Public Act 90-0773 of the 90th General Assembly
Public Act 90-0773
SB545 Enrolled LRB9001840DPcc
AN ACT in relation to environmental matters, amending
named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Environmental Protection Act is amended by
changing Sections 15, 18, 22.2, 39.5, 42, 56, and 56.4 and
adding Section 13.4 as follows:
(415 ILCS 5/13.4 new)
Sec. 13.4. Pretreatment market system.
(a) The General Assembly finds:
(1) That achieving compliance with federal, State,
and local pretreatment regulatory requirements calls for
innovative and cost-effective implementation strategies.
(2) That economic incentives and market-based
approaches can be used to achieve pretreatment compliance
in an innovative and cost-effective manner.
(3) That development and operation of a
pretreatment market system should significantly lessen
the economic impacts associated with implementation of
the pretreatment requirements and still achieve the
desired water quality, sludge quality, and protection of
the sewers and treatment system.
(b) The Agency shall design a pretreatment market system
that will provide more flexibility for municipalities and
their tributary dischargers to develop cost-effective
solutions and will result in at least the total pollutant
reduction as achieved by the current application of federal
categorical standards, State pretreatment limits, and locally
derived limits, as applicable. Such a system should also
assist publicly-owned treatment works in meeting applicable
NPDES permit limits and in preventing the discharge of
pollutants in quantities that would interfere with the
operation of the municipal sewer system. In developing this
system, the Agency shall consult with interested
publicly-owned treatment works and tributary dischargers to
ensure that relevant economic, environmental, and
administrative factors are taken into account. As necessary,
the Agency shall also consult with the United States
Environmental Protection Agency regarding the suitability of
such a system.
(c) The Agency may adopt proposed rules for a
market-based pretreatment pollutant reduction, banking, and
trading system that will enable publicly-owned treatment
works and their tributary dischargers to implement
cost-effective compliance options. Any proposal shall be
adopted in accordance with the provisions of the Illinois
Administrative Procedure Act.
(d) Notwithstanding the other provisions of this Act, a
publicly-owned treatment works may implement a pretreatment
market system that is consistent with subsection (b) of this
Section, provided that the publicly-owned treatment works:
(1) operates an approved local pretreatment program
pursuant to State and federal NPDES regulations;
(2) is not currently subject to enforcement action
for violation of NPDES requirements;
(3) receives wastewater from tributary dischargers
that are subject to federal categorical pretreatment
standards or approved local pretreatment limits; and
(4) has modified, as appropriate, the local
pretreatment program to incorporate such market system.
(e) Prior to implementation of any pretreatment market
system, a publicly-owned treatment works shall notify the
Agency in writing of its intention and request the Agency to
make a consistency determination regarding the local system's
conformance with the rules promulgated pursuant to subsection
(c) of this Section. Within 120 days, the Agency shall
provide the determination in writing to the publicly-owned
treatment works.
(f) Notwithstanding the other provisions of this Act,
any discharger that is tributary to a publicly-owned
treatment works with a pretreatment market system shall be
eligible to exchange trading units with dischargers tributary
to the same publicly-owned treatment works or with the
publicly-owned treatment works to which it is tributary.
(g) Nothing in this Section shall be deemed to authorize
a publicly-owned treatment works:
(1) to mandate the exchange of trading units by a
tributary discharger in a pretreatment market system
implemented pursuant to this Section; or
(2) to mandate reductions in pollutants from any
tributary discharger beyond that otherwise required by
federal categorical and State pretreatment standards or
approved local pretreatment limits.
(415 ILCS 5/15) (from Ch. 111 1/2, par. 1015)
Sec. 15. Plans and specifications; demonstration of
capability.
(a) Owners of public water supplies, their authorized
representative, or legal custodians, shall submit plans and
specifications to the Agency and obtain written approval
before construction of any proposed public water supply
installations, changes, or additions is started. Plans and
specifications shall be complete and of sufficient detail to
show all proposed construction, changes, or additions that
may affect sanitary quality, mineral quality, or adequacy of
the public water supply; and, where necessary, said plans and
specifications shall be accompanied by supplemental data as
may be required by the Agency to permit a complete review
thereof.
(b) All new public water supplies established after
October 1, 1999 shall demonstrate technical, financial, and
managerial capacity as a condition for issuance of a
construction or operation permit by the Agency or its
designee. The demonstration shall be consistent with the
technical, financial, and managerial provisions of the
federal Safe Drinking Water Act (P.L. 93-532), as now or
hereafter amended. The Agency is authorized to adopt rules
in accordance with the Illinois Administrative Procedure Act
to implement the purposes of this subsection. Such rules
must take into account the need for the facility, facility
size, sophistication of treatment of the water supply, and
financial requirements needed for operation of the facility.
(Source: P.A. 76-2429.)
(415 ILCS 5/18) (from Ch. 111 1/2, par. 1018)
Sec. 18. Prohibitions; plugging requirements.
(a) No person shall:
(1) Knowingly cause, threaten or allow the
distribution of water from any public water supply of
such quality or quantity as to be injurious to human
health; or
(2) Violate regulations or standards adopted by the
Agency pursuant to Section 15(b) of this Act or by the
Board under this Act; or
(3) Construct, install or operate any public water
supply without a permit granted by the Agency, or in
violation of any condition imposed by such a permit.
(b) Borings, water monitoring wells, and wells subject
to this Act shall, at a minimum, be abandoned and plugged in
accordance with the requirements of Sections 16 and 19 of "An
Act in relation to oil, gas, coal and other surface and
underground resources and to repeal an Act herein named",
filed July 29, 1941, as amended, and such rules as are
promulgated thereunder. Nothing herein shall preclude the
Board from adopting plugging and abandonment requirements
which are more stringent than the rules of the Department of
Natural Resources where necessary to protect the public
health and environment.
(Source: P.A. 89-445, eff. 2-7-96.)
(415 ILCS 5/22.2) (from Ch. 111 1/2, par. 1022.2)
Sec. 22.2. Hazardous waste; fees; liability.
(a) There are hereby created within the State Treasury 2
special funds to be known respectively as the "Hazardous
Waste Fund" and the "Hazardous Waste Research Fund",
constituted from the fees collected pursuant to this Section.
(b) (1) On and after January 1, 1989, the Agency shall
collect from the owner or operator of each of the
following sites a fee in the amount of:
(A) 6 cents per gallon or $12.12 per cubic
yard of hazardous waste disposed for 1989, 7.5 cents
per gallon or $15.15 per cubic yard for 1990 and 9
cents per gallon or $18.18 per cubic yard
thereafter, if the hazardous waste disposal site is
located off the site where such waste was produced.
The maximum amount payable under this subdivision
(A) with respect to the hazardous waste generated by
a single generator and deposited in monofills is
$20,000 for 1989, $25,000 for 1990, and $30,000 per
year thereafter. If, as a result of the use of
multiple monofills, waste fees in excess of the
maximum are assessed with respect to a single waste
generator, the generator may apply to the Agency for
a credit.
(B) 6 cents per gallon or $12.12 per cubic
yard of hazardous waste disposed for 1989, 7.5 cents
per gallon or $15.15 per cubic yard for 1990 and 9
cents or $18.18 per cubic yard thereafter, if the
hazardous waste disposal site is located on the site
where such waste was produced, provided however the
maximum amount of fees payable under this paragraph
(B) is $20,000 for 1989, $25,000 for 1990 and
$30,000 per year thereafter for each such hazardous
waste disposal site.
(C) If the hazardous waste disposal site is an
underground injection well, $6,000 per year if not
more than 10,000,000 gallons per year are injected,
$15,000 per year if more than 10,000,000 gallons but
not more than 50,000,000 gallons per year are
injected, and $27,000 per year if more than
50,000,000 gallons per year are injected.
(D) 2 cents per gallon or $4.04 per cubic yard
for 1989, 2.5 cents per gallon or $5.05 per cubic
yard for 1990, and 3 cents per gallon or $6.06 per
cubic yard thereafter of hazardous waste received
for treatment at a hazardous waste treatment site,
if the hazardous waste treatment site is located off
the site where such waste was produced and if such
hazardous waste treatment site is owned, controlled
and operated by a person other than the generator of
such waste. After treatment at such hazardous waste
treatment site, the waste shall not be subject to
any other fee imposed by this subsection (b). For
purposes of this subsection (b), the term
"treatment" is defined as in Section 3.49 but shall
not include recycling, reclamation or reuse.
(2) The General Assembly shall annually appropriate
to the Fund such amounts as it deems necessary to fulfill
the purposes of this Act.
(3) Whenever the unobligated balance of the
Hazardous Waste Fund exceeds $10,000,000, the Agency
shall suspend the collection of the fees provided for in
this Section until the unobligated balance of the Fund
falls below $8,000,000.
(4) Of the amount collected as fees provided for in
this Section, the Agency shall manage the use of such
funds to assure that sufficient funds are available for
match towards federal expenditures for response action at
sites which are listed on the National Priorities List;
provided, however, that this shall not apply to
additional monies appropriated to the Fund by the General
Assembly, nor shall it apply in the event that the
Director finds that revenues in the Hazardous Waste Fund
must be used to address conditions which create or may
create an immediate danger to the environment or public
health or to the welfare of the people of the State of
Illinois.
(5) Notwithstanding the other provisions of this
subsection (b), sludge from a publicly-owned sewage works
generated in Illinois, coal mining wastes and refuse
generated in Illinois, bottom boiler ash, flyash and flue
gas desulphurization sludge from public utility electric
generating facilities located in Illinois, and bottom
boiler ash and flyash from all incinerators which process
solely municipal waste shall not be subject to the fee.
(6) For the purposes of this subsection (b),
"monofill" means a facility, or a unit at a facility,
that accepts only wastes bearing the same USEPA hazardous
waste identification number, or compatible wastes as
determined by the Agency.
(c) The Agency shall establish procedures, not later
than January 1, 1984, relating to the collection of the fees
authorized by this Section. Such procedures shall include,
but not be limited to: (1) necessary records identifying the
quantities of hazardous waste received or disposed; (2) the
form and submission of reports to accompany the payment of
fees to the Agency; and (3) the time and manner of payment of
fees to the Agency, which payments shall be not more often
than quarterly.
(d) Beginning July 1, 1996, the Agency shall deposit all
such receipts in the State Treasury to the credit of the
Hazardous Waste Fund, except as provided in subsection (e) of
this Section. All monies in the Hazardous Waste Fund shall be
used by the Agency for the following purposes:
(1) Taking whatever preventive or corrective action
is necessary or appropriate, in circumstances certified
by the Director, including but not limited to removal or
remedial action whenever there is a release or
substantial threat of a release of a hazardous substance
or pesticide; provided, the Agency shall expend no more
than $1,000,000 on any single incident without
appropriation by the General Assembly.
(2) To meet any requirements which must be met by
the State in order to obtain federal funds pursuant to
the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, (P.L. 96-510).
