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A Primer on Illinois Environmental Law: Permitting, Enforcement, and Emergency Response

This article first appeared in the CBA Record
Illinois lawyers in all practice areas can benefit from a basic understanding of federal and state environmental laws to help identify environmental obligations and address the concerns of the clients they serve. This environmental primer provides a summary of several critical areas of Illinois environmental law, including facility permitting obligations, environmental emergency response obligations, and civil environmental enforcement procedures.

Environmental Permitting in Illinois

Federal, state, and sometimes local laws require a permit before engaging in certain activities that impact the environment. In Illinois, the Illinois Environmental Protection Agency (IEPA) is primarily responsible for administering air, land, and water permitting programs.

Air Permits

The IEPA Bureau of Air administers the air construction and operating permitting programs. A business may need an air pollution control construction permit before it can construct any equipment or facility capable of emitting air contaminants. If a business wishes to modify existing sources of air emissions, a construction permit may also be required if the modification will increase emission of air contaminants or result in emission of air contaminants not previously emitted at that source. If new equipment or modifications cause increased air emissions, the federal Prevention of Significant Deterioration and State Nonattainment New Source Review requirements may also apply.

A business may also need to obtain an air pollution control operating permit if it has equipment that emits air pollution. Smaller sources may not require an operating permit but may instead qualify for registration under Illinois’s Registration of Smaller Sources program. Larger and more significant sources of air emissions may be required to obtain a Clean Air Act Permit Program permit. Air permit application forms and further guidance are available on the Bureau of Air’s website at www2.illinois.gov/epa/topics/forms/air-permits/ Pages/default.aspx.

Land Permits

The IEPA Bureau of Land administers the land pollution control permitting program. A land pollution control permit may be required if a business treats, stores, or disposes of waste. The type of permit required depends in part on the type of waste managed: that is, nonspecial waste (e.g., office waste); potentially infectious medical waste; industrial process waste; pollution control waste (e.g., waste generated by the treatment or cleanup of other wastes); and hazardous waste.

The type of land permit required will also depend on the nature of the waste management activity. For example, a business that generates hazardous waste will be required to obtain a generator identification number but will not be required to obtain a waste permit, so long as the business complies with the applicable management, reporting, training, and recordkeeping requirements for waste generators under the federal Resource Conservation and Recovery Act, as implemented by the IEPA. However, a land permit may be required if the business engages in waste storage, treatment, transportation, or disposal activities. Land permit application forms and further guidance are available on the Bureau of Land’s website at www2.illinois.gov/epa/topics/forms/land-permits/ Pages/default.aspx.

Water Permits

The IEPA Bureau of Water administers water permit programs, including the National Pollutant Discharge Elimination System (NPDES) permit program and the state construction and operating permit program. In addition, the IEPA, U.S. Army Corps of Engineers, and Illinois Department of Natural Resources (IDNR) implement the Section 404 permitting/Section 401 water quality certification (WQC) program.

The NPDES permitting program regulates the discharge of wastewater from a point source to regulated waterbodies in the state. Wastewater includes most any discharge of water associated with an industrial process; any solid, liquid, or gaseous waste; and any other substance whose discharge would pollute the waterbody or cause a violation of the State’s effluent or water quality standards. If a business has a wastewater discharge, it may be required to obtain an NPDES permit. Stormwater discharges may also require an NPDES permit, depending on the discharger.

A state water pollution control construction permit may be required if an entity is constructing or modifying a treatment works; pretreatment works; wastewater source; or sewer. In addition, a state operating water permit may be required to use or operate a treatment works, pretreatment works, sewer, or wastewater source for which a state construction permit is required.

Section 401 WQC and Section 404 permits must be obtained before dredging, filling, or otherwise altering the bed or banks of, or constructing, operating or maintaining any dam, pier, dock, wharf, levee, sluice, dike, building, utility and road crossings, piling, wall, fence or other structure in, any stream, wetland, lake, floodplain, or floodway subject to state or federal jurisdiction.

Section 401 of the federal Clean Water Act, 33 U.S.C. § 1341, requires a business to request a WQC from the IEPA, which must grant or waive the certification before Army Corps of Engineers and IDNR will authorize a potential discharge of dredged or fill material to a waterbody. In considering WQC requests, IEPA reviews the potential impacts on water quality caused by the proposed activity and determines whether the proposed activity meets the state water quality standards set forth in 35 Ill. Admin. Code, Subtitle C. If the IEPA includes conditions or monitoring requirements in the WQC, those conditions become part of any federal permit. After obtaining the WQC, a business will need to obtain either a general permit or an individual permit from the Army Corps of Engineers (and sometimes IDNR) for projects that do not meet the conditions for a general permit.

Water permit application forms and further guidance are available on the Bureau of Water’s website at www2.illinois.gov/epa/topics/forms/water-permits/Pages/default.aspx and on Army Corps of Engineers website at www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/….

Illinois Spill Response Obligations

Federal and Illinois state laws requires facilities to respond to and report spills of oil and regulated substances in a variety of circumstances.

Oil Spills

For oil spills, a federally mandated response plan prepared by the facility owner or operator may specify how to respond to a spill. The federal Spill Prevention, Control, and Countermeasure (SPCC) rule requires facilities that collectively store more than 1,320 gallons of oil above ground that could reasonably be expected to discharge oil to a regulated water body to implement an oil spill prevention plan. Only containers with 55 gallons or greater storage capacity count towards the 1,320-gallon threshold.

