Public Act 93-0171
HB3508 Enrolled LRB093 02579 LRD 02589 b
AN ACT in relation to environmental matters.
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 52.3-1, 52.3-2, and 52.3-4 as follows:
(415 ILCS 5/52.3-1)
Sec. 52.3-1. Findings; purpose.
(a) The General Assembly finds that:
(1) During the last decade, considerable expertise
in pollution prevention, sophisticated emissions
monitoring and tracking techniques, compliance auditing
methods, stakeholder involvement, and innovative
approaches to control pollution have been developed.
(2) Substantial opportunities exist to reduce the
amount of or prevent adverse impacts from emissions or
discharges of pollutants or wastes through the use of
innovative and cost effective measures not currently
recognized by or allowed under existing environmental
laws, rules, and regulations.
(3) There are persons regulated under this Act who
have demonstrated excellence and leadership in
environmental compliance or stewardship or pollution
prevention and, through the implementation of innovative
measures, who can achieve further reductions in emissions
or discharges of pollutants or wastes or continued
environmental stewardship.
(4) Current environmental laws and regulations
have, in some instances, resulted in burdensome
transactional requirements that are unnecessarily costly
and complex for regulated entities and have proven to be
frustrating to the public that is concerned about
environmental protection.
(5) The goals of environmental protection will be
best served by promoting and evaluating the efforts of
those persons who are ready to achieve measurable and
verifiable pollution reductions in excess of the
otherwise applicable statutory and regulatory
requirements or who can demonstrate real environmental
risk reduction, promote pollution prevention, foster
superior environmental compliance by other persons
regulated under this Act, and who can improve stakeholder
involvement in environmental decision making.
(6) The United States Environmental Protection
Agency is operating a pilot program entitled "National
Environmental Performance Track" 65 Federal Register
41655 (July 6, 2000) (Federal Performance Track Program)
to recognize and reward businesses and public facilities
that demonstrate strong environmental performance beyond
current regulatory requirements. "Regulatory Reinvention
(XL) Pilot Project," 60 Federal Register 27282 (May 23,
1995) (Federal XL Program), to allow members of the
regulated community the flexibility to develop
alternative strategies that will replace specific
regulatory requirements on the condition that they
produce greater environmental benefits, reduce
administrative burdens, and enhance public participation.
There should be a process that allows regulatory
flexibility available to a participant in the Federal
Performance Track Program a proposal accepted under the
Federal XL Program to be also granted in implemented at
the State level if the participant's proposal the
proposal achieves one or more of the purposes of this
Section and is acceptable to the Agency.
(7) A process for implementing and evaluating
innovative environmental measures on a pilot project
basis should be developed and implemented in this State.
(b) It is the purpose of this Section to create a
voluntary pilot program by which the Agency may enter into
Environmental Management System Agreements with persons
regulated under this Act to implement innovative
environmental measures not otherwise recognized or allowed
under existing laws and regulations of this State if those
measures:
(1) achieve emissions reductions or reductions in
discharges or wastes beyond the otherwise applicable
statutory and regulatory requirements through pollution
prevention or other suitable means; or
(2) achieve real environmental risk reduction or
foster environmental compliance by other persons
regulated under this Act in a manner that is clearly
superior to the existing regulatory system.
These Agreements may be executed with participants in the
Federal Performance Track Program if the provisions include
proposals accepted under the Federal XL Program, provided the
proposals achieve one or more purposes of subsection (b)(1)
or (2) of this Section and are acceptable to the Agency.
(c) This program is a voluntary pilot program.
Participation is at the discretion of the Agency, and any
decision by the Agency to reject an initial proposal under
this Section is not appealable. An initial Agreement may be
renewed for appropriate time periods if the Agency finds the
Agreement continues to meet applicable requirements and the
purposes of this Section.
(d) The Agency shall develop and make publicly available
a program guidance document regarding participation in the
pilot program. A draft document shall be distributed for
review and comment by interested parties and a final document
shall be completed by December 1, 1996. At a minimum, this
document shall include the following:
(1) The approximate number of projects that the
Agency envisions being part of the pilot program.
(2) The types of projects and facilities that the
Agency believes would be most useful to be a part of the
pilot program.
(3) A description of potentially useful
environmental management systems, such as ISO 14000.
(4) A description of suitable Environmental
Performance Plans, including appropriate provisions or
opportunities for promoting pollution prevention and
sustainable development.
(5) A description of practices and procedures to
ensure that performance is measurable and verifiable.
(6) A characterization of less-preferred practices
that can generate adverse consequences such as
multi-media pollutant transfers.
(7) A description of suitable practices for
productive stakeholder involvement in project development
and implementation that may include, but need not be
limited to, consensus-based decision making and
appropriate technical assistance.
(e) The Agency has the authority to develop and
distribute written guidance, fact sheets, or other documents
that explain, summarize, or describe programs operated under
this Act or regulations. The written guidance, fact sheets,
or other documents shall not be considered rules and shall
not be subject to the Illinois Administrative Procedure Act.
(Source: P.A. 92-397, eff. 1-1-02.)
(415 ILCS 5/52.3-2)
Sec. 52.3-2. Agency authority; scope of agreement.
(a) The Agency may enter into an initial Environmental
Management System Agreement with any person regulated under
this Act to implement innovative environmental measures that
relate to or involve provisions of this Act, even if one or
more of the terms of such an Agreement would be inconsistent
with an otherwise applicable statute or regulation of this
State. Participation in this program is limited to those
persons who have submitted an Environmental Management System
Agreement that is acceptable to the Agency and who are not
currently subject to enforcement action under this Act.
