093_SB0222enr

 
SB222 Enrolled                       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  10.  The Environmental Protection Act is amended
 7    by changing Sections 4, 5, 22.2, 30, 31, 33, 35, 36, 37,  42,
 8    and 45 and adding Section 28.6 as follows:

 9        (415 ILCS 5/4) (from Ch. 111 1/2, par. 1004)
10        Sec.  4.  Environmental Protection Agency; establishment;
11    duties.
12        (a)  There is established in the Executive Branch of  the
13    State  Government  an agency to be known as the Environmental
14    Protection  Agency.   This  Agency   shall   be   under   the
15    supervision   and  direction  of  a  Director  who  shall  be
16    appointed by the Governor with the advice and consent of  the
17    Senate.   The  term of office of the Director shall expire on
18    the third Monday of January in odd numbered  years,  provided
19    that  he  or  she  shall  hold  office  until  a successor is
20    appointed and has qualified.  The Director shall  receive  an
21    annual  salary as set by the Governor from time to time or as
22    set by the Compensation Review Board, whichever  is  greater.
23    If  set by the Governor, the Director's annual salary may not
24    exceed 85% of the Governor's annual salary.  The Director, in
25    accord with the Personnel Code, shall employ and direct  such
26    personnel,  and  shall  provide for such laboratory and other
27    facilities, as may be necessary to carry out the purposes  of
28    this  Act.  In addition, the Director may by agreement secure
29    such services as he or she may deem necessary from any  other
30    department,  agency, or unit of the State Government, and may
 
SB222 Enrolled             -2-       LRB093 08816 AMC 09048 b
 1    employ  and  compensate  such   consultants   and   technical
 2    assistants as may be required.
 3        (b)  The  Agency  shall  have  the  duty  to  collect and
 4    disseminate such information, acquire  such  technical  data,
 5    and  conduct such experiments as may be required to carry out
 6    the purposes of this  Act,  including  ascertainment  of  the
 7    quantity and nature of discharges from any contaminant source
 8    and data on those sources, and to operate and arrange for the
 9    operation  of  devices  for  the  monitoring of environmental
10    quality.
11        (c)  The Agency shall have authority to conduct a program
12    of  continuing  surveillance  and  of  regular  or   periodic
13    inspection  of  actual  or  potential  contaminant  or  noise
14    sources,  of  public  water  supplies, and of refuse disposal
15    sites.
16        (d)  In accordance with constitutional  limitations,  the
17    Agency  shall have authority to enter at all reasonable times
18    upon any private or public property for the purpose of:
19             (1)  Inspecting  and  investigating   to   ascertain
20        possible  violations  of this Act, any rule or regulation
21        adopted under this Act, any permit or term  or  condition
22        of  a  permit,  or  any  Board  order;  or  the Act or of
23        regulations  thereunder,  or  of  permits  or  terms   or
24        conditions thereof; or
25             (2)  In  accordance with the provisions of this Act,
26        taking  whatever   preventive   or   corrective   action,
27        including  but not limited to removal or remedial action,
28        that is necessary or  appropriate  whenever  there  is  a
29        release  or  a  substantial  threat of a release of (A) a
30        hazardous substance or pesticide or (B) petroleum from an
31        underground storage tank.
32        (e)  The  Agency  shall  have  the  duty  to  investigate
33    violations of this Act, any rule or regulation adopted  under
34    this Act, any permit or term or condition of a permit, or any
 
SB222 Enrolled             -3-       LRB093 08816 AMC 09048 b
 1    Board  order; Act or of regulations adopted thereunder, or of
 2    permits  or   terms   or   conditions   thereof,   to   issue
 3    administrative  citations as provided in Section 31.1 of this
 4    Act;, and to take  such  summary  enforcement  action  as  is
 5    provided for by Section 34 of this Act.
 6        (f)  The  Agency  shall  appear  before  the Board in any
 7    hearing upon a petition for variance, the denial of a permit,
 8    or the validity or effect of a  rule  or  regulation  of  the
 9    Board,  and  shall  have  the  authority to appear before the
10    Board in any hearing under the Act.
11        (g)  The Agency shall have the  duty  to  administer,  in
12    accord   with   Title   X   of  this  Act,  such  permit  and
13    certification systems as may be established by this Act or by
14    regulations adopted thereunder.  The Agency  may  enter  into
15    written delegation agreements with any department, agency, or
16    unit of State or local government under which all or portions
17    of this duty may be delegated for public water supply storage
18    and   transport  systems,  sewage  collection  and  transport
19    systems, air  pollution  control  sources  with  uncontrolled
20    emissions  of  100  tons  per year or less and application of
21    algicides to waters of the State.  Such delegation agreements
22    will require that the work to be performed thereunder will be
23    in accordance with Agency criteria, subject to Agency review,
24    and shall include such financial and program auditing by  the
25    Agency as may be required.
26        (h)  The  Agency  shall  have  authority  to  require the
27    submission of complete  plans  and  specifications  from  any
28    applicant for a permit required by this Act or by regulations
29    thereunder,  and  to  require  the submission of such reports
30    regarding actual or potential violations  of  this  Act,  any
31    rule or regulation adopted under this Act, any permit or term
32    or  condition  of  a permit, or any Board order the Act or of
33    regulations thereunder, or of permits or terms or  conditions
34    thereof, as may be necessary for the purposes of this Act.
 
SB222 Enrolled             -4-       LRB093 08816 AMC 09048 b
 1        (i)  The    Agency   shall   have   authority   to   make
 2    recommendations to the Board for the adoption of  regulations
 3    under Title VII of the Act.
 4        (j)  The  Agency  shall  have  the  duty to represent the
 5    State of Illinois in any and all matters pertaining to plans,
 6    procedures, or negotiations for interstate compacts or  other
 7    governmental    arrangements    relating   to   environmental
 8    protection.
 9        (k)  The Agency  shall  have  the  authority  to  accept,
10    receive,  and  administer  on behalf of the State any grants,
11    gifts, loans, indirect cost reimbursements,  or  other  funds
12    made  available  to the State from any source for purposes of
13    this Act or for air or water pollution control, public  water
14    supply,  solid  waste  disposal,  noise  abatement,  or other
15    environmental protection activities,  surveys,  or  programs.
16    Any  federal  funds  received  by the Agency pursuant to this
17    subsection shall be deposited in a trust fund with the  State
18    Treasurer  and  held  and disbursed by him in accordance with
19    Treasurer as Custodian  of  Funds  Act,  provided  that  such
20    monies shall be used only for the purposes for which they are
21    contributed  and  any  balance remaining shall be returned to
22    the contributor.
23        The Agency is authorized to promulgate  such  regulations
24    and  enter  into  such contracts as it may deem necessary for
25    carrying out the provisions of this subsection.
26        (l)  The Agency is hereby designated as  water  pollution
27    agency  for  the  state for all purposes of the Federal Water
28    Pollution Control Act, as amended; as implementing agency for
29    the State for all purposes of the Safe  Drinking  Water  Act,
30    Public  Law  93-523,  as  now  or  hereafter  amended, except
31    Section 1425 of that Act; as air  pollution  agency  for  the
32    state  for  all purposes of the Clean Air Act of 1970, Public
33    Law 91-604, approved December 31, 1970, as  amended;  and  as
34    solid  waste  agency  for  the  state for all purposes of the
 
SB222 Enrolled             -5-       LRB093 08816 AMC 09048 b
 1    Solid Waste Disposal Act, Public Law 89-272, approved October
 2    20, 1965, and amended by the Resource Recovery Act  of  1970,
 3    Public Law 91-512, approved October 26, 1970, as amended, and
 4    amended  by  the  Resource  Conservation  and Recovery Act of
 5    1976, (P.L. 94-580) approved October 21, 1976, as amended; as
 6    noise control agency for the state for all  purposes  of  the
 7    Noise  Control  Act  of  1972,  Public  Law  92-574, approved
 8    October 27, 1972, as amended; and as implementing agency  for
 9    the State for all purposes of the Comprehensive Environmental
10    Response,  Compensation,  and  Liability  Act  of  1980 (P.L.
11    96-510), as  amended;  and  otherwise  as  pollution  control
12    agency for the State pursuant to federal laws integrated with
13    the foregoing laws, for financing purposes or otherwise.  The
14    Agency  is  hereby authorized to take all action necessary or
15    appropriate to secure to  the  State  the  benefits  of  such
16    federal  Acts, provided that the Agency shall transmit to the
17    United States without change any  standards  adopted  by  the
18    Pollution Control Board pursuant to Section 5(c) of this Act.
19    This  subsection  (l)  of Section 4 shall not be construed to
20    bar or  prohibit  the  Environmental  Protection  Trust  Fund
21    Commission  from  accepting, receiving, and  administering on
22    behalf of the State any grants, gifts, loans or  other  funds
23    for   which  the  Commission  is  eligible  pursuant  to  the
24    Environmental Protection  Trust  Fund  Act.   The  Agency  is
25    hereby  designated  as  the  State agency for all purposes of
26    administering the requirements of Section 313 of the  federal
27    Emergency Planning and Community Right-to-Know Act of 1986.
28        Any  municipality,  sanitary district, or other political
29    subdivision, or any Agency of the State or interstate Agency,
30    which makes  application  for  loans  or  grants  under  such
31    federal Acts shall notify the Agency of such application; the
32    Agency  may  participate  in  proceedings  under such federal
33    Acts.
34        (m)  The Agency shall  have  authority,  consistent  with
 