The SPCC plan must address discharge prevention measures; control measures; and countermeasures to contain, clean up, and mitigate the effects of an oil spill. The SPCC plan must also list the federal, state, and local agencies that must be contacted in case of a discharge, such as the Illinois Emergency Management Agency (IEMA) or the Local Emergency Planning Committee (LEPC) likely to be affected by the release.

Regulated Substances

If there is a suspected release of a regulated substance (as defined in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act but not hazardous waste) or petroleum from an underground storage tank (UST), the UST owner or operator must immediately report that spill to IEMA. Once confirmed, the spill must also be reported to the 9-1-1 call center if it involves a spill of petroleum products over 25 gallons, a spill of hazardous substances over a reportable quantity (see 41 Ill. Admin. Code § 174.100), or a release that presents a hazard to life. The UST owner or operator must and immediately clean up the spill and begin any corrective action needed pursuant to 35 Ill. Admin. Code Pt. 734.

Hazardous Substances

If a facility releases a reportable quantity of a “hazardous substance” (see Table 302.4 of 40 C.F.R. § 302.4) or an “extremely hazardous substance” (see Appendix A of 40 C.F.R. Pt. 355), the owner or operator of the facility must immediately call the IEMA, LEPC, and, if the substance is a “hazardous substance” under CERCLA, the federal National Response Center. Immediate notification is also required, regardless of the spill volume, if a member of the public is killed or receives injuries requiring hospitalization, or if a fire, release, or contamination occurs involving an etiologic agent. However, a release solely to the site on which a facility is located is exempt from the notification requirements.

The initial telephone notification must provide the specific information listed in the regulations at 29 Ill. Admin. Code 430.40, to the extent known. 

Within 30 days of a release of reportable quantities of hazardous substances or extremely hazardous substances, the owner or operator must provide a written follow-up notice to the IEMA and LEPC, updating the information provided in the initial notification and detailing the actions taken to respond to and contain the release; any known or anticipated health risks associated with the release; and, where appropriate, advice regarding medical attention necessary for exposed individuals. See 29 Ill. Admin. Code Pt. 430 for more information.

Emergency Environmental Enforcement in Illinois

In emergency situations, both IEPA and Illinois prosecutorial authorities are empowered to take immediate action under the Illinois Environmental Protection Act (415 ILCS 5/1, et seq.)

The State’s Attorney or the Attorney General’s Office may institute a civil action where there is a “substantial danger to the environment or to the public health of persons or to the welfare of persons where such danger is to the livelihood of such persons.” In such circumstances, a complaint seeking an immediate injunction may be filed. The statutory requirements for issuing a temporary restraining order do not apply; therefore, an injunction will issue if the plaintiff proves a “substantial danger” exists. (See People v. Conrail Corp., 251 Ill. App. 3d 550 (4th Dist. 1993); see also 415 ILCS 5/42(e) (requirements for injunctive relief). The court may issue an ex parte order and schedule a hearing on the matter within three working days from the date of injunction.

Additionally, IEPA has authority under Section 34 of the Illinois Act to seal equipment, vehicles, vessels, aircraft, or facilities in the following circumstances:

  1. Section 34(a): Upon a finding that episode or emergency conditions specified in [Pollution Control Board] regulations exist;
  2. Section 34(b)(1): At any pollution control facility where the Agency finds that an emergency condition exists creating an immediate danger to public health or welfare or the environment (A “pollution control facility” means any waste storage site, sanitary landfill, waste disposal site, waste transfer station, waste treatment facility, or waste incinerator); or
  3. Section 34(b)(2): Where an imminent and substantial endangerment to the public health or welfare or the environment exists.

Whereas Section 34(a) provides that the emergency conditions that trigger IEPA’s authority must be specifically provided for in the Board regulations, Section 34(b) gives IEPA discretion to determine what constitutes “immediate danger” or “imminent and substantial danger” to public health or welfare, or the environment. Seal orders may only be removed by the IEPA when it determines that the contamination has been cleaned up or the risk has been abated. Otherwise, a seal order may be challenged pursuant to Section 34(d).

Illinois Civil Environmental Enforcement Procedures

Civil enforcement of alleged violations of the Illinois Act and associated environmental regulations, including federal programs that Illinois is authorized to implement, follows the enforcement procedures in Section 31 of the Illinois Act. 415 ILCS 5/31. The Section 31 enforcement procedures are mandatory unless they are waived.

Violation Notices

The enforcement process commences when IEPA issues a Violation Notice (VN), which informs the respondent of the alleged violation and provides suggested compliance measures. A person receiving an IEPA VN has 45 days to submit a written response and an opportunity to meet with representatives of Illinois EPA within 60 days. The response must include:

  1. Information in rebuttal, explanation or justification of each alleged violation;
  2. If the person complained against desires to enter into a compliance commitment agreement (CCA), proposed terms for a CCA including specified times for achieving each commitment, or a statement indicating that compliance has been achieved; and
  3. A request for a meeting if one is desired.

If a meeting is held, an updated written response may be submitted within 21 days after the meeting.  Failure to respond to the VN is considered a waiver of the Section 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 compliance 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 information about CCAs and examples of their terms is available at: https://www2.illinois.gov/epa/topics/compliance-enforcement/Pages/cca.a…

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 referral 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 enforcement 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 typically 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 violations 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 Illinois 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 violation;
  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/enforcement-orders.aspx.

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