CBA Record November-December 2021

31 process. A VN is typically resolved in one of two ways: the IEPA either (1) enters into a CCA with the respondent or (2) determines that the alleged violations cannot be resolved without the involvement of the Attorney General’s Office or State’s Attorney. IEPA does not have authority to issue a penalty under the Illinois Act. Therefore, if a VN is resolved without a referral, there is no civil penalty. Instead, under a CCA, the respondent agrees to undertake compliance measures or otherwise affirm past compli- ance measures taken to resolve the alleged violations. In exchange, IEPA agrees not to proceed with a referral if the CCA terms are met. A CCA is an enforceable document, and a violation of its terms is a violation of the Illinois Act that can be referred for enforcement in addition to the underlying violations stated in the VN. More informa- tion about CCAs and examples of their terms is available at: https://www2.illinois. gov/epa/topics/compliance-enforcement/ Pages/cca.aspx. If IEPA does not accept the proposed terms of the CCA, it will tender a rejection followed by a Notice of Intent to Pursue Legal Action (NIPLA). Upon receipt of a NIPLA, the respondent has another opportunity to meet with IEPA within 30 days. 415 ILCS 5/31(a)(7), (b). If IEPA refers the alleged violations to a prosecutorial authority, a lawsuit seeking a civil penalty and injunctive relief may be filed. For some alleged violations, a refer- ral may be unavoidable based on factors including the severity of the violation, the respondent’s compliance history, or IEPA’s current enforcement priorities. But even where a referral is anticipated, submitting a well-crafted VN response and engaging with IEPA through the Section 31 enforce- ment process allows respondents to assess the IEPA’s position, build a defense that can aid in future penalty negotiations, and may influence the factual content of any eventual complaint filed, the violations charged, or relief sought. Civil Penalties A civil complaint may be filed in either Illinois Circuit Court or with the Illinois

Pollution Control Board (IPCB). 415 ILCS 5/31 (b), (c). If the prosecutorial authority believes additional compliance measures are necessary to resolve the alleged violations, the complaint is typi- cally filed in Circuit Court rather than the IPCB because a court has authority to enforce any future compliance obligations if a respondent defaults. Civil penalties may be assessed for viola- tions regardless of whether they result in actual pollution, though a penalty is not mandatory. See ESG Watts, Inc. v. Illinois Pollution Control Board , 282 Ill. App. 3d 43 (4th Dist. 1996). Penalties assessed are intended to aid in enforcement of the Illi- nois Act, and punitive considerations are secondary. City of Monmouth v. Pollution Control Board , 57 Ill. 2d 482 (1974). Civil penalties assessed are subject to a statutory maximum which, with limited exceptions, is “not to exceed $50,000 for the violation and an additional civil penalty of not to exceed $10,000 for each day during which the violation continues.” Section 42(h) of the Illinois Act sets out the factors that must be considered in assessing an appropriate civil penalty: (1) The duration and gravity of the viola- tion; (2) Due diligence of the respondent to come into compliance; (3) Economic benefits received due to delay in compliance; (4) Deterrence; (5) Previously adjudicated violations of the Illinois Act; (6) Self-disclosure (as outlined in Section 42(i));

(7) Undertaking a “supplemental environ- mental project”; and (8) Successful completion of a Compliance Commitment Agreement. All past Illinois enforcement orders, including both compliance commitment agreements and consent decrees showing the amount of civil penalties assessed for certain violations are published on IEPA’s website at: www2.illinois.gov/epa/topics/ compliance-enforcement/Pages/enforce- ment-orders.aspx.

Alex Garel-Frantzen, an associate in Schiff Hardin’s environmen- tal practice group, represents businesses in a wide variety of environmental regula- tory, permitting, trans- Mo l l y Sni t t j e r, an associate in Nijman Franzetti LLP, repre- sents clients on environ- mental issues in federal and state enforcement actions and provides

actional, and litigation matters.

counsel on regulatory compliance matters. Garel-Frantzen and Snittjer are the Co-Chairs of The Chicago Bar Association Young Lawyers Section Environmental Law Committee.

CBA RECORD 31