SB3073sam002 102ND GENERAL ASSEMBLY

Sen. Adriane Johnson

Filed: 2/18/2022

10200SB3073sam002 LRB102 23422 CPF 36554 a

AMENDMENT TO SENATE BILL 3073

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

"Section 5. The Environmental Protection Act is amended by changing Section 22.59 and by adding Section 22.59a as follows:

(415 ILCS 5/22.59)

Sec. 22.59. CCR surface impoundments.

(a) The General Assembly finds that:

(1) the State of Illinois has a long-standing policy to restore, protect, and enhance the environment, including the purity of the air, land, and waters, including groundwaters, of this State;

(2) a clean environment is essential to the growth and well-being of this State;

(3) CCR generated by the electric generating industry has caused groundwater contamination and other forms of pollution at active and inactive plants throughout this State;

(4) environmental laws should be supplemented to ensure consistent, responsible regulation of all existing CCR surface impoundments; and

(5) meaningful participation of State residents, especially vulnerable populations who may be affected by regulatory actions, is critical to ensure that environmental justice considerations are incorporated in the development of, decision-making related to, and implementation of environmental laws and rulemaking that protects and improves the well-being of communities in this State that bear disproportionate burdens imposed by environmental pollution; and .

(6) the State places special emphasis on protecting the water quality of Lake Michigan, including the establishment of more stringent water quality standards for that body of water compared to water quality standards applicable for all other bodies of water throughout the State.

Therefore, the purpose of this Section is to promote a healthful environment, including clean water, air, and land, meaningful public involvement, and the responsible disposal and storage of coal combustion residuals, so as to protect public health and to prevent pollution of the environment of this State.

The provisions of this Section shall be liberally construed to carry out the purposes of this Section.

(b) No person shall:

(1) cause or allow the discharge of any contaminants from a CCR surface impoundment into the environment so as to cause, directly or indirectly, a violation of this Section or any regulations or standards adopted by the Board under this Section, either alone or in combination with contaminants from other sources;

(2) construct, install, modify, operate, or close any CCR surface impoundment without a permit granted by the Agency, or so as to violate any conditions imposed by such permit, any provision of this Section or any regulations or standards adopted by the Board under this Section;

(3) cause or allow, directly or indirectly, the discharge, deposit, injection, dumping, spilling, leaking, or placing of any CCR upon the land in a place and manner so as to cause or tend to cause a violation of this Section or any regulations or standards adopted by the Board under this Section; or

(4) construct, install, modify, or close a CCR surface impoundment in accordance with a permit issued under this Act without certifying to the Agency that all contractors, subcontractors, and installers utilized to construct, install, modify, or close a CCR surface impoundment are participants in:

(A) a training program that is approved by and registered with the United States Department of Labor's Employment and Training Administration and that includes instruction in erosion control and environmental remediation; and

(B) a training program that is approved by and registered with the United States Department of Labor's Employment and Training Administration and that includes instruction in the operation of heavy equipment and excavation.

Nothing in this paragraph (4) shall be construed to require providers of construction-related professional services to participate in a training program approved by and registered with the United States Department of Labor's Employment and Training Administration.

In this paragraph (4), "construction-related professional services" includes, but is not limited to, those services within the scope of: (i) the practice of architecture as regulated under the Illinois Architecture Practice Act of 1989; (ii) professional engineering as defined in Section 4 of the Professional Engineering Practice Act of 1989; (iii) the practice of a structural engineer as defined in Section 4 of the Structural Engineering Practice Act of 1989; or (iv) land surveying under the Illinois Professional Land Surveyor Act of 1989.

(c) (Blank).

(d) Before commencing closure of a CCR surface impoundment, in accordance with Board rules, the owner of a CCR surface impoundment must submit to the Agency for approval a closure alternatives analysis that analyzes all closure methods being considered and that otherwise satisfies all closure requirements adopted by the Board under this Act. Complete removal of CCR, as specified by the Board's rules, from the CCR surface impoundment must be considered and analyzed. Section 3.405 does not apply to the Board's rules specifying complete removal of CCR. The selected closure method must ensure compliance with regulations adopted by the Board pursuant to this Section.

(e) Owners or operators of CCR surface impoundments who have submitted a closure plan to the Agency before May 1, 2019, and who have completed closure prior to 24 months after July 30, 2019 (the effective date of Public Act 101-171) shall not be required to obtain a construction permit for the surface impoundment closure under this Section.

