Sen. Adriane Johnson

Filed: 2/7/2022

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3073

2    AMENDMENT NO. ______. Amend Senate Bill 3073 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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1    has caused groundwater contamination and other forms of
2    pollution at active and inactive plants throughout this
3    State;
4        (4) environmental laws should be supplemented to
5    ensure consistent, responsible regulation of all existing
6    CCR surface impoundments; and
7        (5) meaningful participation of State residents,
8    especially vulnerable populations who may be affected by
9    regulatory actions, is critical to ensure that
10    environmental justice considerations are incorporated in
11    the development of, decision-making related to, and
12    implementation of environmental laws and rulemaking that
13    protects and improves the well-being of communities in
14    this State that bear disproportionate burdens imposed by
15    environmental pollution; and .
16        (6) the State has a particular interest in preserving
17    the quality of Lake Michigan, which serves as a drinking
18    water source for millions of State residents and provides
19    irreplaceable recreational, ecological, and economic value
20    to Illinois.
21    Therefore, the purpose of this Section is to promote a
22healthful environment, including clean water, air, and land,
23meaningful public involvement, and the responsible disposal
24and storage of coal combustion residuals, so as to protect
25public health and to prevent pollution of the environment of
26this State.

 

 

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1    The provisions of this Section shall be liberally
2construed to carry out the purposes of this Section.
3    (b) No person shall:
4        (1) cause or allow the discharge of any contaminants
5    from a CCR surface impoundment into the environment so as
6    to cause, directly or indirectly, a violation of this
7    Section or any regulations or standards adopted by the
8    Board under this Section, either alone or in combination
9    with contaminants from other sources;
10        (2) construct, install, modify, operate, or close any
11    CCR surface impoundment without a permit granted by the
12    Agency, or so as to violate any conditions imposed by such
13    permit, any provision of this Section or any regulations
14    or standards adopted by the Board under this Section;
15        (3) cause or allow, directly or indirectly, the
16    discharge, deposit, injection, dumping, spilling, leaking,
17    or placing of any CCR upon the land in a place and manner
18    so as to cause or tend to cause a violation of this Section
19    or any regulations or standards adopted by the Board under
20    this Section; or
21        (4) construct, install, modify, or close a CCR surface
22    impoundment in accordance with a permit issued under this
23    Act without certifying to the Agency that all contractors,
24    subcontractors, and installers utilized to construct,
25    install, modify, or close a CCR surface impoundment are
26    participants in:

 

 

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1            (A) a training program that is approved by and
2        registered with the United States Department of
3        Labor's Employment and Training Administration and
4        that includes instruction in erosion control and
5        environmental remediation; and
6            (B) a training program that is approved by and
7        registered with the United States Department of
8        Labor's Employment and Training Administration and
9        that includes instruction in the operation of heavy
10        equipment and excavation.
11        Nothing in this paragraph (4) shall be construed to
12    require providers of construction-related professional
13    services to participate in a training program approved by
14    and registered with the United States Department of
15    Labor's Employment and Training Administration.
16        In this paragraph (4), "construction-related
17    professional services" includes, but is not limited to,
18    those services within the scope of: (i) the practice of
19    architecture as regulated under the Illinois Architecture
20    Practice Act of 1989; (ii) professional engineering as
21    defined in Section 4 of the Professional Engineering
22    Practice Act of 1989; (iii) the practice of a structural
23    engineer as defined in Section 4 of the Structural
24    Engineering Practice Act of 1989; or (iv) land surveying
25    under the Illinois Professional Land Surveyor Act of 1989.
26    (c) (Blank).

