Illinois General Assembly - Full Text of SB3073
Illinois General Assembly

  Bills & Resolutions  
  Compiled Statutes  
  Public Acts  
  Legislative Reports  
  IL Constitution  
  Legislative Guide  
  Legislative Glossary  

 Search By Number
 (example: HB0001)
Search Tips

Search By Keyword

Full Text of SB3073  102nd General Assembly

SB3073sam002 102ND GENERAL ASSEMBLY

Sen. Adriane Johnson

Filed: 2/18/2022

 

 


 

 


 
10200SB3073sam002LRB102 23422 CPF 36554 a

1
AMENDMENT TO SENATE BILL 3073

2    AMENDMENT NO. ______. Amend Senate Bill 3073 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Environmental Protection Act is amended by
5changing Section 22.59 and by adding Section 22.59a as
6follows:
 
7    (415 ILCS 5/22.59)
8    Sec. 22.59. CCR surface impoundments.
9    (a) The General Assembly finds that:
10        (1) the State of Illinois has a long-standing policy
11    to restore, protect, and enhance the environment,
12    including the purity of the air, land, and waters,
13    including groundwaters, of this State;
14        (2) a clean environment is essential to the growth and
15    well-being of this State;
16        (3) CCR generated by the electric generating industry

 

 

10200SB3073sam002- 2 -LRB102 23422 CPF 36554 a

1    has caused groundwater contamination and other forms of
2    pollution at active and inactive plants throughout this
3    State;
4        (4) environmental laws should be supplemented to
5    ensure consistent, responsible regulation of all existing
6    CCR surface impoundments; and
7        (5) meaningful participation of State residents,
8    especially vulnerable populations who may be affected by
9    regulatory actions, is critical to ensure that
10    environmental justice considerations are incorporated in
11    the development of, decision-making related to, and
12    implementation of environmental laws and rulemaking that
13    protects and improves the well-being of communities in
14    this State that bear disproportionate burdens imposed by
15    environmental pollution; and .
16        (6) the State places special emphasis on protecting
17    the water quality of Lake Michigan, including the
18    establishment of more stringent water quality standards
19    for that body of water compared to water quality standards
20    applicable for all other bodies of water throughout the
21    State.
22    Therefore, the purpose of this Section is to promote a
23healthful environment, including clean water, air, and land,
24meaningful public involvement, and the responsible disposal
25and storage of coal combustion residuals, so as to protect
26public health and to prevent pollution of the environment of

 

 

10200SB3073sam002- 3 -LRB102 23422 CPF 36554 a

1this State.
2    The provisions of this Section shall be liberally
3construed to carry out the purposes of this Section.
4    (b) No person shall:
5        (1) cause or allow the discharge of any contaminants
6    from a CCR surface impoundment into the environment so as
7    to cause, directly or indirectly, a violation of this
8    Section or any regulations or standards adopted by the
9    Board under this Section, either alone or in combination
10    with contaminants from other sources;
11        (2) construct, install, modify, operate, or close any
12    CCR surface impoundment without a permit granted by the
13    Agency, or so as to violate any conditions imposed by such
14    permit, any provision of this Section or any regulations
15    or standards adopted by the Board under this Section;
16        (3) cause or allow, directly or indirectly, the
17    discharge, deposit, injection, dumping, spilling, leaking,
18    or placing of any CCR upon the land in a place and manner
19    so as to cause or tend to cause a violation of this Section
20    or any regulations or standards adopted by the Board under
21    this Section; or
22        (4) construct, install, modify, or close a CCR surface
23    impoundment in accordance with a permit issued under this
24    Act without certifying to the Agency that all contractors,
25    subcontractors, and installers utilized to construct,
26    install, modify, or close a CCR surface impoundment are

 

 

