On August 23, 2011, the Illinois General Assembly adopted Public Act 097-0519, which amends Sections 31 and 42 of the Illinois Environmental Protection Act (415 ILCS 5/31 & 42). Public Act 097-0519 makes several changes to the process of addressing violations of the Illinois Environmental Protection Act, a rule adopted under the Act, or a permit granted by the Illinois Environmental Protection Agency (IEPA).
When IEPA believes that a violation has occurred, Section 31(a)(1) requires that IEPA notify the violating party. Previously, Section 31(a)(2) and (a)(5) required that said party respond after receipt of the notice and again after an optional meeting with IEPA with a proposed Compliance Commitment Agreement (CCA) to remedy the violation, including due dates. Now, "proposed terms" of a CCA need only be submitted "if the person complained against desires to enter into a CCA".
Previously, IEPA had to respond to the proposed CCA with "acceptance, rejection, or proposed modification" (no response indicates acceptance). Now, the IEPA must either respond with its own proposed CCA or a notification that one or more violations cannot be resolved without the involvement of the Attorney General or the State's Attorney and so no proposed CCA will be issued for those violations. Any CCA that is proposed by the IEPA must take into account the terms proposed by the violating party as well as the conditions it views as necessary to achieve compliance.
Previously, the statute ended with IEPA's acceptance, rejection, or proposed modifications to the CCA, which did not give the violating party an option to reject the CCA and left the process for further modification of the CCA unclear. Now the violating party must accept or reject IEPA's proposed CCA within 30 days (no response indicates rejection). Additionally, later modification of a CCA "by mutual agreement" is now explicitly allowed.
Note that successful completion of a CCA only resolves the violations with IEPA, preventing IEPA from referring the matter to the Attorney General or State's Attorney. Section 41(e) allows either the Attorney General or State's Attorney to take independent action. However, Public Act 097-0519 makes the successful completion of a CCA a criterion the Attorney General (but not the State's Attorney) must use in "determining whether to file a complaint." Additionally, the Illinois Pollution Control Board may now consider the successful completion of a CCA in determining the "appropriate civil penalty" for the underlying violations.
The changes also clarify the implications of violating a CCA by adding an explicit statement that violating the terms or conditions of a CCA is not allowed; including alleged violations of a CCA as an issue that may remain in dispute with IEPA and be referred to the Attorney General or State's Attorney; and adding a $2,000 penalty for violations of the terms of a CCA "in addition to any other remedy or penalty that may apply."
Lastly, Public Act 097-0519 authorizes the creation of rules governing the initial violation allegation and the CCA development process, so new regulations may be on the way!