093_SB0222eng

 
SB222 Engrossed                      LRB093 08816 AMC 09048 b

 1        AN ACT in relation to environmental protection.

 2        Be it  enacted  by  the  People  of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4             ARTICLE I.  Recommendations of the Illinois
 5             Environmental Regulatory Review Commission.

 6        Section  5.  The Illinois Administrative Procedure Act is
 7    amended by changing Section 5-75 as follows:

 8        (5 ILCS 100/5-75) (from Ch. 127, par. 1005-75)
 9        Sec. 5-75.  Incorporation by reference.
10        (a)  An agency may incorporate by reference, in its rules
11    adopted under Section 5-35,  rules,  regulations,  standards,
12    and  guidelines  of  an  agency  of  the  United  States or a
13    nationally or state recognized  organization  or  association
14    without  publishing  the  incorporated material in full.  The
15    reference  in  the  agency  rules  must  fully  identify  the
16    incorporated matter by publisher address and date in order to
17    specify how a copy of the material may be obtained  and  must
18    state  that the rule, regulation, standard, or guideline does
19    not include any later amendments or editions. An  agency  may
20    incorporate  by  reference these matters in its rules only if
21    the agency, organization, or association  originally  issuing
22    the  matter  makes  copies  readily  available to the public.
23    This Section does not apply to any agency internal manual.
24        For any law imposing taxes on or measured by income,  the
25    Department  of  Revenue  may  promulgate  rules  that include
26    incorporations by reference of federal rules  or  regulations
27    without  identifying  the  incorporated  matter  by  date and
28    without including a statement that the incorporation does not
29    include later amendments.
30        (b)  Use of  the  incorporation  by  reference  procedure
 
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 1    under  this  Section shall be reviewed by the Joint Committee
 2    on Administrative Rules during the rulemaking process as  set
 3    forth in this Act.
 4        (c)  The agency adopting a rule, regulation, standard, or
 5    guideline  under  this  Section  shall maintain a copy of the
 6    referenced rule, regulation, standard,  or  guideline  in  at
 7    least  one  of  its  principal  offices  and  shall  make  it
 8    available  to  the  public  upon  request  for inspection and
 9    copying at  no  more  than  cost.   Requests  for  copies  of
10    materials  incorporated  by  reference  shall  not  be deemed
11    Freedom of Information Act requests unless so labeled by  the
12    requestor.   The  agency  shall  designate by rule the agency
13    location at which incorporated materials are  maintained  and
14    made  available  to  the  public  for inspection and copying.
15    These rules may be adopted under the  procedures  in  Section
16    5-15.  In addition, the agency may include the designation of
17    the agency location of incorporated materials in a rulemaking
18    under  Section  5-35, but emergency and peremptory rulemaking
19    procedures may not be used solely for this purpose.
20        (d)  An incorporation by reference that is included in  a
21    rule  adopted  by  the Environmental Protection Agency or the
22    Pollution Control Board may be updated  using  the  expedited
23    rulemaking   procedure   provided  in  Section  28.6  of  the
24    Environmental Protection Act.  Sections 5-35 through 5-50  of
25    this  Act do not apply to those expedited rulemakings, except
26    as may be otherwise provided in that Section 28.6 or in Board
27    or Agency rules implementing that Section.
28    (Source: P.A. 90-155, eff. 7-23-97.)

29        Section 10.  The Environmental Protection Act is  amended
30    by  changing Sections 4, 5, 22.2, 30, 31, 33, 35, 36, 37, 42,
31    and 45 and adding Section 28.6 as follows:

32        (415 ILCS 5/4) (from Ch. 111 1/2, par. 1004)
 
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 1        Sec. 4. Environmental Protection  Agency;  establishment;
 2    duties.
 3        (a)  There  is established in the Executive Branch of the
 4    State Government an agency to be known as  the  Environmental
 5    Protection   Agency.    This   Agency   shall  be  under  the
 6    supervision  and  direction  of  a  Director  who  shall   be
 7    appointed  by the Governor with the advice and consent of the
 8    Senate.  The term of office of the Director shall  expire  on
 9    the  third  Monday of January in odd numbered years, provided
10    that he or  she  shall  hold  office  until  a  successor  is
11    appointed  and  has qualified.  The Director shall receive an
12    annual salary as set by the Governor from time to time or  as
13    set  by  the Compensation Review Board, whichever is greater.
14    If set by the Governor, the Director's annual salary may  not
15    exceed 85% of the Governor's annual salary.  The Director, in
16    accord  with the Personnel Code, shall employ and direct such
17    personnel, and shall provide for such  laboratory  and  other
18    facilities,  as may be necessary to carry out the purposes of
19    this Act.  In addition, the Director may by agreement  secure
20    such  services as he or she may deem necessary from any other
21    department, agency, or unit of the State Government, and  may
22    employ   and   compensate   such  consultants  and  technical
23    assistants as may be required.
24        (b)  The Agency  shall  have  the  duty  to  collect  and
25    disseminate  such  information,  acquire such technical data,
26    and conduct such experiments as may be required to carry  out
27    the  purposes  of  this  Act,  including ascertainment of the
28    quantity and nature of discharges from any contaminant source
29    and data on those sources, and to operate and arrange for the
30    operation of devices  for  the  monitoring  of  environmental
31    quality.
32        (c)  The Agency shall have authority to conduct a program
33    of   continuing  surveillance  and  of  regular  or  periodic
34    inspection  of  actual  or  potential  contaminant  or  noise
 
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 1    sources, of public water supplies,  and  of  refuse  disposal
 2    sites.
 3        (d)  In  accordance  with constitutional limitations, the
 4    Agency shall have authority to enter at all reasonable  times
 5    upon any private or public property for the purpose of:
 6             (1)  Inspecting   and   investigating  to  ascertain
 7        possible violations of this Act, any rule  or  regulation
 8        adopted  under  this Act, any permit or term or condition
 9        of a permit, or  any  Board  order;  or  the  Act  or  of
10        regulations   thereunder,  or  of  permits  or  terms  or
11        conditions thereof; or
12             (2)  In accordance with the provisions of this  Act,
13        taking   whatever   preventive   or   corrective  action,
14        including but not limited to removal or remedial  action,
15        that  is  necessary  or  appropriate  whenever there is a
16        release or a substantial threat of a  release  of  (A)  a
17        hazardous substance or pesticide or (B) petroleum from an
18        underground storage tank.
19        (e)  The  Agency  shall  have  the  duty  to  investigate
20    violations  of this Act, any rule or regulation adopted under
21    this Act, any permit or term or condition of a permit, or any
22    Board order; Act or of regulations adopted thereunder, or  of
23    permits   or   terms   or   conditions   thereof,   to  issue
24    administrative citations as provided in Section 31.1 of  this
25    Act;,  and  to  take  such  summary  enforcement action as is
26    provided for by Section 34 of this Act.
27        (f)  The Agency shall appear  before  the  Board  in  any
28    hearing upon a petition for variance, the denial of a permit,
29    or  the  validity  or  effect  of a rule or regulation of the
30    Board, and shall have the  authority  to  appear  before  the
31    Board in any hearing under the Act.
32        (g)  The  Agency  shall  have  the duty to administer, in
33    accord  with  Title  X  of  this   Act,   such   permit   and
34    certification systems as may be established by this Act or by
 
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 1    regulations  adopted  thereunder.   The Agency may enter into
 2    written delegation agreements with any department, agency, or
 3    unit of State or local government under which all or portions
 4    of this duty may be delegated for public water supply storage
 5    and  transport  systems,  sewage  collection  and   transport
 6    systems,  air  pollution  control  sources  with uncontrolled
 7    emissions of 100 tons per year or  less  and  application  of
 8    algicides to waters of the State.  Such delegation agreements
 9    will require that the work to be performed thereunder will be
10    in accordance with Agency criteria, subject to Agency review,
11    and  shall include such financial and program auditing by the
12    Agency as may be required.
13        (h)  The Agency  shall  have  authority  to  require  the
14    submission  of  complete  plans  and  specifications from any
15    applicant for a permit required by this Act or by regulations
16    thereunder, and to require the  submission  of  such  reports
17    regarding  actual  or  potential  violations of this Act, any
18    rule or regulation adopted under this Act, any permit or term
19    or condition of a permit, or any Board order the  Act  or  of
20    regulations  thereunder, or of permits or terms or conditions
21    thereof, as may be necessary for the purposes of this Act.
22        (i)  The   Agency   shall   have   authority   to    make
23    recommendations  to the Board for the adoption of regulations
24    under Title VII of the Act.
25        (j)  The Agency shall have  the  duty  to  represent  the
26    State of Illinois in any and all matters pertaining to plans,
27    procedures,  or negotiations for interstate compacts or other
28    governmental   arrangements   relating    to    environmental
29    protection.
30        (k)  The  Agency  shall  have  the  authority  to accept,
31    receive, and administer on behalf of the  State  any  grants,
32    gifts,  loans,  indirect  cost reimbursements, or other funds
33    made available to the State from any source for  purposes  of
34    this  Act or for air or water pollution control, public water
 
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 1    supply, solid  waste  disposal,  noise  abatement,  or  other
 2    environmental  protection  activities,  surveys, or programs.
 3    Any federal funds received by the  Agency  pursuant  to  this
 4    subsection  shall be deposited in a trust fund with the State
 5    Treasurer and held and disbursed by him  in  accordance  with
 6    Treasurer  as  Custodian  of  Funds  Act,  provided that such
 7    monies shall be used only for the purposes for which they are
 8    contributed and any balance remaining shall  be  returned  to
 9    the contributor.
10        The  Agency  is authorized to promulgate such regulations
11    and enter into such contracts as it may  deem  necessary  for
12    carrying out the provisions of this subsection.
13        (l)  The  Agency  is hereby designated as water pollution
14    agency for the state for all purposes of  the  Federal  Water
15    Pollution Control Act, as amended; as implementing agency for
16    the  State  for  all purposes of the Safe Drinking Water Act,
17    Public Law  93-523,  as  now  or  hereafter  amended,  except
18    Section  1425  of  that  Act; as air pollution agency for the
19    state for all purposes of the Clean Air Act of  1970,  Public
20    Law  91-604,  approved  December 31, 1970, as amended; and as
21    solid waste agency for the state  for  all  purposes  of  the
22    Solid Waste Disposal Act, Public Law 89-272, approved October
23    20,  1965,  and amended by the Resource Recovery Act of 1970,
24    Public Law 91-512, approved October 26, 1970, as amended, and
25    amended by the Resource  Conservation  and  Recovery  Act  of
26    1976, (P.L. 94-580) approved October 21, 1976, as amended; as
27    noise  control  agency  for the state for all purposes of the
28    Noise Control  Act  of  1972,  Public  Law  92-574,  approved
29    October  27, 1972, as amended; and as implementing agency for
30    the State for all purposes of the Comprehensive Environmental
31    Response, Compensation,  and  Liability  Act  of  1980  (P.L.
32    96-510),  as  amended;  and  otherwise  as  pollution control
33    agency for the State pursuant to federal laws integrated with
34    the foregoing laws, for financing purposes or otherwise.  The
 
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 1    Agency is hereby authorized to take all action  necessary  or
 2    appropriate  to  secure  to  the  State  the benefits of such
 3    federal Acts, provided that the Agency shall transmit to  the
 4    United  States  without  change  any standards adopted by the
 5    Pollution Control Board pursuant to Section 5(c) of this Act.
 6    This subsection (l) of Section 4 shall not  be  construed  to
 7    bar  or  prohibit  the  Environmental  Protection  Trust Fund
 8    Commission from accepting, receiving, and   administering  on
 9    behalf  of  the State any grants, gifts, loans or other funds
10    for  which  the  Commission  is  eligible  pursuant  to   the
11    Environmental  Protection  Trust  Fund  Act.   The  Agency is
12    hereby designated as the State agency  for  all  purposes  of
13    administering  the requirements of Section 313 of the federal
14    Emergency Planning and Community Right-to-Know Act of 1986.
15        Any municipality, sanitary district, or  other  political
16    subdivision, or any Agency of the State or interstate Agency,
17    which  makes  application  for  loans  or  grants  under such
18    federal Acts shall notify the Agency of such application; the
19    Agency may participate  in  proceedings  under  such  federal
20    Acts.
21        (m)  The  Agency  shall  have  authority, consistent with
22    Section 5(c) and  other  provisions  of  this  Act,  and  for
23    purposes  of  Section  303(e)  of the Federal Water Pollution
24    Control Act, as  now  or  hereafter  amended,  to  engage  in
25    planning  processes  and  activities  and to develop plans in
26    cooperation with units of local  government,  state  agencies
27    and  officers,  and  other  appropriate persons in connection
28    with the jurisdiction or duties of each  such  unit,  agency,
29    officer  or  person.    Public  hearings shall be held on the
30    planning process, at which any person shall be  permitted  to
31    appear  and  be  heard,  pursuant  to  procedural regulations
32    promulgated by the Agency.
33        (n)  In accordance with the  powers  conferred  upon  the
34    Agency  by  Sections  10(g),  13(b), 19, 22(d) and 25 of this
 
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 1    Act, the Agency shall have authority to establish and enforce
 2    minimum standards for the operation of laboratories  relating
 3    to  analyses  and  laboratory  tests for air pollution, water
 4    pollution, noise emissions, contaminant discharges onto  land
 5    and   sanitary,   chemical,  and  mineral  quality  of  water
 6    distributed by a public water supply.  The Agency  may  enter
 7    into  formal  working  agreements  with  other departments or
 8    agencies of state government under which all or  portions  of
 9    this authority may be delegated to the cooperating department
10    or agency.
11        (o)  The   Agency  shall  have  the  authority  to  issue
12    certificates  of  competency  to  persons  and   laboratories
13    meeting  the  minimum  standards established by the Agency in
14    accordance with Section 4(n) of this Act  and  to  promulgate
15    and  enforce  regulations relevant to the issuance and use of
16    such certificates.  The Agency may enter into formal  working
17    agreements  with  other  departments  or  agencies  of  state
18    government  under which all or portions of this authority may
19    be delegated to the cooperating department or agency.
20        (p)  Except as provided in Section 17.7, the Agency shall
21    have the duty to analyze samples as required from each public
22    water supply to determine  compliance  with  the  contaminant
23    levels specified by the Pollution Control Board.  The maximum
24    number  of  samples  which  the  Agency  shall be required to
25    analyze for microbiological quality shall be 6 per month, but
26    the Agency may, at its option, analyze a larger  number  each
27    month  for  any  supply.   Results  of  sample  analyses  for
28    additional   required   bacteriological  testing,  turbidity,
29    residual chlorine and radionuclides are to be provided to the
30    Agency in  accordance  with  Section  19.   Owners  of  water
31    supplies may enter into agreements with the Agency to provide
32    for reduced Agency participation in sample analyses.
33        (q)  The  Agency  shall  have  the  authority  to provide
34    notice to any person who may be liable  pursuant  to  Section
 
