Illinois General Assembly - Full Text of SB0241
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Full Text of SB0241  94th General Assembly

SB0241ham001 94TH GENERAL ASSEMBLY

Environment & Energy Committee

Filed: 5/12/2005

 

 


 

 


 
09400SB0241ham001 LRB094 07834 RSP 46358 a

1
AMENDMENT TO SENATE BILL 241

2     AMENDMENT NO. ______. Amend Senate Bill 241 by replacing
3 everything after the enacting clause with the following:
 
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

 

 

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1 notice under Section 25d-3(a) of this Act, the Director may
2 issue to any person who is potentially liable under this Act
3 for the release or substantial threat of release any order that
4 may be necessary to protect the public health and welfare and
5 the environment.
6         (1) Any order issued under this Section shall require
7     response actions consistent with the federal regulations
8     and amendments thereto promulgated by the United States
9     Environmental Protection Agency to implement Section 105
10     of CERCLA, as amended, except that the remediation
11     objectives for response actions ordered under this Section
12     shall be determined in accordance with the risk-based
13     remediation objectives adopted by the Board under Title
14     XVII of this Act.
15         (2) Before the Director issues any order under this
16     Section, the Agency shall send a Special Notice Letter to
17     all persons identified by the Agency as potentially liable
18     under this Act for the release or threat of release. This
19     Special Notice Letter to the recipients shall include at a
20     minimum the following information:
21             (A) that the Agency believes the recipient may be
22         liable under the Act for responding to the release or
23         threat of a release;
24             (B) the reasons why the Agency believes the
25         recipient may be liable under the Act for the release
26         or threat of a release; and
27             (C) the period of time, not less than 30 days from
28         the date of issuance of the Special Notice Letter,
29         during which the Agency is ready to negotiate with the
30         recipient regarding their response to the release or
31         threat of a release.
32         (3) To encourage the prompt negotiation of a settlement
33     agreement or an order on consent with a recipient of a
34     Special Notice Letter required under this Section, the

 

 

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1     Director shall not issue any unilateral order under this
2     Section to the recipient during the 30 days immediately
3     following the date of issuance of the Special Notice
4     Letter.
5     (c) (1) The recipient of a unilateral order issued by the
6 Director under this Section may petition the Board for a
7 hearing on the order within 35 days after being served with the
8 order. The Board shall take final action on the petition within
9 60 days after the date the petition is filed with the Board
10 unless all parties to the proceeding agree to the extension. If
11 necessary to expedite the hearing and decision, the Board may
12 hold special meetings of the Board and may provide for
13 alternative public notice of the hearing and meeting, other
14 than as otherwise required by law. In any hearing on the order
15 the Agency shall have the burden of proof to establish that the
16 petitioner is liable under this Act for the release or threat
17 of release and that the actions required by the order are
18 consistent with the requirements of subsection (b)(1) of this
19 Section. The Board shall sustain the order if the petitioner is
20 liable under this Act for the release or threat of release and
21 to the extent the actions ordered are consistent with the
22 requirements of subsection (b)(1) of this Section and are not
23 otherwise unreasonable under the circumstances.
24         (A) The order issued by the Agency shall remain in full
25     force and effect pending the Board's final action on the
26     petition for review of the order, provided that the Board
27     may grant a stay of all or a portion of the order if it
28     finds that (i) there is a substantial likelihood that the
29     petitioner is not liable under this Act for the release or
30     threat of release or (ii) there is a substantial likelihood
31     that the actions required by the order are not consistent
32     with the requirements of subsection (b)(1) of this Section
33     and that the harm to the public from a stay of the order
34     will be outweighed by the harm to the petitioner if a stay

 

 

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

 

 

