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September 2004

Proposed Legislation Forces Polluters to Clean Up and Pay for Damages

Springfield, IL— Governor Rod Blagojevich signed into law two bills drafted by Attorney General Lisa Madigan aimed at preserving the state’s ability to force polluters to clean up their environmental damage and to punish those who deliberately violate environmental protection laws.

House Bill 5823, sponsored by State Representative Barbara Flynn Currie and State Senator William Haine addresses a recent Second District Appellate Court ruling (State of Illinois v. AgPro, Inc. and David Schulte) in which the court said the Attorney General and local States Attorneys have only limited authority to force polluters to clean up environmental damage they cause. The Appellate Court held that in most cases, all the trial court can do is order the polluter to stop adding to its mess.

“The court’s decision threatens a critical authority the state has had for more than 30 years.  We must be allowed to do more than just stop pollution, we also need to make those responsible clean up the property they have contaminated,” the Governor said.

House Bill 5823 amends the state’s Environmental Protection Act to provide that the Court can issue an injunction ordering polluters to clean up the damage they cause.  

In the AgPro case, the Ogle County Circuit Court held that the Attorney General’s office had proven its case that AgPro, Inc., had contaminated the drinking water of its neighbors with pesticides from its operations.  The Attorney General’s office subsequently asked the court to order the defendants to clean up the contaminants, reimburse taxpayers for costs of the investigation and prosecution and pay fines.  However, in a significant reversal of decades of cases, the court held that Illinois law does not give the court the authority to order the defendants to clean up their pollution. The court reasoned that since AgPro had stopped dumping the pesticides, the company currently was not taking any action that could be “restrained.”

An appellate court sided with the circuit court.  Madigan said that because of the devastating impact the decision would have on efforts to force polluters to clean up their illegal sites, her office appealed the appellate court decision to the Illinois Supreme Court, which has accepted the appeal. 

“Once a site is contaminated, it is not enough to order the polluter to stop further polluting. This amendment restores the critical ability of my office to require a polluter to clean up its illegal mess,” Madigan said.  “Not only do we have the power to stop something, we have to power to make it right.”

Governor Blagojevich also signed House Bill 4567, sponsored by State Representative Ricca Slone and State Senator John Cullerton, which clarifies a portion of the environmental “bad actor” bill sought by Madigan and signed into law by the Governor last year.

The legislation makes clear that a person or business found by a court or the Illinois Pollution Control Board to have committed a willful or knowing violation of any portion of the Environmental Protection Act is banned from doing business with the State or any state agency from the date of the order containing the finding until five years after that date.

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