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 1    22.2(f)  of this Act for a release or a substantial threat of
 2    a release of a hazardous substance or pesticide.  Such notice
 3    shall  include  the  identified  response   action   and   an
 4    opportunity for such person to perform the response action.
 5        (r)  The   Agency   may  enter  into  written  delegation
 6    agreements with any unit of local government under  which  it
 7    may delegate all or portions of its inspecting, investigating
 8    and  enforcement functions.  Such delegation agreements shall
 9    require that work performed thereunder be in accordance  with
10    Agency    criteria    and    subject    to   Agency   review.
11    Notwithstanding any other provision of law to  the  contrary,
12    no  unit  of  local government shall be liable for any injury
13    resulting from the exercise of its authority pursuant to such
14    a delegation  agreement  unless  the  injury  is  proximately
15    caused  by  the  willful and wanton negligence of an agent or
16    employee of the unit of local government, and any  policy  of
17    insurance  coverage  issued to a unit of local government may
18    provide for the denial of liability  and  the  nonpayment  of
19    claims  based  upon  injuries  for  which  the  unit of local
20    government is not liable pursuant to this subsection (r).
21        (s)  The Agency shall have  authority  to  take  whatever
22    preventive  or corrective action is necessary or appropriate,
23    including  but  not  limited   to   expenditure   of   monies
24    appropriated  from the Build Illinois Bond Fund and the Build
25    Illinois  Purposes  Fund  for  removal  or  remedial  action,
26    whenever any hazardous substance or pesticide is released  or
27    there  is  a  substantial  threat  of such a release into the
28    environment.  The State, the Director, and any State employee
29    shall be indemnified for any damages or injury arising out of
30    or resulting from any action  taken  under  this  subsection.
31    The  Director  of the Agency is authorized to enter into such
32    contracts and agreements as are necessary to  carry  out  the
33    Agency's duties under this subsection.
34        (t)  The   Agency  shall  have  authority  to  distribute
 
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 1    grants, subject to appropriation by the General Assembly, for
 2    financing   and   construction   of   municipal    wastewater
 3    facilities.  With respect to all monies appropriated from the
 4    Build Illinois Bond Fund and the Build Illinois Purposes Fund
 5    for   wastewater  facility  grants,  the  Agency  shall  make
 6    distributions in conformity with the  rules  and  regulations
 7    established  pursuant  to the Anti-Pollution Bond Act, as now
 8    or hereafter amended.
 9        (u)  Pursuant to the  Illinois  Administrative  Procedure
10    Act,  the Agency shall have the authority to adopt such rules
11    as are necessary or appropriate for the Agency  to  implement
12    Section 31.1 of this Act.
13        (v)  (Blank.)
14        (w)  Neither  the State, nor the Director, nor the Board,
15    nor any State employee shall be liable  for  any  damages  or
16    injury  arising  out  of  or  resulting from any action taken
17    under subsection (s).
18        (x)(1)  The Agency shall  have  authority  to  distribute
19        grants, subject to appropriation by the General Assembly,
20        to   units   of   local   government  for  financing  and
21        construction of public  water  supply  facilities.   With
22        respect   to  all  monies  appropriated  from  the  Build
23        Illinois Bond Fund or the Build  Illinois  Purposes  Fund
24        for public water supply grants, such grants shall be made
25        in accordance with rules promulgated by the Agency.  Such
26        rules  shall  include  a requirement for a local match of
27        30% of the total project cost for projects funded through
28        such grants.
29             (2)  The Agency shall not terminate  a  grant  to  a
30        unit   of   local   government   for  the  financing  and
31        construction of public water supply facilities unless and
32        until the Agency adopts rules that set forth precise  and
33        complete  standards,  pursuant  to  Section  5-20  of the
34        Illinois   Administrative   Procedure   Act,   for    the
 
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 1        termination  of  such  grants.  The Agency shall not make
 2        determinations on whether specific grant  conditions  are
 3        necessary  to  ensure  the  integrity  of a project or on
 4        whether subagreements shall be awarded, with  respect  to
 5        grants for the financing and construction of public water
 6        supply  facilities,  unless  and  until the Agency adopts
 7        rules that set  forth  precise  and  complete  standards,
 8        pursuant  to  Section 5-20 of the Illinois Administrative
 9        Procedure  Act,  for  making  such  determinations.   The
10        Agency shall not issue a stop-work order in  relation  to
11        such  grants  unless  and until the Agency adopts precise
12        and complete standards, pursuant to Section 5-20  of  the
13        Illinois  Administrative  Procedure  Act, for determining
14        whether to issue a stop-work order.
15        (y)  The Agency  shall  have  authority  to  release  any
16    person   from   further   responsibility  for  preventive  or
17    corrective  action  under  this  Act   following   successful
18    completion  of  preventive or corrective action undertaken by
19    such person upon written request by the person.
20    (Source: P.A. 91-25, eff. 6-9-99; 92-574, eff. 6-26-02.)

21        (415 ILCS 5/5) (from Ch. 111 1/2, par. 1005)
22        Sec. 5. Pollution Control Board.
23        (a)  There is hereby created an independent board  to  be
24    known  as  the  Pollution  Control  Board,  consisting  of  7
25    technically  qualified members, no more than 4 of whom may be
26    of the same political party, to be appointed by the  Governor
27    with the advice and consent of the Senate.
28        All  members shall hold office for 3 years from the first
29    day of July in the year in which they were appointed,  except
30    in  case  of  an appointment to fill a vacancy.  In case of a
31    vacancy in the office when the Senate is not in session,  the
32    Governor  may  make  a  temporary  appointment until the next
33    meeting of the Senate, when he or  she  shall  nominate  some
 
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 1    person  to fill such office; and any person so nominated, who
 2    is confirmed by the Senate, shall hold the office during  the
 3    remainder of the term.
 4        Members  of  the  Board  shall  hold  office  until their
 5    respective successors have been appointed and qualified.  Any
 6    member  may  resign  from  office,  such  resignation to take
 7    effect when a successor has been appointed and has qualified.
 8        Board members shall be paid $37,000 per year or an amount
 9    set by the Compensation Review Board, whichever  is  greater,
10    and  the Chairman shall be paid $43,000 per year or an amount
11    set by the Compensation Review Board, whichever  is  greater.
12    Each  member  shall  be  reimbursed  for expenses necessarily
13    incurred, shall devote full time to the performance of his or
14    her  duties  and  shall  make  a  financial  disclosure  upon
15    appointment.  Each Board member may employ one secretary  and
16    one   assistant,   and  the  Chairman  one  secretary  and  2
17    assistants.  The Board also may employ and compensate hearing
18    officers to preside at hearings  under  this  Act,  and  such
19    other  personnel as may be necessary.  Hearing officers shall
20    be attorneys licensed to practice law in Illinois.
21        The Governor shall  designate  one  Board  member  to  be
22    Chairman, who shall serve at the pleasure of the Governor.
23        The  Board shall hold at least one meeting each month and
24    such additional meetings as may be prescribed by Board rules.
25    In addition, special meetings may be called by  the  Chairman
26    or  by any 2 Board members, upon delivery of 24 hours written
27    notice to the office of  each  member.   All  Board  meetings
28    shall  be  open  to  the  public,  and  public  notice of all
29    meetings shall be given at least 24 hours in advance of  each
30    meeting.   In emergency situations in which a majority of the
31    Board  certifies  that  exigencies  of   time   require   the
32    requirements  of  public notice and of 24 hour written notice
33    to members may be dispensed with,  and  Board  members  shall
34    receive such notice as is reasonable under the circumstances.
 
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 1        Four  members of the Board shall constitute a quorum, and
 2    4 votes shall be required for any final determination by  the
 3    Board,  except  in  a  proceeding  to  remove  a  seal  under
 4    paragraph  (d)  of  Section  34 of this Act.  The Board shall
 5    keep a complete and accurate record of all its meetings.
 6        (b)  The Board shall determine, define and implement  the
 7    environmental  control  standards  applicable in the State of
 8    Illinois and may adopt rules and  regulations  in  accordance
 9    with Title VII of this Act.
10        (c)  The  Board shall have authority to act for the State
11    in regard to the adoption of standards for submission to  the
12    United  States under any federal law respecting environmental
13    protection.  Such standards shall be  adopted  in  accordance
14    with  Title  VII  of  the  Act  and  upon  adoption  shall be
15    forwarded  to  the  Environmental   Protection   Agency   for
16    submission  to  the United States pursuant to subsections (l)
17    and (m) of Section 4 of this Act.  Nothing in this  paragraph
18    shall  limit  the  discretion  of  the  Governor  to delegate
19    authority granted to the Governor under any federal law.
20        (d)  The  Board   shall   have   authority   to   conduct
21    proceedings  upon complaints charging violations of this Act,
22    any rule or regulation adopted under this Act, or any  permit
23    or  term  or  condition of a permit, or any Board order; upon
24    administrative citations; upon  petitions  for  variances  or
25    adjusted standards; upon petitions for review of the Agency's
26    final  determinations  on  permit  applications in accordance
27    with Title X of this Act;  upon  petitions  to  remove  seals
28    under  Section  34  of this Act; and upon other petitions for
29    review of final determinations which  are  made  pursuant  to
30    this  Act or Board rule and which involve a subject which the
31    Board is authorized to regulate.  The Board may also  conduct
32    other proceedings as may be provided by this Act or any other
33    statute or rule.
34        (e)  In   connection  with  any  proceeding  pursuant  to
 
SB222 Engrossed             -14-     LRB093 08816 AMC 09048 b
 1    subsection (b) or (d) of this Section, the Board may subpoena
 2    and compel the attendance of witnesses and the production  of
 3    evidence  reasonably  necessary  to  resolution of the matter
 4    under consideration.  The Board shall  issue  such  subpoenas
 5    upon   the  request  of  any  party  to  a  proceeding  under
 6    subsection (d) of this Section or upon its own motion.
 7        (f)  The Board may prescribe reasonable fees for  permits
 8    required  pursuant  to  this Act.  Such fees in the aggregate
 9    may  not  exceed  the  total  cost  to  the  Agency  for  its
10    inspection and permit systems.  The Board may  not  prescribe
11    any  permit  fees  which  are  different in amount from those
12    established by this Act.
13    (Source: P.A. 92-574, eff. 6-26-02.)

14        (415 ILCS 5/22.2) (from Ch. 111 1/2, par. 1022.2)
15        Sec. 22.2. Hazardous waste; fees; liability.
16        (a)  There are hereby created within the State Treasury 2
17    special funds to be  known  respectively  as  the  "Hazardous
18    Waste   Fund"   and  the  "Hazardous  Waste  Research  Fund",
19    constituted from the fees collected pursuant to this Section.
20    In addition to the fees collected  under  this  Section,  the
21    Hazardous   Waste   Fund  shall  include  other  moneys  made
22    available from any source for deposit into the Fund.
23        (b) (1)  On and after January 1, 1989, the  Agency  shall
24        collect  from  the  owner  or  operator  of  each  of the
25        following sites a fee in the amount of:
26                  (A)  9 cents per gallon  or  $18.18  per  cubic
27             yard,  if  the  hazardous  waste  disposal  site  is
28             located  off the site where such waste was produced.
29             The maximum amount payable  under  this  subdivision
30             (A) with respect to the hazardous waste generated by
31             a  single  generator  and  deposited in monofills is
32             $30,000 per year.  If, as a result  of  the  use  of
33             multiple  monofills,  waste  fees  in  excess of the
 
SB222 Engrossed             -15-     LRB093 08816 AMC 09048 b
 1             maximum are assessed with respect to a single  waste
 2             generator, the generator may apply to the Agency for
 3             a credit.
 4                  (B)  9  cents  or $18.18 per cubic yard, if the
 5             hazardous waste disposal site is located on the site
 6             where such waste was produced, provided however  the
 7             maximum  amount of fees payable under this paragraph
 8             (B) is $30,000 per  year  for  each  such  hazardous
 9             waste disposal site.
10                  (C)  If the hazardous waste disposal site is an
11             underground  injection  well, $6,000 per year if not
12             more than 10,000,000 gallons per year are  injected,
13             $15,000 per year if more than 10,000,000 gallons but
14             not  more  than  50,000,000  gallons  per  year  are
15             injected,   and   $27,000  per  year  if  more  than
16             50,000,000 gallons per year are injected.
17                  (D)  3 cents per gallon or $6.06 per cubic yard
18             of hazardous  waste  received  for  treatment  at  a
19             hazardous  waste  treatment  site,  if the hazardous
20             waste treatment site is located off the  site  where
21             such  waste was produced and if such hazardous waste
22             treatment site is owned, controlled and operated  by
23             a  person  other  than  the generator of such waste.
24             After treatment at such  hazardous  waste  treatment
25             site,  the  waste  shall not be subject to any other
26             fee imposed by this subsection (b).  For purposes of
27             this subsection (b), the term "treatment" is defined
28             as in Section 3.505 but shall not include recycling,
29             reclamation or reuse.
30             (2)  The General Assembly shall annually appropriate
31        to the Fund such amounts as it deems necessary to fulfill
32        the purposes of this Act.
33             (3)  The Agency shall have the authority to  accept,
34        receive, and administer on behalf of the State any moneys
 
SB222 Engrossed             -16-     LRB093 08816 AMC 09048 b
 1        made  available  to  the  State  from  any source for the
 2        purposes  of  the  Hazardous  Waste  Fund  set  forth  in
 3        subsection (d) of this Section.
 4             (4)  Of the amount collected as fees provided for in
 5        this Section, the Agency shall manage  the  use  of  such
 6        funds  to  assure that sufficient funds are available for
 7        match towards federal expenditures for response action at
 8        sites which are listed on the National  Priorities  List;
 9        provided,   however,   that   this  shall  not  apply  to
10        additional monies appropriated to the Fund by the General
11        Assembly, nor shall  it  apply  in  the  event  that  the
12        Director  finds that revenues in the Hazardous Waste Fund
13        must be used to address conditions which  create  or  may
14        create  an  immediate danger to the environment or public
15        health or to the welfare of the people of  the  State  of
16        Illinois.
17             (5)  Notwithstanding  the  other  provisions of this
18        subsection (b), sludge from a publicly-owned sewage works
19        generated in Illinois,  coal  mining  wastes  and  refuse
20        generated in Illinois, bottom boiler ash, flyash and flue
21        gas  desulphurization sludge from public utility electric
22        generating facilities located  in  Illinois,  and  bottom
23        boiler ash and flyash from all incinerators which process
24        solely municipal waste shall not be subject to the fee.
25             (6)  For   the  purposes  of  this  subsection  (b),
26        "monofill" means a facility, or a  unit  at  a  facility,
27        that accepts only wastes bearing the same USEPA hazardous
28        waste  identification  number,  or  compatible  wastes as
29        determined by the Agency.
30        (c)  The Agency shall  establish  procedures,  not  later
31    than  January 1, 1984, relating to the collection of the fees
32    authorized by this Section. Such  procedures  shall  include,
33    but  not be limited to: (1) necessary records identifying the
34    quantities of hazardous waste received or disposed;  (2)  the
 