 

 

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1    (d) Before commencing closure of a CCR surface
2impoundment, in accordance with Board rules, the owner of a
3CCR surface impoundment must submit to the Agency for approval
4a closure alternatives analysis that analyzes all closure
5methods being considered and that otherwise satisfies all
6closure requirements adopted by the Board under this Act.
7Complete removal of CCR, as specified by the Board's rules,
8from the CCR surface impoundment must be considered and
9analyzed. Section 3.405 does not apply to the Board's rules
10specifying complete removal of CCR. The selected closure
11method must ensure compliance with regulations adopted by the
12Board pursuant to this Section.
13    (e) Owners or operators of CCR surface impoundments who
14have submitted a closure plan to the Agency before May 1, 2019,
15and who have completed closure prior to 24 months after July
1630, 2019 (the effective date of Public Act 101-171) shall not
17be required to obtain a construction permit for the surface
18impoundment closure under this Section.
19    (f) Except for the State, its agencies and institutions, a
20unit of local government, or not-for-profit electric
21cooperative as defined in Section 3.4 of the Electric Supplier
22Act, any person who owns or operates a CCR surface impoundment
23in this State shall post with the Agency a performance bond or
24other security for the purpose of: (i) ensuring closure of the
25CCR surface impoundment and post-closure care in accordance
26with this Act and its rules; and (ii) ensuring remediation of

 

 

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1releases from the CCR surface impoundment. The only acceptable
2forms of financial assurance are: a trust fund, a surety bond
3guaranteeing payment, a surety bond guaranteeing performance,
4or an irrevocable letter of credit.
5        (1) The cost estimate for the post-closure care of a
6    CCR surface impoundment shall be calculated using a
7    30-year post-closure care period or such longer period as
8    may be approved by the Agency under Board or federal
9    rules.
10        (2) The Agency is authorized to enter into such
11    contracts and agreements as it may deem necessary to carry
12    out the purposes of this Section. Neither the State, nor
13    the Director, nor any State employee shall be liable for
14    any damages or injuries arising out of or resulting from
15    any action taken under this Section.
16        (3) The Agency shall have the authority to approve or
17    disapprove any performance bond or other security posted
18    under this subsection. Any person whose performance bond
19    or other security is disapproved by the Agency may contest
20    the disapproval as a permit denial appeal pursuant to
21    Section 40.
22    (g) The Board shall adopt rules establishing construction
23permit requirements, operating permit requirements, design
24standards, reporting, financial assurance, and closure and
25post-closure care requirements for CCR surface impoundments.
26Not later than 8 months after July 30, 2019 (the effective date

 

 

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1of Public Act 101-171) the Agency shall propose, and not later
2than one year after receipt of the Agency's proposal the Board
3shall adopt, rules under this Section. The Board shall not be
4deemed in noncompliance with the rulemaking deadline due to
5delays in adopting rules as a result of the Joint Commission on
6Administrative Rules oversight process. The rules must, at a
7minimum:
8        (1) be at least as protective and comprehensive as the
9    federal regulations or amendments thereto promulgated by
10    the Administrator of the United States Environmental
11    Protection Agency in Subpart D of 40 CFR 257 governing CCR
12    surface impoundments;
13        (2) specify the minimum contents of CCR surface
14    impoundment construction and operating permit
15    applications, including the closure alternatives analysis
16    required under subsection (d);
17        (3) specify which types of permits include
18    requirements for closure, post-closure, remediation and
19    all other requirements applicable to CCR surface
20    impoundments;
21        (4) specify when permit applications for existing CCR
22    surface impoundments must be submitted, taking into
23    consideration whether the CCR surface impoundment must
24    close under the RCRA;
25        (5) specify standards for review and approval by the
26    Agency of CCR surface impoundment permit applications;

 

 

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1        (6) specify meaningful public participation procedures
2    for the issuance of CCR surface impoundment construction
3    and operating permits, including, but not limited to,
4    public notice of the submission of permit applications, an
5    opportunity for the submission of public comments, an
6    opportunity for a public hearing prior to permit issuance,
7    and a summary and response of the comments prepared by the
8    Agency;
9        (7) prescribe the type and amount of the performance
10    bonds or other securities required under subsection (f),
11    and the conditions under which the State is entitled to
12    collect moneys from such performance bonds or other
13    securities;
14        (8) specify a procedure to identify areas of
15    environmental justice concern in relation to CCR surface
16    impoundments;
17        (9) specify a method to prioritize CCR surface
18    impoundments required to close under RCRA if not otherwise
19    specified by the United States Environmental Protection
20    Agency, so that the CCR surface impoundments with the
21    highest risk to public health and the environment, and
22    areas of environmental justice concern are given first
23    priority;
24        (10) define when complete removal of CCR is achieved
25    and specify the standards for responsible removal of CCR
26    from CCR surface impoundments, including, but not limited

