SB1355sam001 100TH GENERAL ASSEMBLY

Sen. Michael E. Hastings

Filed: 3/16/2017

10000SB1355sam001 LRB100 09974 MJP 23705 a

AMENDMENT TO SENATE BILL 1355

AMENDMENT NO. ______. Amend Senate Bill 1355 by replacing everything after the enacting clause with the following:

"Section 5. The Environmental Protection Act is amended by changing Sections 21.1 and 22.51 as follows:

(415 ILCS 5/21.1) (from Ch. 111 1/2, par. 1021.1)

Sec. 21.1. (a) Except as provided in subsection (a.5), no person other than the State of Illinois, its agencies and institutions, or a unit of local government shall own or operate a MSWLF unit or other waste disposal operation on or after March 1, 1985, which requires a permit under subsection (d) of Section 21 of this Act, unless such person has posted with the Agency a performance bond or other security for the purpose of insuring closure of the site and post-closure care in accordance with this Act and regulations adopted thereunder.

(a.5) On and after the effective date established by the United States Environmental Protection Agency for MSWLF units to provide financial assurance under Subtitle D of the Resource Conservation and Recovery Act, no person, other than the State of Illinois, its agencies and institutions, shall own or operate a MSWLF unit that requires a permit under subsection (d) of Section 21 of this Act, unless that person has posted with the Agency a performance bond or other security for the purposes of:

(1) insuring closure of the site and post-closure care in accordance with this Act and its rules; and

(2) insuring completion of a corrective action remedy when required by Board rules adopted under Section 22.40 of this Act or when required by Section 22.41 of this Act.

The performance bond or other security requirement set forth in this Section may be fulfilled by closure or post-closure insurance, or both, issued by an insurer licensed to transact the business of insurance by the Department of Insurance or at a minimum the insurer must be licensed to transact the business of insurance or approved to provide insurance as an excess or surplus lines insurer by the insurance department in one or more states.

(b) On or before January 1, 1985, the Board shall adopt regulations to promote the purposes of this Section. Without limiting the generality of this authority, such regulations may, among other things, prescribe the type and amount of the performance bonds or other securities required under subsections (a) and (a.5) of this Section, and the conditions under which the State is entitled to collect monies from such performance bonds or other securities. The bond amount shall be directly related to the design and volume of the site. The cost estimate for the post-closure care of a MSWLF unit shall be calculated using a 30 year post-closure care period or such other period as may be approved by the Agency under Board or federal rules. On and after the effective date established by the United States Environmental Protection Agency for MSWLF units to provide financial assurance under Subtitle D of the Resource Conservation and Recovery Act, closure, post-closure care, and corrective action cost estimates for MSWLF units shall be in current dollars.

(c) There is hereby created within the State Treasury a special fund to be known as the "Landfill Closure and Post-Closure Fund". Any monies forfeited to the State of Illinois from any performance bond or other security required under this Section or under subdivision (f)(4) of Section 22.51 shall be placed in the "Landfill Closure and Post-Closure Fund" and shall, upon approval by the Governor and the Director, be used by and under the direction of the Agency for the purposes for which such performance bond or other security was issued. The Landfill Closure and Post-Closure Fund is not subject to the provisions of subsection (c) of Section 5 of the State Finance Act.

(d) The Agency is authorized to enter into such contracts and agreements as it may deem necessary to carry out the purposes of this Section. Neither the State, nor the Director, nor any State employee shall be liable for any damages or injuries arising out of or resulting from any action taken under this Section.

(e) The Agency shall have the authority to approve or disapprove any performance bond or other security posted pursuant to subsection (a) or (a.5) of this Section. Any person whose performance bond or other security is disapproved by the Agency may contest the disapproval as a permit denial appeal pursuant to Section 40 of this Act.

(f) The Agency may establish such procedures as it may deem necessary for the purpose of implementing and executing its responsibilities under this Section.

(g) Nothing in this Section shall bar a cause of action by the State for any other penalty or relief provided by this Act or any other law.