10200SB3073sam002- 4 -LRB102 23422 CPF 36554 a

1    participants in:
2            (A) a training program that is approved by and
3        registered with the United States Department of
4        Labor's Employment and Training Administration and
5        that includes instruction in erosion control and
6        environmental remediation; and
7            (B) a training program that is approved by and
8        registered with the United States Department of
9        Labor's Employment and Training Administration and
10        that includes instruction in the operation of heavy
11        equipment and excavation.
12        Nothing in this paragraph (4) shall be construed to
13    require providers of construction-related professional
14    services to participate in a training program approved by
15    and registered with the United States Department of
16    Labor's Employment and Training Administration.
17        In this paragraph (4), "construction-related
18    professional services" includes, but is not limited to,
19    those services within the scope of: (i) the practice of
20    architecture as regulated under the Illinois Architecture
21    Practice Act of 1989; (ii) professional engineering as
22    defined in Section 4 of the Professional Engineering
23    Practice Act of 1989; (iii) the practice of a structural
24    engineer as defined in Section 4 of the Structural
25    Engineering Practice Act of 1989; or (iv) land surveying
26    under the Illinois Professional Land Surveyor Act of 1989.

 

 

10200SB3073sam002- 5 -LRB102 23422 CPF 36554 a

1    (c) (Blank).
2    (d) Before commencing closure of a CCR surface
3impoundment, in accordance with Board rules, the owner of a
4CCR surface impoundment must submit to the Agency for approval
5a closure alternatives analysis that analyzes all closure
6methods being considered and that otherwise satisfies all
7closure requirements adopted by the Board under this Act.
8Complete removal of CCR, as specified by the Board's rules,
9from the CCR surface impoundment must be considered and
10analyzed. Section 3.405 does not apply to the Board's rules
11specifying complete removal of CCR. The selected closure
12method must ensure compliance with regulations adopted by the
13Board pursuant to this Section.
14    (e) Owners or operators of CCR surface impoundments who
15have submitted a closure plan to the Agency before May 1, 2019,
16and who have completed closure prior to 24 months after July
1730, 2019 (the effective date of Public Act 101-171) shall not
18be required to obtain a construction permit for the surface
19impoundment closure under this Section.
20    (f) Except for the State, its agencies and institutions, a
21unit of local government, or not-for-profit electric
22cooperative as defined in Section 3.4 of the Electric Supplier
23Act, any person who owns or operates a CCR surface impoundment
24in this State shall post with the Agency a performance bond or
25other security for the purpose of: (i) ensuring closure of the
26CCR surface impoundment and post-closure care in accordance

 

 

10200SB3073sam002- 6 -LRB102 23422 CPF 36554 a

1with this Act and its rules; and (ii) ensuring remediation of
2releases from the CCR surface impoundment. The only acceptable
3forms of financial assurance are: a trust fund, a surety bond
4guaranteeing payment, a surety bond guaranteeing performance,
5or an irrevocable letter of credit.
6        (1) The cost estimate for the post-closure care of a
7    CCR surface impoundment shall be calculated using a
8    30-year post-closure care period or such longer period as
9    may be approved by the Agency under Board or federal
10    rules.
11        (2) The Agency is authorized to enter into such
12    contracts and agreements as it may deem necessary to carry
13    out the purposes of this Section. Neither the State, nor
14    the Director, nor any State employee shall be liable for
15    any damages or injuries arising out of or resulting from
16    any action taken under this Section.
17        (3) The Agency shall have the authority to approve or
18    disapprove any performance bond or other security posted
19    under this subsection. Any person whose performance bond
20    or other security is disapproved by the Agency may contest
21    the disapproval as a permit denial appeal pursuant to
22    Section 40.
23    (g) The Board shall adopt rules establishing construction
24permit requirements, operating permit requirements, design
25standards, reporting, financial assurance, and closure and
26post-closure care requirements for CCR surface impoundments.