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1     actions required by the order are not consistent with the
2     requirements of subsection (b)(1) of this Section and that
3     the harm to the public from a stay of the order will be
4     outweighed by the harm to the petitioner if a stay is not
5     granted. Any stay granted by the appellate court under this
6     subsection (c)(2)(A) shall expire upon the issuance of the
7     appellate court's ruling on the appeal of the Board's final
8     action.
9         (B) If the appellate court finds that the petitioner is
10     not liable under this Act for the release or threat of
11     release it may authorize the payment of (i) all reasonable
12     response costs incurred by the petitioner to comply with
13     the order if it finds that the petitioner's actions were
14     consistent with the requirements of subsection (b)(1) of
15     this Section and (ii) the petitioner's reasonable and
16     appropriate costs, fees, and expenses incurred in
17     petitioning the Appellate Court for review of the order,
18     including, but not limited to, reasonable attorneys' fees
19     and expenses.
20     (d) Any person who receives and complies with the terms of
21 any order issued under this Section may, within 60 days after
22 completion of the required action, petition the Director for
23 reimbursement for the reasonable costs of that action, plus
24 interest, subject to all of the following terms and conditions:
25         (1) The interest payable under this subsection accrues
26     on the amounts expended from the date of expenditure to the
27     date of payment of reimbursement at the rate set forth in
28     Section 3-2 of the Uniform Penalty and Interest Act.
29         (2) If the Director refuses to grant all or part of a
30     petition made under this subsection, the petitioner may,
31     within 35 days after receipt of the refusal, file a
32     petition with the Board seeking reimbursement.
33         (3) To obtain reimbursement, the petitioner must
34     establish, by a preponderance of the evidence, that:

 

 

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1             (A) the only costs for which the petitioner seeks
2         reimbursement are costs incurred by the petitioner in
3         remediating the share of a release or threat of a
4         release for which a bankrupt or insolvent party is
5         liable under this Act, the costs of the share are a
6         fair and accurate apportionment among the persons
7         potentially liable under this Act for the release or
8         threat of a release, and the bankrupt or insolvent
9         party failed to pay the costs of the share; and
10             (B) the petitioner's response actions were
11         consistent with the federal regulations and amendments
12         thereto promulgated by the Administrator of the United
13         States Environmental Protection Agency to implement
14         Section 105 of CERCLA, as amended, except that the
15         remediation objectives for response actions shall be
16         determined in accordance with the risk-based
17         remediation objectives adopted by the Board under
18         Title XVII of this Act; and
19             (C) the costs for which the petitioner seeks
20         reimbursement are reasonable in light of the action
21         required by the relevant order.
22         (4) Reimbursement awarded by the Board under item (3)
23     of subsection (d) may include appropriate costs, fees, and
24     other expenses incurred in petitioning the Director or
25     Board for reimbursement under subsection (d), including,
26     but not limited to, reasonable fees and expenses of
27     attorneys.
28         (5) Costs paid to a petitioner under a policy of
29     insurance, another written agreement, or a court order are
30     not eligible for payment under this subsection (d). A
31     petitioner who receives payment under a policy of
32     insurance, another written agreement, or a court order
33     shall reimburse the State to the extent that such payment
34     covers costs for which payment was received under this

 

 

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1     subsection (d). Any monies received by the State under this
2     item (5) shall be deposited into the Hazardous Waste Fund.
3     (e) Except as otherwise provided in subsection (c) of this
4 Section, no court nor the Board has jurisdiction to review any
5 order issued under this Section or any administrative or
6 judicial action related to the order.
7     (f) Except as provided in subsection (g) of this Section,
8 any person may seek contribution from any other person who is
9 liable for the costs of response actions under this Section. In
10 resolving contribution claims, the Board or court may allocate
11 response costs among liable parties using such equitable
12 factors as the court determines are appropriate.
13     (g) A person who has complied with an order under this
14 Section and has resolved their liability under this Act with
15 respect to the release or threat of a release shall not be
16 liable for claims for contribution relating to the release or
17 threat of a release.
18     (h) The provisions of Section 58.9 of this Act do not apply
19 to any action taken under this Section.
20     (i) This Section does not apply to releases or threats of
21 releases from underground storage tanks subject to Title XVI of
22 this Act. Orders issued by the Agency in response to such
23 releases or threats of releases shall be issued under Section
24 57.12(d) of this Act instead of this Section, and the costs of
25 complying with said orders shall be reimbursed in accordance
26 with Title XVI of this Act instead of this Section.
27     (j) Any person who, without sufficient cause, willfully
28 violates or fails or refuses to comply with any order issued
29 under this Section is in violation of this Act.
30     (k) The Agency may adopt rules as necessary for the
31 implementation of this Section.
 