(Source: P.A. 97-887, eff. 8-2-12.)

(415 ILCS 5/22.51)

Sec. 22.51. Clean Construction or Demolition Debris Fill Operations.

(a) No person shall conduct any clean construction or demolition debris fill operation in violation of this Act or any regulations or standards adopted by the Board.

(b)(1)(A) Beginning August 18, 2005 but prior to July 1, 2008, no person shall use clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation, unless they have applied for an interim authorization from the Agency for the clean construction or demolition debris fill operation.

(B) The Agency shall approve an interim authorization upon its receipt of a written application for the interim authorization that is signed by the site owner and the site operator, or their duly authorized agent, and that contains the following information: (i) the location of the site where the clean construction or demolition debris fill operation is taking place, (ii) the name and address of the site owner, (iii) the name and address of the site operator, and (iv) the types and amounts of clean construction or demolition debris being used as fill material at the site.

(C) The Agency may deny an interim authorization if the site owner or the site operator, or their duly authorized agent, fails to provide to the Agency the information listed in subsection (b)(1)(B) of this Section. Any denial of an interim authorization shall be subject to appeal to the Board in accordance with the procedures of Section 40 of this Act.

(D) No person shall use clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation for which the Agency has denied interim authorization under subsection (b)(1)(C) of this Section. The Board may stay the prohibition of this subsection (D) during the pendency of an appeal of the Agency's denial of the interim authorization brought under subsection (b)(1)(C) of this Section.

(2) Beginning September 1, 2006, owners and operators of clean construction or demolition debris fill operations shall, in accordance with a schedule prescribed by the Agency, submit to the Agency applications for the permits required under this Section. The Agency shall notify owners and operators in writing of the due date for their permit application. The due date shall be no less than 90 days after the date of the Agency's written notification. Owners and operators who do not receive a written notification from the Agency by October 1, 2007, shall submit a permit application to the Agency by January 1, 2008. The interim authorization of owners and operators who fail to submit a permit application to the Agency by the permit application's due date shall terminate on (i) the due date established by the Agency if the owner or operator received a written notification from the Agency prior to October 1, 2007, or (ii) or January 1, 2008, if the owner or operator did not receive a written notification from the Agency by October 1, 2007.

(3) On and after July 1, 2008, no person shall use clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation (i) without a permit granted by the Agency for the clean construction or demolition debris fill operation or in violation of any conditions imposed by such permit, including periodic reports and full access to adequate records and the inspection of facilities, as may be necessary to assure compliance with this Act and with Board regulations and standards adopted under this Act or (ii) in violation of any regulations or standards adopted by the Board under this Act.

(4) This subsection (b) does not apply to:

(A) the use of clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation located on the site where the clean construction or demolition debris was generated;

(B) the use of clean construction or demolition debris as fill material in an excavation other than a current or former quarry or mine if this use complies with Illinois Department of Transportation specifications; or

(C) current or former quarries, mines, and other excavations that do not use clean construction or demolition debris as fill material.

(c) In accordance with Title VII of this Act, the Board may adopt regulations to promote the purposes of this Section. The Agency shall consult with the mining and construction industries during the development of any regulations to promote the purposes of this Section.

(1) No later than December 15, 2005, the Agency shall propose to the Board, and no later than September 1, 2006, the Board shall adopt, regulations for the use of clean construction or demolition debris as fill material in current and former quarries, mines, and other excavations. Such regulations shall include, but shall not be limited to, standards for clean construction or demolition debris fill operations and the submission and review of permits required under this Section.

(2) Until the Board adopts rules under subsection (c)(1) of this Section, all persons using clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation shall:

(A) Assure that only clean construction or demolition debris is being used as fill material by screening each truckload of material received using a device approved by the Agency that detects volatile organic compounds. Such devices may include, but are not limited to, photo ionization detectors. All screening devices shall be operated and maintained in accordance with manufacturer's specifications. Unacceptable fill material shall be rejected from the site; and

(B) Retain for a minimum of 3 years the following information:

(i) The name of the hauler, the name of the generator, and place of origin of the debris or soil;

(ii) The approximate weight or volume of the debris or soil; and

(iii) The date the debris or soil was received.