(f) Except for the State, its agencies and institutions, a unit of local government, or not-for-profit electric cooperative as defined in Section 3.4 of the Electric Supplier Act, any person who owns or operates a CCR surface impoundment in this State shall post with the Agency a performance bond or other security for the purpose of: (i) ensuring closure of the CCR surface impoundment and post-closure care in accordance with this Act and its rules; and (ii) ensuring remediation of releases from the CCR surface impoundment. The only acceptable forms of financial assurance are: a trust fund, a surety bond guaranteeing payment, a surety bond guaranteeing performance, or an irrevocable letter of credit.

(1) The cost estimate for the post-closure care of a CCR surface impoundment shall be calculated using a 30-year post-closure care period or such longer period as may be approved by the Agency under Board or federal rules.

(2) 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.

(3) The Agency shall have the authority to approve or disapprove any performance bond or other security posted under this subsection. 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.

(g) The Board shall adopt rules establishing construction permit requirements, operating permit requirements, design standards, reporting, financial assurance, and closure and post-closure care requirements for CCR surface impoundments. Not later than 8 months after July 30, 2019 (the effective date of Public Act 101-171) the Agency shall propose, and not later than one year after receipt of the Agency's proposal the Board shall adopt, rules under this Section. The Board shall not be deemed in noncompliance with the rulemaking deadline due to delays in adopting rules as a result of the Joint Commission on Administrative Rules oversight process. The rules must, at a minimum:

(1) be at least as protective and comprehensive as the federal regulations or amendments thereto promulgated by the Administrator of the United States Environmental Protection Agency in Subpart D of 40 CFR 257 governing CCR surface impoundments;

(2) specify the minimum contents of CCR surface impoundment construction and operating permit applications, including the closure alternatives analysis required under subsection (d);

(3) specify which types of permits include requirements for closure, post-closure, remediation and all other requirements applicable to CCR surface impoundments;

(4) specify when permit applications for existing CCR surface impoundments must be submitted, taking into consideration whether the CCR surface impoundment must close under the RCRA;

(5) specify standards for review and approval by the Agency of CCR surface impoundment permit applications;

(6) specify meaningful public participation procedures for the issuance of CCR surface impoundment construction and operating permits, including, but not limited to, public notice of the submission of permit applications, an opportunity for the submission of public comments, an opportunity for a public hearing prior to permit issuance, and a summary and response of the comments prepared by the Agency;

(7) prescribe the type and amount of the performance bonds or other securities required under subsection (f), and the conditions under which the State is entitled to collect moneys from such performance bonds or other securities;

(8) specify a procedure to identify areas of environmental justice concern in relation to CCR surface impoundments;

(9) specify a method to prioritize CCR surface impoundments required to close under RCRA if not otherwise specified by the United States Environmental Protection Agency, so that the CCR surface impoundments with the highest risk to public health and the environment, and areas of environmental justice concern are given first priority;

(10) define when complete removal of CCR is achieved and specify the standards for responsible removal of CCR from CCR surface impoundments, including, but not limited to, dust controls and the protection of adjacent surface water and groundwater; and

(11) describe the process and standards for identifying a specific alternative source of groundwater pollution when the owner or operator of the CCR surface impoundment believes that groundwater contamination on the site is not from the CCR surface impoundment.

(h) Any owner of a CCR surface impoundment that generates CCR and sells or otherwise provides coal combustion byproducts pursuant to Section 3.135 shall, every 12 months, post on its publicly available website a report specifying the volume or weight of CCR, in cubic yards or tons, that it sold or provided during the past 12 months.

(i) The owner of a CCR surface impoundment shall post all closure plans, permit applications, and supporting documentation, as well as any Agency approval of the plans or applications on its publicly available website.

(j) The owner or operator of a CCR surface impoundment shall pay the following fees:

(1) An initial fee to the Agency within 6 months after July 30, 2019 (the effective date of Public Act 101-171) of:

$50,000 for each closed CCR surface impoundment; and

$75,000 for each CCR surface impoundment that have not completed closure.

(2) Annual fees to the Agency, beginning on July 1, 2020, of:

$25,000 for each CCR surface impoundment that has not completed closure; and

$15,000 for each CCR surface impoundment that has completed closure, but has not completed post-closure care.

(k) All fees collected by the Agency under subsection (j) shall be deposited into the Environmental Protection Permit and Inspection Fund.

(l) The Coal Combustion Residual Surface Impoundment Financial Assurance Fund is created as a special fund in the State treasury. Any moneys forfeited to the State of Illinois from any performance bond or other security required under this Section shall be placed in the Coal Combustion Residual Surface Impoundment Financial Assurance Fund and shall, upon approval by the Governor and the Director, be used by the Agency for the purposes for which such performance bond or other security was issued. The Coal Combustion Residual Surface Impoundment Financial Assurance Fund is not subject to the provisions of subsection (c) of Section 5 of the State Finance Act.