 

 

10200SB3073sam002- 7 -LRB102 23422 CPF 36554 a

1Not later than 8 months after July 30, 2019 (the effective date
2of Public Act 101-171) the Agency shall propose, and not later
3than one year after receipt of the Agency's proposal the Board
4shall adopt, rules under this Section. The Board shall not be
5deemed in noncompliance with the rulemaking deadline due to
6delays in adopting rules as a result of the Joint Commission on
7Administrative Rules oversight process. The rules must, at a
8minimum:
9        (1) be at least as protective and comprehensive as the
10    federal regulations or amendments thereto promulgated by
11    the Administrator of the United States Environmental
12    Protection Agency in Subpart D of 40 CFR 257 governing CCR
13    surface impoundments;
14        (2) specify the minimum contents of CCR surface
15    impoundment construction and operating permit
16    applications, including the closure alternatives analysis
17    required under subsection (d);
18        (3) specify which types of permits include
19    requirements for closure, post-closure, remediation and
20    all other requirements applicable to CCR surface
21    impoundments;
22        (4) specify when permit applications for existing CCR
23    surface impoundments must be submitted, taking into
24    consideration whether the CCR surface impoundment must
25    close under the RCRA;
26        (5) specify standards for review and approval by the

 

 

10200SB3073sam002- 8 -LRB102 23422 CPF 36554 a

1    Agency of CCR surface impoundment permit applications;
2        (6) specify meaningful public participation procedures
3    for the issuance of CCR surface impoundment construction
4    and operating permits, including, but not limited to,
5    public notice of the submission of permit applications, an
6    opportunity for the submission of public comments, an
7    opportunity for a public hearing prior to permit issuance,
8    and a summary and response of the comments prepared by the
9    Agency;
10        (7) prescribe the type and amount of the performance
11    bonds or other securities required under subsection (f),
12    and the conditions under which the State is entitled to
13    collect moneys from such performance bonds or other
14    securities;
15        (8) specify a procedure to identify areas of
16    environmental justice concern in relation to CCR surface
17    impoundments;
18        (9) specify a method to prioritize CCR surface
19    impoundments required to close under RCRA if not otherwise
20    specified by the United States Environmental Protection
21    Agency, so that the CCR surface impoundments with the
22    highest risk to public health and the environment, and
23    areas of environmental justice concern are given first
24    priority;
25        (10) define when complete removal of CCR is achieved
26    and specify the standards for responsible removal of CCR

 

 

10200SB3073sam002- 9 -LRB102 23422 CPF 36554 a

1    from CCR surface impoundments, including, but not limited
2    to, dust controls and the protection of adjacent surface
3    water and groundwater; and
4        (11) describe the process and standards for
5    identifying a specific alternative source of groundwater
6    pollution when the owner or operator of the CCR surface
7    impoundment believes that groundwater contamination on the
8    site is not from the CCR surface impoundment.
9    (h) Any owner of a CCR surface impoundment that generates
10CCR and sells or otherwise provides coal combustion byproducts
11pursuant to Section 3.135 shall, every 12 months, post on its
12publicly available website a report specifying the volume or
13weight of CCR, in cubic yards or tons, that it sold or provided
14during the past 12 months.
15    (i) The owner of a CCR surface impoundment shall post all
16closure plans, permit applications, and supporting
17documentation, as well as any Agency approval of the plans or
18applications on its publicly available website.
19    (j) The owner or operator of a CCR surface impoundment
20shall pay the following fees:
21        (1) An initial fee to the Agency within 6 months after
22    July 30, 2019 (the effective date of Public Act 101-171)
23    of:
24            $50,000 for each closed CCR surface impoundment;
25        and
26            $75,000 for each CCR surface impoundment that have

 

 

10200SB3073sam002- 10 -LRB102 23422 CPF 36554 a

1        not completed closure.
2        (2) Annual fees to the Agency, beginning on July 1,
3    2020, of:
4            $25,000 for each CCR surface impoundment that has
5        not completed closure; and
6            $15,000 for each CCR surface impoundment that has
7        completed closure, but has not completed post-closure
8        care.
9    (k) All fees collected by the Agency under subsection (j)
10shall be deposited into the Environmental Protection Permit
11and Inspection Fund.
12    (l) The Coal Combustion Residual Surface Impoundment
13Financial Assurance Fund is created as a special fund in the
14State treasury. Any moneys forfeited to the State of Illinois
15from any performance bond or other security required under
16this Section shall be placed in the Coal Combustion Residual
17Surface Impoundment Financial Assurance Fund and shall, upon
18approval by the Governor and the Director, be used by the
19Agency for the purposes for which such performance bond or
20other security was issued. The Coal Combustion Residual
21Surface Impoundment Financial Assurance Fund is not subject to
22the provisions of subsection (c) of Section 5 of the State
23Finance Act.
24    (m) The provisions of this Section shall apply, without
25limitation, to all existing CCR surface impoundments and any
26CCR surface impoundments constructed after July 30, 2019 (the