SB222 Enrolled             -6-       LRB093 08816 AMC 09048 b
 1    Section  5(c)  and  other  provisions  of  this  Act, and for
 2    purposes of Section 303(e) of  the  Federal  Water  Pollution
 3    Control  Act,  as  now  or  hereafter  amended,  to engage in
 4    planning processes and activities and  to  develop  plans  in
 5    cooperation  with  units  of local government, state agencies
 6    and officers, and other  appropriate  persons  in  connection
 7    with  the  jurisdiction  or duties of each such unit, agency,
 8    officer or person.  Public hearings  shall  be  held  on  the
 9    planning  process,  at which any person shall be permitted to
10    appear and  be  heard,  pursuant  to  procedural  regulations
11    promulgated by the Agency.
12        (n)  In  accordance  with  the  powers conferred upon the
13    Agency by Sections 10(g), 13(b), 19, 22(d)  and  25  of  this
14    Act, the Agency shall have authority to establish and enforce
15    minimum  standards for the operation of laboratories relating
16    to analyses and laboratory tests  for  air  pollution,  water
17    pollution,  noise emissions, contaminant discharges onto land
18    and  sanitary,  chemical,  and  mineral  quality   of   water
19    distributed  by  a public water supply.  The Agency may enter
20    into formal working  agreements  with  other  departments  or
21    agencies  of  state government under which all or portions of
22    this authority may be delegated to the cooperating department
23    or agency.
24        (o)  The  Agency  shall  have  the  authority  to   issue
25    certificates   of  competency  to  persons  and  laboratories
26    meeting the minimum standards established by  the  Agency  in
27    accordance  with  Section  4(n) of this Act and to promulgate
28    and enforce regulations relevant to the issuance and  use  of
29    such  certificates.  The Agency may enter into formal working
30    agreements  with  other  departments  or  agencies  of  state
31    government under which all or portions of this authority  may
32    be delegated to the cooperating department or agency.
33        (p)  Except as provided in Section 17.7, the Agency shall
34    have the duty to analyze samples as required from each public
 
SB222 Enrolled             -7-       LRB093 08816 AMC 09048 b
 1    water  supply  to  determine  compliance with the contaminant
 2    levels specified by the Pollution Control Board.  The maximum
 3    number of samples which  the  Agency  shall  be  required  to
 4    analyze for microbiological quality shall be 6 per month, but
 5    the  Agency  may, at its option, analyze a larger number each
 6    month  for  any  supply.   Results  of  sample  analyses  for
 7    additional  required  bacteriological   testing,   turbidity,
 8    residual chlorine and radionuclides are to be provided to the
 9    Agency  in  accordance  with  Section  19.   Owners  of water
10    supplies may enter into agreements with the Agency to provide
11    for reduced Agency participation in sample analyses.
12        (q)  The Agency  shall  have  the  authority  to  provide
13    notice  to  any  person who may be liable pursuant to Section
14    22.2(f) of this Act for a release or a substantial threat  of
15    a release of a hazardous substance or pesticide.  Such notice
16    shall   include   the   identified  response  action  and  an
17    opportunity for such person to perform the response action.
18        (r)  The  Agency  may  enter  into   written   delegation
19    agreements  with  any unit of local government under which it
20    may delegate all or portions of its inspecting, investigating
21    and enforcement functions.  Such delegation agreements  shall
22    require  that work performed thereunder be in accordance with
23    Agency   criteria   and    subject    to    Agency    review.
24    Notwithstanding  any  other provision of law to the contrary,
25    no unit of local government shall be liable  for  any  injury
26    resulting from the exercise of its authority pursuant to such
27    a  delegation  agreement  unless  the  injury  is proximately
28    caused by the willful and wanton negligence of  an  agent  or
29    employee  of  the unit of local government, and any policy of
30    insurance coverage issued to a unit of local  government  may
31    provide  for  the  denial  of liability and the nonpayment of
32    claims based upon  injuries  for  which  the  unit  of  local
33    government is not liable pursuant to this subsection (r).
34        (s)  The  Agency  shall  have  authority to take whatever
 
SB222 Enrolled             -8-       LRB093 08816 AMC 09048 b
 1    preventive or corrective action is necessary or  appropriate,
 2    including   but   not   limited   to  expenditure  of  monies
 3    appropriated from the Build Illinois Bond Fund and the  Build
 4    Illinois  Purposes  Fund  for  removal  or  remedial  action,
 5    whenever  any hazardous substance or pesticide is released or
 6    there is a substantial threat of  such  a  release  into  the
 7    environment.  The State, the Director, and any State employee
 8    shall be indemnified for any damages or injury arising out of
 9    or  resulting  from  any  action taken under this subsection.
10    The Director of the Agency is authorized to enter  into  such
11    contracts  and  agreements  as are necessary to carry out the
12    Agency's duties under this subsection.
13        (t)  The  Agency  shall  have  authority  to   distribute
14    grants, subject to appropriation by the General Assembly, for
15    financing    and   construction   of   municipal   wastewater
16    facilities.  With respect to all monies appropriated from the
17    Build Illinois Bond Fund and the Build Illinois Purposes Fund
18    for  wastewater  facility  grants,  the  Agency  shall   make
19    distributions  in  conformity  with the rules and regulations
20    established pursuant to the Anti-Pollution Bond Act,  as  now
21    or hereafter amended.
22        (u)  Pursuant  to  the  Illinois Administrative Procedure
23    Act, the Agency shall have the authority to adopt such  rules
24    as  are  necessary or appropriate for the Agency to implement
25    Section 31.1 of this Act.
26        (v)  (Blank.)
27        (w)  Neither the State, nor the Director, nor the  Board,
28    nor  any  State  employee  shall be liable for any damages or
29    injury arising out of or  resulting  from  any  action  taken
30    under subsection (s).
31        (x)(1)  The  Agency  shall  have  authority to distribute
32        grants, subject to appropriation by the General Assembly,
33        to  units  of  local   government   for   financing   and
34        construction  of  public  water  supply facilities.  With
 
SB222 Enrolled             -9-       LRB093 08816 AMC 09048 b
 1        respect  to  all  monies  appropriated  from  the   Build
 2        Illinois  Bond  Fund  or the Build Illinois Purposes Fund
 3        for public water supply grants, such grants shall be made
 4        in accordance with rules promulgated by the Agency.  Such
 5        rules shall include a requirement for a  local  match  of
 6        30% of the total project cost for projects funded through
 7        such grants.
 8             (2)  The  Agency  shall  not  terminate a grant to a
 9        unit  of  local  government   for   the   financing   and
10        construction of public water supply facilities unless and
11        until  the Agency adopts rules that set forth precise and
12        complete standards,  pursuant  to  Section  5-20  of  the
13        Illinois    Administrative   Procedure   Act,   for   the
14        termination of such grants.  The Agency  shall  not  make
15        determinations  on  whether specific grant conditions are
16        necessary to ensure the integrity  of  a  project  or  on
17        whether  subagreements  shall be awarded, with respect to
18        grants for the financing and construction of public water
19        supply facilities, unless and  until  the  Agency  adopts
20        rules  that  set  forth  precise  and complete standards,
21        pursuant to Section 5-20 of the  Illinois  Administrative
22        Procedure  Act,  for  making  such  determinations.   The
23        Agency  shall  not issue a stop-work order in relation to
24        such grants unless and until the  Agency  adopts  precise
25        and  complete  standards, pursuant to Section 5-20 of the
26        Illinois Administrative Procedure  Act,  for  determining
27        whether to issue a stop-work order.
28        (y)  The  Agency  shall  have  authority  to  release any
29    person  from  further  responsibility   for   preventive   or
30    corrective   action   under  this  Act  following  successful
31    completion of preventive or corrective action  undertaken  by
32    such person upon written request by the person.
33    (Source: P.A. 91-25, eff. 6-9-99; 92-574, eff. 6-26-02.)
 
SB222 Enrolled             -10-      LRB093 08816 AMC 09048 b
 1        (415 ILCS 5/5) (from Ch. 111 1/2, par. 1005)
 2        Sec. 5. Pollution Control Board.
 3        (a)  There  is  hereby created an independent board to be
 4    known  as  the  Pollution  Control  Board,  consisting  of  7
 5    technically qualified members, no more than 4 of whom may  be
 6    of  the same political party, to be appointed by the Governor
 7    with the advice and consent of the Senate.
 8        All members shall hold office for 3 years from the  first
 9    day  of July in the year in which they were appointed, except
10    in case of an appointment to fill a vacancy.  In  case  of  a
11    vacancy  in the office when the Senate is not in session, the
12    Governor may make a  temporary  appointment  until  the  next
13    meeting  of  the  Senate,  when he or she shall nominate some
14    person to fill such office; and any person so nominated,  who
15    is  confirmed by the Senate, shall hold the office during the
16    remainder of the term.
17        Members of  the  Board  shall  hold  office  until  their
18    respective  successors have been appointed and qualified. Any
19    member may resign  from  office,  such  resignation  to  take
20    effect when a successor has been appointed and has qualified.
21        Board members shall be paid $37,000 per year or an amount
22    set  by  the Compensation Review Board, whichever is greater,
23    and the Chairman shall be paid $43,000 per year or an  amount
24    set  by  the Compensation Review Board, whichever is greater.
25    Each member shall  be  reimbursed  for  expenses  necessarily
26    incurred, shall devote full time to the performance of his or
27    her  duties  and  shall  make  a  financial  disclosure  upon
28    appointment.   Each Board member may employ one secretary and
29    one  assistant,  and  the  Chairman  one  secretary   and   2
30    assistants.  The Board also may employ and compensate hearing
31    officers  to  preside  at  hearings  under this Act, and such
32    other personnel as may be necessary.  Hearing officers  shall
33    be attorneys licensed to practice law in Illinois.
34        The  Governor  shall  designate  one  Board  member to be
 