(3) In an amount up to 30% of the amount collected
as fees provided for in this Section, for use by the
Agency to conduct groundwater protection activities,
including providing grants to appropriate units of local
government which are addressing protection of underground
waters pursuant to the provisions of this Act.
(4) To fund the development and implementation of
the model pesticide collection program under Section 19.1
of the Illinois Pesticide Act.
(5) To the extent the Agency has received and
deposited monies in the Fund other than fees collected
under subsection (b) of this Section, to pay for the cost
of Agency employees for services provided in reviewing
the performance of response actions pursuant to Title
XVII of this Act.
(6) In an amount up to 15% of the fees collected
annually under subsection (b) of this Section, for use by
the Agency for administration of the provisions of this
Section.
(e) The Agency shall deposit 10% of all receipts
collected under subsection (b) of this Section, but not to
exceed $200,000 per year, in the State Treasury to the credit
of the Hazardous Waste Research Fund established by this Act.
Pursuant to appropriation, all monies in such Fund shall be
used by the Department of Natural Resources for the purposes
set forth in this subsection.
The Department of Natural Resources may enter into
contracts with business, industrial, university, governmental
or other qualified individuals or organizations to assist in
the research and development intended to recycle, reduce the
volume of, separate, detoxify or reduce the hazardous
properties of hazardous wastes in Illinois. Monies in the
Fund may also be used by the Department of Natural Resources
for technical studies, monitoring activities, and educational
and research activities which are related to the protection
of underground waters. Monies in the Hazardous Waste
Research Fund may be used to administer the Illinois Health
and Hazardous Substances Registry Act. Monies in the
Hazardous Waste Research Fund shall not be used for any
sanitary landfill or the acquisition or construction of any
facility. This does not preclude the purchase of equipment
for the purpose of public demonstration projects. The
Department of Natural Resources shall adopt guidelines for
cost sharing, selecting, and administering projects under
this subsection.
(f) Notwithstanding any other provision or rule of law,
and subject only to the defenses set forth in subsection (j)
of this Section, the following persons shall be liable for
all costs of removal or remedial action incurred by the State
of Illinois or any unit of local government as a result of a
release or substantial threat of a release of a hazardous
substance or pesticide:
(1) the owner and operator of a facility or vessel
from which there is a release or substantial threat of
release of a hazardous substance or pesticide;
(2) any person who at the time of disposal,
transport, storage or treatment of a hazardous substance
or pesticide owned or operated the facility or vessel
used for such disposal, transport, treatment or storage
from which there was a release or substantial threat of a
release of any such hazardous substance or pesticide;
(3) any person who by contract, agreement, or
otherwise has arranged with another party or entity for
transport, storage, disposal or treatment of hazardous
substances or pesticides owned, controlled or possessed
by such person at a facility owned or operated by another
party or entity from which facility there is a release or
substantial threat of a release of such hazardous
substances or pesticides; and
(4) any person who accepts or accepted any
hazardous substances or pesticides for transport to
disposal, storage or treatment facilities or sites from
which there is a release or a substantial threat of a
release of a hazardous substance or pesticide.
Any monies received by the State of Illinois pursuant to
this subsection (f) shall be deposited in the State Treasury
to the credit of the Hazardous Waste Fund.
In accordance with the other provisions of this Section,
costs of removal or remedial action incurred by a unit of
local government may be recovered in an action before the
Board brought by the unit of local government under
subsection (i) of this Section. Any monies so recovered
shall be paid to the unit of local government.
(g)(1) No indemnification, hold harmless, or similar
agreement or conveyance shall be effective to transfer
from the owner or operator of any vessel or facility or
from any person who may be liable for a release or
substantial threat of a release under this Section, to
any other person the liability imposed under this
Section. Nothing in this Section shall bar any agreement
to insure, hold harmless or indemnify a party to such
agreements for any liability under this Section.
(2) Nothing in this Section, including the
provisions of paragraph (g)(1) of this Section, shall bar
a cause of action that an owner or operator or any other
person subject to liability under this Section, or a
guarantor, has or would have, by reason of subrogation or
otherwise against any person.
(h) For purposes of this Section:
(1) The term "facility" means:
(A) any building, structure, installation,
equipment, pipe or pipeline including but not
limited to any pipe into a sewer or publicly owned
treatment works, well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container,
motor vehicle, rolling stock, or aircraft; or
(B) any site or area where a hazardous
substance has been deposited, stored, disposed of,
placed, or otherwise come to be located.
(2) The term "owner or operator" means:
(A) any person owning or operating a vessel or
facility;
(B) in the case of an abandoned facility, any
person owning or operating the abandoned facility or
any person who owned, operated, or otherwise
controlled activities at the abandoned facility
immediately prior to such abandonment;
(C) in the case of a land trust as defined in
Section 2 of the Land Trustee as Creditor Act, the
person owning the beneficial interest in the land
trust;
(D) in the case of a fiduciary (other than a
land trustee), the estate, trust estate, or other
interest in property held in a fiduciary capacity,
and not the fiduciary. For the purposes of this
Section, "fiduciary" means a trustee, executor,
administrator, guardian, receiver, conservator or
other person holding a facility or vessel in a
fiduciary capacity;
(E) in the case of a "financial institution",
meaning the Illinois Housing Development Authority
and that term as defined in Section 2 of the
Illinois Banking Act, that has acquired ownership,
operation, management, or control of a vessel or
facility through foreclosure or under the terms of a
security interest held by the financial institution
or under the terms of an extension of credit made by
the financial institution, the financial institution
only if the financial institution takes possession
of the vessel or facility and the financial
institution exercises actual, direct, and continual
or recurrent managerial control in the operation of
the vessel or facility that causes a release or
substantial threat of a release of a hazardous
substance or pesticide resulting in removal or
remedial action;
(F) In the case of an owner of residential
property, the owner if the owner is a person other
than an individual, or if the owner is an individual
who owns more than 10 dwelling units in Illinois, or
if the owner, or an agent, representative,
contractor, or employee of the owner, has caused,
contributed to, or allowed the release or threatened
release of a hazardous substance or pesticide. The
term "residential property" means single family
residences of one to 4 dwelling units, including
accessory land, buildings, or improvements
incidental to those dwellings that are exclusively
used for the residential use. For purposes of this
subparagraph (F), the term "individual" means a
natural person, and shall not include corporations,
partnerships, trusts, or other non-natural persons.
(G) In the case of any facility, title or
control of which was conveyed due to bankruptcy,
foreclosure, tax delinquency, abandonment, or
similar means to a unit of State or local
government, any person who owned, operated, or
otherwise controlled activities at the facility
immediately beforehand.
(H) The term "owner or operator" does not
include a unit of State or local government which
acquired ownership or control through bankruptcy,
tax delinquency, abandonment, or other circumstances
in which the government acquires title by virtue of
its function as sovereign. The exclusion provided
under this paragraph shall not apply to any State or
local government which has caused or contributed to
the release or threatened release of a hazardous
substance from the facility, and such a State or
local government shall be subject to the provisions
of this Act in the same manner and to the same
extent, both procedurally and substantively, as any
nongovernmental entity, including liability under
Section 22.2(f).
(i) The costs and damages provided for in this Section
may be imposed by the Board in an action brought before the
Board in accordance with Title VIII of this Act, except that
Section 33(c) of this Act shall not apply to any such action.
(j) (1) There shall be no liability under this Section
for a person otherwise liable who can establish by a
preponderance of the evidence that the release or substantial
threat of release of a hazardous substance and the damages
resulting therefrom were caused solely by:
(A) an act of God;
(B) an act of war;
(C) an act or omission of a third party other than
an employee or agent of the defendant, or other than one
whose act or omission occurs in connection with a
contractual relationship, existing directly or
indirectly, with the defendant (except where the sole
contractual arrangement arises from a published tariff
and acceptance for carriage by a common carrier by rail),
if the defendant establishes by a preponderance of the
evidence that (i) he exercised due care with respect to
the hazardous substance concerned, taking into
consideration the characteristics of such hazardous
substance, in light of all relevant facts and
circumstances, and (ii) he took precautions against
foreseeable acts or omissions of any such third party and
the consequences that could foreseeably result from such
acts or omissions; or
(D) any combination of the foregoing paragraphs.
(2) There shall be no liability under this Section for
any release permitted by State or federal law.
(3) There shall be no liability under this Section for
damages as a result of actions taken or omitted in the course
of rendering care, assistance, or advice in accordance with
this Section or the National Contingency Plan pursuant to the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (P.L. 96-510) or at the direction of an
on-scene coordinator appointed under such plan, with respect
to an incident creating a danger to public health or welfare
or the environment as a result of any release of a hazardous
substance or a substantial threat thereof. This subsection
shall not preclude liability for damages as the result of
gross negligence or intentional misconduct on the part of
such person. For the purposes of the preceding sentence,
reckless, willful, or wanton misconduct shall constitute
gross negligence.
(4) There shall be no liability under this Section for
any person (including, but not limited to, an owner of
residential property who applies a pesticide to the
residential property or who has another person apply a
pesticide to the residential property) for response costs or
damages as the result of the storage, handling and use, or
recommendation for storage, handling and use, of a pesticide
consistent with:
(A) its directions for storage, handling and use as
stated in its label or labeling;
(B) its warnings and cautions as stated in its
label or labeling; and
(C) the uses for which it is registered under the
Federal Insecticide, Fungicide and Rodenticide Act and
the Illinois Pesticide Act.
(4.5) There shall be no liability under subdivision
(f)(1) of this Section for response costs or damages as the
result of a release of a pesticide from an agrichemical
facility site if the Agency has received notice from the
Department of Agriculture pursuant to Section 19.3 of the
Illinois Pesticide Act, the owner or operator of the
agrichemical facility is proceeding with a corrective action
plan under the Agrichemical Facility Response Action Program
implemented under that Section, and the Agency has provided a
written endorsement of a corrective action plan.
(4.6) There shall be no liability under subdivision
(f)(1) of this Section for response costs or damages as the
result of a substantial threat of a release of a pesticide
from an agrichemical facility site if the Agency has received
notice from the Department of Agriculture pursuant to Section
19.3 of the Illinois Pesticide Act and the owner or operator
of the agrichemical facility is proceeding with a corrective
action plan under the Agrichemical Facility Response Action
Program implemented under that Section.
(5) Nothing in this subsection (j) shall affect or
modify in any way the obligations or liability of any person
under any other provision of this Act or State or federal
law, including common law, for damages, injury, or loss
resulting from a release or substantial threat of a release
of any hazardous substance or for removal or remedial action
or the costs of removal or remedial action of such hazardous
substance.
(6)(A) The term "contractual relationship", for the
purpose of this subsection includes, but is not limited to,
land contracts, deeds or other instruments transferring title
or possession, unless the real property on which the facility
concerned is located was acquired by the defendant after the
disposal or placement of the hazardous substance on, in, or
at the facility, and one or more of the circumstances
described in clause (i), (ii), or (iii) of this paragraph is
also established by the defendant by a preponderance of the
evidence:
(i) At the time the defendant acquired the facility
the defendant did not know and had no reason to know that
any hazardous substance which is the subject of the
release or threatened release was disposed of on, in or
at the facility.