 

 

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

 

 

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1        (2) Annual fees to the Agency, beginning on July 1,
2    2020, of:
3            $25,000 for each CCR surface impoundment that has
4        not completed closure; and
5            $15,000 for each CCR surface impoundment that has
6        completed closure, but has not completed post-closure
7        care.
8    (k) All fees collected by the Agency under subsection (j)
9shall be deposited into the Environmental Protection Permit
10and Inspection Fund.
11    (l) The Coal Combustion Residual Surface Impoundment
12Financial Assurance Fund is created as a special fund in the
13State treasury. Any moneys forfeited to the State of Illinois
14from any performance bond or other security required under
15this Section shall be placed in the Coal Combustion Residual
16Surface Impoundment Financial Assurance Fund and shall, upon
17approval by the Governor and the Director, be used by the
18Agency for the purposes for which such performance bond or
19other security was issued. The Coal Combustion Residual
20Surface Impoundment Financial Assurance Fund is not subject to
21the provisions of subsection (c) of Section 5 of the State
22Finance Act.
23    (m) The provisions of this Section shall apply, without
24limitation, to all existing CCR surface impoundments and any
25CCR surface impoundments constructed after July 30, 2019 (the
26effective date of Public Act 101-171), except to the extent

 

 

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

 

 

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1    Administrative Code, the owner or operator shall submit an
2    amended construction permit application that complies with
3    the requirements of this Section within one year after the
4    effective date of this amendatory Act of 102nd General
5    Assembly.
6        (4) Any permit issued by the Agency allowing a CCR
7    surface impoundment subject to this subsection to close in
8    place shall be declared void. The Agency shall not issue
9    any operating permit or construction permit allowing
10    closure in place to the owner or operator of any CCR
11    surface impoundment subject to this subsection.
12(Source: P.A. 101-171, eff. 7-30-19; 102-16, eff. 6-17-21;
13102-137, eff. 7-23-21; 102-309, eff. 8-6-21; 102-558, eff.
148-20-21; 102-662, eff. 9-15-21; revised 10-14-21.)
 
15    (415 ILCS 5/22.59a new)
16    Sec. 22.59a. Great Lakes CCR protection.
17    (a) The General Assembly finds that:
18        (1) The State has a long-standing policy to restore,
19    protect, and enhance the environment, and has a particular
20    interest in preserving the quality of Lake Michigan, which
21    serves as a drinking water source for millions of State
22    residents and provides irreplaceable recreational,
23    ecological, and economic value to Illinois.
24        (2) CCR generated by the electric generating industry
25    has contaminated, and continues to contaminate, Lake

 

 

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1    Michigan, and CCR placed in unlined deposits, including
2    deposits outside of CCR surface impoundments as well as in
3    CCR surface impoundments, continues to threaten the
4    quality of Lake Michigan's water.
5        (3) The purpose of this Section is to protect Lake
6    Michigan against further contamination from CCR.
7    (b) This Section applies to owners and operators of CCR
8surface impoundments at electric generating plants that are
9bordering Lake Michigan. This section shall not apply to CCR
10surface impoundments subject to Section 22.59, except for
11subsection (n) of that Section.
12    (c) An owner or operator shall remove from their site, for
13off-site disposal, all CCR generated by the facility and
14remediate all soil and groundwater impacted by the CCR, in
15accordance with the following:
16        (1) Within one year after the effective date of this
17    amendatory Act of the 102nd General Assembly, the owner or
18    operator shall conduct a site investigation and submit to
19    the Agency a site investigation report that identifies the
20    full extent of CCR at the site. The investigation and
21    report shall also identify the full extent of soil and
22    groundwater that, as a result of the CCR, exceeds the most
23    stringent remediation objectives adopted under Title XVII
24    of this Act.
25            (A) Within 5 days after submitting the report to
26        the Agency, the owner or operator shall post public

 

 

