On August 24, 2011, the Illinois General Assembly made changes to Section 31 of the Illinois Environmental Protection Act that alter the procedures for resolving environmental enforcement actions in the State of Illinois.
The most significant change concerns the procedures for preparing a document unique to Illinois known as a Compliance Commitment Agreement ("CCA"). These agreements set forth the respondent's planned measures for addressing an alleged violation along with a schedule for implementing them. Under prior law, a respondent in an enforcement action had two chances to prepare a satisfactory CCA: one within 45 days of receiving the Violation Notice, 415 ILCS 5/31(a)(2)(B), and a second chance within 21 days after holding a meeting to discuss the items in the violation notice. Id. 5/31(a)(5)(B). The Agency's acceptance of a CCA is a critical part of the enforcement process because it provides hope that the action will end without a referral to the Attorney General or State's Attorney and the subsequent filing of a complaint and penalty assessment. Id. 5/31(a)(10).
The new law changes the responsibilities of the respondent and the Agency with regard to the preparation and approval of CCAs. Instead of requiring the respondent to prepare a CCA, the new law gives the respondent the option of proposing terms for a CCA. Id. 5/31(a)(2)(A). Instead of the Agency accepting, rejecting, or modifying the CCA as in prior law, id. 5/31(a)(7)), the Agency either issues a proposed CCA to the respondent, or puts the respondent on notice that no CCA will resolve the violation and involving the Attorney General or State's Attorney will be necessary. Id. 5/31(a)(7)(ii).
If it issues a CCA, the Agency "shall" take into consideration any terms the respondent proposed. Id. 5/31(a)(7)(ii). Under the new law, instead of the Agency having the right to reject the CCA, the respondent has the right to reject the Agency's CCA either affirmatively or by operation of law if the respondent takes no action within 30 days. Id 5/31(a)(7.5). CCAs can also be amended by mutual agreement of the parties. Id. 5/31(a)(7.5).
Although it would seem that the successful completion of a CCA by a respondent would put the matter to rest, this is not necessarily the case, as the Illinois Attorney General's office has the independent power to file a complaint against an alleged violator regardless of whether it has successfully completed a CCA. Id. 5/42(e). See People v. NL Industries, 152 Ill.2d 82, 604 N.E.2d 349 (1992). Two provisions of Section 31 ? one old and one new ? militate against any such independent filing by the Attorney General or the State's attorney, but do not preclude it. Existing Section 31(a)(10) provides that if the respondent complies with the terms of a CCA, "the Agency shall not refer the alleged violations which are the subject of the [CCA] to the Office of the Illinois Attorney General or the State's Attorney." New Section 31(a)(7.6), however, discourages the Attorney General (but for some reason, not the State's Attorney) from acting on its own. It provides that "successful completion of a Compliance Commitment Agreement ? shall be a factor to be weighed, in favor of the person completing the Agreement, by the Office of the Illinois Attorney General in determining whether to file a complaint or the violations that were the subject of the Agreement." Whether the respondent has successfully completed a CCA is also a new factor to be considered by the Pollution Control Board in determining the appropriate civil penalty for the violation. 415 ILCS 5/42)(h)(8).
In summary, under the old system, the respondent proposes a CCA for the Agency to accept, reject, or modify. The new procedures, in contrast, give the respondent the option, but not the duty, of proposing terms for the CCA. After considering the respondent's proposed terms, the Agency then prepares the CCA and sends it to the respondent, who either accepts or rejects it.
Where the CCA process does not resolve a violation, the Agency, as a precondition to referring the matter to the Attorney General or State's Attorney, notifies the respondent that the Agency will refer the matter for "legal action" and gives the respondent another opportunity for a meeting. Id. 5/31(b). The new law makes no substantive changes to this provision other than to include alleged violations of the terms and conditions of a Compliance Commitment Agreement among the items that may remain in dispute. Id.
Two other changes to Section 31 are also noteworthy. First, new Section 31(a)(12) gives the Agency the authority to adopt rules implementing the enforcement procedures. Second, new Section 42(k) gives the Agency authority to levy a $2,000 penalty (reduced from $10,000 in the original bill) upon any person who violates the terms of a CCA.
While it is still too soon to assess the practical impact of the new provisions, the revised procedures for Compliance Commitment Agreements will no doubt alter the way respondents approach the resolution of environmental enforcement actions in Illinois.