(ii) The defendant is a government entity which
acquired the facility by escheat, or through any other
involuntary transfer or acquisition, or through the
exercise of eminent domain authority by purchase or
condemnation.
(iii) The defendant acquired the facility by
inheritance or bequest.
In addition to establishing the foregoing, the defendant
must establish that he has satisfied the requirements of
subparagraph (C) of paragraph (l) of this subsection (j).
(B) To establish the defendant had no reason to know, as
provided in clause (i) of subparagraph (A) of this paragraph,
the defendant must have undertaken, at the time of
acquisition, all appropriate inquiry into the previous
ownership and uses of the property consistent with good
commercial or customary practice in an effort to minimize
liability. For purposes of the preceding sentence, the court
shall take into account any specialized knowledge or
experience on the part of the defendant, the relationship of
the purchase price to the value of the property if
uncontaminated, commonly known or reasonably ascertainable
information about the property, the obviousness of the
presence or likely presence of contamination at the property,
and the ability to detect such contamination by appropriate
inspection.
(C) Nothing in this paragraph (6) or in subparagraph (C)
of paragraph (1) of this subsection shall diminish the
liability of any previous owner or operator of such facility
who would otherwise be liable under this Act. Notwithstanding
this paragraph (6), if the defendant obtained actual
knowledge of the release or threatened release of a hazardous
substance at such facility when the defendant owned the real
property and then subsequently transferred ownership of the
property to another person without disclosing such knowledge,
such defendant shall be treated as liable under subsection
(f) of this Section and no defense under subparagraph (C) of
paragraph (1) of this subsection shall be available to such
defendant.
(D) Nothing in this paragraph (6) shall affect the
liability under this Act of a defendant who, by any act or
omission, caused or contributed to the release or threatened
release of a hazardous substance which is the subject of the
action relating to the facility.
(E) (i) Except as provided in clause (ii) of this
subparagraph (E), a defendant who has acquired real property
shall have established a rebuttable presumption against all
State claims and a conclusive presumption against all private
party claims that the defendant has made all appropriate
inquiry within the meaning of subdivision (6)(B) of this
subsection (j) if the defendant proves that immediately prior
to or at the time of the acquisition:
(I) the defendant obtained a Phase I Environmental
Audit of the real property that meets or exceeds the
requirements of this subparagraph (E), and the Phase I
Environmental Audit did not disclose the presence or
likely presence of a release or a substantial threat of a
release of a hazardous substance or pesticide at, on, to,
or from the real property; or
(II) the defendant obtained a Phase II
Environmental Audit of the real property that meets or
exceeds the requirements of this subparagraph (E), and
the Phase II Environmental Audit did not disclose the
presence or likely presence of a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from the real property.
(ii) No presumption shall be created under clause (i) of
this subparagraph (E), and a defendant shall be precluded
from demonstrating that the defendant has made all
appropriate inquiry within the meaning of subdivision (6)(B)
of this subsection (j), if:
(I) the defendant fails to obtain all Environmental
Audits required under this subparagraph (E) or any such
Environmental Audit fails to meet or exceed the
requirements of this subparagraph (E);
(II) a Phase I Environmental Audit discloses the
presence or likely presence of a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from real property, and the defendant
fails to obtain a Phase II Environmental Audit;
(III) a Phase II Environmental Audit discloses the
presence or likely presence of a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from the real property;
(IV) the defendant fails to maintain a written
compilation and explanatory summary report of the
information reviewed in the course of each Environmental
Audit under this subparagraph (E); or
(V) there is any evidence of fraud, material
concealment, or material misrepresentation by the
defendant of environmental conditions or of related
information discovered during the course of an
Environmental Audit.
(iii) For purposes of this subparagraph (E), the term
"environmental professional" means an individual (other than
a practicing attorney) who, through academic training,
occupational experience, and reputation (such as engineers,
industrial hygienists, or geologists) can objectively conduct
one or more aspects of an Environmental Audit and who either:
(I) maintains at the time of the Environmental
Audit and for at least one year thereafter at least
$500,000 of environmental consultants' professional
liability insurance coverage issued by an insurance
company licensed to do business in Illinois; or
(II) is an Illinois licensed professional engineer
or an Illinois licensed industrial hygienist.
An environmental professional may employ persons who are
not environmental professionals to assist in the preparation
of an Environmental Audit if such persons are under the
direct supervision and control of the environmental
professional.
(iv) For purposes of this subparagraph (E), the term
"real property" means any interest in any parcel of land, and
shall not be limited to the definition of the term "real
property" contained in the Responsible Property Transfer Act
of 1988. For purposes of this subparagraph (E), the term
"real property" includes, but is not limited to, buildings,
fixtures, and improvements.
(v) For purposes of this subparagraph (E), the term
"Phase I Environmental Audit" means an investigation of real
property, conducted by environmental professionals, to
discover the presence or likely presence of a release or a
substantial threat of a release of a hazardous substance or
pesticide at, on, to, or from real property, and whether a
release or a substantial threat of a release of a hazardous
substance or pesticide has occurred or may occur at, on, to,
or from the real property. The investigation shall include a
review of at least each of the following sources of
information concerning the current and previous ownership and
use of the real property:
(I) Recorded chain of title documents regarding the
real property, including all deeds, easements, leases,
restrictions, and covenants for a period of 50 years.
(II) Aerial photographs that may reflect prior uses
of the real property and that are reasonably obtainable
through State, federal, or local government agencies or
bodies.
(III) Recorded environmental cleanup liens, if any,
against the real property that have arisen pursuant to
this Act or federal statutes.
(IV) Reasonably obtainable State, federal, and
local government records of sites or facilities at, on,
or near the real property to discover the presence or
likely presence of a hazardous substance or pesticide,
and whether a release or a substantial threat of a
release of a hazardous substance or pesticide has
occurred or may occur at, on, to, or from the real
property. Such government records shall include, but not
be limited to: reasonably obtainable State, federal, and
local government investigation reports for those sites or
facilities; reasonably obtainable State, federal, and
local government records of activities likely to cause or
contribute to a release or a threatened release of a
hazardous substance or pesticide at, on, to, or from the
real property, including landfill and other treatment,
storage, and disposal location records, underground
storage tank records, hazardous waste transporter and
generator records, and spill reporting records; and other
reasonably obtainable State, federal, and local
government environmental records that report incidents or
activities that are likely to cause or contribute to a
release or a threatened release of a hazardous substance
or pesticide at, on, to, or from the real property. In
order to be deemed "reasonably obtainable" as required
herein, a copy or reasonable facsimile of the record must
be obtainable from the government agency by request and
upon payment of a processing fee, if any, established by
the government agency. The Agency is authorized to
establish a reasonable fee for processing requests
received under this subparagraph (E) for records. All
fees collected by the Agency under this clause (v)(IV)
shall be deposited into the Environmental Protection
Permit and Inspection Fund in accordance with Section
22.8. Notwithstanding any other law, if the fee is paid,
commencing on the effective date of this amendatory Act
of 1993 and until one year after the effective date of
this amendatory Act of 1993, the Agency shall use its
best efforts to process a request received under this
subparagraph (E) as expeditiously as possible.
Notwithstanding any other law, commencing one year after
the effective date of this amendatory Act of 1993, if the
fee is paid, the Agency shall process a request received
under this subparagraph (E) for records within 30 days of
the receipt of such request.
(V) A visual site inspection of the real property
and all facilities and improvements on the real property
and a visual inspection of properties immediately
adjacent to the real property, including an investigation
of any use, storage, treatment, spills from use, or
disposal of hazardous substances, hazardous wastes, solid
wastes, or pesticides. If the person conducting the
investigation is denied access to any property adjacent
to the real property, the person shall conduct a visual
inspection of that adjacent property from the property to
which the person does have access and from public
rights-of-way.
(VI) A review of business records for activities at
or on the real property for a period of 50 years.
(vi) For purposes of subparagraph (E), the term "Phase
II Environmental Audit" means an investigation of real
property, conducted by environmental professionals,
subsequent to a Phase I Environmental Audit. If the Phase I
Environmental Audit discloses the presence or likely presence
of a hazardous substance or a pesticide or a release or a
substantial threat of a release of a hazardous substance or
pesticide:
(I) In or to soil, the defendant, as part of the
Phase II Environmental Audit, shall perform a series of
soil borings sufficient to determine whether there is a
presence or likely presence of a hazardous substance or
pesticide and whether there is or has been a release or a
substantial threat of a release of a hazardous substance
or pesticide at, on, to, or from the real property.
(II) In or to groundwater, the defendant, as part
of the Phase II Environmental Audit, shall: review
information regarding local geology, water well
locations, and locations of waters of the State as may be
obtained from State, federal, and local government
records, including but not limited to the United States
Geological Service, the State Geological Survey Division
of the Department of Natural Resources, and the State
Water Survey Division of the Department of Natural
Resources; and perform groundwater monitoring sufficient
to determine whether there is a presence or likely
presence of a hazardous substance or pesticide, and
whether there is or has been a release or a substantial
threat of a release of a hazardous substance or pesticide
at, on, to, or from the real property.
(III) On or to media other than soil or
groundwater, the defendant, as part of the Phase II
Environmental Audit, shall perform an investigation
sufficient to determine whether there is a presence or
likely presence of a hazardous substance or pesticide,
and whether there is or has been a release or a
substantial threat of a release of a hazardous substance
or pesticide at, on, to, or from the real property.
(vii) The findings of each Environmental Audit prepared
under this subparagraph (E) shall be set forth in a written
audit report. Each audit report shall contain an affirmation
by the defendant and by each environmental professional who
prepared the Environmental Audit that the facts stated in the
report are true and are made under a penalty of perjury as
defined in Section 32-2 of the Criminal Code of 1961. It is
perjury for any person to sign an audit report that contains
a false material statement that the person does not believe
to be true.
(viii) The Agency is not required to review, approve, or
certify the results of any Environmental Audit. The
performance of an Environmental Audit shall in no way entitle
a defendant to a presumption of Agency approval or
certification of the results of the Environmental Audit.
The presence or absence of a disclosure document prepared
under the Responsible Property Transfer Act of 1988 shall not
be a defense under this Act and shall not satisfy the
requirements of subdivision (6)(A) of this subsection (j).
(7) No person shall be liable under this Section for
response costs or damages as the result of a pesticide
release if the Agency has found that a pesticide release
occurred based on a Health Advisory issued by the U.S.
Environmental Protection Agency or an action level developed
by the Agency, unless the Agency notified the manufacturer of
the pesticide and provided an opportunity of not less than 30
days for the manufacturer to comment on the technical and
scientific justification supporting the Health Advisory or
action level.