 

 

10200SB3073sam002- 11 -LRB102 23422 CPF 36554 a

1effective date of Public Act 101-171), except to the extent
2prohibited by the Illinois or United States Constitutions.
3    (n) This subsection only applies to an owner or operator
4of a facility that (i) has at least one CCR surface impoundment
5and (ii) is an electric generating plant located within 4,000
6feet of Lake Michigan.
7    CCR in all CCR surface impoundments subject to this
8subsection, including CCR surface impoundments for which an
9adjusted standard has been sought pursuant to Section 28.1,
10shall be closed by removal and off-site disposal, pursuant to
11this Section, applicable Illinois Pollution Control Board
12regulations, and the following provisions:
13        (1) CCR surface impoundments under this subsection are
14    not subject to the closure alternative analysis required
15    under subsection (d).
16        (2) Notwithstanding any other requirements of this
17    Section or Board rules or regulations, applications for
18    closure construction subject to this subsection shall be
19    submitted to the Agency within one year after the
20    effective date of this amendatory Act of the 102nd General
21    Assembly. Application requirements and permit issuance
22    procedures shall follow those adopted by the Illinois
23    Pollution Control Board under this Section.
24        (3) If the owner or operator of any CCR surface
25    impoundment subject to this subsection has submitted a
26    construction permit application to the Agency to close a

 

 

10200SB3073sam002- 12 -LRB102 23422 CPF 36554 a

1    subject CCR surface impoundment by any method other than
2    removal under Part 845 of Title 35 of the Illinois
3    Administrative Code, the owner or operator shall submit an
4    amended construction permit application that complies with
5    the requirements of this Section within one year after the
6    effective date of this amendatory Act of 102nd General
7    Assembly.
8        (4) Any permit issued by the Agency allowing a CCR
9    surface impoundment subject to this subsection to close in
10    place shall be declared void. The Agency shall not issue
11    any operating permit or construction permit allowing
12    closure in place to the owner or operator of any CCR
13    surface impoundment subject to this subsection.
14(Source: P.A. 101-171, eff. 7-30-19; 102-16, eff. 6-17-21;
15102-137, eff. 7-23-21; 102-309, eff. 8-6-21; 102-558, eff.
168-20-21; 102-662, eff. 9-15-21; revised 10-14-21.)
 
17    (415 ILCS 5/22.59a new)
18    Sec. 22.59a. Great Lakes CCR protection.
19    (a) The General Assembly finds that:
20        (1) The State has a long-standing policy to restore,
21    protect, and enhance the environment, and has a particular
22    interest in preserving the quality of Lake Michigan, which
23    serves as a drinking water source for millions of State
24    residents and provides irreplaceable recreational,
25    ecological, and economic value to Illinois.

 

 

10200SB3073sam002- 13 -LRB102 23422 CPF 36554 a

1        (2) CCR generated by the electric generating industry
2    has contaminated, and continues to contaminate, Lake
3    Michigan, and CCR placed in unlined deposits, including
4    deposits outside of CCR surface impoundments as well as in
5    CCR surface impoundments, continues to threaten the
6    quality of Lake Michigan's water.
7        (3) The purpose of this Section is to protect Lake
8    Michigan against further contamination from CCR.
9    (b) This Section only applies to an owner or operator of a
10facility that (i) generates or has generated CCR that is not
11disposed of, treated, stored, or abandoned in a CCR surface
12impoundment and (ii) is an electric generating plant located
13within 4,000 feet of Lake Michigan.
14    (c) An owner or operator of a facility that is subject to
15this Section shall remove from the owner's or operator's site,
16for off-site disposal, all CCR generated by the facility and
17remediate all soil and groundwater impacted by the CCR, in
18accordance with the following:
19        (1) Within one year after the effective date of this
20    amendatory Act of the 102nd General Assembly, the owner or
21    operator shall conduct a site investigation and submit to
22    the Agency a site investigation report that identifies the
23    full extent of CCR at the site. The investigation and
24    report shall also identify the full extent of soil and
25    groundwater that, as a result of the CCR, exceeds the most
26    stringent remediation objectives adopted under Title XVII