SB222 Engrossed             -17-     LRB093 08816 AMC 09048 b
 1    form  and  submission  of reports to accompany the payment of
 2    fees to the Agency; and (3) the time and manner of payment of
 3    fees to the Agency, which payments shall be  not  more  often
 4    than quarterly.
 5        (d)  Beginning July 1, 1996, the Agency shall deposit all
 6    such  receipts  in  the  State  Treasury to the credit of the
 7    Hazardous Waste Fund, except as provided in subsection (e) of
 8    this Section. All monies in the Hazardous Waste Fund shall be
 9    used by the Agency for the following purposes:
10             (1)  Taking whatever preventive or corrective action
11        is necessary or appropriate, in  circumstances  certified
12        by  the Director, including but not limited to removal or
13        remedial  action  whenever  there   is   a   release   or
14        substantial  threat of a release of a hazardous substance
15        or pesticide; provided, the Agency shall expend  no  more
16        than   $1,000,000   on   any   single   incident  without
17        appropriation by the General Assembly.
18             (2)  To meet any requirements which must be  met  by
19        the  State  in  order to obtain federal funds pursuant to
20        the Comprehensive  Environmental  Response,  Compensation
21        and Liability Act of 1980, (P.L. 96-510).
22             (3)  In  an amount up to 30% of the amount collected
23        as fees provided for in this  Section,  for  use  by  the
24        Agency  to  conduct  groundwater  protection  activities,
25        including  providing grants to appropriate units of local
26        government which are addressing protection of underground
27        waters pursuant to the provisions of this Act.
28             (4)  To fund the development and  implementation  of
29        the model pesticide collection program under Section 19.1
30        of the Illinois Pesticide Act.
31             (5)  To  the  extent  the  Agency  has  received and
32        deposited monies in the Fund other  than  fees  collected
33        under subsection (b) of this Section, to pay for the cost
34        of  Agency  employees  for services provided in reviewing
 
SB222 Engrossed             -18-     LRB093 08816 AMC 09048 b
 1        the performance of response  actions  pursuant  to  Title
 2        XVII of this Act.
 3             (6)  In  an  amount  up to 15% of the fees collected
 4        annually under subsection (b) of this Section, for use by
 5        the Agency for administration of the provisions  of  this
 6        Section.
 7        (e)  The   Agency  shall  deposit  10%  of  all  receipts
 8    collected under subsection (b) of this Section,  but  not  to
 9    exceed $200,000 per year, in the State Treasury to the credit
10    of the Hazardous Waste Research Fund established by this Act.
11    Pursuant  to  appropriation, all monies in such Fund shall be
12    used by the Department of Natural Resources for the  purposes
13    set forth in this subsection.
14        The  Department  of  Natural  Resources  may  enter  into
15    contracts with business, industrial, university, governmental
16    or  other qualified individuals or organizations to assist in
17    the research and development intended to recycle, reduce  the
18    volume   of,  separate,  detoxify  or  reduce  the  hazardous
19    properties of hazardous wastes in Illinois.   Monies  in  the
20    Fund  may also be used by the Department of Natural Resources
21    for technical studies, monitoring activities, and educational
22    and research activities which are related to  the  protection
23    of   underground  waters.   Monies  in  the  Hazardous  Waste
24    Research Fund may be used to administer the  Illinois  Health
25    and   Hazardous  Substances  Registry  Act.   Monies  in  the
26    Hazardous Waste Research Fund  shall  not  be  used  for  any
27    sanitary  landfill  or the acquisition or construction of any
28    facility.  This does not preclude the purchase  of  equipment
29    for  the  purpose  of  public  demonstration  projects.   The
30    Department  of  Natural  Resources shall adopt guidelines for
31    cost sharing, selecting,  and  administering  projects  under
32    this subsection.
33        (f)  Notwithstanding  any other provision or rule of law,
34    and subject only to the defenses set forth in subsection  (j)
 
SB222 Engrossed             -19-     LRB093 08816 AMC 09048 b
 1    of  this  Section,  the following persons shall be liable for
 2    all costs of removal or remedial action incurred by the State
 3    of Illinois or any unit of local government as a result of  a
 4    release  or  substantial  threat  of a release of a hazardous
 5    substance or pesticide:
 6             (1)  the owner and operator of a facility or  vessel
 7        from  which  there  is a release or substantial threat of
 8        release of a hazardous substance or pesticide;
 9             (2)  any  person  who  at  the  time  of   disposal,
10        transport,  storage or treatment of a hazardous substance
11        or pesticide owned or operated  the  facility  or  vessel
12        used  for  such disposal, transport, treatment or storage
13        from which there was a release or substantial threat of a
14        release of any such hazardous substance or pesticide;
15             (3)  any  person  who  by  contract,  agreement,  or
16        otherwise has arranged with another party or  entity  for
17        transport,  storage,  disposal  or treatment of hazardous
18        substances or pesticides owned, controlled  or  possessed
19        by such person at a facility owned or operated by another
20        party or entity from which facility there is a release or
21        substantial   threat  of  a  release  of  such  hazardous
22        substances or pesticides; and
23             (4)  any  person  who  accepts   or   accepted   any
24        hazardous  substances  or  pesticides  for  transport  to
25        disposal,  storage  or treatment facilities or sites from
26        which there is a release or a  substantial  threat  of  a
27        release of a hazardous substance or pesticide.
28        Any  monies received by the State of Illinois pursuant to
29    this subsection (f) shall be deposited in the State  Treasury
30    to the credit of the Hazardous Waste Fund.
31        In  accordance with the other provisions of this Section,
32    costs of removal or remedial action incurred  by  a  unit  of
33    local  government  may  be  recovered in an action before the
34    Board  brought  by  the  unit  of  local   government   under
 
SB222 Engrossed             -20-     LRB093 08816 AMC 09048 b
 1    subsection  (i)  of  this  Section.   Any monies so recovered
 2    shall be paid to the unit of local government.
 3        (g)(1)  No indemnification,  hold  harmless,  or  similar
 4        agreement  or  conveyance  shall be effective to transfer
 5        from the owner or operator of any vessel or  facility  or
 6        from  any  person  who  may  be  liable  for a release or
 7        substantial threat of a release under  this  Section,  to
 8        any   other  person  the  liability  imposed  under  this
 9        Section.  Nothing in this Section shall bar any agreement
10        to insure, hold harmless or indemnify  a  party  to  such
11        agreements for any liability under this Section.
12             (2)  Nothing   in   this   Section,   including  the
13        provisions of paragraph (g)(1) of this Section, shall bar
14        a cause of action that an owner or operator or any  other
15        person  subject  to  liability  under  this Section, or a
16        guarantor, has or would have, by reason of subrogation or
17        otherwise against any person.
18        (h)  For purposes of this Section:
19             (1)  The term "facility" means:
20                  (A)  any  building,  structure,   installation,
21             equipment,   pipe  or  pipeline  including  but  not
22             limited to any pipe into a sewer or  publicly  owned
23             treatment    works,   well,   pit,   pond,   lagoon,
24             impoundment,  ditch,  landfill,  storage  container,
25             motor vehicle, rolling stock, or aircraft; or
26                  (B)  any  site  or  area  where   a   hazardous
27             substance  has  been deposited, stored, disposed of,
28             placed, or otherwise come to be located.
29             (2)  The term "owner or operator" means:
30                  (A)  any person owning or operating a vessel or
31             facility;
32                  (B)  in the case of an abandoned facility,  any
33             person owning or operating the abandoned facility or
34             any   person   who  owned,  operated,  or  otherwise
 
SB222 Engrossed             -21-     LRB093 08816 AMC 09048 b
 1             controlled  activities  at  the  abandoned  facility
 2             immediately prior to such abandonment;
 3                  (C)  in the case of a land trust as defined  in
 4             Section  2 of the Land Trustee as Creditor Act,  the
 5             person owning the beneficial interest  in  the  land
 6             trust;
 7                  (D)  in  the  case of a fiduciary (other than a
 8             land trustee), the estate, trust  estate,  or  other
 9             interest  in  property held in a fiduciary capacity,
10             and not the fiduciary.  For  the  purposes  of  this
11             Section,  "fiduciary"  means  a  trustee,  executor,
12             administrator,  guardian,  receiver,  conservator or
13             other person holding  a  facility  or  vessel  in  a
14             fiduciary capacity;
15                  (E)  in  the case of a "financial institution",
16             meaning the Illinois Housing  Development  Authority
17             and  that  term  as  defined  in  Section  2  of the
18             Illinois Banking Act, that has  acquired  ownership,
19             operation,  management,  or  control  of a vessel or
20             facility through foreclosure or under the terms of a
21             security interest held by the financial  institution
22             or under the terms of an extension of credit made by
23             the financial institution, the financial institution
24             only  if  the financial institution takes possession
25             of  the  vessel  or  facility  and   the   financial
26             institution  exercises actual, direct, and continual
27             or recurrent managerial control in the operation  of
28             the  vessel  or  facility  that  causes a release or
29             substantial threat  of  a  release  of  a  hazardous
30             substance  or  pesticide  resulting  in  removal  or
31             remedial action;
32                  (F)  In  the  case  of  an owner of residential
33             property, the owner if the owner is a  person  other
34             than an individual, or if the owner is an individual
 
SB222 Engrossed             -22-     LRB093 08816 AMC 09048 b
 1             who owns more than 10 dwelling units in Illinois, or
 2             if   the   owner,   or   an  agent,  representative,
 3             contractor, or employee of the  owner,  has  caused,
 4             contributed to, or allowed the release or threatened
 5             release  of  a hazardous substance or pesticide. The
 6             term  "residential  property"  means  single  family
 7             residences of one to  4  dwelling  units,  including
 8             accessory    land,    buildings,   or   improvements
 9             incidental to those dwellings that  are  exclusively
10             used  for  the residential use. For purposes of this
11             subparagraph (F),  the  term  "individual"  means  a
12             natural  person, and shall not include corporations,
13             partnerships, trusts, or other non-natural persons.
14                  (G)  In the case  of  any  facility,  title  or
15             control  of  which  was  conveyed due to bankruptcy,
16             foreclosure,  tax   delinquency,   abandonment,   or
17             similar   means   to   a  unit  of  State  or  local
18             government,  any  person  who  owned,  operated,  or
19             otherwise  controlled  activities  at  the  facility
20             immediately beforehand.
21                  (H)  The term  "owner  or  operator"  does  not
22             include  a  unit  of State or local government which
23             acquired ownership or  control  through  bankruptcy,
24             tax delinquency, abandonment, or other circumstances
25             in  which the government acquires title by virtue of
26             its function as sovereign.  The  exclusion  provided
27             under this paragraph shall not apply to any State or
28             local  government which has caused or contributed to
29             the release or threatened  release  of  a  hazardous
30             substance  from  the  facility,  and such a State or
31             local government shall be subject to the  provisions
32             of  this  Act  in  the  same  manner and to the same
33             extent, both procedurally and substantively, as  any
34             nongovernmental  entity,  including  liability under
 
SB222 Engrossed             -23-     LRB093 08816 AMC 09048 b
 1             Section 22.2(f).
 2        (i)  The costs and damages provided for in  this  Section
 3    may  be  imposed by the Board in an action brought before the
 4    Board in accordance with Title VIII of this Act, except  that
 5    Section 33(c) of this Act shall not apply to any such action.
 6        (j) (1)  There  shall  be no liability under this Section
 7    for  a  person  otherwise  liable  who  can  establish  by  a
 8    preponderance of the evidence that the release or substantial
 9    threat of release of a hazardous substance  and  the  damages
10    resulting therefrom were caused solely by:
11             (A)  an act of God;
12             (B)  an act of war;
13             (C)  an  act or omission of a third party other than
14        an employee or agent of the defendant, or other than  one
15        whose  act  or  omission  occurs  in  connection  with  a
16        contractual    relationship,    existing    directly   or
17        indirectly, with the defendant  (except  where  the  sole
18        contractual  arrangement  arises  from a published tariff
19        and acceptance for carriage by a common carrier by rail),
20        if the defendant establishes by a  preponderance  of  the
21        evidence  that  (i) he exercised due care with respect to
22        the   hazardous   substance   concerned,   taking    into
23        consideration   the  characteristics  of  such  hazardous
24        substance,  in  light   of   all   relevant   facts   and
25        circumstances,  and  (ii)  he  took  precautions  against
26        foreseeable acts or omissions of any such third party and
27        the  consequences that could foreseeably result from such
28        acts or omissions; or
29             (D)  any combination of the foregoing paragraphs.
30        (2)  There shall be no liability under this  Section  for
31    any release permitted by State or federal law.
32        (3)  There  shall  be no liability under this Section for
33    damages as a result of actions taken or omitted in the course
34    of rendering care, assistance, or advice in  accordance  with
 
SB222 Engrossed             -24-     LRB093 08816 AMC 09048 b
 1    this Section or the National Contingency Plan pursuant to the
 2    Comprehensive   Environmental   Response,   Compensation  and
 3    Liability Act of 1980 (P.L. 96-510) or at the direction of an
 4    on-scene coordinator appointed under such plan, with  respect
 5    to  an incident creating a danger to public health or welfare
 6    or the environment as a result of any release of a  hazardous
 7    substance  or  a substantial threat thereof.  This subsection
 8    shall not preclude liability for damages  as  the  result  of
 9    gross  negligence  or  intentional  misconduct on the part of
10    such person.  For the purposes  of  the  preceding  sentence,
11    reckless,  willful,  or  wanton  misconduct  shall constitute
12    gross negligence.
13        (4)  There shall be no liability under this  Section  for
14    any  person  (including,  but  not  limited  to,  an owner of
15    residential  property  who  applies  a   pesticide   to   the
16    residential  property  or  who  has  another  person  apply a
17    pesticide to the residential property) for response costs  or
18    damages  as  the  result of the storage, handling and use, or
19    recommendation for storage, handling and use, of a  pesticide
20    consistent with:
21             (A)  its directions for storage, handling and use as
22        stated in its label or labeling;
23             (B)  its  warnings  and  cautions  as  stated in its
24        label or labeling; and
25             (C)  the uses for which it is registered  under  the
26        Federal  Insecticide,  Fungicide  and Rodenticide Act and
27        the Illinois Pesticide Act.
28        (4.5)  There shall  be  no  liability  under  subdivision
29    (f)(1)  of  this Section for response costs or damages as the
30    result of a release  of  a  pesticide  from  an  agrichemical
31    facility  site  if  the  Agency  has received notice from the
32    Department of Agriculture pursuant to  Section  19.3  of  the
33    Illinois   Pesticide  Act,  the  owner  or  operator  of  the
34    agrichemical facility is proceeding with a corrective  action
 
SB222 Engrossed             -25-     LRB093 08816 AMC 09048 b
 1    plan  under the Agrichemical Facility Response Action Program
 2    implemented under that Section, and the Agency has provided a
 3    written endorsement of a corrective action plan.
 4        (4.6)  There shall  be  no  liability  under  subdivision
 5    (f)(1)  of  this Section for response costs or damages as the
 6    result of a substantial threat of a release  of  a  pesticide
 7    from an agrichemical facility site if the Agency has received
 8    notice from the Department of Agriculture pursuant to Section
 9    19.3  of the Illinois Pesticide Act and the owner or operator
10    of the agrichemical facility is proceeding with a  corrective
11    action  plan  under the Agrichemical Facility Response Action
12    Program implemented under that Section.
13        (5)  Nothing in  this  subsection  (j)  shall  affect  or
14    modify  in any way the obligations or liability of any person
15    under any other provision of this Act  or  State  or  federal
16    law,  including  common  law,  for  damages,  injury, or loss
17    resulting from a release or substantial threat of  a  release
18    of  any hazardous substance or for removal or remedial action
19    or the costs of removal or remedial action of such  hazardous
20    substance.
21        (6)(A)  The  term  "contractual  relationship",  for  the
22    purpose  of  this subsection includes, but is not limited to,
23    land contracts, deeds or other instruments transferring title
24    or possession, unless the real property on which the facility
25    concerned is located was acquired by the defendant after  the
26    disposal  or  placement of the hazardous substance on, in, or
27    at the  facility,  and  one  or  more  of  the  circumstances
28    described  in clause (i), (ii), or (iii) of this paragraph is
29    also established by the defendant by a preponderance  of  the
30    evidence:
31             (i)  At the time the defendant acquired the facility
32        the defendant did not know and had no reason to know that
33        any  hazardous  substance  which  is  the  subject of the
34        release or threatened release was disposed of on,  in  or
 
