SB0241 Enrolled LRB094 07834 RSP 38014 b

1     AN ACT concerning safety.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The Environmental Protection Act is amended by
5 changing Section 58.8 and by adding Sections 22.2d, 22.50, and
6 Title VI-D as follows:
 
7     (415 ILCS 5/22.2d new)
8     Sec. 22.2d. Authority of Director to issue orders.
9     (a) The purpose of this Section is to allow the Director to
10 quickly and effectively respond to a release or substantial
11 threat of a release of a hazardous substance, pesticide, or
12 petroleum for which the Agency is required to give notice under
13 Section 25d-3(a) of this Act by authorizing the Director to
14 issue orders, unilaterally or on consent, requiring
15 appropriate response actions and by providing for the exclusive
16 administrative and judicial review of these orders. This
17 Section is also intended to allow persons subject to an order
18 under this Section to recover the costs of complying with the
19 order if it is overturned or if they remediate the share of a
20 release or threat of a release for which a bankrupt or
21 insolvent party is liable under this Act.
22     (b) In addition to any other action taken by federal,
23 State, or local government, for any release or substantial
24 threat of release for which the Agency is required to give
25 notice under Section 25d-3(a) of this Act, the Director may
26 issue to any person who is potentially liable under this Act
27 for the release or substantial threat of release any order that
28 may be necessary to protect the public health and welfare and
29 the environment.
30         (1) Any order issued under this Section shall require
31     response actions consistent with the federal regulations
32     and amendments thereto promulgated by the United States

 

 

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1     Environmental Protection Agency to implement Section 105
2     of CERCLA, as amended, except that the remediation
3     objectives for response actions ordered under this Section
4     shall be determined in accordance with the risk-based
5     remediation objectives adopted by the Board under Title
6     XVII of this Act.
7         (2) Before the Director issues any order under this
8     Section, the Agency shall send a Special Notice Letter to
9     all persons identified by the Agency as potentially liable
10     under this Act for the release or threat of release. This
11     Special Notice Letter to the recipients shall include at a
12     minimum the following information:
13             (A) that the Agency believes the recipient may be
14         liable under the Act for responding to the release or
15         threat of a release;
16             (B) the reasons why the Agency believes the
17         recipient may be liable under the Act for the release
18         or threat of a release; and
19             (C) the period of time, not less than 30 days from
20         the date of issuance of the Special Notice Letter,
21         during which the Agency is ready to negotiate with the
22         recipient regarding their response to the release or
23         threat of a release.
24         (3) To encourage the prompt negotiation of a settlement
25     agreement or an order on consent with a recipient of a
26     Special Notice Letter required under this Section, the
27     Director shall not issue any unilateral order under this
28     Section to the recipient during the 30 days immediately
29     following the date of issuance of the Special Notice
30     Letter.
31     (c) (1) The recipient of a unilateral order issued by the
32 Director under this Section may petition the Board for a
33 hearing on the order within 35 days after being served with the
34 order. The Board shall take final action on the petition within
35 60 days after the date the petition is filed with the Board
36 unless all parties to the proceeding agree to the extension. If

 

 

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1 necessary to expedite the hearing and decision, the Board may
2 hold special meetings of the Board and may provide for
3 alternative public notice of the hearing and meeting, other
4 than as otherwise required by law. In any hearing on the order
5 the Agency shall have the burden of proof to establish that the
6 petitioner is liable under this Act for the release or threat
7 of release and that the actions required by the order are
8 consistent with the requirements of subsection (b)(1) of this
9 Section. The Board shall sustain the order if the petitioner is
10 liable under this Act for the release or threat of release and
11 to the extent the actions ordered are consistent with the
12 requirements of subsection (b)(1) of this Section and are not
13 otherwise unreasonable under the circumstances.
14         (A) The order issued by the Agency shall remain in full
15     force and effect pending the Board's final action on the
16     petition for review of the order, provided that the Board
17     may grant a stay of all or a portion of the order if it
18     finds that (i) there is a substantial likelihood that the
19     petitioner is not liable under this Act for the release or
20     threat of release or (ii) there is a substantial likelihood
21     that the actions required by the order are not consistent
22     with the requirements of subsection (b)(1) of this Section
23     and that the harm to the public from a stay of the order
24     will be outweighed by the harm to the petitioner if a stay
25     is not granted. Any stay granted by the Board under this
26     subsection (c)(1)(A) shall expire upon the Board's
27     issuance of its final action on the petition for review of
28     the order.
29         (B) If the Board finds that the petitioner is not
30     liable under this Act for the release or threat of release
31     it may authorize the payment of (i) all reasonable response
32     costs incurred by the petitioner to comply with the order
33     if it finds the petitioner's actions were consistent with
34     the requirements of subsection (b)(1) of this Section and
35     (ii) the petitioner's reasonable and appropriate costs,
36     fees, and expenses incurred in petitioning the Board for

