Public Act 095-0845
 
SB2110 Enrolled LRB095 16127 RCE 42146 b

    AN ACT concerning the environment.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 1. Short title. This Act may be cited as the
Uniform Environmental Covenants Act.
 
    Section 2. Definitions. In this Act:
    (1) "Activity and use limitations" means restrictions or
obligations created under this Act with respect to real
property.
    (2) "Agency" means the Illinois Environmental Protection
Agency or any other State or federal agency that determines or
approves the environmental response project pursuant to which
the environmental covenant is created.
    (3) "Common interest community" means a condominium,
cooperative, or other real property with respect to which a
person, by virtue of the person's ownership of a parcel of real
property, is obligated to pay property taxes or insurance
premiums, or for maintenance, or improvement of other real
property described in a recorded covenant that creates the
common interest community.
    (4) "Environmental covenant" means a servitude arising
under an environmental response project that imposes activity
and use limitations.
    (5) "Environmental response project" means a plan or work
performed for environmental remediation of real property at the
following sites or facilities:
            (A) all sites or facilities that are listed as
        proposed or final on the National Priorities List
        pursuant to Section 105 of the Comprehensive
        Environmental Response, Compensation and Liability Act
        of 1980, as amended (42 U.S.C. 9601 et seq.);
            (B) all sites or facilities undergoing remediation
        pursuant to an administrative order issued pursuant to
        Section 106 of the Comprehensive Environmental
        Response, Compensation and Liability Act of 1980, as
        amended (42 U.S.C. 9601 et seq.);
            (C) all sites or facilities that are owned or
        operated by a department, agency, or instrumentality
        of the United States that are undergoing remediation
        pursuant to Section 120 of the Comprehensive
        Environmental Response, Compensation and Liability Act
        of 1980, as amended (42 U.S.C. 9601 et seq.);
            (D) all sites or facilities undergoing remediation
        pursuant to a settlement agreement pursuant to Section
        122 of the Comprehensive Environmental Response,
        Compensation and Liability Act of 1980, as amended (42
        U.S.C. 9601 et seq.);
            (E) all sites or facilities undergoing remediation
        pursuant to Section 3008(h) of the Resource
        Conservation and Recovery Act of 1976 (42 U.S.C. 6901
        et seq.);
            (F) all sites or facilities undergoing remediation
        pursuant to Section 7003 of the Resource Conservation
        and Recovery Act of 1976 (42 U.S.C. 6901 et seq.); or
            (G) all sites or facilities undergoing remediation
        pursuant to a court or board order issued pursuant to
        the Illinois Environmental Protection Act (415 ILCS
        5/1 et seq.) with the approval of the Agency.
    (6) "Holder" means the grantee of an environmental covenant
as specified in Section 3(a).
    (7) "Person" means an individual, corporation, business
trust, estate, trust, partnership, limited liability company,
association, joint venture, public corporation, government,
governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity.
    (8) "Prior interest" means a preceding or senior interest,
in time or in right, that is recorded with respect to the real
property, including but not limited to a mortgage, easement, or
other interest, lien, or encumbrance predating the recording of
an environmental covenant.
    (9) "Record", used as a noun, means information that is
inscribed on a tangible medium or that is stored in an
electronic or other medium and is retrievable in perceivable
form.
    (10) "State" means a state of the United States, the
District of Columbia, Puerto Rico, the United States Virgin
Islands, or any territory or insular possession subject to the
jurisdiction of the United States.
 