SB222 Engrossed             -26-     LRB093 08816 AMC 09048 b
 1        at the facility.
 2             (ii)  The  defendant  is  a  government entity which
 3        acquired the facility by escheat, or  through  any  other
 4        involuntary  transfer  or  acquisition,  or  through  the
 5        exercise  of  eminent  domain  authority  by  purchase or
 6        condemnation.
 7             (iii)  The  defendant  acquired  the   facility   by
 8        inheritance or bequest.
 9        In  addition to establishing the foregoing, the defendant
10    must establish that he  has  satisfied  the  requirements  of
11    subparagraph (C) of paragraph (l) of this subsection (j).
12        (B)  To establish the defendant had no reason to know, as
13    provided in clause (i) of subparagraph (A) of this paragraph,
14    the   defendant   must   have  undertaken,  at  the  time  of
15    acquisition,  all  appropriate  inquiry  into  the   previous
16    ownership  and  uses  of  the  property  consistent with good
17    commercial or customary practice in  an  effort  to  minimize
18    liability.  For purposes of the preceding sentence, the court
19    shall   take   into  account  any  specialized  knowledge  or
20    experience on the part of the defendant, the relationship  of
21    the   purchase   price  to  the  value  of  the  property  if
22    uncontaminated, commonly known  or  reasonably  ascertainable
23    information  about  the  property,  the  obviousness  of  the
24    presence or likely presence of contamination at the property,
25    and  the  ability to detect such contamination by appropriate
26    inspection.
27        (C)  Nothing in this paragraph (6) or in subparagraph (C)
28    of paragraph  (1)  of  this  subsection  shall  diminish  the
29    liability  of any previous owner or operator of such facility
30    who would otherwise be liable under this Act. Notwithstanding
31    this  paragraph  (6),  if  the  defendant   obtained   actual
32    knowledge of the release or threatened release of a hazardous
33    substance  at such facility when the defendant owned the real
34    property and then subsequently transferred ownership  of  the
 
SB222 Engrossed             -27-     LRB093 08816 AMC 09048 b
 1    property to another person without disclosing such knowledge,
 2    such  defendant  shall  be treated as liable under subsection
 3    (f) of this Section and no defense under subparagraph (C)  of
 4    paragraph  (1)  of this subsection shall be available to such
 5    defendant.
 6        (D)  Nothing in  this  paragraph  (6)  shall  affect  the
 7    liability  under  this  Act of a defendant who, by any act or
 8    omission, caused or contributed to the release or  threatened
 9    release  of a hazardous substance which is the subject of the
10    action relating to the facility.
11        (E) (i)  Except  as  provided  in  clause  (ii)  of  this
12    subparagraph (E), a defendant who has acquired real  property
13    shall  have  established a rebuttable presumption against all
14    State claims and a conclusive presumption against all private
15    party claims that the  defendant  has  made  all  appropriate
16    inquiry  within  the  meaning  of  subdivision (6)(B) of this
17    subsection (j) if the defendant proves that immediately prior
18    to or at the time of the acquisition:
19             (I)  the defendant obtained a Phase I  Environmental
20        Audit  of  the  real  property  that meets or exceeds the
21        requirements of this subparagraph (E), and  the  Phase  I
22        Environmental  Audit  did  not  disclose  the presence or
23        likely presence of a release or a substantial threat of a
24        release of a hazardous substance or pesticide at, on, to,
25        or from the real property; or
26             (II)  the   defendant   obtained    a    Phase    II
27        Environmental  Audit  of  the real property that meets or
28        exceeds the requirements of this  subparagraph  (E),  and
29        the  Phase  II  Environmental  Audit did not disclose the
30        presence or likely presence of a release or a substantial
31        threat of a release of a hazardous substance or pesticide
32        at, on, to, or from the real property.
33        (ii)  No presumption shall be created under clause (i) of
34    this subparagraph (E), and a  defendant  shall  be  precluded
 
SB222 Engrossed             -28-     LRB093 08816 AMC 09048 b
 1    from   demonstrating   that   the   defendant  has  made  all
 2    appropriate inquiry within the meaning of subdivision  (6)(B)
 3    of this subsection (j), if:
 4             (I)  the defendant fails to obtain all Environmental
 5        Audits  required  under this subparagraph (E) or any such
 6        Environmental  Audit  fails  to  meet   or   exceed   the
 7        requirements of this subparagraph (E);
 8             (II)  a  Phase  I  Environmental Audit discloses the
 9        presence or likely presence of a release or a substantial
10        threat of a release of a hazardous substance or pesticide
11        at, on, to, or from  real  property,  and  the  defendant
12        fails to obtain a Phase II Environmental Audit;
13             (III)  a  Phase II Environmental Audit discloses the
14        presence or likely presence of a release or a substantial
15        threat of a release of a hazardous substance or pesticide
16        at, on, to, or from the real property;
17             (IV)  the defendant  fails  to  maintain  a  written
18        compilation   and   explanatory  summary  report  of  the
19        information reviewed in the course of each  Environmental
20        Audit under this subparagraph (E); or
21             (V)  there   is  any  evidence  of  fraud,  material
22        concealment,  or  material   misrepresentation   by   the
23        defendant  of  environmental  conditions  or  of  related
24        information   discovered   during   the   course   of  an
25        Environmental Audit.
26        (iii)  For purposes of this subparagraph  (E),  the  term
27    "environmental  professional" means an individual (other than
28    a  practicing  attorney)  who,  through  academic   training,
29    occupational  experience,  and reputation (such as engineers,
30    industrial hygienists, or geologists) can objectively conduct
31    one or more aspects of an Environmental Audit and who either:
32             (I)  maintains at  the  time  of  the  Environmental
33        Audit  and  for  at  least  one  year thereafter at least
34        $500,000  of  environmental   consultants'   professional
 
SB222 Engrossed             -29-     LRB093 08816 AMC 09048 b
 1        liability  insurance  coverage  issued  by  an  insurance
 2        company licensed to do business in Illinois; or
 3             (II)  is  an Illinois licensed professional engineer
 4        or an Illinois licensed industrial hygienist.
 5        An environmental professional may employ persons who  are
 6    not  environmental professionals to assist in the preparation
 7    of an Environmental Audit  if  such  persons  are  under  the
 8    direct   supervision   and   control   of  the  environmental
 9    professional.
10        (iv)  For purposes of this  subparagraph  (E),  the  term
11    "real property" means any interest in any parcel of land, and
12    includes,  but  is  not  limited to, buildings, fixtures, and
13    improvements.
14        (v)  For purposes of  this  subparagraph  (E),  the  term
15    "Phase  I Environmental Audit" means an investigation of real
16    property,  conducted  by  environmental   professionals,   to
17    discover  the  presence  or likely presence of a release or a
18    substantial threat of a release of a hazardous  substance  or
19    pesticide  at,  on,  to, or from real property, and whether a
20    release or a substantial threat of a release of  a  hazardous
21    substance  or pesticide has occurred or may occur at, on, to,
22    or from the real property.  Until such  time  as  the  United
23    States  Environmental Protection Agency establishes standards
24    for making appropriate inquiry into  the  previous  ownership
25    and   uses  of  the  facility  pursuant  to  42  U.S.C.  Sec.
26    9601(35)(B)(ii), the  investigation  shall  comply  with  the
27    procedures of the American Society for Testing and Materials,
28    including  the  document known as Standard E1527-97, entitled
29    "Standard Procedures for Environmental Site Assessment: Phase
30    1  Environmental  Site  Assessment  Process".    Upon   their
31    adoption,  the  standards promulgated by USEPA pursuant to 42
32    U.S.C. Sec. 9601(35)(B)(ii) shall govern the  performance  of
33    Phase  I  Environmental  Audits.   In  addition  to the above
34    requirements, the Phase I Environmental Audit shall include a
 
SB222 Engrossed             -30-     LRB093 08816 AMC 09048 b
 1    review of recorded land title  records  for  the  purpose  of
 2    determining  whether  the  real  property  is  subject  to an
 3    environmental land use  restriction  such  as  a  No  Further
 4    Remediation   Letter,  Environmental  Land  Use  Control,  or
 5    Highway Authority Agreement.  The investigation shall include
 6    a review of  at  least  each  of  the  following  sources  of
 7    information concerning the current and previous ownership and
 8    use of the real property:
 9             (I)  Recorded chain of title documents regarding the
10        real  property,  including  all deeds, easements, leases,
11        restrictions, and covenants for a period of 50 years.
12             (II)  Aerial photographs that may reflect prior uses
13        of the real property and that are  reasonably  obtainable
14        through  State,  federal, or local government agencies or
15        bodies.
16             (III)  Recorded environmental cleanup liens, if any,
17        against the real property that have  arisen  pursuant  to
18        this Act or federal statutes.
19             (IV)  Reasonably   obtainable  State,  federal,  and
20        local government records of sites or facilities  at,  on,
21        or  near  the  real  property to discover the presence or
22        likely presence of a hazardous  substance  or  pesticide,
23        and  whether  a  release  or  a  substantial  threat of a
24        release  of  a  hazardous  substance  or  pesticide   has
25        occurred  or  may  occur  at,  on,  to,  or from the real
26        property.  Such government records shall include, but not
27        be limited to:  reasonably obtainable State, federal, and
28        local government investigation reports for those sites or
29        facilities; reasonably  obtainable  State,  federal,  and
30        local government records of activities likely to cause or
31        contribute  to  a  release  or  a threatened release of a
32        hazardous substance or pesticide at, on, to, or from  the
33        real  property,  including  landfill and other treatment,
34        storage,  and  disposal  location  records,   underground
 
SB222 Engrossed             -31-     LRB093 08816 AMC 09048 b
 1        storage  tank  records,  hazardous  waste transporter and
 2        generator records, and spill reporting records; and other
 3        reasonably   obtainable   State,   federal,   and   local
 4        government environmental records that report incidents or
 5        activities that are likely to cause or  contribute  to  a
 6        release  or a threatened release of a hazardous substance
 7        or pesticide at, on, to, or from the real  property.   In
 8        order  to  be  deemed "reasonably obtainable" as required
 9        herein, a copy or reasonable facsimile of the record must
10        be obtainable from the government agency by  request  and
11        upon  payment of a processing fee, if any, established by
12        the government  agency.   The  Agency  is  authorized  to
13        establish   a  reasonable  fee  for  processing  requests
14        received under this subparagraph (E)  for  records.   All
15        fees  collected  by  the Agency under this clause (v)(IV)
16        shall be  deposited  into  the  Environmental  Protection
17        Permit  and  Inspection  Fund  in accordance with Section
18        22.8.
19             Notwithstanding any other law, if the fee  is  paid,
20        the  Agency  shall  process a request received under this
21        subparagraph (E)  for  records  within  30  days  of  the
22        receipt of such request.
23             (V)  A  visual  site inspection of the real property
24        and all facilities and improvements on the real  property
25        and   a   visual  inspection  of  properties  immediately
26        adjacent to the real property, including an investigation
27        of any use,  storage,  treatment,  spills  from  use,  or
28        disposal of hazardous substances, hazardous wastes, solid
29        wastes,  or  pesticides.   If  the  person conducting the
30        investigation is denied access to any  property  adjacent
31        to  the  real property, the person shall conduct a visual
32        inspection of that adjacent property from the property to
33        which  the  person  does  have  access  and  from  public
34        rights-of-way.
 
SB222 Engrossed             -32-     LRB093 08816 AMC 09048 b
 1             (VI)  A review of business records for activities at
 2        or on the real property for a period of 50 years.
 3        (vi)  For purposes of subparagraph (E), the  term  "Phase
 4    II  Environmental  Audit"  means  an  investigation  of  real
 5    property,    conducted    by   environmental   professionals,
 6    subsequent to a Phase I Environmental Audit.  If the Phase  I
 7    Environmental Audit discloses the presence or likely presence
 8    of  a  hazardous  substance  or a pesticide or a release or a
 9    substantial threat of a release of a hazardous  substance  or
10    pesticide:
11             (I)  In  or  to  soil, the defendant, as part of the
12        Phase II Environmental Audit, shall perform a  series  of
13        soil  borings  sufficient to determine whether there is a
14        presence or likely presence of a hazardous  substance  or
15        pesticide and whether there is or has been a release or a
16        substantial  threat of a release of a hazardous substance
17        or pesticide at, on, to, or from the real property.
18             (II)  In or to groundwater, the defendant,  as  part
19        of  the  Phase  II  Environmental  Audit,  shall:  review
20        information   regarding   local   geology,   water   well
21        locations, and locations of waters of the State as may be
22        obtained   from  State,  federal,  and  local  government
23        records, including but not limited to the  United  States
24        Geological  Service, the State Geological Survey Division
25        of the Department of Natural  Resources,  and  the  State
26        Water  Survey  Division  of  the  Department  of  Natural
27        Resources;  and perform groundwater monitoring sufficient
28        to determine  whether  there  is  a  presence  or  likely
29        presence  of  a  hazardous  substance  or  pesticide, and
30        whether there is or has been a release or  a  substantial
31        threat of a release of a hazardous substance or pesticide
32        at, on, to, or from the real property.
33             (III)  On   or   to   media   other   than  soil  or
34        groundwater, the defendant,  as  part  of  the  Phase  II
 
SB222 Engrossed             -33-     LRB093 08816 AMC 09048 b
 1        Environmental   Audit,  shall  perform  an  investigation
 2        sufficient to determine whether there is  a  presence  or
 3        likely  presence  of  a hazardous substance or pesticide,
 4        and  whether  there  is  or  has  been  a  release  or  a
 5        substantial threat of a release of a hazardous  substance
 6        or pesticide at, on, to, or from the real property.
 7        (vii)  The  findings of each Environmental Audit prepared
 8    under this subparagraph (E) shall be set forth in  a  written
 9    audit report.  Each audit report shall contain an affirmation
10    by  the  defendant and by each environmental professional who
11    prepared the Environmental Audit that the facts stated in the
12    report are true and are made under a penalty  of  perjury  as
13    defined  in Section 32-2 of the Criminal Code of 1961.  It is
14    perjury for any person to sign an audit report that  contains
15    a  false  material statement that the person does not believe
16    to be true.
17        (viii)  The Agency is not required to review, approve, or
18    certify  the  results  of  any  Environmental   Audit.    The
19    performance of an Environmental Audit shall in no way entitle
20    a   defendant   to   a  presumption  of  Agency  approval  or
21    certification of the results of the Environmental Audit.
22        The presence or absence of a disclosure document prepared
23    under the Responsible Property Transfer Act of 1988 shall not
24    be a defense  under  this  Act  and  shall  not  satisfy  the
25    requirements of subdivision (6)(A) of this subsection (j).
26        (7)  No  person  shall  be  liable under this Section for
27    response costs or  damages  as  the  result  of  a  pesticide
28    release  if  the  Agency  has  found that a pesticide release
29    occurred based on  a  Health  Advisory  issued  by  the  U.S.
30    Environmental  Protection Agency or an action level developed
31    by the Agency, unless the Agency notified the manufacturer of
32    the pesticide and provided an opportunity of not less than 30
33    days for the manufacturer to comment  on  the  technical  and
34    scientific  justification  supporting  the Health Advisory or
 