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1        notice of the report's submission (i) on the owner or
2        operator's website, along with a copy of the report
3        for public viewing, and (ii) in a newspaper of general
4        distribution in the municipality. The notice shall be
5        provided in English and Spanish and shall inform the
6        public of their right to submit comments on the report
7        to the Agency within 30 days after the date the notice
8        is published in the newspaper. The owner or operator
9        shall also maintain a copy of the report in a public
10        repository in the municipality for public viewing,
11        which shall be identified in the public notice.
12            (B) Within 90 days after receipt of the site
13        investigation report, the Agency shall determine
14        whether the investigation and report complies with
15        this paragraph (1). 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 (A).
19            (C) If the Agency determines the investigation and
20        report complies with this paragraph (1) it shall
21        notify the owner or operator in writing of its
22        determination. The owner or operator shall then submit
23        a CCR removal and remediation plan in accordance with
24        paragraph (2).
25            (D) If the Agency determines the investigation or
26        report does not comply with this paragraph (1) it

 

 

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

 

 

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1        operator's website, along with a copy of the plan for
2        public viewing, and (ii) in a newspaper of general
3        distribution in the municipality. The notice shall be
4        provided in English and Spanish and shall inform the
5        public of their right to submit comments on the plan to
6        the Agency within 30 days after the date the notice is
7        published in the newspaper. The owner or operator
8        shall also maintain a copy of the report in a public
9        repository in the municipality for public viewing,
10        which shall be identified in the public notice.
11            (D) Within 90 days after receipt of the plan, the
12        Agency shall determine whether the plan complies with
13        this paragraph (2). In making its determination, the
14        Agency shall consider all public comments submitted
15        within 30 days after the date of the newspaper notice
16        required under subparagraph (C).
17            (E) If the Agency determines the plan, with or
18        without Agency modifications, complies with paragraph
19        (2), it shall notify the owner or operator in writing
20        of its determination. The owner or operator shall then
21        proceed with implementation of the plan, including any
22        modifications by the Agency, and submission of a
23        removal and remediation report in accordance with
24        paragraph (3).
25            (F) If the Agency determines the investigation or
26        report does not comply with paragraph (2), it shall

 

 

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1        notify the owner or operator in writing of its
2        determination and the reasons for the determination.
3        The owner or operator shall then have 60 days to submit
4        an amended plan to the Agency, which shall be subject
5        to the same submission and review procedures set forth
6        in subparagraphs (C) and (D).
7        (3) In accordance with a schedule approved by the
8    Agency, the owner or operator shall implement the
9    remediation plan and provide the Agency with updates on
10    the plan's implementation. Upon completion of the plan,
11    the owner or operator shall submit a completion report to
12    the Agency.
13            (A) Within 5 days after submitting an update or
14        the completion report to the Agency on plan
15        implementation, the owner or operator shall post
16        public notice of the report's submission (i) on the
17        owner or operator's website, along with a copy of the
18        report for public viewing, and (ii) in a newspaper of
19        general distribution in the municipality. The notice
20        shall be provided in English and Spanish and shall
21        inform the public of their right to submit comments on
22        the report to the Agency within 30 days after the date
23        the notice is published in the newspaper. The owner or
24        operator shall also maintain a copy of the report in a
25        public repository in the municipality for public
26        viewing, which shall be identified in the public

 

 

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

 

 

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1    (d) Except for the State, its agencies and institutions, a
2unit of local government, or not-for-profit electric
3cooperative as defined in Section 3.4 of the Electric Supplier
4Act, an owner or operator shall post with the Agency a
5performance bond or other security for the purpose of ensuring
6removal and remediation in accordance with this Section. The
7only acceptable forms of financial assurance are the forms of
8financial assurance that are acceptable for CCR surface
9impoundments under Section 22.59.
10    (e) The Agency may enter into such contracts and
11agreements as it deems necessary to carry out the purposes of
12this Section. Neither the State, nor the Director of the
13Agency, nor any State employee shall be liable for any damages
14or injuries arising out of or resulting from any action taken
15under this Section.
16    (f) The Agency may approve or disapprove any performance
17bond or other security posted under this Section. Any person
18whose performance bond or other security is disapproved by the
19Agency may contest the disapproval as a permit denial appeal
20pursuant to Section 40.
 
21    Section 97. Severability. The provisions of this Act are
22severable under Section 1.31 of the Statute on Statutes.
 
23    Section 99. Effective date. This Act takes effect upon
24becoming law.".