SB222 Enrolled             -11-      LRB093 08816 AMC 09048 b
 1    Chairman, who shall serve at the pleasure of the Governor.
 2        The Board shall hold at least one meeting each month  and
 3    such additional meetings as may be prescribed by Board rules.
 4    In  addition,  special meetings may be called by the Chairman
 5    or by any 2 Board members, upon delivery of 24 hours  written
 6    notice  to  the  office  of  each member.  All Board meetings
 7    shall be open  to  the  public,  and  public  notice  of  all
 8    meetings  shall be given at least 24 hours in advance of each
 9    meeting.  In emergency situations in which a majority of  the
10    Board   certifies   that   exigencies  of  time  require  the
11    requirements of public notice and of 24 hour  written  notice
12    to  members  may  be  dispensed with, and Board members shall
13    receive such notice as is reasonable under the circumstances.
14        Four members of the Board shall constitute a quorum,  and
15    4  votes shall be required for any final determination by the
16    Board,  except  in  a  proceeding  to  remove  a  seal  under
17    paragraph (d) of Section 34 of this  Act.   The  Board  shall
18    keep a complete and accurate record of all its meetings.
19        (b)  The  Board shall determine, define and implement the
20    environmental control standards applicable in  the  State  of
21    Illinois  and  may  adopt rules and regulations in accordance
22    with Title VII of this Act.
23        (c)  The Board shall have authority to act for the  State
24    in  regard to the adoption of standards for submission to the
25    United States under any federal law respecting  environmental
26    protection.   Such  standards  shall be adopted in accordance
27    with Title  VII  of  the  Act  and  upon  adoption  shall  be
28    forwarded   to   the   Environmental  Protection  Agency  for
29    submission to the United States pursuant to  subsections  (l)
30    and  (m) of Section 4 of this Act.  Nothing in this paragraph
31    shall limit  the  discretion  of  the  Governor  to  delegate
32    authority granted to the Governor under any federal law.
33        (d)  The   Board   shall   have   authority   to  conduct
34    proceedings upon complaints charging violations of this  Act,
 
SB222 Enrolled             -12-      LRB093 08816 AMC 09048 b
 1    any  rule or regulation adopted under this Act, or any permit
 2    or term or condition of a permit, or any  Board  order;  upon
 3    administrative  citations;  upon  petitions  for variances or
 4    adjusted standards; upon petitions for review of the Agency's
 5    final determinations on  permit  applications  in  accordance
 6    with  Title  X  of  this  Act; upon petitions to remove seals
 7    under Section 34 of this Act; and upon  other  petitions  for
 8    review  of  final  determinations  which are made pursuant to
 9    this Act or Board rule and which involve a subject which  the
10    Board  is authorized to regulate.  The Board may also conduct
11    other proceedings as may be provided by this Act or any other
12    statute or rule.
13        (e)  In  connection  with  any  proceeding  pursuant   to
14    subsection (b) or (d) of this Section, the Board may subpoena
15    and  compel the attendance of witnesses and the production of
16    evidence reasonably necessary to  resolution  of  the  matter
17    under  consideration.   The  Board shall issue such subpoenas
18    upon  the  request  of  any  party  to  a  proceeding   under
19    subsection (d) of this Section or upon its own motion.
20        (f)  The  Board may prescribe reasonable fees for permits
21    required pursuant to this Act.  Such fees  in  the  aggregate
22    may  not  exceed  the  total  cost  to  the  Agency  for  its
23    inspection  and  permit systems.  The Board may not prescribe
24    any permit fees which are  different  in  amount  from  those
25    established by this Act.
26    (Source: P.A. 92-574, eff. 6-26-02.)

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

26        (415 ILCS 5/28.6 new)
27        Sec.  28.6.  Rulemaking  to   update   incorporation   by
28    reference.
29        (a)  Any  person  may  file  a proposal with the Board to
30    update an incorporation by  reference  included  in  a  Board
31    rule.   The Board or the Agency may also make such a proposal
32    on its own initiative.
33        (b)  A rulemaking to update an incorporation by reference
 
SB222 Enrolled             -37-      LRB093 08816 AMC 09048 b
 1    under this Section shall be for the sole purpose of replacing
 2    a reference to an older or obsolete  version  of  a  document
 3    with  a  reference to the current version of that document or
 4    its successor document.
 5        (c)  A rulemaking to update an incorporation by reference
 6    under this Section shall comply with Sections 5-40  and  5-75
 7    of the Illinois Administrative Procedure Act. Sections 27 and
 8    28 of this Act do not apply to rulemaking under this Section.
 9        (d)  If  an  objection to the proposed amendment is filed
10    during the public comment period required under Section  5-40
11    of  the  Illinois  Administrative  Procedure  Act,  then  the
12    proposed  amendment  shall  not  be  adopted pursuant to this
13    Section.  Nothing in this Section precludes the adoption of a
14    change to an incorporation by reference through other  lawful
15    rulemaking procedures.
16        (e)  The  Board  may  adopt procedural rules to implement
17    this Section.

18        (415 ILCS 5/30) (from Ch. 111 1/2, par. 1030)
19        Sec.  30.  Investigations.   The   Agency   shall   cause
20    investigations  to  be  made upon the request of the Board or
21    upon receipt of information concerning an  alleged  violation
22    of  this Act, or of any rule or regulation adopted under this
23    Act, promulgated thereunder, or of any permit granted by  the
24    Agency  or any term or condition of a any such permit, or any
25    Board  order,  and  may  cause  to   be   made   such   other
26    investigations as it shall deem advisable.
27    (Source: P.A. 92-574, eff. 6-26-02.)

28        (415 ILCS 5/31) (from Ch. 111 1/2, par. 1031)
29        Sec. 31. Notice; complaint; hearing.
30        (a)(1)  Within  180  days of becoming aware of an alleged
31        violation of the Act or any rule adopted under the Act or
32        of a permit granted by the Agency  or  condition  of  the
 
SB222 Enrolled             -38-      LRB093 08816 AMC 09048 b
 1        permit,  the  Agency  shall issue and serve, by certified
 2        mail, upon the person complained against a written notice
 3        informing that person that the Agency has evidence of the
 4        alleged violation.  At  a  minimum,  the  written  notice
 5        shall contain:
 6                  (A)  notification   to  the  person  complained
 7             against of  the  requirement  to  submit  a  written
 8             response  addressing  the violations alleged and the
 9             option to meet with appropriate agency personnel  to
10             resolve  any  alleged  violations that could lead to
11             the filing of a formal complaint;
12                  (B)  a detailed explanation by  the  Agency  of
13             the violations alleged;
14                  (C)  an   explanation  by  the  Agency  of  the
15             actions that the Agency  believes  may  resolve  the
16             alleged  violations,  including  an  estimate  of  a
17             reasonable  time  period  for  the person complained
18             against to complete the suggested resolution; and
19                  (D)  an explanation of  any  alleged  violation
20             that  the Agency believes cannot be resolved without
21             the  involvement  of  the  Office  of  the  Illinois
22             Attorney General or  the  State's  Attorney  of  the
23             county  in  which the alleged violation occurred and
24             the basis for the Agency's belief.
25             (2)  A written response to  the  violations  alleged
26        shall  be  submitted  to  the  Agency, by certified mail,
27        within 45  days  of  receipt  of  notice  by  the  person
28        complained  against,  unless  the  Agency  agrees  to  an
29        extension.  The written response shall include:
30                  (A)  information  in  rebuttal,  explanation or
31             justification of each alleged violation;
32                  (B)  a proposed Compliance Commitment Agreement
33             that includes specified  times  for  achieving  each
34             commitment  and  which  may  consist  of a statement
 
SB222 Enrolled             -39-      LRB093 08816 AMC 09048 b
 1             indicating  that  the  person   complained   against
 2             believes that compliance has been achieved; and
 3                  (C)  a  request  for a meeting with appropriate
 4             Agency personnel if a  meeting  is  desired  by  the
 5             person complained against.
 6             (3)  If  the  person  complained  against  fails  to
 7        respond   in   accordance   with   the   requirements  of
 8        subdivision (2) of this subsection (a),  the  failure  to
 9        respond  shall be considered a waiver of the requirements
10        of this subsection (a) and nothing in this Section  shall
11        preclude   the   Agency   from   proceeding  pursuant  to
12        subsection (b) of this Section.
13             (4)  A meeting requested pursuant to subdivision (2)
14        of  this  subsection  (a)  shall  be   held   without   a
15        representative  of  the  Office  of the Illinois Attorney
16        General or the State's Attorney of the  county  in  which
17        the alleged violation occurred, within 60 days of receipt
18        of  notice  by  the person complained against, unless the
19        Agency agrees to a postponement.   At  the  meeting,  the
20        Agency  shall  provide  an  opportunity  for  the  person
21        complained  against to respond to each alleged violation,
22        suggested resolution, and suggested  implementation  time
23        frame, and to suggest alternate resolutions.
24             (5)  If  a meeting requested pursuant to subdivision
25        (2) of this subsection (a) is held, the person complained
26        against shall, within 21 days following  the  meeting  or
27        within  an  extended  time  period  as  agreed  to by the
28        Agency, submit by certified mail to the Agency a  written
29        response  to the alleged violations. The written response
30        shall include:
31                  (A)  additional   information   in    rebuttal,
32             explanation   or   justification   of  each  alleged
33             violation;
34                  (B)  a proposed Compliance Commitment Agreement
 
