Transcript Illinois Hydraulic Fracturing Act HB 2615

Hydraulic Fracturing Regulatory Act
Public Act 98 - 0022
Prohibitions and Enforcement
Fracking Industry Seminar
Rend Lake College
July 30, 2013
LISA MADIGAN
ATTORNEY GENERAL
STATE OF ILLINOIS
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[§ 1-25]
Prohibitions
It is unlawful to:
• Inject diesel for fracturing operations
• Inject or discharge any of the following into
fresh water:
– Hydraulic fracturing fluid
– Produced water
– BTEX (Benzene, Toluene, Ethylbenzene, Xylene)
– Diesel
– Petroleum distillates
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[§ 1-85]
Presumption of Pollution or Diminution
• Establishes rebuttable presumption that fracking
operations are liable for:
–
–
–
–
Any “pollution or diminution” of water source
Within 1,500 ft of well
Compared to baseline pre-operation water quality
Within 30 months of the end of fracking operations
• Standard to rebut presumption:
– “Clear and convincing evidence” that fracking
operations not responsible for pollution or diminution
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[§ 1-87]
Water Quality Investigation and
Enforcement
• No person shall allow HVHHF operations to violate
Section 12 of the Illinois Environmental Protection Act
– IEPA has duty to investigate complaints of violations
• Section 12 of IEP Act prohibits discharges of
contaminants to waters without an IEPA permit, or so
as to cause water pollution
• Permittee must reimburse IEPA for costs of cleanup of
water pollution caused by HVHHF operations
– Applies to either “pollution or diminution” under this Act,
or a Section 12 water pollution violation
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[§ 1-100]
Criminal Offenses and Penalties
• A knowing violation of the Act, rules or permit, or knowingly
submitting false information, is a Class A misdemeanor
• Violator is subject to a fine of not to exceed $10,000 per day
• It is unlawful for a person knowingly to:
– Inject or discharge hydraulic fracturing fluid, produced water,
BTEX, diesel, or petroleum distillates into fresh water
– Perform any HVHHF operations by injecting diesel
– Drill, deepen or convert a horizontal well where HVHHF
operations are planned or occurring or convert a vertical well
into a horizontal well where HVHHF operations are planned in
the State, unless the person has been issued a permit
– Discharge hydraulic fracturing fluids, hydraulic fracturing
flowback, or produced water into any surface water or water
drainage way
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[§ 1-100]
Criminal Offenses and Penalties
• A person who knowingly violates these requirements or
prohibitions commits a Class 4 felony and is subject to a fine not to
exceed $25,000 per day
• A person who commits a second or subsequent knowing violation
commits a Class 3 felony and is subject to a fine not to exceed
$50,000 per day
• Any person who knowingly makes a false, fictitious or fraudulent
material statement to IDNR or IEPA commits a Class 4 felony
• Each false statement or writing is a separate violation
• Violators are subject to a fine of not to exceed $25,000 per day
• A second or subsequent knowing violation is a Class 3 felony with a
fine not to exceed $50,000 per day
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[§ 1-100]
Criminal Offenses and Penalties
• Any criminal action shall be brought by the
State’s Attorney or the Attorney General and
shall be conducted in accordance with the
Code of Criminal Procedure of 1963
• The period for commencing prosecution
begins to run when the offense is discovered
or reported
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[§ 1-101]
Civil Penalties and Injunctions
• Any person who violates the Act or a rule, order or permit shall
be liable for a civil penalty not to exceed $50,000 per violation
and an additional $10,000 per day of violation
• Any person who does the following is subject to a civil penalty
not to exceed $100,000 per violation and an additional $20,000
per day of violation:
– Inject or discharge hydraulic fracturing fluid, produced water,
BTEX, diesel, or petroleum distillates into fresh water
– Perform any HVHHF operations by injecting diesel
– Drill, deepen or convert a horizontal well where HVHHF
operations are planned or occurring or convert a vertical well
into a horizontal well where HVHHF operations are planned in
the State, unless the person has been issued a permit
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[§ 1-101]
Civil Penalties and Injunctions
– Discharge hydraulic fracturing fluids, hydraulic fracturing
flowback, or produced water into any surface water or water
drainage way
• Any person who knowingly makes or submits a false
report of pollution, diminution or water pollution
attributable to HVHHF operations that results in an
investigation by IDNR or IEPA shall be liable for a civil
penalty not to exceed $1,000
• The penalty shall be recovered by a civil action before the
circuit court
• Penalties may be made payable to the Environmental
Protection Trust Fund
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[§ 1-101]
Civil Penalties and Injunctions
• The State’s Attorney or Attorney General may, at the
request of IDNR or on his or her own motion, institute
a civil action for the recovery of costs, an injunction,
prohibitory or mandatory, to restrain violations of the
Act, any rule, permit or term or condition of a permit,
or to require other actions as may be necessary to
address violations of the Act, any rule, permit or term
or condition of a permit
• The court may award costs and reasonable attorney’s
fees, including the reasonable costs of expert witnesses
and consultants, when the State’s Attorney or the
Attorney General has prevailed against a person who
has committed a knowing or repeated violation
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[§ 1-102]
Other Relief
• “Any person having an interest that is or may be adversely
affected may commence a civil action on his or her own behalf
to compel compliance with this Act against any governmental
instrumentality or agency which is alleged to be in violation of
the provisions of this Act or of any rule, order, or permit issued
under this Act, or against any other person who is alleged to be
in violation of this Act or of any rule, order, or permit issued
under this Act.”
• No action may be commenced prior to 60 days after the plaintiff
has given notice in writing of the alleged violation to IDNR and
to any alleged violator, or if the State has commenced and is
diligently prosecuting a civil action to require compliance with
the provisions of the Act, rule, order or permit issued under the
Act.
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[§ 1-102]
Other Relief
• Any person having an interest that is or may be adversely
affected may commence a civil action against IDNR on his
or her own behalf to compel compliance with the Act
where there is alleged a failure of IDNR to perform any act
or duty under the Act that is not discretionary with IDNR.
• No action may be commenced prior to 60 days after the
plaintiff has given notice in writing of the action to IDNR,
except that such action may be brought immediately after
the notification in the case where the violation or order
complained of constitutes an imminent threat to the health
or safety of the plaintiff or would immediately affect a legal
interest of the plaintiff.
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[§ 1-102]
Other Relief
• Court may award costs of litigation (including attorney
and expert witness fees) to any party, on the basis of
the importance of the proceeding and the participation
of the parties to the efficient and effective
enforcement of the Act
• Any person who is injured in his or her person or
property through the violation by any operator of any
rule, order or permit issued under the Act may bring an
action for damages (including reasonable attorney and
expert witness fees)
• In any action under this Section, IDNR shall have an
unconditional right to intervene
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Matthew J. Dunn
Chief, Environmental Enforcement/
Asbestos Litigation Division
Illinois Attorney General’s Office
500 South Second Street
Springfield, IL 62706
Tel. 217-524-1503
Fax 217-785-2551
[email protected]
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