 

 

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1     review of the order, including, but not limited to,
2     reasonable attorneys' fees and expenses.
3     (2) Any party to a Board hearing under this subsection (c)
4 may obtain judicial review, by filing a petition for review
5 within 35 days from the date that a copy of the Board's final
6 action sought to be reviewed was served upon the party affected
7 by the final Board action complained of, under the provisions
8 of the Administrative Review Law and the rules adopted pursuant
9 thereto, except that the review shall be afforded in the
10 appellate court for the district in which the cause of action
11 arose and not in the circuit court. The appellate court shall
12 retain jurisdiction during the pendency of any further action
13 conducted by the Board under an order by the appellate court.
14 The appellate court shall have jurisdiction to review all
15 issues of law and fact presented upon appeal.
16         (A) The order issued by the Agency shall remain in full
17     force and effect pending the appellate court's ruling on
18     the order, provided that the appellate court may grant a
19     stay of all or a portion of the order if it finds that (i)
20     there is a substantial likelihood that the petitioner is
21     not liable under this Act for the release or threat of
22     release or (ii) there is a substantial likelihood that the
23     actions required by the order are not consistent with the
24     requirements of subsection (b)(1) of this Section and that
25     the harm to the public from a stay of the order will be
26     outweighed by the harm to the petitioner if a stay is not
27     granted. Any stay granted by the appellate court under this
28     subsection (c)(2)(A) shall expire upon the issuance of the
29     appellate court's ruling on the appeal of the Board's final
30     action.
31         (B) If the appellate court finds that the petitioner is
32     not liable under this Act for the release or threat of
33     release it may authorize the payment of (i) all reasonable
34     response costs incurred by the petitioner to comply with
35     the order if it finds that the petitioner's actions were
36     consistent with the requirements of subsection (b)(1) of

 

 

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1     this Section and (ii) the petitioner's reasonable and
2     appropriate costs, fees, and expenses incurred in
3     petitioning the Appellate Court for review of the order,
4     including, but not limited to, reasonable attorneys' fees
5     and expenses.
6     (d) Any person who receives and complies with the terms of
7 any order issued under this Section may, within 60 days after
8 completion of the required action, petition the Director for
9 reimbursement for the reasonable costs of that action, plus
10 interest, subject to all of the following terms and conditions:
11         (1) The interest payable under this subsection accrues
12     on the amounts expended from the date of expenditure to the
13     date of payment of reimbursement at the rate set forth in
14     Section 3-2 of the Uniform Penalty and Interest Act.
15         (2) If the Director refuses to grant all or part of a
16     petition made under this subsection, the petitioner may,
17     within 35 days after receipt of the refusal, file a
18     petition with the Board seeking reimbursement.
19         (3) To obtain reimbursement, the petitioner must
20     establish, by a preponderance of the evidence, that:
21             (A) the only costs for which the petitioner seeks
22         reimbursement are costs incurred by the petitioner in
23         remediating the share of a release or threat of a
24         release for which a bankrupt or insolvent party is
25         liable under this Act, the costs of the share are a
26         fair and accurate apportionment among the persons
27         potentially liable under this Act for the release or
28         threat of a release, and the bankrupt or insolvent
29         party failed to pay the costs of the share; and
30             (B) the petitioner's response actions were
31         consistent with the federal regulations and amendments
32         thereto promulgated by the Administrator of the United
33         States Environmental Protection Agency to implement
34         Section 105 of CERCLA, as amended, except that the
35         remediation objectives for response actions shall be
36         determined in accordance with the risk-based

 

 

