HB1467ham001 95TH GENERAL ASSEMBLY

State Government Administration Committee

Filed: 3/21/2007

09500HB1467ham001 LRB095 09436 CMK 34122 a

AMENDMENT TO HOUSE BILL 1467

AMENDMENT NO. ______. Amend House Bill 1467 by replacing the title with the following:

"AN ACT concerning safety."; and

by replacing everything after the enacting clause with the following:

"Section 5. The Environmental Protection Act is amended by changing Section 22.15a as follows:

(415 ILCS 5/22.15a)

Sec. 22.15a. Open dumping cleanup program.

(a) Upon making a finding that (i) open dumping, (ii) a structure condemned by a unit of local government, or (iii) a vacant piece of property condemned by a unit of local government poses a threat to the public health or to the environment, the Agency may take whatever preventive or corrective action is necessary or appropriate to end that threat. The This preventive or corrective action may consist of any or all of the following:

(1) Removing waste or structures from the site.

(2) Removing soil and water contamination that is related to waste at the site.

(3) Installing devices to monitor and control groundwater and surface water contamination that is related to waste at the site.

(4) Taking any other actions that are authorized by Board regulations.

(b) Subject to the availability of appropriated funds, the Agency may undertake a consensual removal action for the removal of up to 20 cubic yards of waste, or, in the case of a condemned structure, the entire mass of structural material comprising the condemned structure, at no cost to the owner of the property where the open dumping has occurred or on which the condemned structure is located in accordance with the following requirements:

(1) Actions under this subsection must be taken pursuant to a written agreement between the Agency and the owner of the property unless the property is condemned by a unit of local government.

(2) The written agreement must at a minimum specify:

(A) that the owner relinquishes any claim of an ownership interest in any waste that is removed and in any proceeds from its sale;

(B) that waste will no longer be allowed to accumulate at the site in a manner that constitutes open dumping;

(C) that the owner will hold harmless the Agency and any employee or contractor used by the Agency to effect the removal for any damage to property incurred during the course of action under this subsection, except for damage incurred by gross negligence or intentional misconduct; and

(D) any conditions imposed upon or assistance required from the owner to assure that the waste is so located or arranged as to facilitate its removal.

(3) The Agency may establish by rule the conditions and priorities for the removal of waste or structures under this subsection (b).

(4) The Agency must prescribe the form of written agreements under this subsection (b).

(c) The Agency may provide notice to the owner of property where open dumping or condemnation has occurred whenever the Agency finds that the open dumping or condemned structure poses a threat to public health or the environment. The notice provided by the Agency must include the identified preventive or corrective action and must provide an opportunity for the owner to perform the action.

(d) In accordance with constitutional limitations, the Agency may enter, at all reasonable times, upon any private or public property for the purpose of taking any preventive or corrective action that is necessary and appropriate under this Section whenever the Agency finds that the open dumping or the condemned structure poses a threat to the public health or to the environment.

(e) Notwithstanding any other provision or rule of law and subject only to the defenses set forth in subsection (g) of this Section, the following persons shall be liable for all costs of corrective or preventive action incurred by the State of Illinois as a result of actions taken under this Section open dumping, including the reasonable costs of collection:

(1) any person with an ownership interest in property where open dumping has occurred;

(2) any person with an ownership or leasehold interest in the property at the time the open dumping occurred;

(3) any person who transported waste that was open dumped at the property; and

(4) any person who open dumped at the property; and .

(5) any person who owns a condemned structure that is treated under subsection (b) of this Section.

Any moneys received by the Agency under this subsection (e) must be deposited into the Subtitle D Management Fund.

(f) Any person liable to the Agency for costs incurred under subsection (e) of this Section may be liable to the State of Illinois for punitive damages in an amount at least equal to and not more than 3 times the costs incurred by the State if that person failed, without sufficient cause, to take preventive or corrective action under the notice issued under subsection (c) of this Section.

(g) There shall be no liability under subsection (e) of this Section for a person otherwise liable who can establish by a preponderance of the evidence that the hazard created by the open dumping or condemned structure was caused solely by:

(1) an act of God;

(2) an act of war; or

(3) an act or omission of a third party other than an employee or agent and other than a person whose act or omission occurs in connection with a contractual relationship with the person otherwise liable. For the purposes of this paragraph, "contractual relationship" includes, but is not limited to, land contracts, deeds, and other instruments transferring title or possession, unless the real property upon which the open dumping occurred was acquired by the defendant after the open dumping or condemnation occurred and one or more of the following circumstances is also established by a preponderance of the evidence:

(A) at the time the defendant acquired the property, the defendant did not know and had no reason to know that any open dumping or condemnation had occurred and the defendant undertook, at the time of acquisition, all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability;

(B) the defendant is a government entity that acquired the property by escheat or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation; or

(C) the defendant acquired the property by inheritance or bequest.

(h) Nothing in this Section shall affect or modify the obligations or liability of any person under any other provision of this Act, federal law, or State law, including the common law, for injuries, damages, or losses resulting from the circumstances leading to Agency action under this Section.

(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 subsection (c) of Section 33 of this Act shall not apply to any such action.

(j) Except for willful and wanton misconduct, neither the State, the Director, nor any State employee shall be liable for any damages or injuries arising out of or resulting from any act or omission occurring under the provisions of Public Act 94-272 or this amendatory Act of the 95th 94th General Assembly.

(k) Before taking preventive or corrective action under this Section, the Agency shall consider whether the open dumping or conditions giving rise to the condemnation:

(1) occurred on public land;

(2) occurred on a public right-of-way;

(3) occurred in a park or natural area;

(4) occurred in an environmental justice area;

(5) was caused or allowed by persons other than the owner of the site;

(6) creates the potential for groundwater contamination;

(7) creates the potential for surface water contamination;

(8) creates the potential for disease vectors;

(9) creates a fire hazard; or

(10) preventive or corrective action by the Agency has been requested by a unit of local government.

In taking preventive or corrective action under this Section, the Agency shall not expend more than $50,000 at any single site in response to open dumping or a condemned structure unless: (i) the Director determines that the open dumping or condemned structure poses an imminent and substantial endangerment to the public health or welfare or the environment; or (ii) the General Assembly appropriates more than $50,000 for preventive or corrective action in response to the open dumping or condemned structure, in which case the Agency may spend the appropriated amount.

(Source: P.A. 94-272, eff. 7-19-05.)

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