SB222 Enrolled             -40-      LRB093 08816 AMC 09048 b
 1             that includes specified  times  for  achieving  each
 2             commitment  and  which  may  consist  of a statement
 3             indicating  that  the  person   complained   against
 4             believes that compliance has been achieved; and
 5                  (C)  a  statement  indicating  that, should the
 6             person  complained  against  so  wish,  the   person
 7             complained  against chooses to rely upon the initial
 8             written response submitted pursuant  to  subdivision
 9             (2) of this subsection (a).
10             (6)  If  the  person  complained  against  fails  to
11        respond   in   accordance   with   the   requirements  of
12        subdivision (5) of this subsection (a),  the  failure  to
13        respond  shall be considered a waiver of the requirements
14        of this subsection (a) and nothing in this Section  shall
15        preclude   the   Agency   from   proceeding  pursuant  to
16        subsection (b) of this Section.
17             (7)  Within 30 days of the  Agency's  receipt  of  a
18        written  response  submitted  by  the  person  complained
19        against  pursuant  to  subdivision (2) of this subsection
20        (a), if a meeting is not requested, or subdivision (5) of
21        this subsection (a), if a meeting is held,  or  within  a
22        later  time  period  as  agreed  to by the Agency and the
23        person complained against, the  Agency  shall  issue  and
24        serve,  by  certified  mail,  upon  the person complained
25        against a written notice  informing  the  person  of  its
26        acceptance,  rejection,  or  proposed modification to the
27        proposed Compliance  Commitment  Agreement  as  contained
28        within the written response.
29             (8)  Nothing  in  this subsection (a) is intended to
30        require the Agency to enter  into  Compliance  Commitment
31        Agreements  for  any  alleged  violation  that the Agency
32        believes cannot be resolved without  the  involvement  of
33        the  Office  of  the  Attorney  General  or  the  State's
34        Attorney  of  the  county  in which the alleged violation
 
SB222 Enrolled             -41-      LRB093 08816 AMC 09048 b
 1        occurred, for, among other purposes,  the  imposition  of
 2        statutory penalties.
 3             (9)  The  Agency's  failure  to respond to a written
 4        response submitted pursuant to subdivision  (2)  of  this
 5        subsection  (a),  if  a  meeting  is  not  requested,  or
 6        subdivision  (5)  of this subsection (a), if a meeting is
 7        held, within 30 days, or within the time period otherwise
 8        agreed to  in  writing  by  the  Agency  and  the  person
 9        complained  against, shall be deemed an acceptance by the
10        Agency of the proposed  Compliance  Commitment  Agreement
11        for  the  violations alleged in the written notice issued
12        under subdivision (1) of this subsection (a) as contained
13        within the written response.
14             (10)  If the person complained against complies with
15        the terms of a Compliance Commitment  Agreement  accepted
16        pursuant  to  this  subsection  (a), the Agency shall not
17        refer the alleged violations which are the subject of the
18        Compliance Commitment Agreement  to  the  Office  of  the
19        Illinois  Attorney General or the State's Attorney of the
20        county in which the alleged violation occurred.  However,
21        nothing  in  this  subsection is intended to preclude the
22        Agency  from  continuing  negotiations  with  the  person
23        complained against or from  proceeding  pursuant  to  the
24        provisions  of subsection (b) of this Section for alleged
25        violations  which  remain  the  subject  of  disagreement
26        between the Agency  and  the  person  complained  against
27        following   fulfillment   of  the  requirements  of  this
28        subsection (a).
29             (11)  Nothing in this subsection (a) is intended  to
30        preclude the person complained against from submitting to
31        the  Agency, by certified mail, at any time, notification
32        that the person complained against consents to waiver  of
33        the  requirements  of  subsections  (a)  and  (b) of this
34        Section.
 
SB222 Enrolled             -42-      LRB093 08816 AMC 09048 b
 1        (b)  For alleged violations that remain  the  subject  of
 2    disagreement  between  the  Agency  and the person complained
 3    against  following  fulfillment  of   the   requirements   of
 4    subsection  (a) of this Section, and as a precondition to the
 5    Agency's referral or request to the Office  of  the  Illinois
 6    Attorney  General  or  the  State's Attorney of the county in
 7    which the alleged violation occurred for legal representation
 8    regarding an alleged violation that may be addressed pursuant
 9    to subsection (c) or (d)  of  this  Section  or  pursuant  to
10    Section  42 of this Act, the Agency shall issue and serve, by
11    certified mail, upon the person complained against a  written
12    notice  informing  that  person  that  the  Agency intends to
13    pursue legal action.   Such notice shall  notify  the  person
14    complained  against of the violations to be alleged and offer
15    the person an opportunity to  meet  with  appropriate  Agency
16    personnel in an effort to resolve any alleged violations that
17    could  lead  to the filing of a formal complaint. The meeting
18    with Agency personnel shall be held within 30 days of receipt
19    of notice served pursuant to this subsection upon the  person
20    complained   against,   unless   the   Agency   agrees  to  a
21    postponement or the person notifies the Agency that he or she
22    will not appear at a meeting within the 30 day  time  period.
23    Nothing in this subsection is intended to preclude the Agency
24    from  following  the  provisions  of subsection (c) or (d) of
25    this Section or from requesting the legal  representation  of
26    the  Office  of  the Illinois Attorney General or the State's
27    Attorney of  the  county  in  which  the  alleged  violations
28    occurred  for  alleged violations which remain the subject of
29    disagreement between the Agency  and  the  person  complained
30    against   after   the   provisions  of  this  subsection  are
31    fulfilled.
32          (c)(1) For alleged violations which remain the  subject
33        of   disagreement  between  the  Agency  and  the  person
34        complained  against   following   waiver,   pursuant   to
 
SB222 Enrolled             -43-      LRB093 08816 AMC 09048 b
 1        subdivision  (10)  of  subsection (a) of this Section, or
 2        fulfillment of the requirements of  subsections  (a)  and
 3        (b)  of this Section, the Office of the Illinois Attorney
 4        General or the State's Attorney of the  county  in  which
 5        the alleged violation occurred shall issue and serve upon
 6        the  person complained against a written notice, together
 7        with  a  formal  complaint,  which  shall   specify   the
 8        provision  of the Act or the rule or regulation or permit
 9        or term or condition thereof under which such  person  is
10        said  to  be  in violation, and a statement of the manner
11        in, and the extent  to  which  such  person  is  said  to
12        violate  the  Act or such rule or regulation or permit or
13        term or condition thereof and shall require the person so
14        complained against to answer the charges of  such  formal
15        complaint  at  a  hearing  before the Board at a time not
16        less than 21 days after the date of notice by the  Board,
17        except  as  provided  in  Section  34  of  this Act. Such
18        complaint shall be accompanied by a notification  to  the
19        defendant  that  financing  may be available, through the
20        Illinois  Environmental  Facilities  Financing  Act,   to
21        correct  such  violation.   A copy of such notice of such
22        hearings shall also  be  sent  to  any  person  that  has
23        complained to the Agency respecting the respondent within
24        the  six  months preceding the date of the complaint, and
25        to any person  in  the  county  in  which  the  offending
26        activity   occurred   that   has   requested   notice  of
27        enforcement proceedings; 21 days notice of such  hearings
28        shall  also  be  published  in  a  newspaper  of  general
29        circulation  in  such  county.  The respondent may file a
30        written answer, and at such hearing the rules  prescribed
31        in  Sections  32  and 33 of this Act shall apply.  In the
32        case  of  actual  or  threatened  acts  outside  Illinois
33        contributing to environmental  damage  in  Illinois,  the
34        extraterritorial    service-of-process    provisions   of
 
SB222 Enrolled             -44-      LRB093 08816 AMC 09048 b
 1        Sections 2-208 and 2-209 of the Code of  Civil  Procedure
 2        shall apply.
 3             With  respect  to  notices  served  pursuant to this
 4        subsection (c)(1) which  involve  hazardous  material  or
 5        wastes in any manner, the Agency shall annually publish a
 6        list  of all such notices served.  The list shall include
 7        the date the investigation commenced, the date notice was
 8        sent, the date the matter was referred  to  the  Attorney
 9        General,  if  applicable,  and  the current status of the
10        matter.
11             (2)  Notwithstanding the provisions  of  subdivision
12        (1) of this subsection (c), whenever a complaint has been
13        filed  on  behalf  of  the Agency or by the People of the
14        State of Illinois, the parties may file with the Board  a
15        stipulation  and proposal for settlement accompanied by a
16        request for relief from  the  requirement  of  a  hearing
17        pursuant  to  subdivision  (1).  Unless the Board, in its
18        discretion, concludes that a hearing will  be  held,  the
19        Board shall cause notice of the stipulation, proposal and
20        request  for  relief to be published and sent in the same
21        manner as is required for hearing pursuant to subdivision
22        (1) of  this  subsection.  The  notice  shall  include  a
23        statement  that  any person may file a written demand for
24        hearing within 21 days after receiving the notice. If any
25        person files a timely written  demand  for  hearing,  the
26        Board  shall  deny  the request for relief from a hearing
27        and  shall  hold  a  hearing  in  accordance   with   the
28        provisions of subdivision (1).
29             (3)  Notwithstanding  the  provisions of subdivision
30        (1) of this subsection (c), if the Agency  becomes  aware
31        of  a  violation of this Act arising from, or as a result
32        of, voluntary pollution prevention activities, the Agency
33        shall not proceed with the  written  notice  required  by
34        subsection (a) of this Section unless:
 
