SB3073 EngrossedLRB102 23422 CPF 32591 b

1    AN ACT concerning safety.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Environmental Protection Act is amended by
5changing Section 22.59 and by adding Section 22.59a as
6follows:
 
7    (415 ILCS 5/22.59)
8    Sec. 22.59. CCR surface impoundments.
9    (a) The General Assembly finds that:
10        (1) the State of Illinois has a long-standing policy
11    to restore, protect, and enhance the environment,
12    including the purity of the air, land, and waters,
13    including groundwaters, of this State;
14        (2) a clean environment is essential to the growth and
15    well-being of this State;
16        (3) CCR generated by the electric generating industry
17    has caused groundwater contamination and other forms of
18    pollution at active and inactive plants throughout this
19    State;
20        (4) environmental laws should be supplemented to
21    ensure consistent, responsible regulation of all existing
22    CCR surface impoundments; and
23        (5) meaningful participation of State residents,

 

 

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1    especially vulnerable populations who may be affected by
2    regulatory actions, is critical to ensure that
3    environmental justice considerations are incorporated in
4    the development of, decision-making related to, and
5    implementation of environmental laws and rulemaking that
6    protects and improves the well-being of communities in
7    this State that bear disproportionate burdens imposed by
8    environmental pollution; and .
9        (6) the State places special emphasis on protecting
10    the water quality of Lake Michigan, including the
11    establishment of more stringent water quality standards
12    for that body of water compared to water quality standards
13    applicable for all other bodies of water throughout the
14    State.
15    Therefore, the purpose of this Section is to promote a
16healthful environment, including clean water, air, and land,
17meaningful public involvement, and the responsible disposal
18and storage of coal combustion residuals, so as to protect
19public health and to prevent pollution of the environment of
20this State.
21    The provisions of this Section shall be liberally
22construed to carry out the purposes of this Section.
23    (b) No person shall:
24        (1) cause or allow the discharge of any contaminants
25    from a CCR surface impoundment into the environment so as
26    to cause, directly or indirectly, a violation of this

 

 

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1    Section or any regulations or standards adopted by the
2    Board under this Section, either alone or in combination
3    with contaminants from other sources;
4        (2) construct, install, modify, operate, or close any
5    CCR surface impoundment without a permit granted by the
6    Agency, or so as to violate any conditions imposed by such
7    permit, any provision of this Section or any regulations
8    or standards adopted by the Board under this Section;
9        (3) cause or allow, directly or indirectly, the
10    discharge, deposit, injection, dumping, spilling, leaking,
11    or placing of any CCR upon the land in a place and manner
12    so as to cause or tend to cause a violation of this Section
13    or any regulations or standards adopted by the Board under
14    this Section; or
15        (4) construct, install, modify, or close a CCR surface
16    impoundment in accordance with a permit issued under this
17    Act without certifying to the Agency that all contractors,
18    subcontractors, and installers utilized to construct,
19    install, modify, or close a CCR surface impoundment are
20    participants in:
21            (A) a training program that is approved by and
22        registered with the United States Department of
23        Labor's Employment and Training Administration and
24        that includes instruction in erosion control and
25        environmental remediation; and
26            (B) a training program that is approved by and

 

 

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1        registered with the United States Department of
2        Labor's Employment and Training Administration and
3        that includes instruction in the operation of heavy
4        equipment and excavation.
5        Nothing in this paragraph (4) shall be construed to
6    require providers of construction-related professional
7    services to participate in a training program approved by
8    and registered with the United States Department of
9    Labor's Employment and Training Administration.
10        In this paragraph (4), "construction-related
11    professional services" includes, but is not limited to,
12    those services within the scope of: (i) the practice of
13    architecture as regulated under the Illinois Architecture
14    Practice Act of 1989; (ii) professional engineering as
15    defined in Section 4 of the Professional Engineering
16    Practice Act of 1989; (iii) the practice of a structural
17    engineer as defined in Section 4 of the Structural
18    Engineering Practice Act of 1989; or (iv) land surveying
19    under the Illinois Professional Land Surveyor Act of 1989.
20    (c) (Blank).
21    (d) Before commencing closure of a CCR surface
22impoundment, in accordance with Board rules, the owner of a
23CCR surface impoundment must submit to the Agency for approval
24a closure alternatives analysis that analyzes all closure
25methods being considered and that otherwise satisfies all
26closure requirements adopted by the Board under this Act.

