18 complained against or from proceeding
pursuant to the 
19 provisions of subsection (b) of this Section for alleged

20 violations that remain the subject of disagreement between 
21 the Agency and the
person complained against following 
22 fulfillment of the requirements of this
subsection (a).


23  (11) Nothing in this subsection (a) is intended to 
24 preclude the person
complained against from submitting to 
25 the Agency, by certified mail, at any
time, notification 
26 that the person complained against consents to waiver of

 
 
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1 the requirements of subsections (a) and (b) of this 
2 Section.

3  (12) The Agency shall have the authority to adopt rules 
4 for the administration of subsection (a) of this Section. 
5 The rules shall be adopted in accordance with the 
6 provisions of the Illinois Administrative Procedure Act. 
7 (b) For alleged violations that remain the subject of 
8disagreement
between the Agency and the person complained 
9against following fulfillment of
the requirements of 
10subsection (a) of this Section, and for alleged violations of 
11the terms or conditions of a Compliance Commitment Agreement 
12entered into under subdivision (a)(7.5) of this Section as well 
13as the alleged violations that are the subject of the 
14Compliance Commitment Agreement, and as a precondition to
the 
15Agency's referral or request to the Office of the Illinois 
16Attorney General
or the State's Attorney of the county in which 
17the alleged violation occurred
for legal representation 
18regarding an alleged violation that may be addressed
pursuant 
19to subsection (c) or (d) of this Section or pursuant to Section 
2042 of
this Act, the Agency shall issue and serve, by certified 
21mail, upon the person
complained against a written notice 
22informing that person that the Agency
intends to pursue legal 
23action. Such notice shall notify the person
complained against 
24of the violations to be alleged and offer the person an

25opportunity to meet with appropriate Agency personnel in an 
26effort to resolve
any alleged violations that could lead to the 
 
 
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1filing of a formal complaint.
The meeting with Agency personnel 
2shall be held within 30 days after receipt of
notice served 
3pursuant to this subsection upon the person complained against,

4unless the Agency agrees to a postponement or the person 
5notifies the Agency
that he or she will not appear at a meeting 
6within the 30-day time period.
Nothing in this subsection is 
7intended to preclude the Agency from following
the provisions 
8of subsection (c) or (d) of this Section or from requesting the

9legal representation of the Office of the Illinois Attorney 
10General or the
State's Attorney of the county in which the 
11alleged violations occurred for
alleged violations which 
12remain the subject of disagreement between the Agency
and the 
13person complained against after the provisions of this 
14subsection are
fulfilled.


15  (c)(1) For alleged violations which remain the subject of 
16 disagreement
between the Agency and the person complained 
17 against following waiver pursuant
to subdivision (10) of 
18 subsection (a) of this Section or fulfillment of
the 
19 requirements of subsections (a) and (b) of this Section, 
20 the Office of the
Illinois Attorney General or the State's 
21 Attorney of the county in which the
alleged violation 
22 occurred shall issue and serve upon the person complained

23 against a written notice, together with a formal complaint, 
24 which shall
specify the provision of the Act, rule, 
25 regulation, permit, or term
or condition thereof under 
26 which such person is said to be in violation and
a 
 
 
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1 statement of the manner in and the extent to which such 
2 person is said to
violate the Act, rule, regulation, 
3 permit, or term or condition
thereof and shall require the 
4 person so complained
against to answer the charges of such 
5 formal complaint at a hearing before
the Board at a time 
6 not less than 21 days after the date of notice by the

7 Board, except as provided in Section 34 of this Act. Such 
8 complaint shall
be accompanied by a notification to the 
9 defendant that financing may be
available, through the 
10 Illinois Environmental Facilities Financing Act, to

11 correct such violation. A copy of such notice of such

12 hearings shall also be sent to any person that has 
13 complained to the
Agency respecting the respondent within 
14 the six months preceding the
date of the complaint, and to 
15 any person in the county in which the
offending activity 
16 occurred that has requested notice of enforcement

17 proceedings; 21 days notice of such hearings shall also be 
18 published in
a newspaper of general circulation in such 
19 county. The respondent may
file a written answer, and at 
20 such hearing the rules prescribed in
Sections 32 and 33 of 
21 this Act shall apply. In the case of actual or
threatened 
22 acts outside Illinois contributing to environmental damage 
23 in
Illinois, the extraterritorial service-of-process 
24 provisions of Sections
2-208 and 2-209 of the Code of Civil 
25 Procedure shall apply.