SB222 Enrolled             -45-      LRB093 08816 AMC 09048 b
 1                  (A)  the person fails to take corrective action
 2             or   eliminate   the  reported  violation  within  a
 3             reasonable time; or
 4                  (B)  the Agency  believes  that  the  violation
 5             poses  a  substantial  and  imminent  danger  to the
 6             public health or welfare or  the  environment.   For
 7             the  purposes  of  this  item  (B), "substantial and
 8             imminent danger" means a danger with a likelihood of
 9             serious or irreversible harm.
10             (d)(1)  Any  person  may  file  with  the  Board   a
11        complaint,  meeting the requirements of subsection (c) of
12        this Section, against any person allegedly violating this
13        Act, any rule or regulation adopted under this  Act,  any
14        permit  or  term  or  condition of a permit, or any Board
15        order. or any rule or regulation thereunder or any permit
16        or term or  condition  thereof.   The  complainant  shall
17        immediately  serve  a  copy  of  such  complaint upon the
18        person  or  persons  named  therein.   Unless  the  Board
19        determines  that  such  complaint   is   duplicative   or
20        frivolous,  it shall schedule a hearing and serve written
21        notice thereof upon the person or persons named  therein,
22        in accord with subsection (c) of this Section.
23             (2)  Whenever a complaint has been filed by a person
24        other  than the Attorney General or the State's Attorney,
25        the parties may file with the  Board  a  stipulation  and
26        proposal  for  settlement  accompanied  by  a request for
27        relief from the hearing requirement of subdivision (c)(1)
28        of this Section.  Unless the Board,  in  its  discretion,
29        concludes  that  a  hearing should be held, no hearing on
30        the stipulation and proposal for settlement is required.
31        (e)  In hearings before the Board under  this  Title  the
32    burden  shall  be  on the Agency or other complainant to show
33    either that the respondent has caused or threatened to  cause
34    air or water pollution or that the respondent has violated or
 
SB222 Enrolled             -46-      LRB093 08816 AMC 09048 b
 1    threatens to violate any provision of this Act or any rule or
 2    regulation  of  the  Board  or  permit  or  term or condition
 3    thereof.  If such proof has been made, the burden shall be on
 4    the respondent to  show  that  compliance  with  the  Board's
 5    regulations   would   impose  an  arbitrary  or  unreasonable
 6    hardship.
 7        (f)  The provisions of this Section shall  not  apply  to
 8    administrative  citation actions commenced under Section 31.1
 9    of this Act.
10    (Source: P.A. 92-574, eff. 6-26-02.)

11        (415 ILCS 5/33) (from Ch. 111 1/2, par. 1033)
12        Sec. 33. Board orders.
13        (a)  After due consideration  of  the  written  and  oral
14    statements,   the  testimony  and  arguments  that  shall  be
15    submitted at the hearing, or upon default  in  appearance  of
16    the  respondent  on  return  day specified in the notice, the
17    Board shall issue and enter such final order,  or  make  such
18    final  determination,  as it shall deem appropriate under the
19    circumstances.  It shall not be  a  defense  to  findings  of
20    violations  of  the  provisions  of  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, the Act or Board
23    regulations or a bar to the  assessment  of  civil  penalties
24    that  the  person  has come into compliance subsequent to the
25    violation,  except  where  such  action  is  barred  by   any
26    applicable  State  or  federal statute of limitation.  In all
27    such matters the Board  shall  file  and  publish  a  written
28    opinion   stating  the  facts  and  reasons  leading  to  its
29    decision.  The Board shall immediately notify the  respondent
30    of such order in writing by registered mail.
31        (b)  Such  order  may  include  a  direction to cease and
32    desist from violations of this Act, any  rule  or  regulation
33    adopted  under this Act, any permit or term or condition of a
 
SB222 Enrolled             -47-      LRB093 08816 AMC 09048 b
 1    permit, or any Board order the Act or of  the  Board's  rules
 2    and  regulations  any  permit  or  term or condition thereof,
 3    and/or the imposition by the  Board  of  civil  penalties  in
 4    accord  with  Section  42  of  this  Act.  The Board may also
 5    revoke the permit as a penalty for violation.  If such  order
 6    includes  a  reasonable  delay  during  which  to  correct  a
 7    violation,  the  Board  may require the posting of sufficient
 8    performance bond or other security to assure  the  correction
 9    of such violation within the time prescribed.
10        (c)  In  making  its orders and determinations, the Board
11    shall take into consideration all the facts and circumstances
12    bearing upon the reasonableness of the emissions,  discharges
13    or deposits involved including, but not limited to:
14             (i)  the  character  and  degree  of  injury  to, or
15        interference with the protection of the  health,  general
16        welfare and physical property of the people;
17             (ii)  the social and economic value of the pollution
18        source;
19             (iii)  the   suitability  or  unsuitability  of  the
20        pollution source to the area  in  which  it  is  located,
21        including  the  question  of  priority of location in the
22        area involved;
23             (iv)  the  technical  practicability  and   economic
24        reasonableness  of reducing or eliminating the emissions,
25        discharges or  deposits  resulting  from  such  pollution
26        source; and
27             (v)  any subsequent compliance.
28        Whenever  a  proceeding  before  the Board may affect the
29    right of the public individually or collectively to  the  use
30    of   community  sewer  or  water  facilities  provided  by  a
31    municipally owned or publicly regulated  company,  the  Board
32    shall  at  least  30  days prior to the scheduled date of the
33    first hearing in such proceeding, give notice  of  the  date,
34    time,   place,   and   purpose  of  such  hearing  by  public
 
SB222 Enrolled             -48-      LRB093 08816 AMC 09048 b
 1    advertisement in a newspaper of general  circulation  in  the
 2    area  of  the State concerned. The Board shall conduct a full
 3    and complete hearing into  the  social  and  economic  impact
 4    which would result from restriction or denial of the right to
 5    use  such  facilities  and  allow  all  persons  claiming  an
 6    interest to intervene as parties and present evidence of such
 7    social and economic impact.
 8        (d)  All  orders issued and entered by the Board pursuant
 9    to this Section shall be enforceable by injunction, mandamus,
10    or other appropriate remedy, in accordance with Section 42 of
11    this Act.
12    (Source: P.A. 85-1041; 86-1363.)

13        (415 ILCS 5/35) (from Ch. 111 1/2, par. 1035)
14        Sec. 35.  Variances; general provisions.  To  the  extent
15    consistent  with  applicable  provisions of the Federal Water
16    Pollution Control Act,  as  now  or  hereafter  amended,  the
17    Federal  Safe  Drinking  Water  Act  (P.L. 93-523), as now or
18    hereafter amended, the Clean Air Act as amended in 1977 (P.L.
19    95-95), and regulations pursuant thereto, and to  the  extent
20    consistent with applicable provisions of the Federal Resource
21    Conservation  and  Recovery  Act  of  1976 (P.L. 94-580), and
22    regulations pursuant thereto:,
23        (a)  The Board may grant individual variances beyond  the
24    limitations  prescribed  in  this  Act, whenever it is found,
25    upon presentation of adequate proof, that compliance with any
26    rule or regulation, requirement or order of the  Board  would
27    impose  an  arbitrary or unreasonable hardship.  However, the
28    Board  is  not  required  to  find  that  an   arbitrary   or
29    unreasonable   hardship   exists   exclusively   because  the
30    regulatory  standard  is  under  review  and  the  costs   of
31    compliance  are  substantial  and  certain.   In  granting or
32    denying a variance the Board shall file and publish a written
33    opinion  stating  the  facts  and  reasons  leading  to   its
 
SB222 Enrolled             -49-      LRB093 08816 AMC 09048 b
 1    decision.
 2        (b)  The  Agency  Board shall grant provisional variances
 3    whenever it is found, upon presentation  of  adequate  proof,
 4    only  upon  notification from the Agency that compliance on a
 5    short term basis with any rule or regulation, requirement  or
 6    order  of  the  Board,  or with any permit requirement, would
 7    impose  an   arbitrary   or   unreasonable   hardship.   Such
 8    provisional  variances  shall be issued within 2 working days
 9    of notification from the Agency.
10    (Source: P.A. 86-671.)