SB222 Engrossed             -34-     LRB093 08816 AMC 09048 b
 1    action level.
 2        (8)  No person shall be liable  under  this  Section  for
 3    response  costs  or  damages  as  the  result  of a pesticide
 4    release that  occurs  in  the  course  of  a  farm  pesticide
 5    collection   program  operated  under  Section  19.1  of  the
 6    Illinois Pesticide Act, unless the release results from gross
 7    negligence or intentional misconduct.
 8        (k)  If any  person  who  is  liable  for  a  release  or
 9    substantial  threat  of  release  of a hazardous substance or
10    pesticide fails without sufficient cause to  provide  removal
11    or  remedial  action  upon or in accordance with a notice and
12    request by the Agency or upon or in accordance with any order
13    of the Board or any court, such person may be liable  to  the
14    State  for  punitive  damages in an amount at least equal to,
15    and not more than 3 times, the amount of any  costs  incurred
16    by  the State of Illinois as a result of such failure to take
17    such  removal  or  remedial  action.   The  punitive  damages
18    imposed by the Board  shall  be  in  addition  to  any  costs
19    recovered  from  such  person pursuant to this Section and in
20    addition to any other penalty or relief provided by this  Act
21    or any other law.
22        Any  monies  received  by  the  State  pursuant  to  this
23    subsection  (k)  shall  be  deposited  in the Hazardous Waste
24    Fund.
25        (l)  Beginning January 1, 1988, the Agency shall annually
26    collect a $250 fee for  each  Special  Waste  Hauling  Permit
27    Application  and, in addition, shall collect a fee of $20 for
28    each waste hauling vehicle identified in  the  annual  permit
29    application and for each vehicle which is added to the permit
30    during  the  annual  period.  The Agency shall deposit 85% of
31    such fees  collected  under  this  subsection  in  the  State
32    Treasury  to the credit of the Hazardous Waste Research Fund;
33    and shall deposit the remaining 15% of such fees collected in
34    the  State  Treasury  to  the  credit  of  the  Environmental
 
SB222 Engrossed             -35-     LRB093 08816 AMC 09048 b
 1    Protection Permit and Inspection Fund.  The majority of  such
 2    receipts  which are deposited in the Hazardous Waste Research
 3    Fund pursuant  to  this  subsection  shall  be  used  by  the
 4    Department  of  Natural Resources for activities which relate
 5    to the protection of underground waters. Persons  engaged  in
 6    the  offsite transportation of hazardous waste by highway and
 7    participating in the Uniform Program under  subsection  (l-5)
 8    are  not  required  to  file  a  Special Waste Hauling Permit
 9    Application.
10        (l-5) (1)  As used in this subsection:
11             "Base  state"  means  the  state   selected   by   a
12        transporter according to the procedures established under
13        the Uniform Program.
14             "Base  state  agreement"  means an agreement between
15        participating  states  electing  to  register  or  permit
16        transporters.
17             "Participating state"  means  a  state  electing  to
18        participate  in  the  Uniform  Program by entering into a
19        base state agreement.
20             "Transporter" means a person engaged in the  offsite
21        transportation of hazardous waste by highway.
22             "Uniform application" means the uniform registration
23        and  permit application form prescribed under the Uniform
24        Program.
25             "Uniform Program" means the Uniform State  Hazardous
26        Materials  Transportation Registration and Permit Program
27        established in the report submitted and amended  pursuant
28        to  49  U.S.C.  Section  5119(b),  as  implemented by the
29        Agency under this subsection.
30             "Vehicle" means any  self-propelled  motor  vehicle,
31        except  a  truck  tractor  without a trailer, designed or
32        used for the transportation of hazardous waste subject to
33        the hazardous waste manifesting requirements of 40 U.S.C.
34        Section 6923(a)(3).
 
SB222 Engrossed             -36-     LRB093 08816 AMC 09048 b
 1             (2)  Beginning  July  1,  1998,  the  Agency   shall
 2        implement   the   Uniform   State   Hazardous   Materials
 3        Transportation  Registration  and  Permit Program. On and
 4        after that date, no person shall engage  in  the  offsite
 5        transportation  of  hazardous  waste  by  highway without
 6        registering and obtaining  a  permit  under  the  Uniform
 7        Program.  A  transporter  with  its  principal  place  of
 8        business  in  Illinois  shall  register with and obtain a
 9        permit from the Agency.  A  transporter  that  designates
10        another participating state in the Uniform Program as its
11        base  state  shall  likewise  register  with and obtain a
12        permit from  that  state  before  transporting  hazardous
13        waste in Illinois.
14             (3)  Beginning   July  1,  1998,  the  Agency  shall
15        annually collect no more than a $250 processing and audit
16        fee from each transporter  of  hazardous  waste  who  has
17        filed  a uniform application and, in addition, the Agency
18        shall   annually   collect   an    apportioned    vehicle
19        registration  fee  of  $20. The amount of the apportioned
20        vehicle registration fee shall be  calculated  consistent
21        with   the   procedures  established  under  the  Uniform
22        Program.
23             All  moneys  received  by  the   Agency   from   the
24        collection  of fees pursuant to the Uniform Program shall
25        be deposited into the Hazardous Waste Transporter account
26        hereby created within the Environmental Protection Permit
27        and Inspection Fund.   Moneys remaining in the account at
28        the close of the fiscal  year  shall  not  lapse  to  the
29        General  Revenue  Fund.   The State Treasurer may receive
30        money or other assets from any source  for  deposit  into
31        the  account.   The  Agency  may  expend  moneys from the
32        account, upon appropriation, for  the  implementation  of
33        the Uniform Program, including the costs to the Agency of
34        fee  collection  and  administration.  In addition, funds
 
SB222 Engrossed             -37-     LRB093 08816 AMC 09048 b
 1        not  expended  for  the  implementation  of  the  Uniform
 2        Program  may  be  utilized  for  emergency  response  and
 3        cleanup   activities   related   to    hazardous    waste
 4        transportation that are initiated by the Agency.
 5             Whenever   the   amount   of   the  Hazardous  Waste
 6    Transporter account  exceeds  by  115%  the  amount  annually
 7    appropriated by the General Assembly, the Agency shall credit
 8    participating  transporters  an amount, proportionately based
 9    on the amount of the vehicle fee paid, equal to the excess in
10    the account, and shall  determine  the  need  to  reduce  the
11    amount  of  the  fee  charged  transporters in the subsequent
12    fiscal year by the amount of the credit.
13             (4) (A)  The Agency may propose and the Board  shall
14        adopt  rules  as  necessary  to implement and enforce the
15        Uniform Program.  The Agency is authorized to enter  into
16        agreements with other agencies of this State as necessary
17        to  carry  out administrative functions or enforcement of
18        the Uniform Program.
19             (B)  The Agency shall recognize  a  Uniform  Program
20        registration as valid for one year from the date a notice
21        of  registration form is issued and a permit as valid for
22        3 years from the date issued or until a transporter fails
23        to renew its registration, whichever occurs first.
24             (C)  The Agency may inspect  or  examine  any  motor
25        vehicle  or facility operated by a transporter, including
26        papers, books, records, documents, or other materials  to
27        determine  if a transporter is complying with the Uniform
28        Program.  The Agency may also conduct investigations  and
29        audits  as  necessary  to  determine  if a transporter is
30        entitled to a permit or to make suspension or  revocation
31        determinations  consistent  with  the  standards  of  the
32        Uniform Program.
33             (5)  The  Agency  may  enter  into  agreements  with
34        federal   agencies,   national   repositories,  or  other
 
SB222 Engrossed             -38-     LRB093 08816 AMC 09048 b
 1        participating  states  as  necessary  to  allow  for  the
 2        reciprocal registration and  permitting  of  transporters
 3        pursuant  to  the  Uniform  Program.  The  agreements may
 4        include procedures for  determining  a  base  state,  the
 5        collection and distribution of registration fees, dispute
 6        resolution, the exchange of information for reporting and
 7        enforcement  purposes,  and other provisions necessary to
 8        fully implement,  administer,  and  enforce  the  Uniform
 9        Program.
10        (m)  (Blank).
11        (n)  (Blank).
12    (Source: P.A. 91-36, eff. 6-15-99; 92-574, eff. 6-26-02.)

13        (415 ILCS 5/28.6 new)
14        Sec.  28.6.  Expedited rulemaking to update incorporation
15    by reference.
16        (a)  Any person may file a proposal with the Board or the
17    Agency, whichever is appropriate, to update an  incorporation
18    by  reference  included in a Board or Agency rule.  The Board
19    or the Agency may also  make  such  a  proposal  on  its  own
20    initiative.
21        (b)  An  expedited  rulemaking to update an incorporation
22    by reference under this Section shall be for the sole purpose
23    of replacing a reference to an older or obsolete version of a
24    document with a reference to  the  current  version  of  that
25    document or its successor document.
26        (c)  An  expedited  rulemaking to update an incorporation
27    by reference under this Section shall comply with subsections
28    (a) and (c) of Section 5-75 of  the  Illinois  Administrative
29    Procedure  Act.  Except as otherwise provided in this Section
30    or the rules implementing this Section, Sections 5-35 through
31    5-50  of  the  Illinois  Administrative  Procedure  Act   and
32    Sections  27  and  28  of this Act do not apply to rulemaking
33    under this Section.
 
SB222 Engrossed             -39-     LRB093 08816 AMC 09048 b
 1        (d)  Within 30 days after receiving a proposal under this
 2    Section, the Board or the Agency shall cause  notice  of  the
 3    proposal  to  be  filed  with  the  Secretary  of  State  for
 4    publication  in  the  Illinois Register.  The date upon which
 5    the notice appears  in  the  Illinois  Register  commences  a
 6    public comment period of 45 days, during which any person may
 7    file  comments  on the proposal with the Board or the Agency,
 8    whichever is applicable.
 9        (e)  If no objection to the proposed amendment  is  filed
10    during the public comment period, then the proposed amendment
11    may  be  adopted  and  filed  with the Secretary of State for
12    publication in the Illinois Register as a final  rule.    The
13    amendment  becomes effective immediately upon filing with the
14    Secretary of State, unless a later effective date is required
15    by statute or is specified in the rulemaking.
16        (f)  If an objection to the proposed amendment  is  filed
17    during the public comment period, then the proposed amendment
18    shall  not  be  adopted pursuant to this Section.  Nothing in
19    this Section  precludes  the  adoption  of  a  change  to  an
20    incorporation  by  reference  through other lawful rulemaking
21    procedures.
22        (g)  The Board and the Agency may each  adopt  procedural
23    rules to implement this Section.

24        (415 ILCS 5/30) (from Ch. 111 1/2, par. 1030)
25        Sec.   30.   Investigations.    The  Agency  shall  cause
26    investigations to be made upon the request of  the  Board  or
27    upon  receipt  of information concerning an alleged violation
28    of this Act, or of any rule or regulation adopted under  this
29    Act,  promulgated thereunder, or of any permit granted by the
30    Agency or any term or condition of a any such permit, or  any
31    Board   order,   and   may   cause  to  be  made  such  other
32    investigations as it shall deem advisable.
33    (Source: P.A. 92-574, eff. 6-26-02.)
 
SB222 Engrossed             -40-     LRB093 08816 AMC 09048 b
 1        (415 ILCS 5/31) (from Ch. 111 1/2, par. 1031)
 2        Sec. 31. Notice; complaint; hearing.
 3        (a)(1)  Within 180 days of becoming aware of  an  alleged
 4        violation of the Act or any rule adopted under the Act or
 5        of  a  permit  granted  by the Agency or condition of the
 6        permit, the Agency shall issue and  serve,  by  certified
 7        mail, upon the person complained against a written notice
 8        informing that person that the Agency has evidence of the
 9        alleged  violation.   At  a  minimum,  the written notice
10        shall contain:
11                  (A)  notification  to  the  person   complained
12             against  of  the  requirement  to  submit  a written
13             response addressing the violations alleged  and  the
14             option  to meet with appropriate agency personnel to
15             resolve any alleged violations that  could  lead  to
16             the filing of a formal complaint;
17                  (B)  a  detailed  explanation  by the Agency of
18             the violations alleged;
19                  (C)  an  explanation  by  the  Agency  of   the
20             actions  that  the  Agency  believes may resolve the
21             alleged  violations,  including  an  estimate  of  a
22             reasonable time period  for  the  person  complained
23             against to complete the suggested resolution; and
24                  (D)  an  explanation  of  any alleged violation
25             that the Agency believes cannot be resolved  without
26             the  involvement  of  the  Office  of  the  Illinois
27             Attorney  General  or  the  State's  Attorney of the
28             county in which the alleged violation  occurred  and
29             the basis for the Agency's belief.
30             (2)  A  written  response  to the violations alleged
31        shall be submitted to  the  Agency,  by  certified  mail,
32        within  45  days  of  receipt  of  notice  by  the person
33        complained  against,  unless  the  Agency  agrees  to  an
34        extension.  The written response shall include:
 
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 1                  (A)  information in  rebuttal,  explanation  or
 2             justification of each alleged violation;
 3                  (B)  a proposed Compliance Commitment Agreement
 4             that  includes  specified  times  for achieving each
 5             commitment and which  may  consist  of  a  statement
 6             indicating   that   the  person  complained  against
 7             believes that compliance has been achieved; and
 8                  (C)  a request for a meeting  with  appropriate
 9             Agency  personnel  if  a  meeting  is desired by the
10             person complained against.
11             (3)  If  the  person  complained  against  fails  to
12        respond  in   accordance   with   the   requirements   of
13        subdivision  (2)  of  this subsection (a), the failure to
14        respond shall be considered a waiver of the  requirements
15        of  this subsection (a) and nothing in this Section shall
16        preclude  the  Agency   from   proceeding   pursuant   to
17        subsection (b) of this Section.
18             (4)  A meeting requested pursuant to subdivision (2)
19        of   this   subsection   (a)  shall  be  held  without  a
20        representative of the Office  of  the  Illinois  Attorney
21        General  or  the  State's Attorney of the county in which
22        the alleged violation occurred, within 60 days of receipt
23        of notice by the person complained  against,  unless  the
24        Agency  agrees  to  a  postponement.  At the meeting, the
25        Agency  shall  provide  an  opportunity  for  the  person
26        complained against to respond to each alleged  violation,
27        suggested  resolution,  and suggested implementation time
28        frame, and to suggest alternate resolutions.
29             (5)  If a meeting requested pursuant to  subdivision
30        (2) of this subsection (a) is held, the person complained
31        against  shall,  within  21 days following the meeting or
32        within an extended  time  period  as  agreed  to  by  the
33        Agency,  submit by certified mail to the Agency a written
34        response to the alleged violations. The written  response
 