(8) No person shall be liable under this Section for
response costs or damages as the result of a pesticide
release that occurs in the course of a farm pesticide
collection program operated under Section 19.1 of the
Illinois Pesticide Act, unless the release results from gross
negligence or intentional misconduct.
(k) If any person who is liable for a release or
substantial threat of release of a hazardous substance or
pesticide fails without sufficient cause to provide removal
or remedial action upon or in accordance with a notice and
request by the Agency or upon or in accordance with any order
of the Board or any court, such person may be liable to the
State for punitive damages in an amount at least equal to,
and not more than 3 times, the amount of any costs incurred
by the State of Illinois as a result of such failure to take
such removal or remedial action. The punitive damages
imposed by the Board shall be in addition to any costs
recovered from such person pursuant to this Section and in
addition to any other penalty or relief provided by this Act
or any other law.
Any monies received by the State pursuant to this
subsection (k) shall be deposited in the Hazardous Waste
Fund.
(l) Beginning January 1, 1988, the Agency shall annually
collect a $250 fee for each Special Waste Hauling Permit
Application and, in addition, shall collect a fee of $20 for
each waste hauling vehicle identified in the annual permit
application and for each vehicle which is added to the permit
during the annual period. The Agency shall deposit 85% of
such fees collected under this subsection in the State
Treasury to the credit of the Hazardous Waste Research Fund;
and shall deposit the remaining 15% of such fees collected in
the State Treasury to the credit of the Environmental
Protection Permit and Inspection Fund. The majority of such
receipts which are deposited in the Hazardous Waste Research
Fund pursuant to this subsection shall be used by the
Department of Natural Resources for activities which relate
to the protection of underground waters. Persons engaged in
the offsite transportation of hazardous waste by highway and
participating in the Uniform Program under subsection (l-5)
are not required to file a Special Waste Hauling Permit
Application.
(l-5) (1) As used in this subsection:
"Base state" means the state selected by a
transporter according to the procedures established under
the Uniform Program.
"Base state agreement" means an agreement between
participating states electing to register or permit
transporters.
"Participating state" means a state electing to
participate in the Uniform Program by entering into a
base state agreement.
"Transporter" means a person engaged in the offsite
transportation of hazardous waste by highway.
"Uniform application" means the uniform registration
and permit application form prescribed under the Uniform
Program.
"Uniform Program" means the Uniform State Hazardous
Materials Transportation Registration and Permit Program
established in the report submitted and amended pursuant
to 49 U.S.C. Section 5119(b), as implemented by the
Agency under this subsection.
"Vehicle" means any self-propelled motor vehicle,
except a truck tractor without a trailer, designed or
used for the transportation of hazardous waste subject to
the hazardous waste manifesting requirements of 40 U.S.C.
Section 6923(a)(3).
(2) Beginning July 1, 1998, the Agency shall
implement the Uniform State Hazardous Materials
Transportation Registration and Permit Program. On and
after that date, no person shall engage in the offsite
transportation of hazardous waste by highway without
registering and obtaining a permit under the Uniform
Program. A transporter with its principal place of
business in Illinois shall register with and obtain a
permit from the Agency. A transporter that designates
another participating state in the Uniform Program as its
base state shall likewise register with and obtain a
permit from that state before transporting hazardous
waste in Illinois.
(3) Beginning July 1, 1998, the Agency shall
annually collect no more than a $250 processing and audit
fee from each transporter of hazardous waste who has
filed a uniform application and, in addition, the Agency
shall annually collect an apportioned vehicle
registration fee of $20. The amount of the apportioned
vehicle registration fee shall be calculated consistent
with the procedures established under the Uniform
Program.
All moneys received by the Agency from the
collection of fees pursuant to the Uniform Program shall
be deposited into the Hazardous Waste Transporter account
hereby created within the Environmental Protection Permit
and Inspection Fund. The State Treasurer shall credit to
the account interest and earnings from account
investments. Moneys remaining in the account at the
close of the fiscal year shall not lapse to the General
Revenue Fund. The State Treasurer may receive money or
other assets from any source for deposit into the
account. The Agency may expend moneys from the account,
upon appropriation, for the implementation of the Uniform
Program, including the costs to the Agency of fee
collection and administration. In addition, funds not
expended for the implementation of the Uniform Program
may be utilized for emergency response and cleanup
activities related melated to hazardous waste
transportation that are initiated by the Agency.
Whenever the amount of the Hazardous Waste
Transporter account exceeds by 115% the amount annually
appropriated by the General Assembly, the Agency shall credit
participating transporters an amount, proportionately based
on the amount of the vehicle fee paid, equal to the excess in
the account, and shall determine the need to reduce the
amount of the fee charged transporters in the subsequent
fiscal year by the amount of the credit.
(4) (A) The Agency may propose and the Board shall
adopt rules as necessary to implement and enforce the
Uniform Program. The Agency is authorized to enter into
agreements with other agencies of this State as necessary
to carry out administrative functions or enforcement of
the Uniform Program.
(B) The Agency shall recognize a Uniform Program
registration as valid for one year from the date a notice
of registration form is issued and a permit as valid for
3 years from the date issued or until a transporter fails
to renew its registration, whichever occurs first.
(C) The Agency may inspect or examine any motor
vehicle or facility operated by a transporter, including
papers, books, records, documents, or other materials to
determine if a transporter is complying with the Uniform
Program. The Agency may also conduct investigations and
audits as necessary to determine if a transporter is
entitled to a permit or to make suspension or revocation
determinations consistent with the standards of the
Uniform Program.
(5) The Agency may enter into agreements with
federal agencies, national repositories, or other
participating states as necessary to allow for the
reciprocal registration and permitting of transporters
pursuant to the Uniform Program. The agreements may
include procedures for determining a base state, the
collection and distribution of registration fees, dispute
resolution, the exchange of information for reporting and
enforcement purposes, and other provisions necessary to
fully implement, administer, and enforce the Uniform
Program.
(m) (Blank).
(n) (Blank).
(Source: P.A. 89-94, eff. 7-6-95; 89-158, eff. 1-1-96;
89-431, eff. 12-15-95; 89-443, eff. 7-1-96; 89-445, eff.
2-7-96; 89-626, eff. 8-9-96; 90-14, eff. 7-1-97; 90-219, eff.
7-25-97; revised 4-28-98.)
(415 ILCS 5/39.5) (from Ch. 111 1/2, par. 1039.5)
Sec. 39.5. Clean Air Act Permit Program.
1. Definitions.
For purposes of this Section:
"Administrative permit amendment" means a permit revision
subject to subsection 13 of this Section.
"Affected source for acid deposition" means a source that
includes one or more affected units under Title IV of the
Clean Air Act.
"Affected States" for purposes of formal distribution of
a draft CAAPP permit to other States for comments prior to
issuance, means all States:
(1) Whose air quality may be affected by the source
covered by the draft permit and that are contiguous to
Illinois; or
(2) That are within 50 miles of the source.
"Affected unit for acid deposition" shall have the
meaning given to the term "affected unit" in the regulations
promulgated under Title IV of the Clean Air Act.
"Applicable Clean Air Act requirement" means all of the
following as they apply to emissions units in a source
(including regulations that have been promulgated or approved
by USEPA pursuant to the Clean Air Act which directly impose
requirements upon a source and other such federal
requirements which have been adopted by the Board. These may
include requirements and regulations which have future
effective compliance dates. Requirements and regulations
will be exempt if USEPA determines that such requirements
need not be contained in a Title V permit):
(1) Any standard or other requirement provided for
in the applicable state implementation plan approved or
promulgated by USEPA under Title I of the Clean Air Act
that implement the relevant requirements of the Clean Air
Act, including any revisions to the state Implementation
Plan promulgated in 40 CFR Part 52, Subparts A and O and
other subparts applicable to Illinois. For purposes of
this subsection (1) of this definition, "any standard or
other requirement" shall mean only such standards or
requirements directly enforceable against an individual
source under the Clean Air Act.
(2)(i) Any term or condition of any preconstruction
permits issued pursuant to regulations approved or
promulgated by USEPA under Title I of the Clean Air
Act, including Part C or D of the Clean Air Act.
(ii) Any term or condition as required
pursuant to Section 39.5 of any federally
enforceable State operating permit issued pursuant
to regulations approved or promulgated by USEPA
under Title I of the Clean Air Act, including Part C
or D of the Clean Air Act.
(3) Any standard or other requirement under Section
111 of the Clean Air Act, including Section 111(d).
(4) Any standard or other requirement under Section
112 of the Clean Air Act, including any requirement
concerning accident prevention under Section 112(r)(7) of
the Clean Air Act.
(5) Any standard or other requirement of the acid
rain program under Title IV of the Clean Air Act or the
regulations promulgated thereunder.
(6) Any requirements established pursuant to
Section 504(b) or Section 114(a)(3) of the Clean Air Act.
(7) Any standard or other requirement governing
solid waste incineration, under Section 129 of the Clean
Air Act.
(8) Any standard or other requirement for consumer
and commercial products, under Section 183(e) of the
Clean Air Act.
(9) Any standard or other requirement for tank
vessels, under Section 183(f) of the Clean Air Act.
(10) Any standard or other requirement of the
program to control air pollution from Outer Continental
Shelf sources, under Section 328 of the Clean Air Act.
(11) Any standard or other requirement of the
regulations promulgated to protect stratospheric ozone
under Title VI of the Clean Air Act, unless USEPA has
determined that such requirements need not be contained
in a Title V permit.
(12) Any national ambient air quality standard or
increment or visibility requirement under Part C of Title
I of the Clean Air Act, but only as it would apply to
temporary sources permitted pursuant to Section 504(e) of
the Clean Air Act.
"Applicable requirement" means all applicable Clean Air
Act requirements and any other standard, limitation, or other
requirement contained in this Act or regulations promulgated
under this Act as applicable to sources of air contaminants
(including requirements that have future effective compliance
dates).
"CAAPP" means the Clean Air Act Permit Program, developed
pursuant to Title V of the Clean Air Act.
"CAAPP application" means an application for a CAAPP
permit.
"CAAPP Permit" or "permit" (unless the context suggests
otherwise) means any permit issued, renewed, amended,
modified or revised pursuant to Title V of the Clean Air Act.
"CAAPP source" means any source for which the owner or
operator is required to obtain a CAAPP permit pursuant to
subsection 2 of this Section.
"Clean Air Act" means the Clean Air Act, as now and
hereafter amended, 42 U.S.C. 7401, et seq.
"Designated representative" shall have the meaning given
to it in Section 402(26) of the Clean Air Act and the
regulations promulgated thereunder which states that the term
'designated representative' shall mean a responsible person
or official authorized by the owner or operator of a unit to
represent the owner or operator in all matters pertaining to
the holding, transfer, or disposition of allowances allocated
to a unit, and the submission of and compliance with permits,
permit applications, and compliance plans for the unit.