(m) The provisions of this Section shall apply, without limitation, to all existing CCR surface impoundments and any CCR surface impoundments constructed after July 30, 2019 (the effective date of Public Act 101-171), except to the extent prohibited by the Illinois or United States Constitutions.

(n) This subsection only applies to an owner or operator of a facility that (i) has at least one CCR surface impoundment and (ii) is an electric generating plant located within 4,000 feet of Lake Michigan.

CCR in all CCR surface impoundments subject to this subsection, including CCR surface impoundments for which an adjusted standard has been sought pursuant to Section 28.1, shall be closed by removal and off-site disposal, pursuant to this Section, applicable Illinois Pollution Control Board regulations, and the following provisions:

(1) CCR surface impoundments under this subsection are not subject to the closure alternative analysis required under subsection (d).

(2) Notwithstanding any other requirements of this Section or Board rules or regulations, applications for closure construction subject to this subsection shall be submitted to the Agency within one year after the effective date of this amendatory Act of the 102nd General Assembly. Application requirements and permit issuance procedures shall follow those adopted by the Illinois Pollution Control Board under this Section.

(3) If the owner or operator of any CCR surface impoundment subject to this subsection has submitted a construction permit application to the Agency to close a subject CCR surface impoundment by any method other than removal under Part 845 of Title 35 of the Illinois Administrative Code, the owner or operator shall submit an amended construction permit application that complies with the requirements of this Section within one year after the effective date of this amendatory Act of 102nd General Assembly.

(4) Any permit issued by the Agency allowing a CCR surface impoundment subject to this subsection to close in place shall be declared void. The Agency shall not issue any operating permit or construction permit allowing closure in place to the owner or operator of any CCR surface impoundment subject to this subsection.

(Source: P.A. 101-171, eff. 7-30-19; 102-16, eff. 6-17-21; 102-137, eff. 7-23-21; 102-309, eff. 8-6-21; 102-558, eff. 8-20-21; 102-662, eff. 9-15-21; revised 10-14-21.)

(415 ILCS 5/22.59a new)

Sec. 22.59a. Great Lakes CCR protection.

(a) The General Assembly finds that:

(1) The State has a long-standing policy to restore, protect, and enhance the environment, and has a particular interest in preserving the quality of Lake Michigan, which serves as a drinking water source for millions of State residents and provides irreplaceable recreational, ecological, and economic value to Illinois.

(2) CCR generated by the electric generating industry has contaminated, and continues to contaminate, Lake Michigan, and CCR placed in unlined deposits, including deposits outside of CCR surface impoundments as well as in CCR surface impoundments, continues to threaten the quality of Lake Michigan's water.

(3) The purpose of this Section is to protect Lake Michigan against further contamination from CCR.

(b) This Section only applies to an owner or operator of a facility that (i) generates or has generated CCR that is not disposed of, treated, stored, or abandoned in a CCR surface impoundment and (ii) is an electric generating plant located within 4,000 feet of Lake Michigan.

(c) An owner or operator of a facility that is subject to this Section shall remove from the owner's or operator's site, for off-site disposal, all CCR generated by the facility and remediate all soil and groundwater impacted by the CCR, in accordance with the following:

(1) Within one year after the effective date of this amendatory Act of the 102nd General Assembly, the owner or operator shall conduct a site investigation and submit to the Agency a site investigation report that identifies the full extent of CCR at the site. The investigation and report shall also identify the full extent of soil and groundwater that, as a result of the CCR, exceeds the most stringent remediation objectives adopted under Title XVII of this Act.

(A) Within 5 days after submitting the report to the Agency, the owner or operator shall post public notice of the report's submission (i) on the owner or operator's website, along with a copy of the report for public viewing, and (ii) in a newspaper of general distribution in the municipality where the applicable electric generating plant is located. The notice shall be provided in English and Spanish and shall inform the public of their right to submit comments on the report to the Agency within 30 days after the date the notice is published in the newspaper. The owner or operator shall also maintain a copy of the report in a public repository in the municipality where the applicable electric generating plant is located for public viewing, which shall be identified in the public notice.

(B) Within 90 days after receipt of the site investigation report, the Agency shall determine whether the investigation and report complies with this paragraph (1). In making its determination, the Agency shall consider all public comments submitted within 30 days after the date of the newspaper notice required under subparagraph (A).

(C) If the Agency determines the investigation and report complies with this paragraph (1) it shall notify the owner or operator in writing of its determination. The owner or operator shall then submit a CCR removal and remediation plan in accordance with paragraph (2).