 

 

10200SB3073sam002- 14 -LRB102 23422 CPF 36554 a

1    of this Act.
2            (A) Within 5 days after submitting the report to
3        the Agency, the owner or operator shall post public
4        notice of the report's submission (i) on the owner or
5        operator's website, along with a copy of the report
6        for public viewing, and (ii) in a newspaper of general
7        distribution in the municipality where the applicable
8        electric generating plant is located. The notice shall
9        be provided in English and Spanish and shall inform
10        the public of their right to submit comments on the
11        report to the Agency within 30 days after the date the
12        notice is published in the newspaper. The owner or
13        operator shall also maintain a copy of the report in a
14        public repository in the municipality where the
15        applicable electric generating plant is located for
16        public viewing, which shall be identified in the
17        public notice.
18            (B) Within 90 days after receipt of the site
19        investigation report, the Agency shall determine
20        whether the investigation and report complies with
21        this paragraph (1). In making its determination, the
22        Agency shall consider all public comments submitted
23        within 30 days after the date of the newspaper notice
24        required under subparagraph (A).
25            (C) If the Agency determines the investigation and
26        report complies with this paragraph (1) it shall

 

 

10200SB3073sam002- 15 -LRB102 23422 CPF 36554 a

1        notify the owner or operator in writing of its
2        determination. The owner or operator shall then submit
3        a CCR removal and remediation plan in accordance with
4        paragraph (2).
5            (D) If the Agency determines the investigation or
6        report does not comply with this paragraph (1) it
7        shall notify the owner or operator in writing of its
8        determination and the reasons for the determination.
9        The owner or operator shall then have 6 months to (i)
10        perform additional investigation or correct any
11        deficiencies and (ii) submit an amended site
12        investigation report to the Agency, which shall be
13        subject to the same submission and review procedures
14        set forth in this paragraph (1).
15        (2) Within 6 months after the Agency's approval of the
16    site investigation report, the owner or operator shall
17    submit to the Agency a CCR removal and remediation plan
18    that will achieve the removal of all CCR at the site and
19    the remediation of all soil and groundwater that, as a
20    result of the CCR, exceeds the most stringent remediation
21    objectives adopted under Title XVII of this Act. The plan
22    shall include a schedule for completion of its major
23    milestones, along with the following:
24            (A) An analysis of the modes for transporting the
25        removed CCR off-site, including by rail, barge,
26        low-polluting trucks, or a combination of these

 

 

10200SB3073sam002- 16 -LRB102 23422 CPF 36554 a

1        transportation modes.
2            (B) Removal of CCR consistent with 35 Ill. Adm.
3        Code 845.740 and 845.760.
4            (C) Within 5 days after submitting the plan to the
5        Agency, the owner or operator shall post public notice
6        of the plan's submission (i) on the owner or
7        operator's website, along with a copy of the plan for
8        public viewing, and (ii) in a newspaper of general
9        distribution in the municipality where the applicable
10        electric generating plant is located. The notice shall
11        be provided in English and Spanish and shall inform
12        the public of their right to submit comments on the
13        plan to the Agency within 30 days after the date the
14        notice is published in the newspaper. The owner or
15        operator shall also maintain a copy of the report in a
16        public repository in the municipality where the
17        applicable electric generating plant is located for
18        public viewing, which shall be identified in the
19        public notice.
20            (D) Within 90 days after receipt of the plan, the
21        Agency shall determine whether the plan complies with
22        this paragraph (2). In making its determination, the
23        Agency shall consider all public comments submitted
24        within 30 days after the date of the newspaper notice
25        required under subparagraph (C).
26            (E) If the Agency determines the plan, with or

 

 