    Section 3. Nature of rights; subordination of interests.
    (a) An owner or owners of real property may voluntarily
enter into an environmental covenant, as a grantor of an
interest in the real property, with an agency and, if
appropriate, one or more holders. No owner, agency, or other
person shall be required to enter into an environmental
covenant as part of an environmental response project;
provided, however, that (i) failure to enter into an
environmental covenant may result in disapproval of the
environmental response project; and (ii) once the owner,
agency, or other person assumes obligations in an environmental
covenant they must comply with those obligations of the
environmental covenant in accordance with this Act.
    (b) Any person, including a person that owns an interest in
the real property, the agency, or a municipality or other unit
of local government, may be a holder. An environmental covenant
may identify more than one holder. The interest of a holder is
an interest in real property.
    (c) A right of an agency under this Act or under an
environmental covenant, other than a right as a holder, is not
an interest in real property.
    (d) An agency is bound by any obligation it assumes in an
environmental covenant, but an agency does not assume
obligations merely by signing an environmental covenant. Any
other person that signs an environmental covenant is bound by
the obligations the person assumes in the covenant, but signing
the covenant does not change obligations, rights, or
protections granted or imposed under law other than this Act
except as provided in the covenant.
    (e) The following rules apply to interests in real property
in existence at the time an environmental covenant is created
or amended:
        (1) An interest that has priority under other law is
    not affected by an environmental covenant unless the person
    that owns the interest subordinates that interest to the
    covenant.
        (2) This Act does not require a person that owns a
    prior interest to subordinate that interest to an
    environmental covenant or to agree to be bound by the
    covenant.
        (3) A subordination agreement may be contained in an
    environmental covenant covering real property or in a
    separate record. If the environmental covenant covers
    commonly owned property in a common interest community, the
    record may be signed by any person authorized by the
    governing board of the owners association.
        (4) An agreement by a person to subordinate a prior
    interest to an environmental covenant affects the priority
    of that person's interest but does not by itself impose any
    affirmative obligation on the person with respect to the
    environmental covenant.
    (f) Environmental covenants established under this Act
shall be subject to eminent domain or condemnation proceedings
by any agency of the State having a general grant of authority
to acquire property by the exercise of the right of eminent
domain under the laws of this State. No environmental covenant
established under this Act shall be terminated or modified
unless:
        (1) The agency that signed the covenant is a party to
    the proceeding;
        (2) All persons identified in Section 10(a) and (b) are
    given notice of the pendency of the proceeding; and
        (3) The agency of the State exercising the right of
    eminent domain or condemnation determines, after hearing,
    that the termination or modification will not adversely
    affect human health or the environment.
 
    Section 4. Contents of environmental covenant.
    (a) An environmental covenant must:
        (1) State that the instrument is an environmental
    covenant executed pursuant to this Act.
        (2) Contain a legally sufficient description of the
    real property subject to the covenant.
        (3) Describe the activity and use limitations on the
    real property.
        (4) Identify every holder.
        (5) Be signed by the agency, every holder, and unless
    waived by the agency every owner of the fee simple of the
    real property subject to the covenant.
        (6) Identify the name and location of any
    administrative record for the environmental response
    project reflected in the environmental covenant.
    (b) In addition to the information required by subsection
(a), an environmental covenant may contain other information,
restrictions, and requirements agreed to by the persons who
signed it, including any:
        (1) Requirements for notice following transfer of a
    specified interest in, or concerning proposed changes in
    use of, applications for building permits for, or proposals
    for any site work affecting the contamination on, the
    property subject to the covenant.
        (2) Requirements for periodic reporting describing
    compliance with the covenant.
        (3) Rights of access to the property granted in
    connection with implementation or enforcement of the
    covenant.
        (4) A brief narrative description of the contamination
    and remedy, including the contaminants of concern, the
    pathways of exposure, limits on exposure, and the location
    and extent of the contamination.
        (5) Limitation on amendment or termination of the
    covenant in addition to those contained in Sections 9 and
    10.
        (6) Rights of the holder in addition to its right to
    enforce the covenant pursuant to Section 11.
    (c) In addition to other conditions for its approval of an
environmental covenant, the agency may require those persons
specified by the agency who have interests in the real property
to sign the covenant.
 
    Section 5. Validity; effect on other instruments.
    (a) An environmental covenant that complies with this Act
runs with the land.
    (b) An environmental covenant that is otherwise effective
is valid and enforceable even if:
        (1) It is not appurtenant to an interest in real
    property.
        (2) It can be or has been assigned to a person other
    than the original holder.
        (3) It is not of a character that has been recognized
    traditionally at common law.
        (4) It imposes a negative burden.
        (5) It imposes an affirmative obligation on a person
    having an interest in the real property or on the holder.
        (6) The benefit or burden does not touch or concern
    real property.
        (7) There is no privity of estate or contract.
        (8) The holder dies, ceases to exist, resigns, or is
    replaced.
        (9) The owner of an interest subject to the
    environmental covenant and the holder are the same person.
    (c) An instrument that creates restrictions or obligations
with respect to real property that would qualify as activity
and use limitations except for the fact that the instrument was
recorded before the effective date of this Act is not invalid
or unenforceable because of any of the limitations on
enforcement of interests described in subsection (b) or because
it was identified as an easement, servitude, deed restriction,
or other interest. This Act does not apply in any other respect
to such an instrument.
    (d) This Act does not invalidate or render unenforceable
any interest, whether designated as an environmental covenant
or other interest, that is otherwise enforceable under the law
of this State, including but not limited to interests compliant
with 35 Ill. Adm. Code 742, Subpart J.
 