11        (415 ILCS 5/36) (from Ch. 111 1/2, par. 1036)
12        Sec. 36. Variances and provisional variances.
13        (a)  In granting a variance the  Board  may  impose  such
14    conditions  as  the policies of this Act may require.  If the
15    hardship complained of consists solely  of  the  need  for  a
16    reasonable  delay in which to correct a violation of this Act
17    or of the Board regulations, the Board  shall  condition  the
18    grant  of  such  variance  upon  the  posting  of  sufficient
19    performance  bond  or other security to assure the completion
20    of the work covered by the variance.  The Board shall have no
21    authority to delegate to the Agency  its  powers  to  require
22    such   performance   bond.   The   original  amount  of  such
23    performance bond shall not exceed the reasonable cost of  the
24    work to be completed pursuant to the variance. The obligation
25    under  such  bond shall at no time exceed the reasonable cost
26    of work remaining pursuant to the variance.
27        (b)  Except as provided by Section 38 of  this  Act,  any
28    variance  granted  pursuant to the provisions of this Section
29    shall be granted for such period of time, not exceeding  five
30    years,  as shall be specified by the Board at the time of the
31    grant of such variance,  and  upon  the  condition  that  the
32    person  who  receives  such variance shall make such periodic
33    progress reports as the Board shall specify.   Such  variance
 
SB222 Enrolled             -50-      LRB093 08816 AMC 09048 b
 1    may  be  extended  from year to year by affirmative action of
 2    the Board, but only if satisfactory progress has been shown.
 3        (c)  Any provisional variance granted by the Agency Board
 4    pursuant to subsection (b) of  Section  35  shall  be  for  a
 5    period of time not to exceed 45 days.  A provisional variance
 6    may  be  extended  Upon  receipt of a recommendation from the
 7    Agency to extend this time period, the Board shall  grant  up
 8    to  an  additional 45 days by written decision of the Agency.
 9    The provisional variances granted to any one person shall not
10    exceed a total of 90 days during any calendar year.
11    (Source: P.A. 81-1442.)

12        (415 ILCS 5/37) (from Ch. 111 1/2, par. 1037)
13        Sec. 37. Variances; procedures.
14        (a) Any person seeking a variance pursuant to  subsection
15    (a)  of  Section  35  shall  do  so  by filing a petition for
16    variance with the Board and the Agency.   Any  person  filing
17    such  a  petition  shall  pay a filing fee.  The Agency shall
18    promptly give written notice of such petition to  any  person
19    in the county in which the installation or property for which
20    variance  is  sought  is located who has in writing requested
21    notice of variance petitions, the State's  attorney  of  such
22    county,  the Chairman of the County Board of such county, and
23    to each member of the General Assembly from  the  legislative
24    district  in  which that installation or property is located,
25    and shall publish a single  notice  of  such  petition  in  a
26    newspaper of general circulation in such county.  The notices
27    required  by  this  Section shall include the street address,
28    and if there is no street address then the legal  description
29    or  the  location  with reference to any well known landmark,
30    highway, road, thoroughfare or intersection.
31        The Agency shall promptly investigate such  petition  and
32    consider the views of persons who might be adversely affected
33    by  the  grant  of  a  variance.  The  Agency  shall  make  a
 
SB222 Enrolled             -51-      LRB093 08816 AMC 09048 b
 1    recommendation  to  the  Board  as  to the disposition of the
 2    petition.  If the Board, in its discretion, concludes that  a
 3    hearing  would  be  advisable,  or if the Agency or any other
 4    person files  a  written  objection  to  the  grant  of  such
 5    variance  within 21 days, together with a written request for
 6    hearing, then a  hearing  shall  be  held,  under  the  rules
 7    prescribed  in  Sections  32  and 33 (a) of this Act, and the
 8    burden of proof shall be on the petitioner.
 9        (b)  Any person seeking a provisional  variance  pursuant
10    to  subsection  (b) of Section 35 shall make a request to the
11    Agency.  The Agency shall promptly investigate  and  consider
12    the  merits  of the request.  The Agency may notify the Board
13    of its recommendation.  If the Agency  fails  to  take  final
14    action  within  30  days  after  receipt of the request for a
15    provisional variance, or if the Agency  denies  the  request,
16    the  person  may  initiate  a proceeding with the Board under
17    subsection (a) of Section 35.
18        If the Agency grants a  provisional variance, the  Agency
19    must  promptly  file  a copy of its written decision with the
20    Board, and the Board shall give prompt notice of  its  action
21    to  the public by issuing a press release for distribution to
22    newspapers of general circulation in the county.   The  Board
23    must maintain for public inspection copies of all provisional
24    variances filed with it by the Agency.
25    (Source: P.A. 87-914; 88-474.)

26        (415 ILCS 5/42) (from Ch. 111 1/2, par. 1042)
27        Sec. 42. Civil penalties.
28        (a)  Except  as provided in this Section, any person that
29    violates any provision of this Act or any regulation  adopted
30    by  the Board, or any permit or term or condition thereof, or
31    that  violates  any  determination  or  order  of  the  Board
32    pursuant to this Act, shall be liable for to a civil  penalty
33    of  not to exceed $50,000 for the violation and an additional
 
SB222 Enrolled             -52-      LRB093 08816 AMC 09048 b
 1    civil penalty of not to exceed $10,000 for  each  day  during
 2    which the violation continues; such penalties may, upon order
 3    of  the  Board  or a court of competent jurisdiction, be made
 4    payable to the Environmental Protection  Trust  Fund,  to  be
 5    used  in  accordance with the provisions of the Environmental
 6    Protection Trust Fund Act.
 7        (b)  Notwithstanding the provisions of subsection (a)  of
 8    this Section:
 9             (1)  Any  person that violates Section 12(f) of this
10        Act or any NPDES permit or term or condition thereof,  or
11        any  filing  requirement, regulation or order relating to
12        the NPDES permit program, shall  be  liable  to  a  civil
13        penalty of not to exceed $10,000 per day of violation.
14             (2)  Any  person that violates Section 12(g) of this
15        Act or any UIC permit or term or  condition  thereof,  or
16        any  filing  requirement, regulation or order relating to
17        the State UIC program for  all  wells,  except  Class  II
18        wells  as  defined  by the Board under this Act, shall be
19        liable to a civil penalty not to exceed $2,500 per day of
20        violation; provided, however, that any person who commits
21        such violations relating to the  State  UIC  program  for
22        Class  II  wells, as defined by the Board under this Act,
23        shall be liable to a  civil  penalty  of  not  to  exceed
24        $10,000 for the violation and an additional civil penalty
25        of  not  to  exceed  $1,000 for each day during which the
26        violation continues.
27             (3)  Any person that violates Sections 21(f), 21(g),
28        21(h) or 21(i) of this Act, or any RCRA permit or term or
29        condition thereof, or any filing requirement,  regulation
30        or  order  relating  to  the State RCRA program, shall be
31        liable to a civil penalty of not to  exceed  $25,000  per
32        day of violation.
33             (4)  In  an  administrative  citation  action  under
34        Section  31.1  of  this  Act,  any  person  found to have
 
SB222 Enrolled             -53-      LRB093 08816 AMC 09048 b
 1        violated any provision of subsection (o) of Section 21 of
 2        this Act shall pay a  civil  penalty  of  $500  for  each
 3        violation  of each such provision, plus any hearing costs
 4        incurred by the Board and  the  Agency.   Such  penalties
 5        shall  be  made  payable  to the Environmental Protection
 6        Trust Fund, to be used in accordance with the  provisions
 7        of  the  Environmental  Protection Trust Fund Act; except
 8        that  if  a  unit  of   local   government   issued   the
 9        administrative  citation,  50% of the civil penalty shall
10        be payable to the unit of local government.
11             (4-5)  In an administrative  citation  action  under
12        Section  31.1  of  this  Act,  any  person  found to have
13        violated any provision of subsection (p) of Section 21 of
14        this Act shall pay a civil penalty  of  $1,500  for  each
15        violation  of each such provision, plus any hearing costs
16        incurred by the Board and the  Agency,  except  that  the
17        civil  penalty amount shall be a first offense and $3,000
18        for each violation of any provision of subsection (p)  of
19        Section  21  that  is the person's a second or subsequent
20        adjudicated violation of that provision offense, plus any
21        hearing costs incurred by the Board and the Agency.   The
22        penalties  shall  be  deposited  into  the  Environmental
23        Protection  Trust Fund, to be used in accordance with the
24        provisions of the  Environmental  Protection  Trust  Fund
25        Act; except that if a unit of local government issued the
26        administrative  citation,  50% of the civil penalty shall
27        be payable to the unit of local government.
28             (5)  Any person who violates subsection 6 of Section
29        39.5 of  this  Act  or  any  CAAPP  permit,  or  term  or
30        condition  thereof,  or any fee or filing requirement, or
31        any duty to allow  or  carry  out  inspection,  entry  or
32        monitoring   activities,   or  any  regulation  or  order
33        relating to the CAAPP shall be liable for a civil penalty
34        not to exceed $10,000 per day of violation.
 
SB222 Enrolled             -54-      LRB093 08816 AMC 09048 b
 1        (b.5)  In lieu of the penalties set forth in  subsections
 2    (a) and (b) of this Section, any person who fails to file, in
 3    a timely manner, toxic chemical release forms with the Agency
 4    pursuant  to  Section 25b-2 of this Act shall be liable for a
 5    civil penalty of $100 per day for  each  day  the  forms  are
 6    late,  not to exceed a maximum total penalty of $6,000.  This
 7    daily penalty shall begin accruing on  the  thirty-first  day
 8    after  the  date  that the person receives the warning notice
 9    issued by the Agency pursuant to Section 25b-6 of  this  Act;
10    and  the  penalty  shall  be  paid  to  the Agency. The daily
11    accrual of penalties shall cease  as  of  January  1  of  the
12    following   year.  All  penalties  collected  by  the  Agency
13    pursuant to this  subsection  shall  be  deposited  into  the
14    Environmental Protection Permit and Inspection Fund.
15        (c)  Any  person  that  violates  this  Act,  any rule or
16    regulation adopted under this Act,  any  permit  or  term  or
17    condition  of  a  permit,  or  any Board order or an order or
18    other determination of the Board under this  Act  and  causes
19    the  death  of fish or aquatic life shall, in addition to the
20    other penalties provided by this Act, be liable to pay to the
21    State an additional sum for the reasonable value of the  fish
22    or  aquatic  life destroyed.  Any money so recovered shall be
23    placed in the Wildlife and Fish Fund in the State Treasury.
24        (d)  The penalties provided for in this  Section  may  be
25    recovered in a civil action.
26        (e)  The  State's  Attorney  of  the  county in which the
27    violation occurred, or the  Attorney  General,  may,  at  the
28    request of the Agency or on his own motion, institute a civil
29    action  for an injunction to restrain violations of this Act,
30    any rule or regulation adopted under this Act, any permit  or
31    term or condition of a permit, or any Board order.
32        (f)  The  State's  Attorney  of  the  county in which the
33    violation occurred, or the Attorney General, shall bring such
34    actions in the name of the people of the State  of  Illinois.
 