10200SB3073sam002- 17 -LRB102 23422 CPF 36554 a

1        without Agency modifications, complies with paragraph
2        (2), it shall notify the owner or operator in writing
3        of its determination. The owner or operator shall then
4        proceed with implementation of the plan, including any
5        modifications by the Agency, and submission of a
6        removal and remediation report in accordance with
7        paragraph (3).
8            (F) If the Agency determines the investigation or
9        report does not comply with paragraph (2), it shall
10        notify the owner or operator in writing of its
11        determination and the reasons for the determination.
12        The owner or operator shall then have 60 days to submit
13        an amended plan to the Agency, which shall be subject
14        to the same submission and review procedures set forth
15        in subparagraphs (C) and (D).
16        (3) In accordance with a schedule approved by the
17    Agency, the owner or operator shall implement the
18    remediation plan and provide the Agency with updates on
19    the plan's implementation. Upon completion of the plan,
20    the owner or operator shall submit a completion report to
21    the Agency.
22            (A) Within 5 days after submitting an update or
23        the completion report to the Agency on plan
24        implementation, the owner or operator shall post
25        public notice of the report's submission (i) on the
26        owner or operator's website, along with a copy of the

 

 

10200SB3073sam002- 18 -LRB102 23422 CPF 36554 a

1        report for public viewing, and (ii) in a newspaper of
2        general distribution in the municipality where the
3        applicable electric generating plant is located. The
4        notice shall be provided in English and Spanish and
5        shall inform the public of their right to submit
6        comments on the report to the Agency within 30 days
7        after the date the notice is published in the
8        newspaper. The owner or operator shall also maintain a
9        copy of the report in a public repository in the
10        municipality where the applicable electric generating
11        plant is located for public viewing, which shall be
12        identified in the public notice.
13            (B) Within 90 days after receipt of the completion
14        report, the Agency shall determine whether the removal
15        and remediation has resulted in (i) the removal of all
16        CCR at the site and (ii) the remediation of all soil
17        and groundwater that, as a result of the CCR, exceeds
18        the most stringent remediation objectives adopted
19        under Title XVII of this Act. In making its
20        determination, the Agency shall consider all public
21        comments submitted within 30 days after the date of
22        the newspaper notice required under subparagraph (A).
23            (C) If the Agency determines that the required
24        removal and remediation is complete, it shall notify
25        the owner or operator in writing of its determination.
26            (D) If the Agency determines that the required

 

 

10200SB3073sam002- 19 -LRB102 23422 CPF 36554 a

1        removal and remediation is not complete, it shall
2        notify the owner or operator in writing of its
3        determination and the reasons for the determination.
4        The owner or operator shall then continue removal or
5        remediation, and submit reports to the Agency, in
6        accordance with a schedule established by the Agency.
7        Reports shall be subject to the same submission and
8        review procedures set forth in subparagraphs (A) and
9        (B). If necessary, the owner or operator may amend the
10        plan and submit it for review and approval in
11        accordance with paragraph (2).
12    (d) Except for the State, its agencies and institutions, a
13unit of local government, or not-for-profit electric
14cooperative as defined in Section 3.4 of the Electric Supplier
15Act, an owner or operator shall post with the Agency a
16performance bond or other security for the purpose of ensuring
17removal and remediation in accordance with this Section. The
18only acceptable forms of financial assurance are the forms of
19financial assurance that are acceptable for CCR surface
20impoundments under Section 22.59.
21    (e) The Agency may enter into such contracts and
22agreements as it deems necessary to carry out the purposes of
23this Section. Neither the State, nor the Director of the
24Agency, nor any State employee shall be liable for any damages
25or injuries arising out of or resulting from any action taken
26under this Section.

 

 

10200SB3073sam002- 20 -LRB102 23422 CPF 36554 a

1    (f) The Agency may approve or disapprove any performance
2bond or other security posted under this Section. Any person
3whose performance bond or other security is disapproved by the
4Agency may contest the disapproval as a permit denial appeal
5pursuant to Section 40.
 
6    Section 97. Severability. The provisions of this Act are
7severable under Section 1.31 of the Statute on Statutes.
 
8    Section 99. Effective date. This Act takes effect upon
9becoming law.".