26  With respect to notices served pursuant to this 
 
 
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1 subsection (c)(1) that
involve hazardous material or 
2 wastes in any manner, the Agency shall
annually publish a 
3 list of all such notices served. The list shall include
the 
4 date the investigation commenced, the date notice was sent, 
5 the date
the matter was referred to the Attorney General, 
6 if applicable, and the
current status of the matter.


7  (2) Notwithstanding the provisions of subdivision (1) 
8 of this subsection
(c), whenever a complaint has been filed 
9 on behalf of the Agency or by the
People of the State of 
10 Illinois, the parties may file with the Board a
stipulation 
11 and proposal for settlement accompanied by a request for 
12 relief
from the requirement of a hearing pursuant to 
13 subdivision (1). Unless the
Board, in its discretion, 
14 concludes that a hearing will be held, the Board
shall 
15 cause notice of the stipulation, proposal and request for 
16 relief to
be published and sent in the same manner as is 
17 required for hearing
pursuant to subdivision (1) of this 
18 subsection. The notice shall include a
statement that any 
19 person may file a written demand for hearing within 21
days 
20 after receiving the notice. If any person files a timely 
21 written
demand for hearing, the Board shall deny the 
22 request for relief from a
hearing and shall hold a hearing 
23 in accordance with the provisions of
subdivision (1).


24  (3) Notwithstanding the provisions of subdivision (1) 
25 of this subsection
(c), if the Agency becomes aware of a 
26 violation of this Act arising from, or
as a result of, 
 
 
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1 voluntary pollution prevention activities, the Agency 
2 shall not
proceed with the written notice required by 
3 subsection (a) of this Section
unless:


4   (A) the person fails to take corrective action or 
5 eliminate the reported
violation within a reasonable 
6 time; or


7   (B) the Agency believes that the violation poses a 
8 substantial and
imminent danger to the public health or 
9 welfare or the environment. For the
purposes of this 
10 item (B), "substantial and imminent danger" means a 
11 danger
with a likelihood of serious or irreversible 
12 harm.


13  (d)(1) Any person may file with the Board a complaint, 
14 meeting
the requirements of subsection (c) of this Section, 
15 against any person
allegedly violating this Act, any rule 
16 or regulation adopted under this
Act, any permit or term or 
17 condition of a permit, or any Board order. The complainant 
18 shall immediately serve a copy of such complaint
upon the 
19 person or persons named therein. Unless the Board 
20 determines that
such complaint is duplicative or 
21 frivolous, it shall schedule a hearing and
serve written 
22 notice thereof upon the person or persons named therein, in

23 accord with subsection (c) of this Section.


24  (2) Whenever a complaint has been filed by a person 
25 other than the
Attorney General or the State's Attorney, 
26 the parties may file with the Board
a stipulation and 
 
 
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1 proposal for settlement accompanied by a request for relief

2 from the hearing requirement of subdivision (c)(1) of this 
3 Section. Unless
the Board, in its discretion, concludes 
4 that a hearing should be held, no
hearing on the 
5 stipulation and proposal for settlement is required.

6 (e) In hearings before the Board under this Title the 
7burden shall
be on the Agency or other complainant to show 
8either that the respondent
has caused or threatened to cause 
9air or water pollution or that the
respondent has violated or 
10threatens to violate any provision of this
Act or any rule or 
11regulation of the Board or permit or term or
condition thereof. 
12If such proof has been made, the burden shall be on
the 
13respondent to show that compliance with the Board's regulations

14would impose an arbitrary or unreasonable hardship.

15 (f) The provisions of this Section shall not apply to 
16administrative
citation actions commenced under Section 31.1 
17of this Act.

18(Source: P.A. 97-519, eff. 8-23-11.)



19 Section 99. Effective date. This Act takes effect upon 
20becoming law.".