(d) This Section applies only to clean construction or demolition debris that is not considered "waste" as provided in Section 3.160 of this Act.

(e) For purposes of this Section:

(1) The term "operator" means a person responsible for the operation and maintenance of a clean construction or demolition debris fill operation.

(2) The term "owner" means a person who has any direct or indirect interest in a clean construction or demolition debris fill operation or in land on which a person operates and maintains a clean construction or demolition debris fill operation. A "direct or indirect interest" does not include the ownership of publicly traded stock. The "owner" is the "operator" if there is no other person who is operating and maintaining a clean construction or demolition debris fill operation.

(3) The term "clean construction or demolition debris fill operation" means a current or former quarry, mine, or other excavation where clean construction or demolition debris is used as fill material.

(4) The term "uncontaminated soil" shall have the same meaning as uncontaminated soil under Section 3.160 of this Act.

(f)(1) No later than one year after the effective date of this amendatory Act of the 96th General Assembly, the Agency shall propose to the Board, and, no later than one year after the Board's receipt of the Agency's proposal, the Board shall adopt, rules for the use of clean construction or demolition debris and uncontaminated soil as fill material at clean construction or demolition debris fill operations. The rules must include standards and procedures necessary to protect groundwater, which may include, but shall not be limited to, the following: requirements regarding testing and certification of soil used as fill material, surface water runoff, liners or other protective barriers, monitoring (including, but not limited to, groundwater monitoring), corrective action, recordkeeping, reporting, closure and post-closure care, financial assurance, post-closure land use controls, location standards, and the modification of existing permits to conform to the requirements of this Act and Board rules. The rules may also include limits on the use of recyclable concrete and asphalt as fill material at clean construction or demolition debris fill operations, taking into account factors such as technical feasibility, economic reasonableness, and the availability of markets for such materials.

(2) Until the effective date of the Board rules adopted under subdivision (f)(1) of this Section, and in addition to any other requirements, owners and operators of clean construction or demolition debris fill operations must do all of the following in subdivisions (f)(2)(A) through (f)(2)(D) of this Section for all clean construction or demolition debris and uncontaminated soil accepted for use as fill material. The requirements in subdivisions (f)(2)(A) through (f)(2)(D) of this Section shall not limit any rules adopted by the Board.

(A) Document the following information for each load of clean construction or demolition debris or uncontaminated soil received: (i) the name of the hauler, the address of the site of origin, and the owner and the operator of the site of origin of the clean construction or demolition debris or uncontaminated soil, (ii) the weight or volume of the clean construction or demolition debris or uncontaminated soil, and (iii) the date the clean construction or demolition debris or uncontaminated soil was received.

(B) For all soil, obtain either (i) a certification from the owner or operator of the site from which the soil was removed that the site has never been used for commercial or industrial purposes and is presumed to be uncontaminated soil or (ii) a certification from a licensed Professional Engineer or licensed Professional Geologist that the soil is uncontaminated soil. Certifications required under this subdivision (f)(2)(B) must be on forms and in a format prescribed by the Agency.

(C) Confirm that the clean construction or demolition debris or uncontaminated soil was not removed from a site as part of a cleanup or removal of contaminants, including, but not limited to, activities conducted under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended; as part of a Closure or Corrective Action under the Resource Conservation and Recovery Act, as amended; or under an Agency remediation program, such as the Leaking Underground Storage Tank Program or Site Remediation Program, but excluding sites subject to Section 58.16 of this Act where there is no presence or likely presence of a release or a substantial threat of a release of a regulated substance at, on, or from the real property.

(D) Document all activities required under subdivision (f)(2) of this Section. Documentation of any chemical analysis must include, but is not limited to, (i) a copy of the lab analysis, (ii) accreditation status of the laboratory performing the analysis, and (iii) certification by an authorized agent of the laboratory that the analysis has been performed in accordance with the Agency's rules for the accreditation of environmental laboratories and the scope of accreditation.