    Section 6. Relationship to other land-use law. This Act
does not authorize a use of real property that is otherwise
prohibited by zoning, by law other than this Act regulating use
of real property, or by a recorded instrument that has priority
over the environmental covenant. An environmental covenant may
prohibit or restrict uses of real property which are authorized
by zoning or by law other than this Act.
 
    Section 7. Notice.
    (a) A copy of an environmental covenant shall be provided
by the persons and in the manner required by the agency to:
        (1) Each person that signed the covenant.
        (2) Each person holding a recorded interest in the real
    property subject to the covenant.
        (3) Each person in possession of the real property
    subject to the covenant.
        (4) Each municipality or other unit of local government
    in which real property subject to the covenant is located.
        (5) Any other person the agency requires.
    (b) The validity of a covenant is not affected by failure
to provide a copy of the covenant as required under this
Section.
 
    Section 8. Recording.
    (a) An environmental covenant and any amendment or
termination of the covenant must be recorded in every county in
which any portion of the real property subject to the covenant
is located. For purposes of indexing, a holder shall be treated
as a grantee.
    (b) Except as otherwise provided in Section 9(c), an
environmental covenant is subject to the laws of this State
governing recording and priority of interests in real property.
 
    Section 9. Duration; amendment by court action.
    (a) An environmental covenant is perpetual unless it is:
        (1) By its terms limited to a specific duration or
    terminated by the occurrence of a specific event.
        (2) Terminated by consent pursuant to Section 10.
        (3) Terminated pursuant to subsection (b).
        (4) Terminated by foreclosure of an interest that has
    priority over the environmental covenant.
        (5) Terminated or modified in an eminent domain
    proceeding, but only if:
            (A) The agency that signed the covenant is a party
        to the proceeding.
            (B) All persons identified in Section 10(a) and (b)
        are given notice of the pendency of the proceeding.
            (C) The court determines, after hearing, that the
        termination or modification will not adversely affect
        human health or the environment.
    (b) If the agency that signed an environmental covenant has
determined that the intended benefits of the covenant can no
longer be realized, a court, under the doctrine of changed
circumstances, in an action in which all persons identified in
Section 10(a) and (b) have been given notice, may terminate the
covenant or reduce its burden on the real property subject to
the covenant. The agency's determination or its failure to make
a determination upon request is subject to review pursuant to
the Administrative Review Law.
    (c) Except as otherwise provided in subsections (a) and
(b), an environmental covenant may not be extinguished,
limited, or impaired through issuance of a tax deed,
foreclosure of a tax lien, or application of the doctrine of
adverse possession, prescription, abandonment, waiver, lack of
enforcement, or acquiescence, or a similar doctrine.
    (d) An environmental covenant may not be extinguished,
limited, or impaired by application of any Illinois Law
concerning marketable title or dormant mineral interests.
 
    Section 10. Amendment or termination by consent.
    (a) An environmental covenant may be amended or terminated
by consent only if the amendment or termination is signed by:
        (1) The agency.
        (2) Unless waived by the agency, the current owner of
    the fee simple of the real property subject to the
    covenant.
        (3) Each person that originally signed the covenant,
    unless the person waived in a signed record the right to
    consent or a court finds that the person no longer exists
    or cannot be located or identified with the exercise of
    reasonable diligence.
        (4) Except as otherwise provided in subsection (d)(2),
    the holder.
    (b) If an interest in real property is subject to an
environmental covenant, the interest is not affected by an
amendment of the covenant unless the current owner of the
interest consents to the amendment or has waived in a signed
record the right to consent to amendments.
    (c) Except for an assignment undertaken pursuant to a
governmental reorganization, assignment of an environmental
covenant to a new holder is an amendment.
    (d) Except as otherwise provided in an environmental
covenant:
        (1) A holder may not assign its interest without
    consent of the other parties.
        (2) A holder may be removed and replaced by agreement
    of the other parties specified in subsection (a).
        (3) A court of competent jurisdiction may fill a
    vacancy in the position of holder.
 