 

 

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1Complete removal of CCR, as specified by the Board's rules,
2from the CCR surface impoundment must be considered and
3analyzed. Section 3.405 does not apply to the Board's rules
4specifying complete removal of CCR. The selected closure
5method must ensure compliance with regulations adopted by the
6Board pursuant to this Section.
7    (e) Owners or operators of CCR surface impoundments who
8have submitted a closure plan to the Agency before May 1, 2019,
9and who have completed closure prior to 24 months after July
1030, 2019 (the effective date of Public Act 101-171) shall not
11be required to obtain a construction permit for the surface
12impoundment closure under this Section.
13    (f) Except for the State, its agencies and institutions, a
14unit of local government, or not-for-profit electric
15cooperative as defined in Section 3.4 of the Electric Supplier
16Act, any person who owns or operates a CCR surface impoundment
17in this State shall post with the Agency a performance bond or
18other security for the purpose of: (i) ensuring closure of the
19CCR surface impoundment and post-closure care in accordance
20with this Act and its rules; and (ii) ensuring remediation of
21releases from the CCR surface impoundment. The only acceptable
22forms of financial assurance are: a trust fund, a surety bond
23guaranteeing payment, a surety bond guaranteeing performance,
24or an irrevocable letter of credit.
25        (1) The cost estimate for the post-closure care of a
26    CCR surface impoundment shall be calculated using a

 

 

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1    30-year post-closure care period or such longer period as
2    may be approved by the Agency under Board or federal
3    rules.
4        (2) The Agency is authorized to enter into such
5    contracts and agreements as it may deem necessary to carry
6    out the purposes of this Section. Neither the State, nor
7    the Director, nor any State employee shall be liable for
8    any damages or injuries arising out of or resulting from
9    any action taken under this Section.
10        (3) The Agency shall have the authority to approve or
11    disapprove any performance bond or other security posted
12    under this subsection. Any person whose performance bond
13    or other security is disapproved by the Agency may contest
14    the disapproval as a permit denial appeal pursuant to
15    Section 40.
16    (g) The Board shall adopt rules establishing construction
17permit requirements, operating permit requirements, design
18standards, reporting, financial assurance, and closure and
19post-closure care requirements for CCR surface impoundments.
20Not later than 8 months after July 30, 2019 (the effective date
21of Public Act 101-171) the Agency shall propose, and not later
22than one year after receipt of the Agency's proposal the Board
23shall adopt, rules under this Section. The Board shall not be
24deemed in noncompliance with the rulemaking deadline due to
25delays in adopting rules as a result of the Joint Commission on
26Administrative Rules oversight process. The rules must, at a

 

 

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1minimum:
2        (1) be at least as protective and comprehensive as the
3    federal regulations or amendments thereto promulgated by
4    the Administrator of the United States Environmental
5    Protection Agency in Subpart D of 40 CFR 257 governing CCR
6    surface impoundments;
7        (2) specify the minimum contents of CCR surface
8    impoundment construction and operating permit
9    applications, including the closure alternatives analysis
10    required under subsection (d);
11        (3) specify which types of permits include
12    requirements for closure, post-closure, remediation and
13    all other requirements applicable to CCR surface
14    impoundments;
15        (4) specify when permit applications for existing CCR
16    surface impoundments must be submitted, taking into
17    consideration whether the CCR surface impoundment must
18    close under the RCRA;
19        (5) specify standards for review and approval by the
20    Agency of CCR surface impoundment permit applications;
21        (6) specify meaningful public participation procedures
22    for the issuance of CCR surface impoundment construction
23    and operating permits, including, but not limited to,
24    public notice of the submission of permit applications, an
25    opportunity for the submission of public comments, an
26    opportunity for a public hearing prior to permit issuance,

 

 

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1    and a summary and response of the comments prepared by the
2    Agency;
3        (7) prescribe the type and amount of the performance
4    bonds or other securities required under subsection (f),
5    and the conditions under which the State is entitled to
6    collect moneys from such performance bonds or other
7    securities;
8        (8) specify a procedure to identify areas of
9    environmental justice concern in relation to CCR surface
10    impoundments;
11        (9) specify a method to prioritize CCR surface
12    impoundments required to close under RCRA if not otherwise
13    specified by the United States Environmental Protection
14    Agency, so that the CCR surface impoundments with the
15    highest risk to public health and the environment, and
16    areas of environmental justice concern are given first
17    priority;
18        (10) define when complete removal of CCR is achieved
19    and specify the standards for responsible removal of CCR
20    from CCR surface impoundments, including, but not limited
21    to, dust controls and the protection of adjacent surface
22    water and groundwater; and
23        (11) describe the process and standards for
24    identifying a specific alternative source of groundwater
25    pollution when the owner or operator of the CCR surface
26    impoundment believes that groundwater contamination on the