"Draft CAAPP permit" means the version of a CAAPP permit
for which public notice and an opportunity for public comment
and hearing is offered by the Agency.
"Effective date of the CAAPP" means the date that USEPA
approves Illinois' CAAPP.
"Emission unit" means any part or activity of a
stationary source that emits or has the potential to emit any
air pollutant. This term is not meant to alter or affect the
definition of the term "unit" for purposes of Title IV of the
Clean Air Act.
"Federally enforceable" means enforceable by USEPA.
"Final permit action" means the Agency's granting with
conditions, refusal to grant, renewal of, or revision of a
CAAPP permit, the Agency's determination of incompleteness of
a submitted CAAPP application, or the Agency's failure to act
on an application for a permit, permit renewal, or permit
revision within the time specified in paragraph 5(j),
subsection 13, or subsection 14 of this Section.
"General permit" means a permit issued to cover numerous
similar sources in accordance with subsection 11 of this
Section.
"Major source" means a source for which emissions of one
or more air pollutants meet the criteria for major status
pursuant to paragraph 2(c) of this Section.
"Maximum achievable control technology" or "MACT" means
the maximum degree of reductions in emissions deemed
achievable under Section 112 of the Clean Air Act.
"Owner or operator" means any person who owns, leases,
operates, controls, or supervises a stationary source.
"Permit modification" means a revision to a CAAPP permit
that cannot be accomplished under the provisions for
administrative permit amendments under subsection 13 of this
Section.
"Permit revision" means a permit modification or
administrative permit amendment.
"Phase II" means the period of the national acid rain
program, established under Title IV of the Clean Air Act,
beginning January 1, 2000, and continuing thereafter.
"Phase II acid rain permit" means the portion of a CAAPP
permit issued, renewed, modified, or revised by the Agency
during Phase II for an affected source for acid deposition.
"Potential to emit" means the maximum capacity of a
stationary source to emit any air pollutant under its
physical and operational design. Any physical or operational
limitation on the capacity of a source to emit an air
pollutant, including air pollution control equipment and
restrictions on hours of operation or on the type or amount
of material combusted, stored, or processed, shall be treated
as part of its design if the limitation is enforceable by
USEPA. This definition does not alter or affect the use of
this term for any other purposes under the Clean Air Act, or
the term "capacity factor" as used in Title IV of the Clean
Air Act or the regulations promulgated thereunder.
"Preconstruction Permit" or "Construction Permit" means a
permit which is to be obtained prior to commencing or
beginning actual construction or modification of a source or
emissions unit.
"Proposed CAAPP permit" means the version of a CAAPP
permit that the Agency proposes to issue and forwards to
USEPA for review in compliance with applicable requirements
of the Act and regulations promulgated thereunder.
"Regulated air pollutant" means the following:
(1) Nitrogen oxides (NOx) or any volatile organic
compound.
(2) Any pollutant for which a national ambient air
quality standard has been promulgated.
(3) Any pollutant that is subject to any standard
promulgated under Section 111 of the Clean Air Act.
(4) Any Class I or II substance subject to a
standard promulgated under or established by Title VI of
the Clean Air Act.
(5) Any pollutant subject to a standard promulgated
under Section 112 or other requirements established under
Section 112 of the Clean Air Act, including Sections
112(g), (j) and (r).
(i) Any pollutant subject to requirements
under Section 112(j) of the Clean Air Act. Any
pollutant listed under Section 112(b) for which the
subject source would be major shall be considered to
be regulated 18 months after the date on which USEPA
was required to promulgate an applicable standard
pursuant to Section 112(e) of the Clean Air Act, if
USEPA fails to promulgate such standard.
(ii) Any pollutant for which the requirements
of Section 112(g)(2) of the Clean Air Act have been
met, but only with respect to the individual source
subject to Section 112(g)(2) requirement.
"Renewal" means the process by which a permit is reissued
at the end of its term.
"Responsible official" means one of the following:
(1) For a corporation: a president, secretary,
treasurer, or vice-president of the corporation in charge
of a principal business function, or any other person who
performs similar policy or decision-making functions for
the corporation, or a duly authorized representative of
such person if the representative is responsible for the
overall operation of one or more manufacturing,
production, or operating facilities applying for or
subject to a permit and either (i) the facilities employ
more than 250 persons or have gross annual sales or
expenditures exceeding $25 million (in second quarter
1980 dollars), or (ii) the delegation of authority to
such representative is approved in advance by the Agency.
(2) For a partnership or sole proprietorship: a
general partner or the proprietor, respectively, or in
the case of a partnership in which all of the partners
are corporations, a duly authorized representative of the
partnership if the representative is responsible for the
overall operation of one or more manufacturing,
production, or operating facilities applying for or
subject to a permit and either (i) the facilities employ
more than 250 persons or have gross annual sales or
expenditures exceeding $25 million (in second quarter
1980 dollars), or (ii) the delegation of authority to
such representative is approved in advance by the Agency.
(3) For a municipality, State, Federal, or other
public agency: either a principal executive officer or
ranking elected official. For the purposes of this part,
a principal executive officer of a Federal agency
includes the chief executive officer having
responsibility for the overall operations of a principal
geographic unit of the agency (e.g., a Regional
Administrator of USEPA).
(4) For affected sources for acid deposition:
(i) The designated representative shall be the
"responsible official" in so far as actions,
standards, requirements, or prohibitions under Title
IV of the Clean Air Act or the regulations
promulgated thereunder are concerned.
(ii) The designated representative may also be
the "responsible official" for any other purposes
with respect to air pollution control.
"Section 502(b)(10) changes" means changes that
contravene express permit terms. "Section 502(b)(10) changes"
do not include changes that would violate applicable
requirements or contravene federally enforceable permit terms
or conditions that are monitoring (including test methods),
recordkeeping, reporting, or compliance certification
requirements.
"Solid waste incineration unit" means a distinct
operating unit of any facility which combusts any solid waste
material from commercial or industrial establishments or the
general public (including single and multiple residences,
hotels, and motels). The term does not include incinerators
or other units required to have a permit under Section 3005
of the Solid Waste Disposal Act. The term also does not
include (A) materials recovery facilities (including primary
or secondary smelters) which combust waste for the primary
purpose of recovering metals, (B) qualifying small power
production facilities, as defined in Section 3(17)(C) of the
Federal Power Act (16 U.S.C. 769(17)(C)), or qualifying
cogeneration facilities, as defined in Section 3(18)(B) of
the Federal Power Act (16 U.S.C. 796(18)(B)), which burn
homogeneous waste (such as units which burn tires or used
oil, but not including refuse-derived fuel) for the
production of electric energy or in the case of qualifying
cogeneration facilities which burn homogeneous waste for the
production of electric energy and steam or forms of useful
energy (such as heat) which are used for industrial,
commercial, heating or cooling purposes, or (C) air curtain
incinerators provided that such incinerators only burn wood
wastes, yard waste and clean lumber and that such air curtain
incinerators comply with opacity limitations to be
established by the USEPA by rule.
"Source" means any stationary source (or any group of
stationary sources) that are located on one or more
contiguous or adjacent properties, and that are under common
control of the same person (or persons under common control)
and that belongs belonging to a single major industrial
grouping. For the purposes of defining "source," a
stationary source or group of stationary sources shall be
considered part of a single major industrial grouping if all
of the pollutant emitting activities at such source or group
of sources located on contiguous or adjacent properties and
under common control property belong to the same Major Group
(i.e., all have the same two-digit code) as described in the
Standard Industrial Classification Manual, 1987, or such
pollutant emitting activities at a stationary source (or
group of stationary sources) located on contiguous or
adjacent properties and under common control constitute a
support facility. The determination as to whether any group
of stationary sources are located on contiguous or adjacent
properties, and/or are under common control, and/or whether
the pollutant emitting activities at such group of stationary
sources constitute a support facility shall be made on a case
by case basis.
"Stationary source" means any building, structure,
facility, or installation that emits or may emit any
regulated air pollutant or any pollutant listed under Section
112(b) of the Clean Air Act.
"Support facility" means any stationary source (or group
of stationary sources) that conveys, stores, or otherwise
assists to a significant extent in the production of a
principal product at another stationary source (or group of
stationary sources). A support facility shall be considered
to be part of the same source as the stationary source (or
group of stationary sources) that it supports regardless of
the 2-digit Standard Industrial Classification code for the
support facility.
"USEPA" means the Administrator of the United States
Environmental Protection Agency (USEPA) or a person
designated by the Administrator.
1.1. Exclusion From the CAAPP.
a. An owner or operator of a source which
determines that the source could be excluded from the
CAAPP may seek such exclusion prior to the date that the
CAAPP application for the source is due but in no case
later than 9 months after the effective date of the CAAPP
through the imposition of federally enforceable
conditions limiting the "potential to emit" of the source
to a level below the major source threshold for that
source as described in paragraph 2(c) of this Section,
within a State operating permit issued pursuant to
Section 39(a) of this Act. After such date, an exclusion
from the CAAPP may be sought under paragraph 3(c) of this
Section.
b. An owner or operator of a source seeking
exclusion from the CAAPP pursuant to paragraph (a) of
this subsection must submit a permit application
consistent with the existing State permit program which
specifically requests such exclusion through the
imposition of such federally enforceable conditions.
c. Upon such request, if the Agency determines that
the owner or operator of a source has met the
requirements for exclusion pursuant to paragraph (a) of
this subsection and other applicable requirements for
permit issuance under Section 39(a) of this Act, the
Agency shall issue a State operating permit for such
source under Section 39(a) of this Act, as amended, and
regulations promulgated thereunder with federally
enforceable conditions limiting the "potential to emit"
of the source to a level below the major source threshold
for that source as described in paragraph 2(c) of this
Section.
d. The Agency shall provide an owner or operator of
a source which may be excluded from the CAAPP pursuant to
this subsection with reasonable notice that the owner or
operator may seek such exclusion.
e. The Agency shall provide such sources with the
necessary permit application forms.