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1         remediation objectives adopted by the Board under
2         Title XVII of this Act; and
3             (C) the costs for which the petitioner seeks
4         reimbursement are reasonable in light of the action
5         required by the relevant order.
6         (4) Reimbursement awarded by the Board under item (3)
7     of subsection (d) may include appropriate costs, fees, and
8     other expenses incurred in petitioning the Director or
9     Board for reimbursement under subsection (d), including,
10     but not limited to, reasonable fees and expenses of
11     attorneys.
12         (5) Costs paid to a petitioner under a policy of
13     insurance, another written agreement, or a court order are
14     not eligible for payment under this subsection (d). A
15     petitioner who receives payment under a policy of
16     insurance, another written agreement, or a court order
17     shall reimburse the State to the extent that such payment
18     covers costs for which payment was received under this
19     subsection (d). Any monies received by the State under this
20     item (5) shall be deposited into the Hazardous Waste Fund.
21     (e) Except as otherwise provided in subsection (c) of this
22 Section, no court nor the Board has jurisdiction to review any
23 order issued under this Section or any administrative or
24 judicial action related to the order.
25     (f) Except as provided in subsection (g) of this Section,
26 any person may seek contribution from any other person who is
27 liable for the costs of response actions under this Section. In
28 resolving contribution claims, the Board or court may allocate
29 response costs among liable parties using such equitable
30 factors as the court determines are appropriate.
31     (g) A person who has complied with an order under this
32 Section and has resolved their liability under this Act with
33 respect to the release or threat of a release shall not be
34 liable for claims for contribution relating to the release or
35 threat of a release.
36     (h) The provisions of Section 58.9 of this Act do not apply

 

 

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1 to any action taken under this Section.
2     (i) This Section does not apply to releases or threats of
3 releases from underground storage tanks subject to Title XVI of
4 this Act. Orders issued by the Agency in response to such
5 releases or threats of releases shall be issued under Section
6 57.12(d) of this Act instead of this Section, and the costs of
7 complying with said orders shall be reimbursed in accordance
8 with Title XVI of this Act instead of this Section.
9     (j) Any person who, without sufficient cause, willfully
10 violates or fails or refuses to comply with any order issued
11 under this Section is in violation of this Act.
12     (k) The Agency may adopt rules as necessary for the
13 implementation of this Section.
 
14     (415 ILCS 5/22.50 new)
15     Sec. 22.50. Compliance with land use limitations. No
16 person shall use, or cause or allow the use of, any site for
17 which a land use limitation has been imposed under this Act in
18 a manner inconsistent with the land use limitation unless
19 further investigation or remedial action has been conducted
20 that documents the attainment of remedial objectives
21 appropriate for the new land use and a new closure letter has
22 been obtained from the Agency and recorded in the chain of
23 title for the site. For the purpose of this Section, the term
24 "land use limitation" shall include, but shall not be limited
25 to, institutional controls and engineered barriers imposed
26 under this Act and the regulations adopted under this Act. For
27 the purposes of this Section, the term "closure letter" shall
28 include, but shall not be limited to, No Further Remediation
29 Letters issued under Titles XVI and XVII of this Act and the
30 regulations adopted under those Titles.
 
31     (415 ILCS 5/Title VI-D heading new)
32
TITLE VI-D.
RIGHT-TO-KNOW

 
33     (415 ILCS 5/25d-1 new)

 

 

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1     Sec. 25d-1. Definitions. For the purposes of this Title,
2 the terms "community water system", "non-community water
3 system", "potable", "private water system", and "semi-private
4 water system" have the meanings ascribed to them in the
5 Illinois Groundwater Protection Act.
 
6     (415 ILCS 5/25d-2 new)
7     Sec. 25d-2. Contaminant evaluation. The Agency shall
8 evaluate releases of contaminants whenever it determines that
9 the extent of soil or groundwater contamination may extend
10 beyond the boundary of the site where the release occurred. The
11 Agency shall take appropriate actions in response to the
12 release, which may include, but shall not be limited to, public
13 notices, investigations, administrative orders under Sections
14 22.2d or 57.12(d) of this Act, and enforcement referrals.
15 Except as provided in Section 25d-3 of this Act, for releases
16 undergoing investigation or remediation under Agency oversight
17 the Agency may determine that no further action is necessary to
18 comply with this Section.
 
19     (415 ILCS 5/25d-3 new)
20     Sec. 25d-3. Notices.
21     (a) Beginning January 1, 2006, if the Agency determines
22 that:
23         (1) Soil contamination beyond the boundary of the site
24     where the release occurred poses a threat of exposure to
25     the public above the appropriate Tier 1 remediation
26     objectives, based on the current use of the off-site
27     property, adopted by the Board under Title XVII of this
28     Act, the Agency shall give notice of the threat to the
29     owner of the contaminated property; or
30         (2) Groundwater contamination poses a threat of
31     exposure to the public above the Class I groundwater
32     quality standards adopted by the Board under this Act and
33     the Groundwater Protection Act, the Agency shall give
34     notice of the threat to the following:

 

 