 

 

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1    site is not from the CCR surface impoundment.
2    (h) Any owner of a CCR surface impoundment that generates
3CCR and sells or otherwise provides coal combustion byproducts
4pursuant to Section 3.135 shall, every 12 months, post on its
5publicly available website a report specifying the volume or
6weight of CCR, in cubic yards or tons, that it sold or provided
7during the past 12 months.
8    (i) The owner of a CCR surface impoundment shall post all
9closure plans, permit applications, and supporting
10documentation, as well as any Agency approval of the plans or
11applications on its publicly available website.
12    (j) The owner or operator of a CCR surface impoundment
13shall pay the following fees:
14        (1) An initial fee to the Agency within 6 months after
15    July 30, 2019 (the effective date of Public Act 101-171)
16    of:
17            $50,000 for each closed CCR surface impoundment;
18        and
19            $75,000 for each CCR surface impoundment that have
20        not completed closure.
21        (2) Annual fees to the Agency, beginning on July 1,
22    2020, of:
23            $25,000 for each CCR surface impoundment that has
24        not completed closure; and
25            $15,000 for each CCR surface impoundment that has
26        completed closure, but has not completed post-closure

 

 

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1        care.
2    (k) All fees collected by the Agency under subsection (j)
3shall be deposited into the Environmental Protection Permit
4and Inspection Fund.
5    (l) The Coal Combustion Residual Surface Impoundment
6Financial Assurance Fund is created as a special fund in the
7State treasury. Any moneys forfeited to the State of Illinois
8from any performance bond or other security required under
9this Section shall be placed in the Coal Combustion Residual
10Surface Impoundment Financial Assurance Fund and shall, upon
11approval by the Governor and the Director, be used by the
12Agency for the purposes for which such performance bond or
13other security was issued. The Coal Combustion Residual
14Surface Impoundment Financial Assurance Fund is not subject to
15the provisions of subsection (c) of Section 5 of the State
16Finance Act.
17    (m) The provisions of this Section shall apply, without
18limitation, to all existing CCR surface impoundments and any
19CCR surface impoundments constructed after July 30, 2019 (the
20effective date of Public Act 101-171), except to the extent
21prohibited by the Illinois or United States Constitutions.
22    (n) This subsection only applies to an owner or operator
23of a facility that (i) has at least one CCR surface impoundment
24and (ii) is an electric generating plant located within 4,000
25feet of Lake Michigan.
26    CCR in all CCR surface impoundments subject to this

 

 

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1subsection, including CCR surface impoundments for which an
2adjusted standard has been sought pursuant to Section 28.1,
3shall be closed by removal and off-site disposal, pursuant to
4this Section, applicable Illinois Pollution Control Board
5regulations, and the following provisions:
6        (1) CCR surface impoundments under this subsection are
7    not subject to the closure alternative analysis required
8    under subsection (d).
9        (2) Notwithstanding any other requirements of this
10    Section or Board rules or regulations, applications for
11    closure construction subject to this subsection shall be
12    submitted to the Agency within one year after the
13    effective date of this amendatory Act of the 102nd General
14    Assembly. Application requirements and permit issuance
15    procedures shall follow those adopted by the Illinois
16    Pollution Control Board under this Section.
17        (3) If the owner or operator of any CCR surface
18    impoundment subject to this subsection has submitted a
19    construction permit application to the Agency to close a
20    subject CCR surface impoundment by any method other than
21    removal under Part 845 of Title 35 of the Illinois
22    Administrative Code, the owner or operator shall submit an
23    amended construction permit application that complies with
24    the requirements of this Section within one year after the
25    effective date of this amendatory Act of 102nd General
26    Assembly.

 

 

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1        (4) Any permit issued by the Agency allowing a CCR
2    surface impoundment subject to this subsection to close in
3    place shall be declared void. The Agency shall not issue
4    any operating permit or construction permit allowing
5    closure in place to the owner or operator of any CCR
6    surface impoundment subject to this subsection.
7(Source: P.A. 101-171, eff. 7-30-19; 102-16, eff. 6-17-21;
8102-137, eff. 7-23-21; 102-309, eff. 8-6-21; 102-558, eff.
98-20-21; 102-662, eff. 9-15-21; revised 10-14-21.)
 