2. Applicability.
a. Sources subject to this Section shall include:
i. Any major source as defined in paragraph
(c) of this subsection.
ii. Any source subject to a standard or other
requirements promulgated under Section 111 (New
Source Performance Standards) or Section 112
(Hazardous Air Pollutants) of the Clean Air Act,
except that a source is not required to obtain a
permit solely because it is subject to regulations
or requirements under Section 112(r) of the Clean
Air Act.
iii. Any affected source for acid deposition,
as defined in subsection 1 of this Section.
iv. Any other source subject to this Section
under the Clean Air Act or regulations promulgated
thereunder, or applicable Board regulations.
b. Sources exempted from this Section shall
include:
i. All sources listed in paragraph (a) of this
subsection which are not major sources, affected
sources for acid deposition or solid waste
incineration units required to obtain a permit
pursuant to Section 129(e) of the Clean Air Act,
until the source is required to obtain a CAAPP
permit pursuant to the Clean Air Act or regulations
promulgated thereunder.
ii. Nonmajor sources subject to a standard or
other requirements subsequently promulgated by USEPA
under Section 111 or 112 of the Clean Air Act which
are determined by USEPA to be exempt at the time a
new standard is promulgated.
iii. All sources and source categories that
would be required to obtain a permit solely because
they are subject to Part 60, Subpart AAA - Standards
of Performance for New Residential Wood Heaters (40
CFR Part 60).
iv. All sources and source categories that
would be required to obtain a permit solely because
they are subject to Part 61, Subpart M - National
Emission Standard for Hazardous Air Pollutants for
Asbestos, Section 61.145 (40 CFR Part 61).
v. Any other source categories exempted by
USEPA regulations pursuant to Section 502(a) of the
Clean Air Act.
c. For purposes of this Section the term "major
source" means any source that is:
i. A major source under Section 112 of the
Clean Air Act, which is defined as:
A. For pollutants other than
radionuclides, any stationary source or group
of stationary sources located within a
contiguous area and under common control that
emits or has the potential to emit, in the
aggregate, 10 tons per year (tpy) or more of
any hazardous air pollutant which has been
listed pursuant to Section 112(b) of the Clean
Air Act, 25 tpy or more of any combination of
such hazardous air pollutants, or such lesser
quantity as USEPA may establish by rule.
Notwithstanding the preceding sentence,
emissions from any oil or gas exploration or
production well (with its associated equipment)
and emissions from any pipeline compressor or
pump station shall not be aggregated with
emissions from other similar units, whether or
not such units are in a contiguous area or
under common control, to determine whether such
stations are major sources.
B. For radionuclides, "major source"
shall have the meaning specified by the USEPA
by rule.
ii. A major stationary source of air
pollutants, as defined in Section 302 of the Clean
Air Act, that directly emits or has the potential to
emit, 100 tpy or more of any air pollutant
(including any major source of fugitive emissions of
any such pollutant, as determined by rule by USEPA).
For purposes of this subsection, "fugitive
emissions" means those emissions which could not
reasonably pass through a stack, chimney, vent, or
other functionally-equivalent opening. The fugitive
emissions of a stationary source shall not be
considered in determining whether it is a major
stationary source for the purposes of Section 302(j)
of the Clean Air Act, unless the source belongs to
one of the following categories of stationary
source:
A. Coal cleaning plants (with thermal
dryers).
B. Kraft pulp mills.
C. Portland cement plants.
D. Primary zinc smelters.
E. Iron and steel mills.
F. Primary aluminum ore reduction plants.
G. Primary copper smelters.
H. Municipal incinerators capable of
charging more than 250 tons of refuse per day.
I. Hydrofluoric, sulfuric, or nitric acid
plants.
J. Petroleum refineries.
K. Lime plants.
L. Phosphate rock processing plants.
M. Coke oven batteries.
N. Sulfur recovery plants.
O. Carbon black plants (furnace process).
P. Primary lead smelters.
Q. Fuel conversion plants.
R. Sintering plants.
S. Secondary metal production plants.
T. Chemical process plants.
U. Fossil-fuel boilers (or combination
thereof) totaling more than 250 million British
thermal units per hour heat input.
V. Petroleum storage and transfer units
with a total storage capacity exceeding 300,000
barrels.
W. Taconite ore processing plants.
X. Glass fiber processing plants.
Y. Charcoal production plants.
Z. Fossil fuel-fired steam electric
plants of more than 250 million British thermal
units per hour heat input.
AA. All other stationary source
categories regulated by a standard promulgated
under Section 111 or 112 of the Clean Air Act,
but only with respect to those air pollutants
that have been regulated for that category.
BB. Any other stationary source category
designated by USEPA by rule.
iii. A major stationary source as defined in
part D of Title I of the Clean Air Act including:
A. For ozone nonattainment areas, sources
with the potential to emit 100 tons or more per
year of volatile organic compounds or oxides of
nitrogen in areas classified as "marginal" or
"moderate", 50 tons or more per year in areas
classified as "serious", 25 tons or more per
year in areas classified as "severe", and 10
tons or more per year in areas classified as
"extreme"; except that the references in this
clause to 100, 50, 25, and 10 tons per year of
nitrogen oxides shall not apply with respect to
any source for which USEPA has made a finding,
under Section 182(f)(1) or (2) of the Clean Air
Act, that requirements otherwise applicable to
such source under Section 182(f) of the Clean
Air Act do not apply. Such sources shall
remain subject to the major source criteria of
paragraph 2(c)(ii) of this subsection.
B. For ozone transport regions
established pursuant to Section 184 of the
Clean Air Act, sources with the potential to
emit 50 tons or more per year of volatile
organic compounds (VOCs).
C. For carbon monoxide nonattainment
areas (1) that are classified as "serious", and
(2) in which stationary sources contribute
significantly to carbon monoxide levels as
determined under rules issued by USEPA, sources
with the potential to emit 50 tons or more per
year of carbon monoxide.
D. For particulate matter (PM-10)
nonattainment areas classified as "serious",
sources with the potential to emit 70 tons or
more per year of PM-10.
3. Agency Authority To Issue CAAPP Permits and Federally
Enforceable State Operating Permits.
a. The Agency shall issue CAAPP permits under this
Section consistent with the Clean Air Act and regulations
promulgated thereunder and this Act and regulations
promulgated thereunder.
b. The Agency shall issue CAAPP permits for fixed
terms of 5 years, except CAAPP permits issued for solid
waste incineration units combusting municipal waste which
shall be issued for fixed terms of 12 years and except
CAAPP permits for affected sources for acid deposition
which shall be issued for initial terms to expire on
December 31, 1999, and for fixed terms of 5 years
thereafter.
c. The Agency shall have the authority to issue a
State operating permit for a source under Section 39(a)
of this Act, as amended, and regulations promulgated
thereunder, which includes federally enforceable
conditions limiting the "potential to emit" of the source
to a level below the major source threshold for that
source as described in paragraph 2(c) of this Section,
thereby excluding the source from the CAAPP, when
requested by the applicant pursuant to paragraph 5(u) of
this Section. The public notice requirements of this
Section applicable to CAAPP permits shall also apply to
the initial issuance of permits under this paragraph.
d. For purposes of this Act, a permit issued by
USEPA under Section 505 of the Clean Air Act, as now and
hereafter amended, shall be deemed to be a permit issued
by the Agency pursuant to Section 39.5 of this Act.
4. Transition.
a. An owner or operator of a CAAPP source shall not
be required to renew an existing State operating permit
for any emission unit at such CAAPP source once a CAAPP
application timely submitted prior to expiration of the
State operating permit has been deemed complete. For
purposes other than permit renewal, the obligation upon
the owner or operator of a CAAPP source to obtain a State
operating permit is not removed upon submittal of the
complete CAAPP permit application. An owner or operator
of a CAAPP source seeking to make a modification to a
source prior to the issuance of its CAAPP permit shall be
required to obtain a construction and/or operating permit
as required for such modification in accordance with the
State permit program under Section 39(a) of this Act, as
amended, and regulations promulgated thereunder. The
application for such construction and/or operating permit
shall be considered an amendment to the CAAPP application
submitted for such source.
b. An owner or operator of a CAAPP source shall
continue to operate in accordance with the terms and
conditions of its applicable State operating permit
notwithstanding the expiration of the State operating
permit until the source's CAAPP permit has been issued.
c. An owner or operator of a CAAPP source shall
submit its initial CAAPP application to the Agency no
later than 12 months after the effective date of the
CAAPP. The Agency may request submittal of initial CAAPP
applications during this 12 month period according to a
schedule set forth within Agency procedures, however, in
no event shall the Agency require such submittal earlier
than 3 months after such effective date of the CAAPP. An
owner or operator may voluntarily submit its initial
CAAPP application prior to the date required within this
paragraph or applicable procedures, if any, subsequent to
the date the Agency submits the CAAPP to USEPA for
approval.
d. The Agency shall act on initial CAAPP
applications in accordance with subsection 5(j) of this
Section.
e. For purposes of this Section, the term "initial
CAAPP application" shall mean the first CAAPP application
submitted for a source existing as of the effective date
of the CAAPP.
f. The Agency shall provide owners or operators of
CAAPP sources with at least three months advance notice
of the date on which their applications are required to
be submitted. In determining which sources shall be
subject to early submittal, the Agency shall include
among its considerations the complexity of the permit
application, and the burden that such early submittal
will have on the source.
g. The CAAPP permit shall upon becoming effective
supersede the State operating permit.
h. The Agency shall have the authority to adopt
procedural rules, in accordance with the Illinois
Administrative Procedure Act, as the Agency deems
necessary, to implement this subsection.
5. Applications and Completeness.
a. An owner or operator of a CAAPP source shall
submit its complete CAAPP application consistent with the
Act and applicable regulations.
b. An owner or operator of a CAAPP source shall
submit a single complete CAAPP application covering all
emission units at that source.
c. To be deemed complete, a CAAPP application must
provide all information, as requested in Agency
application forms, sufficient to evaluate the subject
source and its application and to determine all
applicable requirements, pursuant to the Clean Air Act,
and regulations thereunder, this Act and regulations
thereunder. Such Agency application forms shall be
finalized and made available prior to the date on which
any CAAPP application is required.
d. An owner or operator of a CAAPP source shall
submit, as part of its complete CAAPP application, a
compliance plan, including a schedule of compliance,
describing how each emission unit will comply with all
applicable requirements. Any such schedule of compliance
shall be supplemental to, and shall not sanction
noncompliance with, the applicable requirements on which
it is based.
e. Each submitted CAAPP application shall be
certified for truth, accuracy, and completeness by a
responsible official in accordance with applicable
regulations.
f. The Agency shall provide notice to a CAAPP
applicant as to whether a submitted CAAPP application is
complete. Unless the Agency notifies the applicant of
incompleteness, within 60 days of receipt of the CAAPP
application, the application shall be deemed complete.
The Agency may request additional information as needed
to make the completeness determination. The Agency may
to the extent practicable provide the applicant with a
reasonable opportunity to correct deficiencies prior to a
final determination of completeness.
g. If after the determination of completeness the
Agency finds that additional information is necessary to
evaluate or take final action on the CAAPP application,
the Agency may request in writing such information from
the source with a reasonable deadline for response.
h. If the owner or operator of a CAAPP source
submits a timely and complete CAAPP application, the
source's failure to have a CAAPP permit shall not be a
violation of this Section until the Agency takes final
action on the submitted CAAPP application, provided,
however, where the applicant fails to submit the
requested information under paragraph 5(g) within the
time frame specified by the Agency, this protection shall
cease to apply.
i. Any applicant who fails to submit any relevant
facts necessary to evaluate the subject source and its
CAAPP application or who has submitted incorrect
information in a CAAPP application shall, upon becoming
aware of such failure or incorrect submittal, submit
supplementary facts or correct information to the Agency.