(b) The Agency may adopt rules to implement this Section
if less than 6 Agreements are executed, but shall adopt rules
to implement this Section if 6 or more Agreements are
executed. Without limiting the generality of this
authority, those regulations may, among other things:
(1) Specify the criteria an applicant must meet to
participate in this program.
(2) Specify the minimum contents of a proposed
Environmental Management System Agreement, including,
without limitation, the following:
(A) requiring identification of all State and
federal statutes, rules, and regulations applicable
to the facility;
(B) requiring identification of all statutes,
rules, and regulations that are inconsistent with
one or more terms of the proposed Environmental
Management System Agreement;
(C) requiring a statement of how the proposed
Environmental Management System Agreement will
achieve one or more of the purposes of this Section;
(D) requiring identification of those members
of the general public, representatives of local
communities, and environmental groups who may have
an interest in the Environmental Management System
Agreement; and
(E) requiring identification of how a
participant will demonstrate ongoing compliance with
the terms of its Environmental Management System
Agreement, which may include an evaluation of a
participant's performance under the Environmental
Management System Agreement by a third party
acceptable to the Agency. Compliance with the
Agreement shall be determined not less than
annually.
(3) Specify the procedures for review by the Agency
of Environmental Management System Agreements.
(4) Specify the procedures for public participation
in, including notice of and comment on, Environmental
Management System Agreements and stakeholder involvement
in design and implementation of specific projects that
are undertaken.
(5) Specify the procedures for voluntary
termination of an Environmental Management System
Agreement.
(6) Specify the type of performance guarantee to be
provided by an applicant for participation in this
program. The nature of the performance guarantee shall
be directly related to the complexity of and
environmental risk associated with the proposed
Environmental Management System Agreement.
(c) The Agency shall propose by December 31, 1996, and
the Board shall promulgate, criteria and procedures for
involuntary termination of Environmental Management System
Agreements. The Board shall complete such rulemaking no later
than 180 days after receipt of the Agency's proposal.
(d) After July 1, 2003, On or before December 31, 2001,
the Agency may enter into an initial Environmental Management
System Agreement with any participant in the Federal
Performance Track Program Agreements prior to adopting rules
under this Section, if the proposals for the Agreements have
been accepted under the Federal XL Program, in accordance
with the following:
(1) The participant submits An applicant shall
submit, in writing, a proposed Environmental Management
System Agreement to the Director of the Agency.
(1.5) The Agency shall provide notice to the
public, including an opportunity for public comment and
hearing in accordance with the procedures set forth in 35
Ill. Adm. Code Part 164, on each proposal filed with the
Agency under this subsection (d).
(2) The Agency shall have 120 days after the public
comment period, unless the participant grants an
extension, to execute to review a proposed Environmental
Management System Agreement.
(3) The Agency's Failure to execute an agreement
notify an applicant in writing that it has accepted a
proposal shall be deemed a rejection.
(4) A rejection of a proposed Environmental
Management System Agreement by the Agency shall not be
appealable.
(5) The Agency shall provide notice to the public,
including an opportunity for public comment and hearing
in accordance with the procedures set forth in 35 Ill.
Adm. Code Part 164, on each proposal accepted by the
Agency under this subsection (d). The Agency shall
provide such notice, including an opportunity for public
comment and hearing, prior to executing an Environmental
Management System Agreement.
(6) Prior to promulgation of rules under Section
52.3-2(c), each Agreement shall specify the terms and
conditions under which the Agency may terminate the
Agreement.
(7) Each Agreement shall provide for appropriate
stakeholder involvement in a manner that is conducive to
productive participation, equitable decision making and
open exchange of information in developing and
implementing the Agreement.
(Source: P.A. 92-397, eff. 1-1-02.)
(415 ILCS 5/52.3-4)
Sec. 52.3-4. Performance assurance.
(a) The Agency shall ensure that each Environmental
Management System Agreement contains appropriate provisions
for performance assurance. Those provisions may specify
types of performance guarantees to be provided by the
participant to assure performance of the terms and conditions
of the Agreement.
(b) In the case of deficient performance of any term or
condition in an Environmental Management System Agreement
that prevents achievement of the stated purposes in
subsection (b) of Section 52.3-1, the Agency may terminate
the Agreement and the participant may be subject to
enforcement in accordance with the provisions of Section 31
or 42 of this Act.
(b-5) The Agency may terminate an Agreement executed
pursuant to subsection (d) of Section 52.3-1 if participation
in the Federal Performance Track Program ceases.
(c) If the Agreement is terminated, the facility shall
have sufficient time to apply for and receive any necessary
permits to continue the operations in effect during the
course of the Environmental Management Systems Agreement.
Any such application shall also be deemed a timely and
complete application for renewal of an existing permit under
applicable law.
(d) The Agency may adopt rules that are necessary to
carry out its duties under this Section including, but not
limited to, rules that provide mechanisms for alternative
dispute resolution and performance assurance.
(e) Nothing in this Section shall limit the authority or
ability of a State's Attorney or the Attorney General to
proceed pursuant to Section 43(a) of this Act, or to enforce
Section 44 or 44.1 of this Act, except that for the purposes
of enforcement under Section 43(a), 44, or 44.1, an Agreement
shall be deemed to be a permit issued under this Act to
engage in activities authorized under the Agreement.
(Source: P.A. 89-465, eff. 6-13-96.)
Section 99. Effective date. This Act takes effect upon
becoming law.