SB222 Engrossed             -42-     LRB093 08816 AMC 09048 b
 1        shall include:
 2                  (A)  additional    information   in   rebuttal,
 3             explanation  or  justification   of   each   alleged
 4             violation;
 5                  (B)  a proposed Compliance Commitment Agreement
 6             that  includes  specified  times  for achieving each
 7             commitment and which  may  consist  of  a  statement
 8             indicating   that   the  person  complained  against
 9             believes that compliance has been achieved; and
10                  (C)  a statement indicating  that,  should  the
11             person   complained  against  so  wish,  the  person
12             complained against chooses to rely upon the  initial
13             written  response  submitted pursuant to subdivision
14             (2) of this subsection (a).
15             (6)  If  the  person  complained  against  fails  to
16        respond  in   accordance   with   the   requirements   of
17        subdivision  (5)  of  this subsection (a), the failure to
18        respond shall be considered a waiver of the  requirements
19        of  this subsection (a) and nothing in this Section shall
20        preclude  the  Agency   from   proceeding   pursuant   to
21        subsection (b) of this Section.
22             (7)  Within  30  days  of  the Agency's receipt of a
23        written  response  submitted  by  the  person  complained
24        against pursuant to subdivision (2)  of  this  subsection
25        (a), if a meeting is not requested, or subdivision (5) of
26        this  subsection  (a),  if a meeting is held, or within a
27        later time period as agreed to  by  the  Agency  and  the
28        person  complained  against,  the  Agency shall issue and
29        serve, by certified  mail,  upon  the  person  complained
30        against  a  written  notice  informing  the person of its
31        acceptance, rejection, or proposed  modification  to  the
32        proposed  Compliance  Commitment  Agreement  as contained
33        within the written response.
34             (8)  Nothing in this subsection (a) is  intended  to
 
SB222 Engrossed             -43-     LRB093 08816 AMC 09048 b
 1        require  the  Agency  to enter into Compliance Commitment
 2        Agreements for any  alleged  violation  that  the  Agency
 3        believes  cannot  be  resolved without the involvement of
 4        the  Office  of  the  Attorney  General  or  the  State's
 5        Attorney of the county in  which  the  alleged  violation
 6        occurred,  for,  among  other purposes, the imposition of
 7        statutory penalties.
 8             (9)  The Agency's failure to respond  to  a  written
 9        response  submitted  pursuant  to subdivision (2) of this
10        subsection  (a),  if  a  meeting  is  not  requested,  or
11        subdivision (5) of this subsection (a), if a  meeting  is
12        held, within 30 days, or within the time period otherwise
13        agreed  to  in  writing  by  the  Agency  and  the person
14        complained against, shall be deemed an acceptance by  the
15        Agency  of  the  proposed Compliance Commitment Agreement
16        for the violations alleged in the written  notice  issued
17        under subdivision (1) of this subsection (a) as contained
18        within the written response.
19             (10)  If the person complained against complies with
20        the  terms  of a Compliance Commitment Agreement accepted
21        pursuant to this subsection (a),  the  Agency  shall  not
22        refer the alleged violations which are the subject of the
23        Compliance  Commitment  Agreement  to  the  Office of the
24        Illinois Attorney General or the State's Attorney of  the
25        county  in which the alleged violation occurred. However,
26        nothing in this subsection is intended  to  preclude  the
27        Agency  from  continuing  negotiations  with  the  person
28        complained  against  or  from  proceeding pursuant to the
29        provisions of subsection (b) of this Section for  alleged
30        violations  which  remain  the  subject  of  disagreement
31        between  the  Agency  and  the  person complained against
32        following  fulfillment  of  the  requirements   of   this
33        subsection (a).
34             (11)  Nothing  in this subsection (a) is intended to
 
SB222 Engrossed             -44-     LRB093 08816 AMC 09048 b
 1        preclude the person complained against from submitting to
 2        the Agency, by certified mail, at any time,  notification
 3        that  the person complained against consents to waiver of
 4        the requirements of  subsections  (a)  and  (b)  of  this
 5        Section.
 6        (b)  For  alleged  violations  that remain the subject of
 7    disagreement between the Agency  and  the  person  complained
 8    against   following   fulfillment   of  the  requirements  of
 9    subsection (a) of this Section, and as a precondition to  the
10    Agency's  referral  or  request to the Office of the Illinois
11    Attorney General or the State's Attorney  of  the  county  in
12    which the alleged violation occurred for legal representation
13    regarding an alleged violation that may be addressed pursuant
14    to  subsection  (c)  or  (d)  of  this Section or pursuant to
15    Section 42 of this Act, the Agency shall issue and serve,  by
16    certified  mail, upon the person complained against a written
17    notice informing that  person  that  the  Agency  intends  to
18    pursue  legal  action.    Such notice shall notify the person
19    complained against of the violations to be alleged and  offer
20    the  person  an  opportunity  to meet with appropriate Agency
21    personnel in an effort to resolve any alleged violations that
22    could lead to the filing of a formal complaint.  The  meeting
23    with Agency personnel shall be held within 30 days of receipt
24    of  notice served pursuant to this subsection upon the person
25    complained  against,  unless   the   Agency   agrees   to   a
26    postponement or the person notifies the Agency that he or she
27    will  not  appear at a meeting within the 30 day time period.
28    Nothing in this subsection is intended to preclude the Agency
29    from following the provisions of subsection  (c)  or  (d)  of
30    this  Section  or from requesting the legal representation of
31    the Office of the Illinois Attorney General  or  the  State's
32    Attorney  of  the  county  in  which  the  alleged violations
33    occurred for alleged violations which remain the  subject  of
34    disagreement  between  the  Agency  and the person complained
 
SB222 Engrossed             -45-     LRB093 08816 AMC 09048 b
 1    against  after  the  provisions  of   this   subsection   are
 2    fulfilled.
 3          (c)(1) For  alleged violations which remain the subject
 4        of  disagreement  between  the  Agency  and  the   person
 5        complained   against   following   waiver,   pursuant  to
 6        subdivision (10) of subsection (a) of  this  Section,  or
 7        fulfillment  of  the  requirements of subsections (a) and
 8        (b) of this Section, the Office of the Illinois  Attorney
 9        General  or  the  State's Attorney of the county in which
10        the alleged violation occurred shall issue and serve upon
11        the person complained against a written notice,  together
12        with   a   formal  complaint,  which  shall  specify  the
13        provision of the Act or the rule or regulation or  permit
14        or  term  or condition thereof under which such person is
15        said to be in violation, and a statement  of  the  manner
16        in,  and  the  extent  to  which  such  person is said to
17        violate the Act or such rule or regulation or  permit  or
18        term or condition thereof and shall require the person so
19        complained  against  to answer the charges of such formal
20        complaint at a hearing before the Board  at  a  time  not
21        less  than 21 days after the date of notice by the Board,
22        except as provided  in  Section  34  of  this  Act.  Such
23        complaint  shall  be accompanied by a notification to the
24        defendant that financing may be  available,  through  the
25        Illinois   Environmental  Facilities  Financing  Act,  to
26        correct such violation.  A copy of such  notice  of  such
27        hearings  shall  also  be  sent  to  any  person that has
28        complained to the Agency respecting the respondent within
29        the six months preceding the date of the  complaint,  and
30        to  any  person  in  the  county  in  which the offending
31        activity  occurred   that   has   requested   notice   of
32        enforcement  proceedings; 21 days notice of such hearings
33        shall  also  be  published  in  a  newspaper  of  general
34        circulation in such county.  The respondent  may  file  a
 
SB222 Engrossed             -46-     LRB093 08816 AMC 09048 b
 1        written  answer, and at such hearing the rules prescribed
 2        in Sections 32 and 33 of this Act shall  apply.   In  the
 3        case  of  actual  or  threatened  acts  outside  Illinois
 4        contributing  to  environmental  damage  in Illinois, the
 5        extraterritorial   service-of-process    provisions    of
 6        Sections  2-208  and 2-209 of the Code of Civil Procedure
 7        shall apply.
 8             With respect to  notices  served  pursuant  to  this
 9        subsection  (c)(1)  which  involve  hazardous material or
10        wastes in any manner, the Agency shall annually publish a
11        list of all such notices served.  The list shall  include
12        the date the investigation commenced, the date notice was
13        sent,  the  date  the matter was referred to the Attorney
14        General, if applicable, and the  current  status  of  the
15        matter.
16             (2)  Notwithstanding  the  provisions of subdivision
17        (1) of this subsection (c), whenever a complaint has been
18        filed on behalf of the Agency or by  the  People  of  the
19        State  of Illinois, the parties may file with the Board a
20        stipulation and proposal for settlement accompanied by  a
21        request  for  relief  from  the  requirement of a hearing
22        pursuant to subdivision (1). Unless  the  Board,  in  its
23        discretion,  concludes  that  a hearing will be held, the
24        Board shall cause notice of the stipulation, proposal and
25        request for relief to be published and sent in  the  same
26        manner as is required for hearing pursuant to subdivision
27        (1)  of  this  subsection.  The  notice  shall  include a
28        statement that any person may file a written  demand  for
29        hearing within 21 days after receiving the notice. If any
30        person  files  a  timely  written demand for hearing, the
31        Board shall deny the request for relief  from  a  hearing
32        and   shall   hold  a  hearing  in  accordance  with  the
33        provisions of subdivision (1).
34             (3)  Notwithstanding the provisions  of  subdivision
 
SB222 Engrossed             -47-     LRB093 08816 AMC 09048 b
 1        (1)  of  this subsection (c), if the Agency becomes aware
 2        of a violation of this Act arising from, or as  a  result
 3        of, voluntary pollution prevention activities, the Agency
 4        shall  not  proceed  with  the written notice required by
 5        subsection (a) of this Section unless:
 6                  (A)  the person fails to take corrective action
 7             or  eliminate  the  reported  violation   within   a
 8             reasonable time; or
 9                  (B)  the  Agency  believes  that  the violation
10             poses a  substantial  and  imminent  danger  to  the
11             public  health  or  welfare or the environment.  For
12             the purposes of  this  item  (B),  "substantial  and
13             imminent danger" means a danger with a likelihood of
14             serious or irreversible harm.
15             (d)(1)  Any   person  may  file  with  the  Board  a
16        complaint, meeting the requirements of subsection (c)  of
17        this Section, against any person allegedly violating this
18        Act,  any  rule or regulation adopted under this Act, any
19        permit or term or condition of a  permit,  or  any  Board
20        order. or any rule or regulation thereunder or any permit
21        or  term  or  condition  thereof.   The complainant shall
22        immediately serve a  copy  of  such  complaint  upon  the
23        person  or  persons  named  therein.   Unless  the  Board
24        determines   that   such   complaint  is  duplicative  or
25        frivolous, it shall schedule a hearing and serve  written
26        notice  thereof upon the person or persons named therein,
27        in accord with subsection (c) of this Section.
28             (2)  Whenever a complaint has been filed by a person
29        other than the Attorney General or the State's  Attorney,
30        the  parties  may  file  with the Board a stipulation and
31        proposal for settlement  accompanied  by  a  request  for
32        relief from the hearing requirement of subdivision (c)(1)
33        of  this  Section.   Unless the Board, in its discretion,
34        concludes that a hearing should be held,  no  hearing  on
 
SB222 Engrossed             -48-     LRB093 08816 AMC 09048 b
 1        the stipulation and proposal for settlement is required.
 2        (e)  In  hearings  before  the Board under this Title the
 3    burden shall be on the Agency or other  complainant  to  show
 4    either  that the respondent has caused or threatened to cause
 5    air or water pollution or that the respondent has violated or
 6    threatens to violate any provision of this Act or any rule or
 7    regulation of the  Board  or  permit  or  term  or  condition
 8    thereof.  If such proof has been made, the burden shall be on
 9    the  respondent  to  show  that  compliance  with the Board's
10    regulations  would  impose  an  arbitrary   or   unreasonable
11    hardship.
12        (f)  The  provisions  of  this Section shall not apply to
13    administrative citation actions commenced under Section  31.1
14    of this Act.
15    (Source: P.A. 92-574, eff. 6-26-02.)

16        (415 ILCS 5/33) (from Ch. 111 1/2, par. 1033)
17        Sec. 33. Board orders.
18        (a)  After  due  consideration  of  the  written and oral
19    statements,  the  testimony  and  arguments  that  shall   be
20    submitted  at  the  hearing, or upon default in appearance of
21    the respondent on return day specified  in  the  notice,  the
22    Board  shall  issue  and enter such final order, or make such
23    final determination, as it shall deem appropriate  under  the
24    circumstances.   It  shall  not  be  a defense to findings of
25    violations of  the  provisions  of  this  Act,  any  rule  or
26    regulation  adopted  under  this  Act,  any permit or term or
27    condition of a permit, or any Board order, the Act  or  Board
28    regulations  or  a  bar  to the assessment of civil penalties
29    that the person has come into compliance  subsequent  to  the
30    violation,   except  where  such  action  is  barred  by  any
31    applicable State or federal statute of  limitation.   In  all
32    such  matters  the  Board  shall  file  and publish a written
33    opinion  stating  the  facts  and  reasons  leading  to   its
 
SB222 Engrossed             -49-     LRB093 08816 AMC 09048 b
 1    decision.   The Board shall immediately notify the respondent
 2    of such order in writing by registered mail.
 3        (b)  Such order may include  a  direction  to  cease  and
 4    desist  from  violations  of this Act, any rule or regulation
 5    adopted under this Act, any permit or term or condition of  a
 6    permit,  or  any  Board order the Act or of the Board's rules
 7    and regulations any permit  or  term  or  condition  thereof,
 8    and/or  the  imposition  by  the  Board of civil penalties in
 9    accord with Section 42 of  this  Act.   The  Board  may  also
10    revoke  the permit as a penalty for violation.  If such order
11    includes  a  reasonable  delay  during  which  to  correct  a
12    violation, the Board may require the  posting  of  sufficient
13    performance  bond  or other security to assure the correction
14    of such violation within the time prescribed.
15        (c)  In making its orders and determinations,  the  Board
16    shall take into consideration all the facts and circumstances
17    bearing  upon the reasonableness of the emissions, discharges
18    or deposits involved including, but not limited to:
19             (i)  the character  and  degree  of  injury  to,  or
20        interference  with  the protection of the health, general
21        welfare and physical property of the people;
22             (ii)  the social and economic value of the pollution
23        source;
24             (iii)  the  suitability  or  unsuitability  of   the
25        pollution  source  to  the  area  in which it is located,
26        including the question of priority  of  location  in  the
27        area involved;
28             (iv)  the   technical  practicability  and  economic
29        reasonableness of reducing or eliminating the  emissions,
30        discharges  or  deposits  resulting  from  such pollution
31        source; and
32             (v)  any subsequent compliance.
33        Whenever a proceeding before the  Board  may  affect  the
34    right  of  the public individually or collectively to the use
 
SB222 Engrossed             -50-     LRB093 08816 AMC 09048 b
 1    of  community  sewer  or  water  facilities  provided  by   a
 2    municipally  owned  or  publicly regulated company, the Board
 3    shall at least 30 days prior to the  scheduled  date  of  the
 4    first  hearing  in  such proceeding, give notice of the date,
 5    time,  place,  and  purpose  of  such   hearing   by   public
 6    advertisement  in  a  newspaper of general circulation in the
 7    area of the State concerned. The Board shall conduct  a  full
 8    and  complete  hearing  into  the  social and economic impact
 9    which would result from restriction or denial of the right to
10    use  such  facilities  and  allow  all  persons  claiming  an
11    interest to intervene as parties and present evidence of such
12    social and economic impact.
13        (d)  All orders issued and entered by the Board  pursuant
14    to this Section shall be enforceable by injunction, mandamus,
15    or other appropriate remedy, in accordance with Section 42 of
16    this Act.
17    (Source: P.A. 85-1041; 86-1363.)