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1         (A) for any private, semi-private, or non-community
2         water system, the owners of the properties served by
3         the system; and
4         (B) for any community water system, the owners and
5         operators of the system.
6 The Agency's determination must be based on the credible,
7 scientific information available to it, and the Agency is not
8 required to perform additional investigations or studies
9 beyond those required by applicable federal or State laws.
10     (b) Beginning January 1, 2006, if any of the following
11 actions occur: (i) the Agency refers a matter for enforcement
12 under Section 43(a) of this Act; (ii) the Agency issues a seal
13 order under Section 34(a) of this Act; or (iii) the Agency, the
14 United States Environmental Protection Agency (USEPA), or a
15 third party under Agency or USEPA oversight performs an
16 immediate removal under the federal Comprehensive
17 Environmental Response, Compensation, and Liability Act, as
18 amended, then, within 60 days after the action, the Agency must
19 give notice of the action to the owners of all property within
20 2,500 feet of the subject contamination or any closer or
21 farther distance that the Agency deems appropriate under the
22 circumstances. Within 30 days after a request by the Agency,
23 the appropriate officials of the county in which the property
24 is located must provide to the Agency the names and addresses
25 of all property owners to whom the Agency is required to give
26 notice under this subsection (b), these owners being the
27 persons or entities that appear from the authentic tax records
28 of the county.
29     (c) The methods by which the Agency gives the notices
30 required under this Section shall be determined in consultation
31 with members of the public and appropriate members of the
32 regulated community and may include, but shall not be limited
33 to, personal notification, public meetings, signs, electronic
34 notification, and print media. For sites at which a responsible
35 party has implemented a community relations plan, the Agency
36 may allow the responsible party to provide Agency-approved

 

 

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1 notices in lieu of the notices required to be given by the
2 Agency. Notices issued under this Section may contain the
3 following information:
4         (1) the name and address of the site or facility where
5     the release occurred or is suspected to have occurred;
6         (2) the identification of the contaminant released or
7     suspected to have been released;
8         (3) information as to whether the contaminant was
9     released or suspected to have been released into the air,
10     land, or water;
11         (4) a brief description of the potential adverse health
12     effects posed by the contaminant;
13         (5) a recommendation that water systems with wells
14     impacted or potentially impacted by the contaminant be
15     appropriately tested; and
16         (6) the name, business address, and phone number of
17     persons at the Agency from whom additional information
18     about the release or suspected release can be obtained.
19     (d) Any person who is a responsible party with respect to
20 the release or substantial threat of release for which notice
21 is given under this Section is liable for all reasonable costs
22 incurred by the State in giving the notice. All moneys received
23 by the State under this subsection (d) for costs related to
24 releases and substantial threats of releases of hazardous
25 substances, pesticides, and petroleum other than releases and
26 substantial threats of releases of petroleum from underground
27 storage tanks subject to Title XVI of this Act must be
28 deposited in and used for purposes consistent with the
29 Hazardous Waste Fund. All moneys received by the State under
30 this subsection (d) for costs related to releases and
31 substantial threats of releases of petroleum from underground
32 storage tanks subject to Title XVI of this Act must be
33 deposited in and used for purposes consistent with the
34 Underground Storage Tank Fund.
 
35     (415 ILCS 5/25d-4 new)

 

 

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1     Sec. 25d-4. Agency authority. Whenever the Agency
2 determines that a public notice should be issued under this
3 Title, the Agency has the authority to issue an information
4 demand letter to the owner or operator of the site or facility
5 where the release occurred or is suspected to have occurred
6 that requires the owner or operator to provide the Agency with
7 the information necessary, to the extent practicable, to give
8 the notices required under Section 25d-3 of this Title. In the
9 case of a release or suspected release from an underground
10 storage tank subject to Title XVI of this Act, the Agency has
11 the authority to issue such a letter to the owner or operator
12 of the underground storage tank. Within 30 days after the
13 issuance of a letter under this Section, or within a greater
14 period specified by the Agency, the person who receives the
15 letter shall provide the Agency with the required information.
16 Any person who, without sufficient cause, willfully violates,
17 or fails or refuses to comply with, any letter issued under
18 this Section is in violation of this Act.
 
19     (415 ILCS 5/25d-5 new)
20     Sec. 25d-5. Contamination information. Beginning July 1,
21 2006, the Agency shall make all of the following information
22 available on the Internet:
23         (i) Copies of all notifications given under Section
24     25d-3 of this Section. The copies must be indexed and the
25     index shall, at a minimum, be searchable by notification
26     date, zip code, site or facility name, and geographic
27     location.
28         (ii) Appropriate Agency databases containing
29     information about releases or suspected releases of
30     contaminants in the State. The databases must, at a
31     minimum, be searchable by notification date, zip code, site
32     or facility name, and geographic location.
33         (iii) Links to appropriate USEPA databases containing
34     information about releases or suspected releases of
35     contaminants in the State.
 