(3) Owners and operators of clean construction or demolition debris fill operations must maintain all documentation required under subdivision (f)(2) of this Section for a minimum of 3 years following the receipt of each load of clean construction or demolition debris or uncontaminated soil, except that documentation relating to an appeal, litigation, or other disputed claim must be maintained until at least 3 years after the date of the final disposition of the appeal, litigation, or other disputed claim. Copies of the documentation must be made available to the Agency and to units of local government for inspection and copying during normal business hours. The Agency may prescribe forms and formats for the documentation required under subdivision (f)(2) of this Section.

Chemical analysis conducted under subdivision (f)(2) of this Section must be conducted in accordance with the requirements of 35 Ill. Adm. Code 742, as amended, and "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846, as amended.

(4) No later than one year after the effective date of this amendatory Act of the 100th General Assembly, the Agency shall propose to the Board, and, no later than one year after receipt of the Agency's proposal, the Board shall adopt rules that allow owners and operators of clean construction or demolition debris fill operations who are transferring a portion of a fill operation site to another person to be released from permitting requirements with respect to the transferred portion of the fill operation site, if all of the following have been satisfied:

(A) The owner or operator files with the Agency:

(i) an application to modify the fill operation permit to recognize a change in ownership of the transferred property prior to completion of closure and post-closure maintenance;

(ii) a document identifying the portion of the site being transferred; and

(iii) a copy of plans describing how the portion of the site being transferred will be developed.

(B) The portion of the site being transferred is filled to within at least 3 feet of the final fill elevation that would otherwise be required under the closure and post-closure maintenance requirements in the permit.

(C) The owner or operator posts with the Agency a performance bond for the purposes of closure and post-closure maintenance of the portion of the site being transferred. The bond amount shall be directly related to the estimate of the costs for the Agency to remediate the transferred portion of the site to a condition consistent with the closure and post-closure maintenance requirements applicable to the site.

The rules adopted pursuant to this subdivision (f)(4) shall include the conditions under which the State is entitled to collect monies from the performance bond. Those conditions may include, but are not limited to, the failure of the transferee to timely commence development or complete development of the portion of the site being transferred.

Any moneys forfeited to the State of Illinois from any performance bond required under this subdivision (f)(4) shall be placed in the Landfill Closure and Post-Closure Fund established under Section 21.1 of this Act and shall, upon approval by the Governor and the Director of the Agency, be used by and under the direction of the Agency for the purposes for which the performance bond was issued.

The Agency is authorized to enter into such contracts and agreements as it may deem necessary to carry out the purposes of this Section. Neither the State, nor the Director of the Agency, nor any State employee shall be liable for any damages or injuries arising out of or resulting from any action taken under this Section.

The Agency shall have the authority to approve or disapprove any performance bond posted pursuant to this subdivision (f)(4). Any person whose performance bond is disapproved by the Agency may contest the disapproval in the same manner as a permit denial appeal pursuant to Section 40 of this Act.

The Agency may establish such procedures as the Agency may deem necessary for the purpose of implementing and executing the Agency's responsibilities under this subdivision (f)(4). Until the effective date of rules adopted pursuant to this subdivision (f)(4), the Agency may, consistent with the terms of this subdivision (f)(4), allow owners and operators of clean construction or demolition debris fill operations who are transferring all or a portion of a fill operation site to another person to be released from permitting requirements with respect to the transferred portions of the fill operation site.

Nothing in this subdivision (f)(4) shall bar a cause of action by the State for any other penalty or relief provided by this Act or any other law.

(g)(1) No person shall use soil other than uncontaminated soil as fill material at a clean construction or demolition debris fill operation.

(2) No person shall use construction or demolition debris other than clean construction or demolition debris as fill material at a clean construction or demolition debris fill operation.

(Source: P.A. 96-1416, eff. 7-30-10; 97-137, eff. 7-14-11.)

Section 99. Effective date. This Act takes effect upon becoming law.".