SB222 Enrolled             -55-      LRB093 08816 AMC 09048 b
 1    Without  limiting any other authority which may exist for the
 2    awarding of attorney's fees and costs, the Board or  a  court
 3    of  competent  jurisdiction  may  award  costs and reasonable
 4    attorney's fees, including the  reasonable  costs  of  expert
 5    witnesses  and  consultants,  to  the State's Attorney or the
 6    Attorney General in a case where he has prevailed  against  a
 7    person  who  has  committed  a  wilful,  knowing  or repeated
 8    violation of this Act, any rule or regulation  adopted  under
 9    this Act, any permit or term or condition of a permit, or any
10    Board order the Act.
11        Any  funds  collected  under this subsection (f) in which
12    the Attorney General has prevailed shall be deposited in  the
13    Hazardous  Waste  Fund  created  in Section 22.2 of this Act.
14    Any funds collected under this  subsection  (f)  in  which  a
15    State's  Attorney  has  prevailed  shall  be  retained by the
16    county in which he serves.
17        (g)  All final orders imposing civil  penalties  pursuant
18    to  this Section shall prescribe the time for payment of such
19    penalties.  If any such penalty is not paid within  the  time
20    prescribed, interest on such penalty at the rate set forth in
21    subsection  (a)  of  Section  1003 of the Illinois Income Tax
22    Act, shall be paid for the period from the  date  payment  is
23    due until the date payment is received.  However, if the time
24    for  payment  is  stayed  during  the  pendency of an appeal,
25    interest shall not accrue during such stay.
26        (h)  In determining the appropriate civil penalty  to  be
27    imposed  under subdivisions  (a), (b)(1), (b)(2),  (b)(3), or
28    (b)(5)  of  this Section, the Board is authorized to consider
29    any  matters  of  record  in  mitigation  or  aggravation  of
30    penalty, including but not limited to the following factors:
31             (1)  the duration and gravity of the violation;
32             (2)  the presence or absence of due diligence on the
33        part  of  the  violator  in  attempting  to  comply  with
34        requirements of this Act and regulations thereunder or to
 
SB222 Enrolled             -56-      LRB093 08816 AMC 09048 b
 1        secure relief therefrom as provided by this Act;
 2             (3)  any economic benefits accrued by  the  violator
 3        because of delay in compliance with requirements;
 4             (4)  the amount of monetary penalty which will serve
 5        to  deter  further  violations  by  the  violator  and to
 6        otherwise aid in enhancing voluntary compliance with this
 7        Act by the violator and other persons  similarly  subject
 8        to the Act; and
 9             (5)  the  number,  proximity in time, and gravity of
10        previously adjudicated violations  of  this  Act  by  the
11        violator.
12    (Source: P.A. 90-773, eff. 8-14-98; 91-82, eff. 1-1-00.)

13        (415 ILCS 5/45) (from Ch. 111 1/2, par. 1045)
14        Sec. 45. Injunctive and other relief.
15        (a)  No   existing  civil  or  criminal  remedy  for  any
16    wrongful action shall be excluded or impaired  by  this  Act.
17    Nothing  in this Act shall be construed to limit or supersede
18    the provisions of the Illinois Oil and Gas Act and the powers
19    therein granted to prevent the intrusion of water  into  oil,
20    gas  or  coal  strata  and  to prevent the pollution of fresh
21    water supplies by oil, gas or salt water or oil field wastes,
22    except that water quality  standards  as  set  forth  by  the
23    Pollution Control Board apply to and are effective within the
24    areas  covered  by  and  affected  by  permits  issued by the
25    Department of Natural Resources.  However, if the  Department
26    of Natural Resources fails to act upon any complaint within a
27    period  of  10  working  days  following  the  receipt  of  a
28    complaint  by  the  Department,  the Environmental Protection
29    Agency may proceed under the provisions of this Act.
30        (b)  Any person adversely affected in fact by a violation
31    of this Act, any rule or regulation adopted under  this  Act,
32    or  any permit or term or condition of a permit, or any Board
33    order may sue for injunctive relief against  such  violation.
 
SB222 Enrolled             -57-      LRB093 08816 AMC 09048 b
 1    However, except as provided in subsections subsection (d) and
 2    (e),  no  action shall be brought under this Section until 30
 3    days after the plaintiff has been denied relief by the  Board
 4    in  a  proceeding brought under subdivision (d)(1) subsection
 5    (d) of Section 31 of this Act.  The prevailing party shall be
 6    awarded costs and reasonable attorneys' fees.
 7        (c)  Nothing in Section 39.4 of this Act shall limit  the
 8    authority of the Agency to proceed with enforcement under the
 9    provisions of this Act for violations of terms and conditions
10    of  an  endorsed  agrichemical  facility  permit, an endorsed
11    lawncare containment  permit,  or  this  Act  or  regulations
12    hereunder caused or threatened by an agrichemical facility or
13    a  lawncare  wash water containment area, provided that prior
14    notice is  given  to  the  Department  of  Agriculture  which
15    provides   that  Department  an  opportunity  to  respond  as
16    appropriate.
17        (d)  If the State brings an action under this Act against
18    a person with an interest in real  property  upon  which  the
19    person  is  alleged  to  have  allowed  open  dumping or open
20    burning by a third party in  violation  of  this  Act,  which
21    action  seeks  to compel the defendant to remove the waste or
22    otherwise clean up the site, the defendant may, in the manner
23    provided by law for third-party complaints,  bring  in  as  a
24    third-party  defendant  a  person  who  with actual knowledge
25    caused or contributed to the illegal  open  dumping  or  open
26    burning,  or  who  is or may be liable for all or part of the
27    removal and cleanup costs.  The court may include any of  the
28    parties  which  it determines to have, with actual knowledge,
29    allowed, caused or contributed to the illegal open dumping or
30    open burning in any order that it may issue to compel removal
31    of the waste and cleanup of the site, and may  apportion  the
32    removal  and  cleanup  costs  among such parties, as it deems
33    appropriate. However, a person may not seek  to  recover  any
34    fines or civil penalties imposed upon him under this Act from
 
SB222 Enrolled             -58-      LRB093 08816 AMC 09048 b
 1    a  third-party  defendant  in  an  action  brought under this
 2    subsection.
 3        (e)  A final  order  issued  by  the  Board  pursuant  to
 4    Section 33 of this Act may be enforced through a civil action
 5    for injunctive or other relief instituted by a person who was
 6    a  party  to  the  Board  enforcement proceeding in which the
 7    Board issued the final order.
 8    (Source: P.A. 91-357, eff. 7-29-99; 92-574, eff. 6-26-02.)

 9                 ARTICLE II.  Non-IERRC provisions.

10        Section 25.  The State Finance Act is amended  by  adding
11    Section 5.595 as follows:

12        (30 ILCS 105/5.595 new)
13        Sec. 5.595.  The Oil Spill Response Fund.

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

16        (415 ILCS 5/Tit. VI-C heading new)
17                   TITLE VI-C:  OIL SPILL RESPONSE

18        (415 ILCS 5/25c-1 new)
19        Sec. 25c-1.  Oil Spill Response Fund.
20        (a)  There is hereby created within the State treasury an
21    interest-bearing special fund to be known as  the  Oil  Spill
22    Response  Fund.   There  shall be deposited into the Fund all
23    monies recovered as reimbursement for response costs incurred
24    by the  Agency  from  parties  responsible  for  releases  or
25    threats of release of petroleum, monies provided to the State
26    from  the  federal  Oil  Spill Liability Trust Fund, and such
27    other monies as may be  received  for  this  purpose  through
28    contributions, gifts, or supplemental environmental projects,
 
SB222 Enrolled             -59-      LRB093 08816 AMC 09048 b
 1    pursuant  to  court  orders  or  decrees,  or  from any other
 2    source.
 3        (b)  Pursuant to appropriation, all  monies  in  the  Oil
 4    Spill  Response Fund may be used by the Agency for all of the
 5    following purposes:
 6             (1)  Responding to releases or threats of release of
 7        petroleum that may constitute a substantial danger to the
 8        environment or human health or welfare.
 9             (2)  Contractual expenses and purchases of equipment
10        or  supplies  necessary  to  enable  prompt  response  to
11        releases or  threats  of  release  of  petroleum  and  to
12        provide  effective mitigation of such releases or threats
13        of release.
14             (3)  Costs of investigation and  assessment  of  the
15        source,  nature,  and  extent  of a release or threatened
16        release  of  petroleum  and  any  resulting  injuries  or
17        damages.
18             (4)  Costs associated with planning and training for
19        response to releases and threats of release of petroleum.
20             (5)  Costs associated with preparing and  submitting
21        claims  of  the Agency to the federal Oil Spill Liability
22        Trust Fund.
23        (c)  For  the  purposes  of  implementing  this  Section,
24    "petroleum"   means    crude    oil,    refined    petroleum,
25    intermediates,  fractions or constituents of petroleum, brine
26    or salt water from oil production,  oil  sheens,  hydrocarbon
27    vapors, and any other form of oil or petroleum.
28        (d)  In addition to any other authority provided by State
29    or  federal  law, the Agency shall be entitled to recovery of
30    costs incurred by it in response to releases and  threats  of
31    release of petroleum from any persons who are responsible for
32    causing, allowing, or threatening such releases.

