IEPA Seal Orders: The Extent of Section 34 Authority

Section 34 of the Illinois Environmental Protection Act gives the Agency authority to seal equipment, vehicles, vessels, aircraft, or facilities in emergency conditions and conditions creating immediate danger or imminent and substantial endangerment to public health or welfare of the environment.

Section 34 gives the Agency authority to issue a seal order in 3 different categories: 1.   Under Section 34(a), a seal may be issued “upon a finding that episode or emergency conditions specified in Board regulations exist; 2.    Under Section 34(b)(1), a seal may be issued 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;”  Under the Act, a “pollution control facility” is any waste storage site, sanitary landfill, waste disposal site, waste transfer station, waste treatment facility, or waste incinerator. 415 ILCS 5/3.330(a); or 3.  Under Section 34(b)(2) a seal may be issued  “at any other site or facility finds that an imminent and substantial endangerment to the public health or welfare or the environment exists.”

Section 34(b) significantly expands the Agency’s seal authority. Whereas Section 34(a) provides that emergency conditions must be specifically provided for in the Board regulations, Section 34(b) permits the Agency to make its own determination of what constitutes “immediate danger ” or “imminent and substantial danger” to public health or welfare or the environment. Section 34(b) was amended in 2005 to expand the reach of the seal authority to include any site or facility, regardless of how it is classified or regulated. Of the publicly available information about sites that have been sealed by Illinois EPA, a large portion (11 of the 18 found on Illinois EPA’s website) of the seal orders have been issued to prevent access to abandoned sites that contain hazardous waste.

On Thursday April 25, 2019 at 12:15 PM, Kristen Gale will give a CLE presentation “Section 34 of the Illinois EPA Act – How the Illinois EPA Shuts a Company Down” at the Chicago Bar Association Environmental Law Committee Meeting. The presentation will be also be available live by webcast.

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