32     (415 ILCS 5/22.50 new)
33     Sec. 22.50. Compliance with land use limitations. No

 

 

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1 person shall use, or cause or allow the use of, any site for
2 which a land use limitation has been imposed under this Act in
3 a manner inconsistent with the land use limitation unless
4 further investigation or remedial action has been conducted
5 that documents the attainment of remedial objectives
6 appropriate for the new land use and a new closure letter has
7 been obtained from the Agency and recorded in the chain of
8 title for the site. For the purpose of this Section, the term
9 "land use limitation" shall include, but shall not be limited
10 to, institutional controls and engineered barriers imposed
11 under this Act and the regulations adopted under this Act. For
12 the purposes of this Section, the term "closure letter" shall
13 include, but shall not be limited to, No Further Remediation
14 Letters issued under Titles XVI and XVII of this Act and the
15 regulations adopted under those Titles.
 
16     (415 ILCS 5/Title VI-D heading new)
17
TITLE VI-D.
RIGHT-TO-KNOW

 
18     (415 ILCS 5/25d-1 new)
19     Sec. 25d-1. Definitions. For the purposes of this Title,
20 the terms "community water system", "non-community water
21 system", "potable", "private water system", and "semi-private
22 water system" have the meanings ascribed to them in the
23 Illinois Groundwater Protection Act.
 
24     (415 ILCS 5/25d-2 new)
25     Sec. 25d-2. Contaminant evaluation. The Agency shall
26 evaluate releases of contaminants whenever it determines that
27 the extent of soil or groundwater contamination may extend
28 beyond the boundary of the site where the release occurred. The
29 Agency shall take appropriate actions in response to the
30 release, which may include, but shall not be limited to, public
31 notices, investigations, administrative orders under Sections

 

 

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1 22.2d or 57.12(d) of this Act, and enforcement referrals.
2 Except as provided in Section 25d-3 of this Act, for releases
3 undergoing investigation or remediation under Agency oversight
4 the Agency may determine that no further action is necessary to
5 comply with this Section.
 
6     (415 ILCS 5/25d-3 new)
7     Sec. 25d-3. Notices.
8     (a) Beginning January 1, 2006, if the Agency determines
9 that:
10         (1) Soil contamination beyond the boundary of the site
11     where the release occurred poses a threat of exposure to
12     the public above the appropriate Tier 1 remediation
13     objectives, based on the current use of the off-site
14     property, adopted by the Board under Title XVII of this
15     Act, the Agency shall give notice of the threat to the
16     owner of the contaminated property; or
17         (2) Groundwater contamination poses a threat of
18     exposure to the public above the Class I groundwater
19     quality standards adopted by the Board under this Act and
20     the Groundwater Protection Act, the Agency shall give
21     notice of the threat to the following:
22         (A) for any private, semi-private, or non-community
23         water system, the owners of the properties served by
24         the system; and
25         (B) for any community water system, the owners and
26         operators of the system.
27 The Agency's determination must be based on the credible,
28 scientific information available to it, and the Agency is not
29 required to perform additional investigations or studies
30 beyond those required by applicable federal or State laws.
31     (b) Beginning January 1, 2006, if any of the following
32 actions occur: (i) the Agency refers a matter for enforcement
33 under Section 43(a) of this Act; (ii) the Agency issues a seal

 

 

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1 order under Section 34(a) of this Act; or (iii) the Agency, the
2 United States Environmental Protection Agency (USEPA), or a
3 third party under Agency or USEPA oversight performs an
4 immediate removal under the federal Comprehensive
5 Environmental Response, Compensation, and Liability Act, as
6 amended, then, within 60 days after the action, the Agency must
7 give notice of the action to the owners of all property within
8 2,500 feet of the subject contamination or any closer or
9 farther distance that the Agency deems appropriate under the
10 circumstances. Within 30 days after a request by the Agency,
11 the appropriate officials of the county in which the property
12 is located must provide to the Agency the names and addresses
13 of all property owners to whom the Agency is required to give
14 notice under this subsection (b), these owners being the
15 persons or entities that appear from the authentic tax records
16 of the county.
17     (c) The methods by which the Agency gives the notices
18 required under this Section shall be determined in consultation
19 with members of the public and appropriate members of the
20 regulated community and may include, but shall not be limited
21 to, personal notification, public meetings, signs, electronic
22 notification, and print media. For sites at which a responsible
23 party has implemented a community relations plan, the Agency
24 may allow the responsible party to provide Agency-approved
25 notices in lieu of the notices required to be given by the
26 Agency. Notices issued under this Section may contain the
27 following information:
28         (1) the name and address of the site or facility where
29     the release occurred or is suspected to have occurred;
30         (2) the identification of the contaminant released or
31     suspected to have been released;
32         (3) information as to whether the contaminant was
33     released or suspected to have been released into the air,
34     land, or water;

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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