Hydraulic Fracturing Regulatory Act Public Act 98 - 0022

1. Hydraulic Fracturing Regulatory ActPublic Act 98 - 0022 Prohibitions and Enforcement Fracking Industry Seminar Rend Lake College July 30, 2013 LISA MADIGAN ATTORNEY GENERAL STATE OF ILLINOIS

2. [§ 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

3. [§ 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

4. [§ 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

5. [§ 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

6. [§ 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

7. [§ 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

8. [§ 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

9. [§ 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

10. [§ 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

11. [§ 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.

12. [§ 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.

13. [§ 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

14. 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 mdunn@atg.state.il.us