093_SB0222sam002

 










                                     LRB093 08816 EFG 13231 a

 1                    AMENDMENT TO SENATE BILL 222

 2        AMENDMENT NO.     .  Amend Senate Bill 222,  AS  AMENDED,
 3    by replacing the title with the following:
 4        "AN ACT in relation to environmental protection."; and

 5    immediately  below  the  enacting  clause,  by  inserting the
 6    following:

 7            "ARTICLE I.  Recommendations of the Illinois
 8          Environmental Regulatory Review Commission."; and

 9    after the end of Section 10, by inserting the following:

10                 "ARTICLE II.  Non-IERRC provisions.

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

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

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

17        (415 ILCS 5/Tit. VI-C heading new)
 
                            -2-      LRB093 08816 EFG 13231 a
 1                   TITLE VI-C:  OIL SPILL RESPONSE

 2        (415 ILCS 5/25c-1 new)
 3        Sec. 25c-1.  Oil Spill Response Fund.
 4        (a)  There is hereby created within the State Treasury an
 5    interest-bearing special fund to be known as  the  Oil  Spill
 6    Response  Fund.   There  shall be deposited into the Fund all
 7    monies recovered as reimbursement for response costs incurred
 8    by the  Agency  from  parties  responsible  for  releases  or
 9    threats of release of petroleum, monies provided to the State
10    from  the  federal  Oil  Spill Liability Trust Fund, and such
11    other monies as may be  received  for  this  purpose  through
12    contributions, gifts, or supplemental environmental projects,
13    pursuant  to  court  orders  or  decrees,  or  from any other
14    source.
15        (b)  Pursuant to appropriation, all  monies  in  the  Oil
16    Spill  Response Fund may be used by the Agency for all of the
17    following purposes:
18             (1)  Responding to releases or threats of release of
19        petroleum that may constitute a substantial danger to the
20        environment or human health or welfare.
21             (2)  Contractual expenses and purchases of equipment
22        or  supplies  necessary  to  enable  prompt  response  to
23        releases or  threats  of  release  of  petroleum  and  to
24        provide  effective mitigation of such releases or threats
25        of release.
26             (3)  Costs of investigation and  assessment  of  the
27        source,  nature,  and  extent  of a release or threatened
28        release  of  petroleum  and  any  resulting  injuries  or
29        damages.
30             (4)  Costs associated with planning and training for
31        response to releases and threats of release of petroleum.
32             (5)  Costs associated with preparing and  submitting
33        claims  of  the Agency to the federal Oil Spill Liability
 
                            -3-      LRB093 08816 EFG 13231 a
 1        Trust Fund.
 2        (c)  For  the  purposes  of  implementing  this  Section,
 3    "petroleum"   means    crude    oil,    refined    petroleum,
 4    intermediates,  fractions or constituents of petroleum, brine
 5    or salt water from oil production,  oil  sheens,  hydrocarbon
 6    vapors, and any other form of oil or petroleum.
 7        (d)  In addition to any other authority provided by State
 8    or  federal  law, the Agency shall be entitled to recovery of
 9    costs incurred by it in response to releases and  threats  of
10    release of petroleum from any persons who are responsible for
11    causing, allowing, or threatening such releases.

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

15        (415 ILCS 100/4) (from Ch. 111 1/2, par. 7204)
16        Sec.  4.   (a)  In  the  event  that any civil proceeding
17    arising out of a State response action contract is  commenced
18    against  any response action contractor, the Attorney General
19    shall, upon timely and appropriate  notice  to  him  by  such
20    contractor,  appear  on  behalf of such contractor and defend
21    the action.  Any such notice shall be in  writing,  shall  be
22    mailed  within  15  days  after  the  date  of receipt by the
23    contractor of service of process,  and  shall  authorize  the
24    Attorney  General  to  represent and defend the contractor in
25    the proceeding.  The giving of this notice  to  the  Attorney
26    General  shall  constitute  an agreement by the contractor to
27    cooperate with the Attorney General in  his  defense  of  the
28    action  and a consent that the Attorney General shall conduct
29    the defense as he deems advisable and in the  best  interests
30    of  the contractor and the State, including settlement in the
31    Attorney General's discretion.  In any such  proceeding,  the
32    State  shall  pay  the court costs and litigation expenses of
 