18        (415 ILCS 5/35) (from Ch. 111 1/2, par. 1035)
19        Sec.  35.   Variances; general provisions.  To the extent
20    consistent with applicable provisions of  the  Federal  Water
21    Pollution  Control  Act,  as  now  or  hereafter amended, the
22    Federal Safe Drinking Water Act  (P.L.  93-523),  as  now  or
23    hereafter amended, the Clean Air Act as amended in 1977 (P.L.
24    95-95),  and  regulations pursuant thereto, and to the extent
25    consistent with applicable provisions of the Federal Resource
26    Conservation and Recovery Act  of  1976  (P.L.  94-580),  and
27    regulations pursuant thereto:,
28        (a)  The  Board may grant individual variances beyond the
29    limitations prescribed in this Act,  whenever  it  is  found,
30    upon presentation of adequate proof, that compliance with any
31    rule  or  regulation, requirement or order of the Board would
32    impose an arbitrary or unreasonable hardship.   However,  the
33    Board   is   not  required  to  find  that  an  arbitrary  or
 
SB222 Engrossed             -51-     LRB093 08816 AMC 09048 b
 1    unreasonable  hardship   exists   exclusively   because   the
 2    regulatory   standard  is  under  review  and  the  costs  of
 3    compliance are  substantial  and  certain.   In  granting  or
 4    denying a variance the Board shall file and publish a written
 5    opinion   stating  the  facts  and  reasons  leading  to  its
 6    decision.
 7        (b)  The Agency Board shall grant  provisional  variances
 8    whenever  it  is  found, upon presentation of adequate proof,
 9    only upon notification from the Agency that compliance  on  a
10    short  term basis with any rule or regulation, requirement or
11    order of the Board, or with  any  permit  requirement,  would
12    impose   an   arbitrary   or   unreasonable   hardship.  Such
13    provisional variances shall be issued within 2  working  days
14    of notification from the Agency.
15    (Source: P.A. 86-671.)

16        (415 ILCS 5/36) (from Ch. 111 1/2, par. 1036)
17        Sec. 36. Variances and provisional variances.
18        (a)  In  granting  a  variance  the Board may impose such
19    conditions as the policies of this Act may require.   If  the
20    hardship  complained  of  consists  solely  of the need for a
21    reasonable delay in which to correct a violation of this  Act
22    or  of  the  Board regulations, the Board shall condition the
23    grant  of  such  variance  upon  the  posting  of  sufficient
24    performance bond or other security to assure  the  completion
25    of the work covered by the variance.  The Board shall have no
26    authority  to  delegate  to  the Agency its powers to require
27    such  performance  bond.  The   original   amount   of   such
28    performance  bond shall not exceed the reasonable cost of the
29    work to be completed pursuant to the variance. The obligation
30    under such bond shall at no time exceed the  reasonable  cost
31    of work remaining pursuant to the variance.
32        (b)  Except  as  provided  by Section 38 of this Act, any
33    variance granted pursuant to the provisions of  this  Section
 
SB222 Engrossed             -52-     LRB093 08816 AMC 09048 b
 1    shall  be granted for such period of time, not exceeding five
 2    years, as shall be specified by the Board at the time of  the
 3    grant  of  such  variance,  and  upon  the condition that the
 4    person who receives such variance shall  make  such  periodic
 5    progress  reports  as the Board shall specify.  Such variance
 6    may be extended from year to year by  affirmative  action  of
 7    the Board, but only if satisfactory progress has been shown.
 8        (c)  Any provisional variance granted by the Agency Board
 9    pursuant  to  subsection  (b)  of  Section  35 shall be for a
10    period of time not to exceed 45 days.  A provisional variance
11    may be extended Upon receipt of  a  recommendation  from  the
12    Agency  to  extend this time period, the Board shall grant up
13    to an additional 45 days by written decision of  the  Agency.
14    The provisional variances granted to any one person shall not
15    exceed a total of 90 days during any calendar year.
16    (Source: P.A. 81-1442.)

17        (415 ILCS 5/37) (from Ch. 111 1/2, par. 1037)
18        Sec. 37. Variances; procedures.
19        (a)  Any person seeking a variance pursuant to subsection
20    (a) of Section 35 shall  do  so  by  filing  a  petition  for
21    variance  with  the  Board and the Agency.  Any person filing
22    such a petition shall pay a filing  fee.   The  Agency  shall
23    promptly  give  written notice of such petition to any person
24    in the county in which the installation or property for which
25    variance is sought is located who has  in  writing  requested
26    notice  of  variance  petitions, the State's attorney of such
27    county, the Chairman of the County Board of such county,  and
28    to  each  member of the General Assembly from the legislative
29    district in which that installation or property  is  located,
30    and  shall  publish  a  single  notice  of such petition in a
31    newspaper of general circulation in such county.  The notices
32    required by this Section shall include  the  street  address,
33    and  if there is no street address then the legal description
 
SB222 Engrossed             -53-     LRB093 08816 AMC 09048 b
 1    or the location with reference to any  well  known  landmark,
 2    highway, road, thoroughfare or intersection.
 3        The  Agency  shall promptly investigate such petition and
 4    consider the views of persons who might be adversely affected
 5    by  the  grant  of  a  variance.  The  Agency  shall  make  a
 6    recommendation to the Board as  to  the  disposition  of  the
 7    petition.   If the Board, in its discretion, concludes that a
 8    hearing would be advisable, or if the  Agency  or  any  other
 9    person  files  a  written  objection  to  the  grant  of such
10    variance within 21 days, together with a written request  for
11    hearing,  then  a  hearing  shall  be  held,  under the rules
12    prescribed in Sections 32 and 33 (a) of  this  Act,  and  the
13    burden of proof shall be on the petitioner.
14        (b)  Any  person  seeking a provisional variance pursuant
15    to subsection (b) of Section 35 shall make a request  to  the
16    Agency.   The  Agency shall promptly investigate and consider
17    the merits of the request.  The Agency may notify  the  Board
18    of  its  recommendation.    If the Agency fails to take final
19    action within 30 days after receipt  of  the  request  for  a
20    provisional  variance,  or  if the Agency denies the request,
21    the person may initiate a proceeding  with  the  Board  under
22    subsection (a) of Section 35.
23        If  the Agency grants a  provisional variance, the Agency
24    must promptly file a copy of its written  decision  with  the
25    Board,  and  the Board shall give prompt notice of its action
26    to the public by issuing a press release for distribution  to
27    newspapers  of  general circulation in the county.  The Board
28    must maintain for public inspection copies of all provisional
29    variances filed with it by the Agency.
30    (Source: P.A. 87-914; 88-474.)

31        (415 ILCS 5/42) (from Ch. 111 1/2, par. 1042)
32        Sec. 42. Civil penalties.
33        (a)  Except as provided in this Section, any person  that
 
SB222 Engrossed             -54-     LRB093 08816 AMC 09048 b
 1    violates  any provision of this Act or any regulation adopted
 2    by the Board, or any permit or term or condition thereof,  or
 3    that  violates  any  determination  or  order  of  the  Board
 4    pursuant  to this Act, shall be liable for to a civil penalty
 5    of not to exceed $50,000 for the violation and an  additional
 6    civil  penalty  of  not to exceed $10,000 for each day during
 7    which the violation continues; such penalties may, upon order
 8    of the Board or a court of competent  jurisdiction,  be  made
 9    payable  to  the  Environmental  Protection Trust Fund, to be
10    used in accordance with the provisions of  the  Environmental
11    Protection Trust Fund Act.
12        (b)  Notwithstanding  the provisions of subsection (a) of
13    this Section:
14             (1)  Any person that violates Section 12(f) of  this
15        Act  or any NPDES permit or term or condition thereof, or
16        any filing requirement, regulation or order  relating  to
17        the  NPDES  permit  program,  shall  be liable to a civil
18        penalty of not to exceed $10,000 per day of violation.
19             (2)  Any person that violates Section 12(g) of  this
20        Act  or  any  UIC permit or term or condition thereof, or
21        any filing requirement, regulation or order  relating  to
22        the  State  UIC  program  for  all wells, except Class II
23        wells as defined by the Board under this  Act,  shall  be
24        liable to a civil penalty not to exceed $2,500 per day of
25        violation; provided, however, that any person who commits
26        such  violations  relating  to  the State UIC program for
27        Class II wells, as defined by the Board under  this  Act,
28        shall  be  liable  to  a  civil  penalty of not to exceed
29        $10,000 for the violation and an additional civil penalty
30        of not to exceed $1,000 for each  day  during  which  the
31        violation continues.
32             (3)  Any person that violates Sections 21(f), 21(g),
33        21(h) or 21(i) of this Act, or any RCRA permit or term or
34        condition  thereof, or any filing requirement, regulation
 
SB222 Engrossed             -55-     LRB093 08816 AMC 09048 b
 1        or order relating to the State  RCRA  program,  shall  be
 2        liable  to  a  civil penalty of not to exceed $25,000 per
 3        day of violation.
 4             (4)  In  an  administrative  citation  action  under
 5        Section 31.1 of  this  Act,  any  person  found  to  have
 6        violated any provision of subsection (o) of Section 21 of
 7        this  Act  shall  pay  a  civil  penalty of $500 for each
 8        violation of each such provision, plus any hearing  costs
 9        incurred  by  the  Board  and the Agency.  Such penalties
10        shall be made payable  to  the  Environmental  Protection
11        Trust  Fund, to be used in accordance with the provisions
12        of the Environmental Protection Trust  Fund  Act;  except
13        that   if   a   unit   of  local  government  issued  the
14        administrative citation, 50% of the civil  penalty  shall
15        be payable to the unit of local government.
16             (4-5)  In  an  administrative  citation action under
17        Section 31.1 of  this  Act,  any  person  found  to  have
18        violated any provision of subsection (p) of Section 21 of
19        this  Act  shall  pay  a civil penalty of $1,500 for each
20        violation of each such provision, plus any hearing  costs
21        incurred  by  the  Board  and the Agency, except that the
22        civil penalty amount shall be a first offense and  $3,000
23        for  each violation of any provision of subsection (p) of
24        Section 21 that is the person's a  second  or  subsequent
25        adjudicated violation of that provision offense, plus any
26        hearing  costs incurred by the Board and the Agency.  The
27        penalties  shall  be  deposited  into  the  Environmental
28        Protection Trust Fund, to be used in accordance with  the
29        provisions  of  the  Environmental  Protection Trust Fund
30        Act; except that if a unit of local government issued the
31        administrative citation, 50% of the civil  penalty  shall
32        be payable to the unit of local government.
33             (5)  Any person who violates subsection 6 of Section
34        39.5  of  this  Act  or  any  CAAPP  permit,  or  term or
 
SB222 Engrossed             -56-     LRB093 08816 AMC 09048 b
 1        condition thereof, or any fee or filing  requirement,  or
 2        any  duty  to  allow  or  carry  out inspection, entry or
 3        monitoring  activities,  or  any  regulation   or   order
 4        relating to the CAAPP shall be liable for a civil penalty
 5        not to exceed $10,000 per day of violation.
 6        (b.5)  In  lieu of the penalties set forth in subsections
 7    (a) and (b) of this Section, any person who fails to file, in
 8    a timely manner, toxic chemical release forms with the Agency
 9    pursuant to Section 25b-2 of this Act shall be liable  for  a
10    civil  penalty  of  $100  per  day for each day the forms are
11    late, not to exceed a maximum total penalty of $6,000.   This
12    daily  penalty  shall  begin accruing on the thirty-first day
13    after the date that the person receives  the  warning  notice
14    issued  by  the Agency pursuant to Section 25b-6 of this Act;
15    and the penalty shall  be  paid  to  the  Agency.  The  daily
16    accrual  of  penalties  shall  cease  as  of January 1 of the
17    following  year.  All  penalties  collected  by  the   Agency
18    pursuant  to  this  subsection  shall  be  deposited into the
19    Environmental Protection Permit and Inspection Fund.
20        (c)  Any person that  violates  this  Act,  any  rule  or
21    regulation  adopted  under  this  Act,  any permit or term or
22    condition of a permit, or any Board  order  or  an  order  or
23    other  determination  of  the Board under this Act and causes
24    the death of fish or aquatic life shall, in addition  to  the
25    other penalties provided by this Act, be liable to pay to the
26    State  an additional sum for the reasonable value of the fish
27    or aquatic life destroyed.  Any money so recovered  shall  be
28    placed in the Wildlife and Fish Fund in the State Treasury.
29        (d)  The  penalties  provided  for in this Section may be
30    recovered in a civil action.
31        (e)  The State's Attorney of  the  county  in  which  the
32    violation  occurred,  or  the  Attorney  General, may, at the
33    request of the Agency or on his own motion, institute a civil
34    action for an injunction to restrain violations of this  Act,
 
SB222 Engrossed             -57-     LRB093 08816 AMC 09048 b
 1    any  rule or regulation adopted under this Act, any permit or
 2    term or condition of a permit, or any Board order.
 3        (f)  The State's Attorney of  the  county  in  which  the
 4    violation occurred, or the Attorney General, shall bring such
 5    actions  in  the name of the people of the State of Illinois.
 6    Without limiting any other authority which may exist for  the
 7    awarding  of  attorney's fees and costs, the Board or a court
 8    of competent jurisdiction  may  award  costs  and  reasonable
 9    attorney's  fees,  including  the  reasonable costs of expert
10    witnesses and consultants, to the  State's  Attorney  or  the
11    Attorney  General  in a case where he has prevailed against a
12    person who  has  committed  a  wilful,  knowing  or  repeated
13    violation  of  this Act, any rule or regulation adopted under
14    this Act, any permit or term or condition of a permit, or any
15    Board order the Act.
16        Any funds collected under this subsection  (f)  in  which
17    the  Attorney General has prevailed shall be deposited in the
18    Hazardous Waste Fund created in Section  22.2  of  this  Act.
19    Any  funds  collected  under  this  subsection (f) in which a
20    State's Attorney has  prevailed  shall  be  retained  by  the
21    county in which he serves.
22        (g)  All  final  orders imposing civil penalties pursuant
23    to this Section shall prescribe the time for payment of  such
24    penalties.   If  any such penalty is not paid within the time
25    prescribed, interest on such penalty at the rate set forth in
26    subsection (a) of Section 1003 of  the  Illinois  Income  Tax
27    Act,  shall  be  paid for the period from the date payment is
28    due until the date payment is received.  However, if the time
29    for payment is stayed  during  the  pendency  of  an  appeal,
30    interest shall not accrue during such stay.
31        (h)  In  determining  the appropriate civil penalty to be
32    imposed  under subdivisions  (a), (b)(1), (b)(2),  (b)(3), or
33    (b)(5) of this Section, the Board is authorized  to  consider
34    any  matters  of  record  in  mitigation  or  aggravation  of
 
SB222 Engrossed             -58-     LRB093 08816 AMC 09048 b
 1    penalty, including but not limited to the following factors:
 2             (1)  the duration and gravity of the violation;
 3             (2)  the presence or absence of due diligence on the
 4        part  of  the  violator  in  attempting  to  comply  with
 5        requirements of this Act and regulations thereunder or to
 6        secure relief therefrom as provided by this Act;
 7             (3)  any  economic  benefits accrued by the violator
 8        because of delay in compliance with requirements;
 9             (4)  the amount of monetary penalty which will serve
10        to deter  further  violations  by  the  violator  and  to
11        otherwise aid in enhancing voluntary compliance with this
12        Act  by  the violator and other persons similarly subject
13        to the Act; and
14             (5)  the number, proximity in time, and  gravity  of
15        previously  adjudicated  violations  of  this  Act by the
16        violator.
17    (Source: P.A. 90-773, eff. 8-14-98; 91-82, eff. 1-1-00.)