In addition, an applicant shall provide to the Agency
additional information as necessary to address any
requirements which become applicable to the source
subsequent to the date the applicant submitted its
complete CAAPP application but prior to release of the
draft CAAPP permit.
j. The Agency shall issue or deny the CAAPP permit
within 18 months after the date of receipt of the
complete CAAPP application, with the following
exceptions: (i) permits for affected sources for acid
deposition shall be issued or denied within 6 months
after receipt of a complete application in accordance
with subsection 17 of this Section; (ii) the Agency shall
act on initial CAAPP applications within 24 months after
the date of receipt of the complete CAAPP application;
(iii) the Agency shall act on complete applications
containing early reduction demonstrations under Section
112(i)(5) of the Clean Air Act within 9 months of receipt
of the complete CAAPP application.
Where the Agency does not take final action on the
permit within the required time period, the permit shall
not be deemed issued; rather, the failure to act shall be
treated as a final permit action for purposes of judicial
review pursuant to Sections 40.2 and 41 of this Act.
k. The submittal of a complete CAAPP application
shall not affect the requirement that any source have a
preconstruction permit under Title I of the Clean Air
Act.
l. Unless a timely and complete renewal application
has been submitted consistent with this subsection, a
CAAPP source operating upon the expiration of its CAAPP
permit shall be deemed to be operating without a CAAPP
permit. Such operation is prohibited under this Act.
m. Permits being renewed shall be subject to the
same procedural requirements, including those for public
participation and federal review and objection, that
apply to original permit issuance.
n. For purposes of permit renewal, a timely
application is one that is submitted no less than 9
months prior to the date of permit expiration.
o. The terms and conditions of a CAAPP permit shall
remain in effect until the issuance of a CAAPP renewal
permit provided a timely and complete CAAPP application
has been submitted.
p. The owner or operator of a CAAPP source seeking
a permit shield pursuant to paragraph 7(j) of this
Section shall request such permit shield in the CAAPP
application regarding that source.
q. The Agency shall make available to the public
all documents submitted by the applicant to the Agency,
including each CAAPP application, compliance plan
(including the schedule of compliance), and emissions or
compliance monitoring report, with the exception of
information entitled to confidential treatment pursuant
to Section 7 of this Act.
r. The Agency shall use the standardized forms
required under Title IV of the Clean Air Act and
regulations promulgated thereunder for affected sources
for acid deposition.
s. An owner or operator of a CAAPP source may
include within its CAAPP application a request for
permission to operate during a startup, malfunction, or
breakdown consistent with applicable Board regulations.
t. An owner or operator of a CAAPP source, in order
to utilize the operational flexibility provided under
paragraph 7(l) of this Section, must request such use and
provide the necessary information within its CAAPP
application.
u. An owner or operator of a CAAPP source which
seeks exclusion from the CAAPP through the imposition of
federally enforceable conditions, pursuant to paragraph
3(c) of this Section, must request such exclusion within
a CAAPP application submitted consistent with this
subsection on or after the date that the CAAPP
application for the source is due. Prior to such date,
but in no case later than 9 months after the effective
date of the CAAPP, such owner or operator may request the
imposition of federally enforceable conditions pursuant
to paragraph 1.1(b) of this Section.
v. CAAPP applications shall contain accurate
information on allowable emissions to implement the fee
provisions of subsection 18 of this Section.
w. An owner or operator of a CAAPP source shall
submit within its CAAPP application emissions information
regarding all regulated air pollutants emitted at that
source consistent with applicable Agency procedures.
Emissions information regarding insignificant activities
or emission levels, as determined by the Agency pursuant
to Board regulations, may be submitted as a list within
the CAAPP application. The Agency shall propose
regulations to the Board defining insignificant
activities or emission levels, consistent with federal
regulations, if any, no later than 18 months after the
effective date of this amendatory Act of 1992, consistent
with Section 112(n)(1) of the Clean Air Act. The Board
shall adopt final regulations defining insignificant
activities or emission levels no later than 9 months
after the date of the Agency's proposal.
x. The owner or operator of a new CAAPP source
shall submit its complete CAAPP application consistent
with this subsection within 12 months after commencing
operation of such source. The owner or operator of an
existing source that has been excluded from the
provisions of this Section under subsection 1.1 or
subsection 3(c) of this Section and that becomes subject
to the CAAPP solely due to a change in operation at the
source shall submit its complete CAAPP application
consistent with this subsection at least 180 days before
commencing operation in accordance with the change in
operation.
y. The Agency shall have the authority to adopt
procedural rules, in accordance with the Illinois
Administrative Procedure Act, as the Agency deems
necessary to implement this subsection.
6. Prohibitions.
a. It shall be unlawful for any person to violate
any terms or conditions of a permit issued under this
Section, to operate any CAAPP source except in compliance
with a permit issued by the Agency under this Section or
to violate any other applicable requirements. All terms
and conditions of a permit issued under this Section are
enforceable by USEPA and citizens under the Clean Air
Act, except those, if any, that are specifically
designated as not being federally enforceable in the
permit pursuant to paragraph 7(m) of this Section.
b. After the applicable CAAPP permit or renewal
application submittal date, as specified in subsection 5
of this Section, no person shall operate a CAAPP source
without a CAAPP permit unless the complete CAAPP permit
or renewal application for such source has been timely
submitted to the Agency.
c. No owner or operator of a CAAPP source shall
cause or threaten or allow the continued operation of an
emission source during malfunction or breakdown of the
emission source or related air pollution control
equipment if such operation would cause a violation of
the standards or limitations applicable to the source,
unless the CAAPP permit granted to the source provides
for such operation consistent with this Act and
applicable Board regulations.
7. Permit Content.
a. All CAAPP permits shall contain emission
limitations and standards and other enforceable terms and
conditions, including but not limited to operational
requirements, and schedules for achieving compliance at
the earliest reasonable date, which are or will be
required to accomplish the purposes and provisions of
this Act and to assure compliance with all applicable
requirements.
b. The Agency shall include among such conditions
applicable monitoring, reporting, record keeping and
compliance certification requirements, as authorized by
paragraphs d, e, and f of this subsection, that the
Agency deems necessary to assure compliance with the
Clean Air Act, the regulations promulgated thereunder,
this Act, and applicable Board regulations. When
monitoring, reporting, record keeping, and compliance
certification requirements are specified within the Clean
Air Act, regulations promulgated thereunder, this Act, or
applicable regulations, such requirements shall be
included within the CAAPP permit. The Board shall have
authority to promulgate additional regulations where
necessary to accomplish the purposes of the Clean Air
Act, this Act, and regulations promulgated thereunder.
c. The Agency shall assure, within such conditions,
the use of terms, test methods, units, averaging periods,
and other statistical conventions consistent with the
applicable emission limitations, standards, and other
requirements contained in the permit.
d. To meet the requirements of this subsection with
respect to monitoring, the permit shall:
i. Incorporate and identify all applicable
emissions monitoring and analysis procedures or test
methods required under the Clean Air Act,
regulations promulgated thereunder, this Act, and
applicable Board regulations, including any
procedures and methods promulgated by USEPA pursuant
to Section 504(b) or Section 114 (a)(3) of the Clean
Air Act.
ii. Where the applicable requirement does not
require periodic testing or instrumental or
noninstrumental monitoring (which may consist of
recordkeeping designed to serve as monitoring),
require periodic monitoring sufficient to yield
reliable data from the relevant time period that is
representative of the source's compliance with the
permit, as reported pursuant to paragraph (f) of
this subsection. The Agency may determine that
recordkeeping requirements are sufficient to meet
the requirements of this subparagraph.
iii. As necessary, specify requirements
concerning the use, maintenance, and when
appropriate, installation of monitoring equipment or
methods.
e. To meet the requirements of this subsection with
respect to record keeping, the permit shall incorporate
and identify all applicable recordkeeping requirements
and require, where applicable, the following:
i. Records of required monitoring information
that include the following:
A. The date, place and time of sampling
or measurements.
B. The date(s) analyses were performed.
C. The company or entity that performed
the analyses.
D. The analytical techniques or methods
used.
E. The results of such analyses.
F. The operating conditions as existing
at the time of sampling or measurement.
ii. Retention of records of all monitoring
data and support information for a period of at
least 5 years from the date of the monitoring
sample, measurement, report, or application.
Support information includes all calibration and
maintenance records, original strip-chart recordings
for continuous monitoring instrumentation, and
copies of all reports required by the permit.
f. To meet the requirements of this subsection with
respect to reporting, the permit shall incorporate and
identify all applicable reporting requirements and
require the following:
i. Submittal of reports of any required
monitoring every 6 months. More frequent submittals
may be requested by the Agency if such submittals
are necessary to assure compliance with this Act or
regulations promulgated by the Board thereunder.
All instances of deviations from permit requirements
must be clearly identified in such reports. All
required reports must be certified by a responsible
official consistent with subsection 5 of this
Section.
ii. Prompt reporting of deviations from permit
requirements, including those attributable to upset
conditions as defined in the permit, the probable
cause of such deviations, and any corrective actions
or preventive measures taken.
g. Each CAAPP permit issued under subsection 10 of
this Section shall include a condition prohibiting
emissions exceeding any allowances that the source
lawfully holds under Title IV of the Clean Air Act or the
regulations promulgated thereunder, consistent with
subsection 17 of this Section and applicable regulations,
if any.
h. All CAAPP permits shall state that, where
another applicable requirement of the Clean Air Act is
more stringent than any applicable requirement of
regulations promulgated under Title IV of the Clean Air
Act, both provisions shall be incorporated into the
permit and shall be State and federally enforceable.
i. Each CAAPP permit issued under subsection 10 of
this Section shall include a severability clause to
ensure the continued validity of the various permit
requirements in the event of a challenge to any portions
of the permit.
j. The following shall apply with respect to owners
or operators requesting a permit shield:
i. The Agency shall include in a CAAPP permit,
when requested by an applicant pursuant to paragraph
5(p) of this Section, a provision stating that
compliance with the conditions of the permit shall
be deemed compliance with applicable requirements
which are applicable as of the date of release of
the proposed permit, provided that:
A. The applicable requirement is
specifically identified within the permit; or
B. The Agency in acting on the CAAPP
application or revision determines in writing
that other requirements specifically identified
are not applicable to the source, and the
permit includes that determination or a concise
summary thereof.
ii. The permit shall identify the requirements
for which the source is shielded. The shield shall
not extend to applicable requirements which are
promulgated after the date of release of the
proposed permit unless the permit has been modified
to reflect such new requirements.
iii. A CAAPP permit which does not expressly
indicate the existence of a permit shield shall not
provide such a shield.
iv. Nothing in this paragraph or in a CAAPP
permit shall alter or affect the following:
A. The provisions of Section 303
(emergency powers) of the Clean Air Act,
including USEPA's authority under that section.
B. The liability of an owner or operator
of a source for any violation of applicable
requirements prior to or at the time of permit
issuance.