    Section 11. Enforcement of environmental covenant.
    (a) A civil action for injunctive or other equitable relief
for violation of an environmental covenant may be maintained
by:
        (1) A party to the covenant.
        (2) The agency or, if it is not the agency, the
    Illinois Environmental Protection Agency.
        (3) Any person to whom the covenant expressly grants
    power to enforce.
        (4) A person whose interest in the real property or
    whose collateral or liability may be affected by the
    alleged violation of the covenant.
        (5) A municipality or other unit of local government in
    which the real property subject to the covenant is located.
    (b) This Act does not limit the regulatory authority of the
agency or the Illinois Environmental Protection Agency under
law other than this Act with respect to an environmental
response project.
    (c) A person is not responsible for or subject to liability
for environmental remediation solely because it has the right
to enforce an environmental covenant.
 
    Section 12. Registry; substitute notice.
    (a) The Illinois Environmental Protection Agency shall
establish and maintain a registry that contains all
environmental covenants and any amendment or termination of
those covenants. The registry may also contain any other
information concerning environmental covenants and the real
property subject to them which the Illinois Environmental
Protection Agency considers appropriate. The registry is a
public record for purposes of the Freedom of Information Act.
    (b) After an environmental covenant or an amendment or
termination of a covenant is filed in the registry established
pursuant to subsection (a), a notice of the covenant,
amendment, or termination that complies with this Section may
be recorded in the land records in lieu of recording the entire
covenant. Any such notice must contain:
        (1) A legally sufficient description and any available
    street address of the real property subject to the
    covenant.
        (2) The name and address of the owner of the fee simple
    interest in the real property, the agency, and the holder
    if other than the agency.
        (3) A statement that the covenant, amendment, or
    termination is available in a registry at the Environmental
    Protection Agency at its office in Springfield, which
    discloses the method of any electronic access.
        (4) A statement that the notice is notification of an
    environmental covenant executed pursuant to this Act.
    (c) A statement in substantially the following form,
executed with the same formalities as a deed in this State,
satisfies the requirements of subsection (b):
        (1) This notice is filed in the land records of (insert
    name of county in which the real property is located)
    pursuant to Section 12 of the Uniform Environmental
    Covenants Act.
        (2) This notice and the covenant, amendment or
    termination to which it refers may impose significant
    obligations with respect to the property described below.
        (3) A legal description of the property is attached as
    Exhibit A to this notice. The address of the property that
    is subject to the environmental covenant is (insert address
    of property).
        (4) The name and address of the owner of the fee simple
    interest in the real property on the date of this notice is
    (insert name of current owner of the property and the
    owner's current address as shown on the tax records of the
    jurisdiction in which the property is located).
        (5) The environmental covenant, amendment or
    termination was signed by (insert name and address of the
    agency).
        (6) The environmental covenant, amendment, or
    termination was filed in the registry on (insert date of
    filing).
        (7) The full text of the covenant, amendment, or
    termination and any other information required by the
    agency is on file and available for inspection and copying
    in the registry maintained for that purpose by the Illinois
    Environmental Protection Agency at (insert address and
    room of buildings in which the registry is maintained). The
    covenant, amendment or termination may be found
    electronically at (insert web address for covenant).
 
    Section 13. Uniformity of application and construction. In
applying and construing this uniform Act, consideration must be
given to the need to promote uniformity of the law with respect
to its subject matter among states that enact it.
 
    Section 14. Relation to Electronic Signatures in Global and
National Commerce Act. This Act modifies, limits, or supersedes
the federal Electronic Signatures in Global and National
Commerce Act (15 U.S.C. Section 7001 et seq.) but does not
modify, limit, or supersede Section 101 of that Act (15 U.S.C.
Section 7001(a)) or authorize electronic delivery of any of the
notices described in Section 103 of that Act (15 U.S.C. Section
7003(b)).
 
    Section 15. Severability. If any provision of this Act or
its application to any person or circumstance is held invalid,
the invalidity does not affect other provisions or applications
of this Act which can be given effect without the invalid
provision or application, and to this end the provisions of
this Act are severable.