093_HB3590

 
                                     LRB093 02576 AMC 02586 b

 1        AN ACT concerning environmental safety.

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

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

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

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

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