                            -4-      LRB093 08816 EFG 13231 a
 1    defending such action, to the extent approved by the Attorney
 2    General as reasonable, as they are incurred.
 3        In the event that the Attorney General determines  either
 4    (1)  that so appearing and defending a contractor involves an
 5    actual or potential conflict of interest, or (2) that the act
 6    or omission which gave rise to the claim was not  within  the
 7    scope   of   the  State  response  action  contract,  or  was
 8    intentional,  willful  or  wanton  misconduct,  the  Attorney
 9    General shall decline in writing to appear or defend or shall
10    promptly take appropriate action to withdraw as attorney  for
11    such   contractor.   Upon  receipt  of  such  declination  or
12    withdrawal by the Attorney General on the basis of an  actual
13    or  potential conflict of interest, the contractor may employ
14    his own attorney to appear and defend,  in  which  event  the
15    State  shall  pay  the  contractor's  court costs, litigation
16    expenses and attorneys' fees to the extent  approved  by  the
17    Attorney General as reasonable, as they are incurred.
18        (b)  In  any  civil  proceeding  arising  out  of a State
19    response action contract in which notice  was  given  to  the
20    Attorney  General  under subsection (a), if the court or jury
21    finds that  the  act  or  omission  of  the  response  action
22    contractor  was within the scope of the State response action
23    contract  and  was  not  intentional,   willful   or   wanton
24    misconduct,  the  court  shall so state in its judgement, and
25    the State shall indemnify  the  contractor  for  any  damages
26    awarded  and court costs and attorneys' fees assessed as part
27    of the final and unreversed judgment.  In such event, if  the
28    Attorney  General  declined  to  appear  or  withdrew  on the
29    grounds that the act or omission was not within the scope  of
30    the  State  response  action  contract,  or  was intentional,
31    willful or wanton misconduct, the State shall  also  pay  the
32    contractor's  court  costs, litigation expenses and attorneys
33    fees to the  extent  approved  by  the  Attorney  General  as
34    reasonable.
 
                            -5-      LRB093 08816 EFG 13231 a
 1        (c)  Unless  the  Attorney  General  determines  that the
 2    conduct or inaction which gave rise to the claim or cause  of
 3    action  was not within the scope of the State response action
 4    contract, or was intentional, willful or  wanton  misconduct,
 5    any case in which notice was given pursuant to subsection (a)
 6    may be settled, in the Attorney General's discretion, and the
 7    State  shall  indemnify the contractor for any damages, court
 8    costs  and  attorneys'  fees  agreed  to  as  part   of   the
 9    settlement.   If  the  contractor  is  represented by private
10    counsel,  any  settlement  which  obligates  the   State   to
11    indemnify  the  contractor  must  be approved by the Attorney
12    General and the court having jurisdiction.
13        (d)  Court costs and litigation expenses and other  costs
14    of  providing  a  defense, including attorneys' fees, paid or
15    obligated   under   this   Section,   and   the   costs    of
16    indemnification,  including the payment of any final judgment
17    or final settlement under this  Section,  shall  be  paid  by
18    warrant  from  the  Response Contractors Indemnification Fund
19    pursuant to vouchers certified by the Attorney General.
20        (e)  Nothing contained or implied in this  Section  shall
21    operate, or be construed or applied, to deprive the State, or
22    any  response  action  contractor,  of  any defense otherwise
23    available.
24        (f)  Any judgment subject to State indemnification  under
25    this  Section  shall  not be enforceable against the response
26    action contractor, but shall be paid  by  the  State  in  the
27    following  manner.   Upon  receipt of a certified copy of the
28    judgment, the Attorney General shall review it  to  determine
29    if  the  judgment  is  (1)  final,  unreversed  and no longer
30    subject to appeal, and (2) subject to  indemnification  under
31    this Section.  If he determines that it is, he shall submit a
32    voucher  for  the  amount  of  the  judgment and any interest
33    thereon to the State Comptroller, and  the  amount  shall  be
34    paid  by warrant to the judgment creditor solely out of funds
 