(D) If the Agency determines the investigation or report does not comply with this paragraph (1) it shall notify the owner or operator in writing of its determination and the reasons for the determination. The owner or operator shall then have 6 months to (i) perform additional investigation or correct any deficiencies and (ii) submit an amended site investigation report to the Agency, which shall be subject to the same submission and review procedures set forth in this paragraph (1).

(2) Within 6 months after the Agency's approval of the site investigation report, the owner or operator shall submit to the Agency a CCR removal and remediation plan that will achieve the removal of all CCR at the site and the remediation of all soil and groundwater that, as a result of the CCR, exceeds the most stringent remediation objectives adopted under Title XVII of this Act. The plan shall include a schedule for completion of its major milestones, along with the following:

(A) An analysis of the modes for transporting the removed CCR off-site, including by rail, barge, low-polluting trucks, or a combination of these transportation modes.

(B) Removal of CCR consistent with 35 Ill. Adm. Code 845.740 and 845.760.

(C) Within 5 days after submitting the plan to the Agency, the owner or operator shall post public notice of the plan's submission (i) on the owner or operator's website, along with a copy of the plan for public viewing, and (ii) in a newspaper of general distribution in the municipality where the applicable electric generating plant is located. The notice shall be provided in English and Spanish and shall inform the public of their right to submit comments on the plan to the Agency within 30 days after the date the notice is published in the newspaper. The owner or operator shall also maintain a copy of the report in a public repository in the municipality where the applicable electric generating plant is located for public viewing, which shall be identified in the public notice.

(D) Within 90 days after receipt of the plan, the Agency shall determine whether the plan complies with this paragraph (2). In making its determination, the Agency shall consider all public comments submitted within 30 days after the date of the newspaper notice required under subparagraph (C).

(E) If the Agency determines the plan, with or without Agency modifications, complies with paragraph (2), it shall notify the owner or operator in writing of its determination. The owner or operator shall then proceed with implementation of the plan, including any modifications by the Agency, and submission of a removal and remediation report in accordance with paragraph (3).

(F) If the Agency determines the investigation or report does not comply with paragraph (2), it shall notify the owner or operator in writing of its determination and the reasons for the determination. The owner or operator shall then have 60 days to submit an amended plan to the Agency, which shall be subject to the same submission and review procedures set forth in subparagraphs (C) and (D).

(3) In accordance with a schedule approved by the Agency, the owner or operator shall implement the remediation plan and provide the Agency with updates on the plan's implementation. Upon completion of the plan, the owner or operator shall submit a completion report to the Agency.

(A) Within 5 days after submitting an update or the completion report to the Agency on plan implementation, the owner or operator shall post public notice of the report's submission (i) on the owner or operator's website, along with a copy of the report for public viewing, and (ii) in a newspaper of general distribution in the municipality where the applicable electric generating plant is located. The notice shall be provided in English and Spanish and shall inform the public of their right to submit comments on the report to the Agency within 30 days after the date the notice is published in the newspaper. The owner or operator shall also maintain a copy of the report in a public repository in the municipality where the applicable electric generating plant is located for public viewing, which shall be identified in the public notice.

(B) Within 90 days after receipt of the completion report, the Agency shall determine whether the removal and remediation has resulted in (i) the removal of all CCR at the site and (ii) the remediation of all soil and groundwater that, as a result of the CCR, exceeds the most stringent remediation objectives adopted under Title XVII of this Act. In making its determination, the Agency shall consider all public comments submitted within 30 days after the date of the newspaper notice required under subparagraph (A).

(C) If the Agency determines that the required removal and remediation is complete, it shall notify the owner or operator in writing of its determination.

(D) If the Agency determines that the required removal and remediation is not complete, it shall notify the owner or operator in writing of its determination and the reasons for the determination. The owner or operator shall then continue removal or remediation, and submit reports to the Agency, in accordance with a schedule established by the Agency. Reports shall be subject to the same submission and review procedures set forth in subparagraphs (A) and (B). If necessary, the owner or operator may amend the plan and submit it for review and approval in accordance with paragraph (2).

(d) Except for the State, its agencies and institutions, a unit of local government, or not-for-profit electric cooperative as defined in Section 3.4 of the Electric Supplier Act, an owner or operator shall post with the Agency a performance bond or other security for the purpose of ensuring removal and remediation in accordance with this Section. The only acceptable forms of financial assurance are the forms of financial assurance that are acceptable for CCR surface impoundments under Section 22.59.

(e) The Agency may enter into such contracts and agreements as it deems 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.

(f) The Agency may approve or disapprove any performance bond or other security posted under 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.

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

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