 

 

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1     (415 ILCS 5/25d-6 new)
2     Sec. 25d-6. Agency coordination. Beginning January 1,
3 2006, the Agency shall coordinate with the Department of Public
4 Health to provide training to regional and local health
5 department staff on the use of the information posted on the
6 Internet under Section 25d-5 of this Title. Also beginning
7 January 1, 2006, the Agency shall coordinate with the
8 Department of Public Health to provide training to licensed
9 water well drillers on the use of the information posted on the
10 Internet under Section 25d-5 of this Title in relation to the
11 location and installation of new wells serving private,
12 semi-private, and non-community water systems.
 
13     (415 ILCS 5/25d-7 new)
14     Sec. 25d-7. Rulemaking.
15     (a) Within 180 days after the effective date of this
16 amendatory Act of the 94th General Assembly, the Agency shall
17 evaluate the Board's rules and propose amendments to the rules
18 as necessary to require potable water supply well surveys and
19 community relations activities where such surveys and
20 activities are appropriate in response to releases of
21 contaminants that have impacted or that may impact offsite
22 potable water supply wells. Within 240 days after receiving the
23 Agency's proposal, the Board shall amend its rules as necessary
24 to require potable water supply well surveys and community
25 relations activities where such surveys and activities are
26 appropriate in response to releases of contaminants that have
27 impacted or that may impact offsite potable water supply wells.
28 Community relations activities required by the Board shall
29 include, but shall not be limited to, submitting a community
30 relations plan for Agency approval, maintaining a public
31 information repository that contains timely information about
32 the actions being taken in response to a release, and
33 maintaining dialogue with the community through means such as
34 public meetings, fact sheets, and community advisory groups.

 

 

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1     (b) The Agency shall adopt rules setting forth costs for
2 which persons may be liable to the State under Section 25d-3(d)
3 of this Act. In addition, the Agency shall have the authority
4 to adopt other rules as necessary for the administration of
5 this Title.
 
6     (415 ILCS 5/25d-8 new)
7     Sec. 25d-8. Liability. Except for willful and wanton
8 misconduct, neither the State, the Director, nor any State
9 employee shall be liable for any damages or injuries arising
10 out of or resulting from any act or omission occurring under
11 this amendatory Act of the 94th General Assembly.
 
12     (415 ILCS 5/25d-9 new)
13     Sec. 25d-9. Admissibility. The Agency's giving of notice or
14 failure to give notice under Section 25d-3 of this Title shall
15 not be admissible for any purpose in any administrative or
16 judicial proceeding.
 
17     (415 ILCS 5/25d-10 new)
18     Sec. 25d-10. Avoiding duplication. The Agency shall take
19 whatever steps it deems necessary to eliminate the potential
20 for duplicative notices required by this Title and Section 9.1
21 of the Illinois Groundwater Protection Act.
 
22     (415 ILCS 5/58.8)
23     Sec. 58.8. Duty to record.
24     (a) The RA receiving a No Further Remediation Letter from
25 the Agency pursuant to Section 58.10, shall submit the letter
26 to the Office of the Recorder or the Registrar of Titles of the
27 county in which the site is located within 45 days of receipt
28 of the letter. The Office of the Recorder or the Registrar of
29 Titles shall accept and record that letter in accordance with
30 Illinois law so that it forms a permanent part of the chain of
31 title for the site.
32     (b) A No Further Remediation Letter shall not become

 

 

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1 effective until officially recorded in accordance with
2 subsection (a) of this Section. The RA shall obtain and submit
3 to the Agency a certified copy of the No Further Remediation
4 Letter as recorded.
5     (c) (Blank). At no time shall any site for which a land use
6 limitation has been imposed as a result of remediation
7 activities under this Title be used in a manner inconsistent
8 with the land use limitation unless further investigation or
9 remedial action has been conducted that documents the
10 attainment of objectives appropriate for the new land use and a
11 new No Further Remediation Letter obtained and recorded in
12 accordance with this Title.
13     (d) In the event that a No Further Remediation Letter
14 issues by operation of law pursuant to Section 58.10, the RA
15 may, for purposes of this Section, file an affidavit stating
16 that the letter issued by operation of law. Upon receipt of the
17 No Further Remediation Letter from the Agency, the RA shall
18 comply with the requirements of subsections (a) and (b) of this
19 Section.
20 (Source: P.A. 92-574, eff. 6-26-02.)
 
21     Section 99. Effective date. This Act takes effect upon
22 becoming law.