18        (415 ILCS 5/45) (from Ch. 111 1/2, par. 1045)
19        Sec. 45. Injunctive and other relief.
20        (a)  No  existing  civil  or  criminal  remedy  for   any
21    wrongful  action  shall  be excluded or impaired by this Act.
22    Nothing in this Act shall be construed to limit or  supersede
23    the provisions of the Illinois Oil and Gas Act and the powers
24    therein  granted  to prevent the intrusion of water into oil,
25    gas or coal strata and to  prevent  the  pollution  of  fresh
26    water supplies by oil, gas or salt water or oil field wastes,
27    except  that  water  quality  standards  as  set forth by the
28    Pollution Control Board apply to and are effective within the
29    areas covered by  and  affected  by  permits  issued  by  the
30    Department  of Natural Resources.  However, if the Department
31    of Natural Resources fails to act upon any complaint within a
32    period  of  10  working  days  following  the  receipt  of  a
33    complaint by the  Department,  the  Environmental  Protection
 
SB222 Engrossed             -59-     LRB093 08816 AMC 09048 b
 1    Agency may proceed under the provisions of this Act.
 2        (b)  Any person adversely affected in fact by a violation
 3    of  this  Act, any rule or regulation adopted under this Act,
 4    or any permit or term or condition of a permit, or any  Board
 5    order  may  sue for injunctive relief against such violation.
 6    However, except as provided in subsections subsection (d) and
 7    (e), no action shall be brought under this Section  until  30
 8    days  after the plaintiff has been denied relief by the Board
 9    in a proceeding brought under subdivision  (d)(1)  subsection
10    (d) of Section 31 of this Act.  The prevailing party shall be
11    awarded costs and reasonable attorneys' fees.
12        (c)  Nothing  in Section 39.4 of this Act shall limit the
13    authority of the Agency to proceed with enforcement under the
14    provisions of this Act for violations of terms and conditions
15    of an endorsed  agrichemical  facility  permit,  an  endorsed
16    lawncare  containment  permit,  or  this  Act  or regulations
17    hereunder caused or threatened by an agrichemical facility or
18    a lawncare wash water containment area, provided  that  prior
19    notice  is  given  to  the  Department  of  Agriculture which
20    provides  that  Department  an  opportunity  to  respond   as
21    appropriate.
22        (d)  If the State brings an action under this Act against
23    a  person  with  an  interest in real property upon which the
24    person is alleged  to  have  allowed  open  dumping  or  open
25    burning  by  a  third  party  in violation of this Act, which
26    action seeks to compel the defendant to remove the  waste  or
27    otherwise clean up the site, the defendant may, in the manner
28    provided  by  law  for  third-party complaints, bring in as a
29    third-party defendant a  person  who  with  actual  knowledge
30    caused  or  contributed  to  the illegal open dumping or open
31    burning, or who is or may be liable for all or  part  of  the
32    removal  and cleanup costs.  The court may include any of the
33    parties which it determines to have, with  actual  knowledge,
34    allowed, caused or contributed to the illegal open dumping or
 
SB222 Engrossed             -60-     LRB093 08816 AMC 09048 b
 1    open burning in any order that it may issue to compel removal
 2    of  the  waste and cleanup of the site, and may apportion the
 3    removal and cleanup costs among such  parties,  as  it  deems
 4    appropriate.  However,  a  person may not seek to recover any
 5    fines or civil penalties imposed upon him under this Act from
 6    a third-party defendant  in  an  action  brought  under  this
 7    subsection.
 8        (e)  A  final  order  issued  by  the  Board  pursuant to
 9    Section 33 of this Act may be enforced through a civil action
10    for injunctive or other relief instituted by a person who was
11    a party to the Board  enforcement  proceeding  in  which  the
12    Board issued the final order.
13    (Source: P.A. 91-357, eff. 7-29-99; 92-574, eff. 6-26-02.)

14                 ARTICLE II.  Non-IERRC provisions.

15        Section  25.   The State Finance Act is amended by adding
16    Section 5.595 as follows:

17        (30 ILCS 105/5.595 new)
18        Sec. 5.595.  The Oil Spill Response Fund.

19        Section 30.  The Environmental Protection Act is  amended
20    by adding Title VI-C as follows:

21        (415 ILCS 5/Tit. VI-C heading new)
22                   TITLE VI-C:  OIL SPILL RESPONSE

23        (415 ILCS 5/25c-1 new)
24        Sec. 25c-1.  Oil Spill Response Fund.
25        (a)  There is hereby created within the State treasury an
26    interest-bearing  special  fund  to be known as the Oil Spill
27    Response Fund.  There shall be deposited into  the  Fund  all
28    monies recovered as reimbursement for response costs incurred
 
SB222 Engrossed             -61-     LRB093 08816 AMC 09048 b
 1    by  the  Agency  from  parties  responsible  for  releases or
 2    threats of release of petroleum, monies provided to the State
 3    from the federal Oil Spill Liability  Trust  Fund,  and  such
 4    other  monies  as  may  be  received for this purpose through
 5    contributions, gifts, or supplemental environmental projects,
 6    pursuant to court  orders  or  decrees,  or  from  any  other
 7    source.
 8        (b)  Pursuant  to  appropriation,  all  monies in the Oil
 9    Spill Response Fund may be used by the Agency for all of  the
10    following purposes:
11             (1)  Responding to releases or threats of release of
12        petroleum that may constitute a substantial danger to the
13        environment or human health or welfare.
14             (2)  Contractual expenses and purchases of equipment
15        or  supplies  necessary  to  enable  prompt  response  to
16        releases  or  threats  of  release  of  petroleum  and to
17        provide effective mitigation of such releases or  threats
18        of release.
19             (3)  Costs  of  investigation  and assessment of the
20        source, nature, and extent of  a  release  or  threatened
21        release  of  petroleum  and  any  resulting  injuries  or
22        damages.
23             (4)  Costs associated with planning and training for
24        response to releases and threats of release of petroleum.
25             (5)  Costs  associated with preparing and submitting
26        claims of the Agency to the federal Oil  Spill  Liability
27        Trust Fund.
28        (c)  For  the  purposes  of  implementing  this  Section,
29    "petroleum"    means    crude    oil,    refined   petroleum,
30    intermediates, fractions or constituents of petroleum,  brine
31    or  salt  water  from oil production, oil sheens, hydrocarbon
32    vapors, and any other form of oil or petroleum.
33        (d)  In addition to any other authority provided by State
34    or federal law, the Agency shall be entitled to  recovery  of
 
SB222 Engrossed             -62-     LRB093 08816 AMC 09048 b
 1    costs  incurred  by it in response to releases and threats of
 2    release of petroleum from any persons who are responsible for
 3    causing, allowing, or threatening such releases.

 4        Section   35.     The    Response    Action    Contractor
 5    Indemnification  Act  is amended by changing Sections 4 and 5
 6    as follows:

 7        (415 ILCS 100/4) (from Ch. 111 1/2, par. 7204)
 8        Sec. 4.  (a)  In the  event  that  any  civil  proceeding
 9    arising  out of a State response action contract is commenced
10    against any response action contractor, the Attorney  General
11    shall,  upon  timely  and  appropriate  notice to him by such
12    contractor, appear on behalf of such  contractor  and  defend
13    the  action.   Any  such notice shall be in writing, shall be
14    mailed within 15 days  after  the  date  of  receipt  by  the
15    contractor  of  service  of  process, and shall authorize the
16    Attorney General to represent and defend  the  contractor  in
17    the  proceeding.   The  giving of this notice to the Attorney
18    General shall constitute an agreement by  the  contractor  to
19    cooperate  with  the  Attorney  General in his defense of the
20    action and a consent that the Attorney General shall  conduct
21    the  defense  as he deems advisable and in the best interests
22    of the contractor and the State, including settlement in  the
23    Attorney  General's  discretion.  In any such proceeding, the
24    State shall pay the court costs and  litigation  expenses  of
25    defending such action, to the extent approved by the Attorney
26    General as reasonable, as they are incurred.
27        In  the event that the Attorney General determines either
28    (1) that so appearing and defending a contractor involves  an
29    actual or potential conflict of interest, or (2) that the act
30    or  omission  which gave rise to the claim was not within the
31    scope  of  the  State  response  action  contract,   or   was
32    intentional,  willful  or  wanton  misconduct,  the  Attorney
 
SB222 Engrossed             -63-     LRB093 08816 AMC 09048 b
 1    General shall decline in writing to appear or defend or shall
 2    promptly  take appropriate action to withdraw as attorney for
 3    such  contractor.   Upon  receipt  of  such  declination   or
 4    withdrawal  by the Attorney General on the basis of an actual
 5    or potential conflict of interest, the contractor may  employ
 6    his  own  attorney  to  appear and defend, in which event the
 7    State shall pay  the  contractor's  court  costs,  litigation
 8    expenses  and  attorneys'  fees to the extent approved by the
 9    Attorney General as reasonable, as they are incurred.
10        (b)  In any civil  proceeding  arising  out  of  a  State
11    response  action  contract  in  which notice was given to the
12    Attorney General under subsection (a), if the court  or  jury
13    finds  that  the  act  or  omission  of  the  response action
14    contractor was within the scope of the State response  action
15    contract   and   was   not  intentional,  willful  or  wanton
16    misconduct, the court shall so state in  its  judgement,  and
17    the  State  shall  indemnify  the  contractor for any damages
18    awarded and court costs and attorneys' fees assessed as  part
19    of  the final and unreversed judgment.  In such event, if the
20    Attorney General  declined  to  appear  or  withdrew  on  the
21    grounds  that the act or omission was not within the scope of
22    the State  response  action  contract,  or  was  intentional,
23    willful  or  wanton  misconduct, the State shall also pay the
24    contractor's court costs, litigation expenses  and  attorneys
25    fees  to  the  extent  approved  by  the  Attorney General as
26    reasonable.
27        (c)  Unless the  Attorney  General  determines  that  the
28    conduct  or inaction which gave rise to the claim or cause of
29    action was not within the scope of the State response  action
30    contract,  or  was intentional, willful or wanton misconduct,
31    any case in which notice was given pursuant to subsection (a)
32    may be settled, in the Attorney General's discretion, and the
33    State shall indemnify the contractor for any  damages,  court
34    costs   and   attorneys'  fees  agreed  to  as  part  of  the
 
SB222 Engrossed             -64-     LRB093 08816 AMC 09048 b
 1    settlement.  If the  contractor  is  represented  by  private
 2    counsel,   any   settlement  which  obligates  the  State  to
 3    indemnify the contractor must be  approved  by  the  Attorney
 4    General and the court having jurisdiction.
 5        (d)  Court  costs and litigation expenses and other costs
 6    of providing a defense, including attorneys'  fees,  paid  or
 7    obligated    under   this   Section,   and   the   costs   of
 8    indemnification, including the payment of any final  judgment
 9    or  final  settlement  under  this  Section, shall be paid by
10    warrant from the Response  Contractors  Indemnification  Fund
11    pursuant to vouchers certified by the Attorney General.
12        (e)  Nothing  contained  or implied in this Section shall
13    operate, or be construed or applied, to deprive the State, or
14    any response action  contractor,  of  any  defense  otherwise
15    available.
16        (f)  Any  judgment subject to State indemnification under
17    this Section shall not be enforceable  against  the  response
18    action  contractor,  but  shall  be  paid by the State in the
19    following manner.  Upon receipt of a certified  copy  of  the
20    judgment,  the  Attorney General shall review it to determine
21    if the judgment  is  (1)  final,  unreversed  and  no  longer
22    subject  to  appeal, and (2) subject to indemnification under
23    this Section.  If he determines that it is, he shall submit a
24    voucher for the amount  of  the  judgment  and  any  interest
25    thereon  to  the  State  Comptroller, and the amount shall be
26    paid by warrant to the judgment creditor solely out of  funds
27    available  in  the Response Contractors Indemnification Fund.
28    If the balance in  such  Fund  is  insufficient  to  pay  any
29    properly  certified  voucher for a warrant drawn thereon, the
30    Comptroller shall transfer the necessary amount to  the  Fund
31    from  the  General Revenue Fund.  In no event will the amount
32    paid for a single  occurrence  surpass  $100,000  $2,000,000,
33    provided that this limitation shall not render any portion of
34    the   judgment   enforceable   against  the  response  action
 
SB222 Engrossed             -65-     LRB093 08816 AMC 09048 b
 1    contractor.
 2    (Source: P.A. 84-1445.)

 3        (415 ILCS 100/5) (from Ch. 111 1/2, par. 7205)
 4        Sec. 5.  Response Contractors Indemnification Fund.
 5        (a)  There is hereby  created  the  Response  Contractors
 6    Indemnification  Fund. The State Treasurer, ex officio, shall
 7    be custodian of the Fund, and the  Comptroller  shall  direct
 8    payments  from  the  Fund upon vouchers properly certified by
 9    the Attorney General  in  accordance  with  Section  4.   The
10    Treasurer shall credit interest on the Fund to the Fund.
11        (b)  Every  State  response action contract shall provide
12    that 5% of each payment to be made by  the  State  under  the
13    contract  shall  be  paid  by  the  State  directly  into the
14    Response Contractors Indemnification Fund rather than to  the
15    contractor,  except that when there is at least $100,000 more
16    than $2,000,000 in the Fund  at  the  beginning  of  a  State
17    fiscal  year,  State  response  action  contracts during that
18    fiscal year need not provide that 5%  of  each  payment  made
19    under  the  contract  be  paid  into  the  Fund.  When only a
20    portion of a contract  relates  to  a  remedial  or  response
21    action,   or   to   the  identification,  handling,  storage,
22    treatment or disposal of  a  pollutant,  the  contract  shall
23    provide that only that portion is subject to this subsection.
24        (c)  Within  30  days  after  the  effective date of this
25    amendatory  Act  of  1997,  the   Comptroller   shall   order
26    transferred  and the Treasurer shall transfer $1,200,000 from
27    the  Response  Contractors  Indemnification   Fund   to   the
28    Brownfields  Redevelopment Fund.  The Comptroller shall order
29    transferred and the Treasurer shall transfer $1,200,000  from
30    the   Response   Contractors   Indemnification  Fund  to  the
31    Brownfields Redevelopment Fund on the  first  day  of  fiscal
32    years 1999, 2000, 2001, 2002, and 2003, 2004, and 2005.
33        (d)  Within  30  days  after  the  effective date of this
 
SB222 Engrossed             -66-     LRB093 08816 AMC 09048 b
 1    amendatory Act of the 91st General Assembly, the  Comptroller
 2    shall  order  transferred  and  the  Treasurer shall transfer
 3    $2,000,000 from the Response Contractors Indemnification Fund
 4    to the Asbestos Abatement Fund.
 5        (e)  Within 30 days after  the  effective  date  of  this
 6    amendatory  Act of the 93rd General Assembly, the Comptroller
 7    shall order transferred and the Treasurer shall transfer  all
 8    monies in the Response Action Contractor Indemnification Fund
 9    in  excess  of  $100,000  from the Response Action Contractor
10    Indemnification Fund to the Brownfields Redevelopment Fund.
11    (Source: P.A. 91-704, eff. 7-1-00; 92-486, eff. 1-1-02.)

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