10    (415 ILCS 5/22.59a new)
11    Sec. 22.59a. Great Lakes CCR protection.
12    (a) The General Assembly finds that:
13        (1) The State has a long-standing policy to restore,
14    protect, and enhance the environment, and has a particular
15    interest in preserving the quality of Lake Michigan, which
16    serves as a drinking water source for millions of State
17    residents and provides irreplaceable recreational,
18    ecological, and economic value to Illinois.
19        (2) CCR generated by the electric generating industry
20    has contaminated, and continues to contaminate, Lake
21    Michigan, and CCR placed in unlined deposits, including
22    deposits outside of CCR surface impoundments as well as in
23    CCR surface impoundments, continues to threaten the
24    quality of Lake Michigan's water.
25        (3) The purpose of this Section is to protect Lake

 

 

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1    Michigan against further contamination from CCR.
2    (b) This Section only applies to an owner or operator of a
3facility that (i) generates or has generated CCR that is not
4disposed of, treated, stored, or abandoned in a CCR surface
5impoundment and (ii) is an electric generating plant located
6within 4,000 feet of Lake Michigan.
7    (c) An owner or operator of a facility that is subject to
8this Section shall remove from the owner's or operator's site,
9for off-site disposal, all CCR generated by the facility and
10remediate all soil and groundwater impacted by the CCR, in
11accordance with the following:
12        (1) Within one year after the effective date of this
13    amendatory Act of the 102nd General Assembly, the owner or
14    operator shall conduct a site investigation and submit to
15    the Agency a site investigation report that identifies the
16    full extent of CCR at the site. The investigation and
17    report shall also identify the full extent of soil and
18    groundwater that, as a result of the CCR, exceeds the most
19    stringent remediation objectives adopted under Title XVII
20    of this Act.
21            (A) Within 5 days after submitting the report to
22        the Agency, the owner or operator shall post public
23        notice of the report's submission (i) on the owner or
24        operator's website, along with a copy of the report
25        for public viewing, and (ii) in a newspaper of general
26        distribution in the municipality where the applicable

 

 

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1        electric generating plant is located. The notice shall
2        be provided in English and Spanish and shall inform
3        the public of their right to submit comments on the
4        report to the Agency within 30 days after the date the
5        notice is published in the newspaper. The owner or
6        operator shall also maintain a copy of the report in a
7        public repository in the municipality where the
8        applicable electric generating plant is located for
9        public viewing, which shall be identified in the
10        public notice.
11            (B) Within 90 days after receipt of the site
12        investigation report, the Agency shall determine
13        whether the investigation and report complies with
14        this paragraph (1). In making its determination, the
15        Agency shall consider all public comments submitted
16        within 30 days after the date of the newspaper notice
17        required under subparagraph (A).
18            (C) If the Agency determines the investigation and
19        report complies with this paragraph (1) it shall
20        notify the owner or operator in writing of its
21        determination. The owner or operator shall then submit
22        a CCR removal and remediation plan in accordance with
23        paragraph (2).
24            (D) If the Agency determines the investigation or
25        report does not comply with this paragraph (1) it
26        shall notify the owner or operator in writing of its

 

 

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1        determination and the reasons for the determination.
2        The owner or operator shall then have 6 months to (i)
3        perform additional investigation or correct any
4        deficiencies and (ii) submit an amended site
5        investigation report to the Agency, which shall be
6        subject to the same submission and review procedures
7        set forth in this paragraph (1).
8        (2) Within 6 months after the Agency's approval of the
9    site investigation report, the owner or operator shall
10    submit to the Agency a CCR removal and remediation plan
11    that will achieve the removal of all CCR at the site and
12    the remediation of all soil and groundwater that, as a
13    result of the CCR, exceeds the most stringent remediation
14    objectives adopted under Title XVII of this Act. The plan
15    shall include a schedule for completion of its major
16    milestones, along with the following:
17            (A) An analysis of the modes for transporting the
18        removed CCR off-site, including by rail, barge,
19        low-polluting trucks, or a combination of these
20        transportation modes.
21            (B) Removal of CCR consistent with 35 Ill. Adm.
22        Code 845.740 and 845.760.
23            (C) Within 5 days after submitting the plan to the
24        Agency, the owner or operator shall post public notice
25        of the plan's submission (i) on the owner or
26        operator's website, along with a copy of the plan for

 

 