33        Section    35.     The    Response    Action   Contractor
 
SB222 Enrolled             -60-      LRB093 08816 AMC 09048 b
 1    Indemnification Act is amended by changing Sections 4  and  5
 2    as follows:

 3        (415 ILCS 100/4) (from Ch. 111 1/2, par. 7204)
 4        Sec.  4.   (a)  In  the  event  that any civil proceeding
 5    arising out of a State response action contract is  commenced
 6    against  any response action contractor, the Attorney General
 7    shall, upon timely and appropriate  notice  to  him  by  such
 8    contractor,  appear  on  behalf of such contractor and defend
 9    the action.  Any such notice shall be in  writing,  shall  be
10    mailed  within  15  days  after  the  date  of receipt by the
11    contractor of service of process,  and  shall  authorize  the
12    Attorney  General  to  represent and defend the contractor in
13    the proceeding.  The giving of this notice  to  the  Attorney
14    General  shall  constitute  an agreement by the contractor to
15    cooperate with the Attorney General in  his  defense  of  the
16    action  and a consent that the Attorney General shall conduct
17    the defense as he deems advisable and in the  best  interests
18    of  the contractor and the State, including settlement in the
19    Attorney General's discretion.  In any such  proceeding,  the
20    State  shall  pay  the court costs and litigation expenses of
21    defending such action, to the extent approved by the Attorney
22    General as reasonable, as they are incurred.
23        In the event that the Attorney General determines  either
24    (1)  that so appearing and defending a contractor involves an
25    actual or potential conflict of interest, or (2) that the act
26    or omission which gave rise to the claim was not  within  the
27    scope   of   the  State  response  action  contract,  or  was
28    intentional,  willful  or  wanton  misconduct,  the  Attorney
29    General shall decline in writing to appear or defend or shall
30    promptly take appropriate action to withdraw as attorney  for
31    such   contractor.   Upon  receipt  of  such  declination  or
32    withdrawal by the Attorney General on the basis of an  actual
33    or  potential conflict of interest, the contractor may employ
 
SB222 Enrolled             -61-      LRB093 08816 AMC 09048 b
 1    his own attorney to appear and defend,  in  which  event  the
 2    State  shall  pay  the  contractor's  court costs, litigation
 3    expenses and attorneys' fees to the extent  approved  by  the
 4    Attorney General as reasonable, as they are incurred.
 5        (b)  In  any  civil  proceeding  arising  out  of a State
 6    response action contract in which notice  was  given  to  the
 7    Attorney  General  under subsection (a), if the court or jury
 8    finds that  the  act  or  omission  of  the  response  action
 9    contractor  was within the scope of the State response action
10    contract  and  was  not  intentional,   willful   or   wanton
11    misconduct,  the  court  shall so state in its judgement, and
12    the State shall indemnify  the  contractor  for  any  damages
13    awarded  and court costs and attorneys' fees assessed as part
14    of the final and unreversed judgment.  In such event, if  the
15    Attorney  General  declined  to  appear  or  withdrew  on the
16    grounds that the act or omission was not within the scope  of
17    the  State  response  action  contract,  or  was intentional,
18    willful or wanton misconduct, the State shall  also  pay  the
19    contractor's  court  costs, litigation expenses and attorneys
20    fees to the  extent  approved  by  the  Attorney  General  as
21    reasonable.
22        (c)  Unless  the  Attorney  General  determines  that the
23    conduct or inaction which gave rise to the claim or cause  of
24    action  was not within the scope of the State response action
25    contract, or was intentional, willful or  wanton  misconduct,
26    any case in which notice was given pursuant to subsection (a)
27    may be settled, in the Attorney General's discretion, and the
28    State  shall  indemnify the contractor for any damages, court
29    costs  and  attorneys'  fees  agreed  to  as  part   of   the
30    settlement.   If  the  contractor  is  represented by private
31    counsel,  any  settlement  which  obligates  the   State   to
32    indemnify  the  contractor  must  be approved by the Attorney
33    General and the court having jurisdiction.
34        (d)  Court costs and litigation expenses and other  costs
 
SB222 Enrolled             -62-      LRB093 08816 AMC 09048 b
 1    of  providing  a  defense, including attorneys' fees, paid or
 2    obligated   under   this   Section,   and   the   costs    of
 3    indemnification,  including the payment of any final judgment
 4    or final settlement under this  Section,  shall  be  paid  by
 5    warrant  from  the  Response Contractors Indemnification Fund
 6    pursuant to vouchers certified by the Attorney General.
 7        (e)  Nothing contained or implied in this  Section  shall
 8    operate, or be construed or applied, to deprive the State, or
 9    any  response  action  contractor,  of  any defense otherwise
10    available.
11        (f)  Any judgment subject to State indemnification  under
12    this  Section  shall  not be enforceable against the response
13    action contractor, but shall be paid  by  the  State  in  the
14    following  manner.   Upon  receipt of a certified copy of the
15    judgment, the Attorney General shall review it  to  determine
16    if  the  judgment  is  (1)  final,  unreversed  and no longer
17    subject to appeal, and (2) subject to  indemnification  under
18    this Section.  If he determines that it is, he shall submit a
19    voucher  for  the  amount  of  the  judgment and any interest
20    thereon to the State Comptroller, and  the  amount  shall  be
21    paid  by warrant to the judgment creditor solely out of funds
22    available in the Response Contractors  Indemnification  Fund.
23    If  the  balance  in  such  Fund  is  insufficient to pay any
24    properly certified voucher for a warrant drawn  thereon,  the
25    Comptroller  shall  transfer the necessary amount to the Fund
26    from the General Revenue Fund.  In no event will  the  amount
27    paid  for  a  single  occurrence surpass $100,000 $2,000,000,
28    provided that this limitation shall not render any portion of
29    the  judgment  enforceable  against   the   response   action
30    contractor.
31    (Source: P.A. 84-1445.)

32        (415 ILCS 100/5) (from Ch. 111 1/2, par. 7205)
33        Sec. 5.  Response Contractors Indemnification Fund.
 
SB222 Enrolled             -63-      LRB093 08816 AMC 09048 b
 1        (a)  There  is  hereby  created  the Response Contractors
 2    Indemnification Fund. The State Treasurer, ex officio,  shall
 3    be  custodian  of  the Fund, and the Comptroller shall direct
 4    payments from the Fund upon vouchers  properly  certified  by
 5    the  Attorney  General  in  accordance  with  Section 4.  The
 6    Treasurer shall credit interest on the Fund to the Fund.
 7        (b)  Every State response action contract  shall  provide
 8    that  5%  of  each  payment to be made by the State under the
 9    contract shall  be  paid  by  the  State  directly  into  the
10    Response  Contractors Indemnification Fund rather than to the
11    contractor, except that when there is at least $100,000  more
12    than  $2,000,000  in  the  Fund  at  the beginning of a State
13    fiscal year, State  response  action  contracts  during  that
14    fiscal  year  need  not  provide that 5% of each payment made
15    under the contract be  paid  into  the  Fund.   When  only  a
16    portion  of  a  contract  relates  to  a remedial or response
17    action,  or  to  the   identification,   handling,   storage,
18    treatment  or  disposal  of  a  pollutant, the contract shall
19    provide that only that portion is subject to this subsection.
20        (c)  Within 30 days after  the  effective  date  of  this
21    amendatory   Act   of   1997,  the  Comptroller  shall  order
22    transferred and the Treasurer shall transfer $1,200,000  from
23    the   Response   Contractors   Indemnification  Fund  to  the
24    Brownfields Redevelopment Fund.  The Comptroller shall  order
25    transferred  and the Treasurer shall transfer $1,200,000 from
26    the  Response  Contractors  Indemnification   Fund   to   the
27    Brownfields  Redevelopment  Fund  on  the first day of fiscal
28    years 1999, 2000, 2001, 2002, and 2003, 2004, and 2005.
29        (d)  Within 30 days after  the  effective  date  of  this
30    amendatory  Act of the 91st General Assembly, the Comptroller
31    shall order transferred  and  the  Treasurer  shall  transfer
32    $2,000,000 from the Response Contractors Indemnification Fund
33    to the Asbestos Abatement Fund.
34        (e)  Within  30  days  after  the  effective date of this
 
SB222 Enrolled             -64-      LRB093 08816 AMC 09048 b
 1    amendatory Act of the 93rd General Assembly, the  Comptroller
 2    shall  order transferred and the Treasurer shall transfer all
 3    monies in the Response Action Contractor Indemnification Fund
 4    in excess of $100,000 from  the  Response  Action  Contractor
 5    Indemnification Fund to the Brownfields Redevelopment Fund.
 6    (Source: P.A. 91-704, eff. 7-1-00; 92-486, eff. 1-1-02.)

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