C. The applicable requirements of the
acid rain program consistent with Section
408(a) of the Clean Air Act.
D. The ability of USEPA to obtain
information from a source pursuant to Section
114 (inspections, monitoring, and entry) of the
Clean Air Act.
k. Each CAAPP permit shall include an emergency
provision providing an affirmative defense of emergency
to an action brought for noncompliance with
technology-based emission limitations under a CAAPP
permit if the following conditions are met through
properly signed, contemporaneous operating logs, or other
relevant evidence:
i. An emergency occurred and the permittee can
identify the cause(s) of the emergency.
ii. The permitted facility was at the time
being properly operated.
iii. The permittee submitted notice of the
emergency to the Agency within 2 working days of the
time when emission limitations were exceeded due to
the emergency. This notice must contain a detailed
description of the emergency, any steps taken to
mitigate emissions, and corrective actions taken.
iv. During the period of the emergency the
permittee took all reasonable steps to minimize
levels of emissions that exceeded the emission
limitations, standards, or requirements in the
permit.
For purposes of this subsection, "emergency" means
any situation arising from sudden and reasonably
unforeseeable events beyond the control of the source,
such as an act of God, that requires immediate corrective
action to restore normal operation, and that causes the
source to exceed a technology-based emission limitation
under the permit, due to unavoidable increases in
emissions attributable to the emergency. An emergency
shall not include noncompliance to the extent caused by
improperly designed equipment, lack of preventative
maintenance, careless or improper operation, or operation
error.
In any enforcement proceeding, the permittee
seeking to establish the occurrence of an emergency has
the burden of proof. This provision is in addition to
any emergency or upset provision contained in any
applicable requirement. This provision does not relieve
a permittee of any reporting obligations under existing
federal or state laws or regulations.
l. The Agency shall include in each permit issued
under subsection 10 of this Section:
i. Terms and conditions for reasonably
anticipated operating scenarios identified by the
source in its application. The permit terms and
conditions for each such operating scenario shall
meet all applicable requirements and the
requirements of this Section.
A. Under this subparagraph, the source
must record in a log at the permitted facility
a record of the scenario under which it is
operating contemporaneously with making a
change from one operating scenario to another.
B. The permit shield described in
paragraph 7(j) of this Section shall extend to
all terms and conditions under each such
operating scenario.
ii. Where requested by an applicant, all terms
and conditions allowing for trading of emissions
increases and decreases between different emission
units at the CAAPP source, to the extent that the
applicable requirements provide for trading of such
emissions increases and decreases without a
case-by-case approval of each emissions trade. Such
terms and conditions:
A. Shall include all terms required under
this subsection to determine compliance;
B. Must meet all applicable requirements;
C. Shall extend the permit shield
described in paragraph 7(j) of this Section to
all terms and conditions that allow such
increases and decreases in emissions.
m. The Agency shall specifically designate as not
being federally enforceable under the Clean Air Act any
terms and conditions included in the permit that are not
specifically required under the Clean Air Act or federal
regulations promulgated thereunder. Terms or conditions
so designated shall be subject to all applicable state
requirements, except the requirements of subsection 7
(other than this paragraph, paragraph q of subsection 7,
subsections 8 through 11, and subsections 13 through 16
of this Section. The Agency shall, however, include such
terms and conditions in the CAAPP permit issued to the
source.
n. Each CAAPP permit issued under subsection 10 of
this Section shall specify and reference the origin of
and authority for each term or condition, and identify
any difference in form as compared to the applicable
requirement upon which the term or condition is based.
o. Each CAAPP permit issued under subsection 10 of
this Section shall include provisions stating the
following:
i. Duty to comply. The permittee must comply
with all terms and conditions of the CAAPP permit.
Any permit noncompliance constitutes a violation of
the Clean Air Act and the Act, and is grounds for
any or all of the following: enforcement action;
permit termination, revocation and reissuance, or
modification; or denial of a permit renewal
application.
ii. Need to halt or reduce activity not a
defense. It shall not be a defense for a permittee
in an enforcement action that it would have been
necessary to halt or reduce the permitted activity
in order to maintain compliance with the conditions
of this permit.
iii. Permit actions. The permit may be
modified, revoked, reopened, and reissued, or
terminated for cause in accordance with the
applicable subsections of Section 39.5 of this Act.
The filing of a request by the permittee for a
permit modification, revocation and reissuance, or
termination, or of a notification of planned changes
or anticipated noncompliance does not stay any
permit condition.
iv. Property rights. The permit does not
convey any property rights of any sort, or any
exclusive privilege.
v. Duty to provide information. The permittee
shall furnish to the Agency within a reasonable time
specified by the Agency any information that the
Agency may request in writing to determine whether
cause exists for modifying, revoking and reissuing,
or terminating the permit or to determine compliance
with the permit. Upon request, the permittee shall
also furnish to the Agency copies of records
required to be kept by the permit or, for
information claimed to be confidential, the
permittee may furnish such records directly to USEPA
along with a claim of confidentiality.
vi. Duty to pay fees. The permittee must pay
fees to the Agency consistent with the fee schedule
approved pursuant to subsection 18 of this Section,
and submit any information relevant thereto.
vii. Emissions trading. No permit revision
shall be required for increases in emissions allowed
under any approved economic incentives, marketable
permits, emissions trading, and other similar
programs or processes for changes that are provided
for in the permit and that are authorized by the
applicable requirement.
p. Each CAAPP permit issued under subsection 10 of
this Section shall contain the following elements with
respect to compliance:
i. Compliance certification, testing,
monitoring, reporting, and record keeping
requirements sufficient to assure compliance with
the terms and conditions of the permit. Any
document (including reports) required by a CAAPP
permit shall contain a certification by a
responsible official that meets the requirements of
subsection 5 of this Section and applicable
regulations.
ii. Inspection and entry requirements that
necessitate that, upon presentation of credentials
and other documents as may be required by law and in
accordance with constitutional limitations, the
permittee shall allow the Agency, or an authorized
representative to perform the following:
A. Enter upon the permittee's premises
where a CAAPP source is located or
emissions-related activity is conducted, or
where records must be kept under the conditions
of the permit.
B. Have access to and copy, at reasonable
times, any records that must be kept under the
conditions of the permit.
C. Inspect at reasonable times any
facilities, equipment (including monitoring and
air pollution control equipment), practices, or
operations regulated or required under the
permit.
D. Sample or monitor any substances or
parameters at any location:
1. As authorized by the Clean Air
Act, at reasonable times, for the purposes
of assuring compliance with the CAAPP
permit or applicable requirements; or
2. As otherwise authorized by this
Act.
iii. A schedule of compliance consistent with
subsection 5 of this Section and applicable
regulations.
iv. Progress reports consistent with an
applicable schedule of compliance pursuant to
paragraph 5(d) of this Section and applicable
regulations to be submitted semiannually, or more
frequently if the Agency determines that such more
frequent submittals are necessary for compliance
with the Act or regulations promulgated by the Board
thereunder. Such progress reports shall contain the
following:
A. Required dates for achieving the
activities, milestones, or compliance required
by the schedule of compliance and dates when
such activities, milestones or compliance were
achieved.
B. An explanation of why any dates in the
schedule of compliance were not or will not be
met, and any preventive or corrective measures
adopted.
v. Requirements for compliance certification
with terms and conditions contained in the permit,
including emission limitations, standards, or work
practices. Permits shall include each of the
following:
A. The frequency (annually or more
frequently as specified in any applicable
requirement or by the Agency pursuant to
written procedures) of submissions of
compliance certifications.
B. A means for assessing or monitoring
the compliance of the source with its emissions
limitations, standards, and work practices.
C. A requirement that the compliance
certification include the following:
1. The identification of each term
or condition contained in the permit that
is the basis of the certification.
2. The compliance status.
3. Whether compliance was continuous
or intermittent.
4. The method(s) used for
determining the compliance status of the
source, both currently and over the
reporting period consistent with
subsection 7 of Section 39.5 of the Act.
D. A requirement that all compliance
certifications be submitted to USEPA as well as
to the Agency.
E. Additional requirements as may be
specified pursuant to Sections 114(a)(3) and
504(b) of the Clean Air Act.
F. Other provisions as the Agency may
require.
q. If the owner or operator of CAAPP source can
demonstrate in its CAAPP application, including an
application for a significant modification, that an
alternative emission limit would be equivalent to that
contained in the applicable Board regulations, the Agency
shall include the alternative emission limit in the CAAPP
permit, which shall supersede the emission limit set
forth in the applicable Board regulations, and shall
include conditions that insure that the resulting
emission limit is quantifiable, accountable, enforceable,
and based on replicable procedures.
8. Public Notice; Affected State Review.
a. The Agency shall provide notice to the public,
including an opportunity for public comment and a
hearing, on each draft CAAPP permit for issuance, renewal
or significant modification, subject to Sections 7(a) and
7.1 of this Act.
b. The Agency shall prepare a draft CAAPP permit
and a statement that sets forth the legal and factual
basis for the draft CAAPP permit conditions, including
references to the applicable statutory or regulatory
provisions. The Agency shall provide this statement to
any person who requests it.
c. The Agency shall give notice of each draft CAAPP
permit to the applicant and to any affected State on or
before the time that the Agency has provided notice to
the public, except as otherwise provided in this Act.
d. The Agency, as part of its submittal of a
proposed permit to USEPA (or as soon as possible after
the submittal for minor permit modification procedures
allowed under subsection 14 of this Section), shall
notify USEPA and any affected State in writing of any
refusal of the Agency to accept all of the
recommendations for the proposed permit that an affected
State submitted during the public or affected State
review period. The notice shall include the Agency's
reasons for not accepting the recommendations. The
Agency is not required to accept recommendations that are
not based on applicable requirements or the requirements
of this Section.
e. The Agency shall make available to the public
any CAAPP permit application, compliance plan (including
the schedule of compliance), CAAPP permit, and emissions
or compliance monitoring report. If an owner or operator
of a CAAPP source is required to submit information
entitled to protection from disclosure under Section 7(a)
or Section 7.1 of this Act, the owner or operator shall
submit such information separately. The requirements of
Section 7(a) or Section 7.1 of this Act shall apply to
such information, which shall not be included in a CAAPP
permit unless required by law. The contents of a CAAPP
permit shall not be entitled to protection under Section
7(a) or Section 7.1 of this Act.
f. The Agency shall have the authority to adopt
procedural rules, in accordance with the Illinois
Administrative Procedure Act, as the Agency deems
necessary, to implement this subsection.
9. USEPA Notice and Objection.
a. The Agency shall provide to USEPA for its review
a copy of each CAAPP application (including any
application for permit modification), statement of basis
as provided in paragraph 8(b) of this Section, proposed
CAAPP permit, CAAPP permit, and, if the Agency does not
incorporate any affected State's recommendations on a
proposed CAAPP permit, a written statement of this
decision and its reasons for not accepting the
recommendations, except as otherwise provided in this Act
or by agreement with USEPA.