                            -6-      LRB093 08816 EFG 13231 a
 1    available in the Response Contractors  Indemnification  Fund.
 2    If  the  balance  in  such  Fund  is  insufficient to pay any
 3    properly certified voucher for a warrant drawn  thereon,  the
 4    Comptroller  shall  transfer the necessary amount to the Fund
 5    from the General Revenue Fund.  In no event will  the  amount
 6    paid  for  a  single  occurrence surpass $100,000 $2,000,000,
 7    provided that this limitation shall not render any portion of
 8    the  judgment  enforceable  against   the   response   action
 9    contractor.
10    (Source: P.A. 84-1445.)

11        (415 ILCS 100/5) (from Ch. 111 1/2, par. 7205)
12        Sec. 5.  Response Contractors Indemnification Fund.
13        (a)  There  is  hereby  created  the Response Contractors
14    Indemnification Fund. The State Treasurer, ex officio,  shall
15    be  custodian  of  the Fund, and the Comptroller shall direct
16    payments from the Fund upon vouchers  properly  certified  by
17    the  Attorney  General  in  accordance  with  Section 4.  The
18    Treasurer shall credit interest on the Fund to the Fund.
19        (b)  Every State response action contract  shall  provide
20    that  5%  of  each  payment to be made by the State under the
21    contract shall  be  paid  by  the  State  directly  into  the
22    Response  Contractors Indemnification Fund rather than to the
23    contractor, except that when there is at least $100,000  more
24    than  $2,000,000  in  the  Fund  at  the beginning of a State
25    fiscal year, State  response  action  contracts  during  that
26    fiscal  year  need  not  provide that 5% of each payment made
27    under the contract be  paid  into  the  Fund.   When  only  a
28    portion  of  a  contract  relates  to  a remedial or response
29    action,  or  to  the   identification,   handling,   storage,
30    treatment  or  disposal  of  a  pollutant, the contract shall
31    provide that only that portion is subject to this subsection.
32        (c)  Within 30 days after  the  effective  date  of  this
33    amendatory   Act   of   1997,  the  Comptroller  shall  order
 
                            -7-      LRB093 08816 EFG 13231 a
 1    transferred and the Treasurer shall transfer $1,200,000  from
 2    the   Response   Contractors   Indemnification  Fund  to  the
 3    Brownfields Redevelopment Fund.  The Comptroller shall  order
 4    transferred  and the Treasurer shall transfer $1,200,000 from
 5    the  Response  Contractors  Indemnification   Fund   to   the
 6    Brownfields  Redevelopment  Fund  on  the first day of fiscal
 7    years 1999, 2000, 2001, 2002, and 2003, 2004, and 2005.
 8        (d)  Within 30 days after  the  effective  date  of  this
 9    amendatory  Act of the 91st General Assembly, the Comptroller
10    shall order transferred  and  the  Treasurer  shall  transfer
11    $2,000,000 from the Response Contractors Indemnification Fund
12    to the Asbestos Abatement Fund.
13        (e)  Within  30  days  after  the  effective date of this
14    amendatory Act of the 93rd General Assembly, the  Comptroller
15    shall  order transferred and the Treasurer shall transfer all
16    monies in the Response Action Contractor Indemnification Fund
17    in excess of $100,000 from  the  Response  Action  Contractor
18    Indemnification Fund to the Brownfields Redevelopment Fund.
19    (Source: P.A. 91-704, eff. 7-1-00; 92-486, eff. 1-1-02.)".