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1        public viewing, and (ii) in a newspaper of general
2        distribution in the municipality where the applicable
3        electric generating plant is located. The notice shall
4        be provided in English and Spanish and shall inform
5        the public of their right to submit comments on the
6        plan to the Agency within 30 days after the date the
7        notice is published in the newspaper. The owner or
8        operator shall also maintain a copy of the report in a
9        public repository in the municipality where the
10        applicable electric generating plant is located for
11        public viewing, which shall be identified in the
12        public notice.
13            (D) Within 90 days after receipt of the plan, the
14        Agency shall determine whether the plan complies with
15        this paragraph (2). In making its determination, the
16        Agency shall consider all public comments submitted
17        within 30 days after the date of the newspaper notice
18        required under subparagraph (C).
19            (E) If the Agency determines the plan, with or
20        without Agency modifications, complies with paragraph
21        (2), it shall notify the owner or operator in writing
22        of its determination. The owner or operator shall then
23        proceed with implementation of the plan, including any
24        modifications by the Agency, and submission of a
25        removal and remediation report in accordance with
26        paragraph (3).

 

 

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1            (F) If the Agency determines the investigation or
2        report does not comply with paragraph (2), it shall
3        notify the owner or operator in writing of its
4        determination and the reasons for the determination.
5        The owner or operator shall then have 60 days to submit
6        an amended plan to the Agency, which shall be subject
7        to the same submission and review procedures set forth
8        in subparagraphs (C) and (D).
9        (3) In accordance with a schedule approved by the
10    Agency, the owner or operator shall implement the
11    remediation plan and provide the Agency with updates on
12    the plan's implementation. Upon completion of the plan,
13    the owner or operator shall submit a completion report to
14    the Agency.
15            (A) Within 5 days after submitting an update or
16        the completion report to the Agency on plan
17        implementation, the owner or operator shall post
18        public notice of the report's submission (i) on the
19        owner or operator's website, along with a copy of the
20        report for public viewing, and (ii) in a newspaper of
21        general distribution in the municipality where the
22        applicable electric generating plant is located. The
23        notice shall be provided in English and Spanish and
24        shall inform the public of their right to submit
25        comments on the report to the Agency within 30 days
26        after the date the notice is published in the

 

 

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1        newspaper. The owner or operator shall also maintain a
2        copy of the report in a public repository in the
3        municipality where the applicable electric generating
4        plant is located for public viewing, which shall be
5        identified in the public notice.
6            (B) Within 90 days after receipt of the completion
7        report, the Agency shall determine whether the removal
8        and remediation has resulted in (i) the removal of all
9        CCR at the site and (ii) the remediation of all soil
10        and groundwater that, as a result of the CCR, exceeds
11        the most stringent remediation objectives adopted
12        under Title XVII of this Act. In making its
13        determination, the Agency shall consider all public
14        comments submitted within 30 days after the date of
15        the newspaper notice required under subparagraph (A).
16            (C) If the Agency determines that the required
17        removal and remediation is complete, it shall notify
18        the owner or operator in writing of its determination.
19            (D) If the Agency determines that the required
20        removal and remediation is not complete, it shall
21        notify the owner or operator in writing of its
22        determination and the reasons for the determination.
23        The owner or operator shall then continue removal or
24        remediation, and submit reports to the Agency, in
25        accordance with a schedule established by the Agency.
26        Reports shall be subject to the same submission and

 

 

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1        review procedures set forth in subparagraphs (A) and
2        (B). If necessary, the owner or operator may amend the
3        plan and submit it for review and approval in
4        accordance with paragraph (2).
5    (d) Except for the State, its agencies and institutions, a
6unit of local government, or not-for-profit electric
7cooperative as defined in Section 3.4 of the Electric Supplier
8Act, an owner or operator shall post with the Agency a
9performance bond or other security for the purpose of ensuring
10removal and remediation in accordance with this Section. The
11only acceptable forms of financial assurance are the forms of
12financial assurance that are acceptable for CCR surface
13impoundments under Section 22.59.
14    (e) The Agency may enter into such contracts and
15agreements as it deems necessary to carry out the purposes of
16this Section. Neither the State, nor the Director of the
17Agency, nor any State employee shall be liable for any damages
18or injuries arising out of or resulting from any action taken
19under this Section.
20    (f) The Agency may approve or disapprove any performance
21bond or other security posted under this Section. Any person
22whose performance bond or other security is disapproved by the
23Agency may contest the disapproval as a permit denial appeal
24pursuant to Section 40.
 
25    Section 97. Severability. The provisions of this Act are

 

 

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1severable under Section 1.31 of the Statute on Statutes.
 
2    Section 99. Effective date. This Act takes effect upon
3becoming law.