Full Text of SB2110 95th General Assembly
SB2110enr 95TH GENERAL ASSEMBLY
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| AN ACT concerning the environment.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 1. Short title. This Act may be cited as the | 5 |
| Uniform Environmental Covenants Act. | 6 |
| Section 2. Definitions. In this Act: | 7 |
| (1) "Activity and use limitations" means restrictions or | 8 |
| obligations created under this Act with respect to real | 9 |
| property.
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| (2) "Agency" means the Illinois Environmental Protection | 11 |
| Agency or any other State or federal agency that determines or | 12 |
| approves the environmental response project pursuant to which | 13 |
| the environmental covenant is created. | 14 |
| (3) "Common interest community" means a condominium, | 15 |
| cooperative, or other real property with respect to which a | 16 |
| person, by virtue of the person's ownership of a parcel of real | 17 |
| property, is obligated to pay property taxes or insurance | 18 |
| premiums, or for maintenance, or improvement of other real | 19 |
| property described in a recorded covenant that creates the | 20 |
| common interest community. | 21 |
| (4) "Environmental covenant" means a servitude arising | 22 |
| under an environmental response project that imposes activity | 23 |
| and use limitations. |
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| (5) "Environmental response project" means a plan or work | 2 |
| performed for environmental remediation of real property at the | 3 |
| following sites or facilities: | 4 |
| (A) all sites or facilities that are listed as | 5 |
| proposed or final on the National Priorities List | 6 |
| pursuant to Section 105 of the Comprehensive | 7 |
| Environmental Response, Compensation and Liability Act | 8 |
| of 1980, as amended (42 U.S.C. 9601 et seq.); | 9 |
| (B) all sites or facilities undergoing remediation | 10 |
| pursuant to an administrative order issued pursuant to | 11 |
| Section 106 of the Comprehensive Environmental | 12 |
| Response, Compensation and Liability Act of 1980, as | 13 |
| amended (42 U.S.C. 9601 et seq.); | 14 |
| (C) all sites or facilities that are owned or | 15 |
| operated by a department, agency, or instrumentality | 16 |
| of the United States that are undergoing remediation | 17 |
| pursuant to Section 120 of the Comprehensive | 18 |
| Environmental Response, Compensation and Liability Act | 19 |
| of 1980, as amended (42 U.S.C. 9601 et seq.); | 20 |
| (D) all sites or facilities undergoing remediation | 21 |
| pursuant to a settlement agreement pursuant to Section | 22 |
| 122 of the Comprehensive Environmental Response, | 23 |
| Compensation and Liability Act of 1980, as amended (42 | 24 |
| U.S.C. 9601 et seq.); | 25 |
| (E) all sites or facilities undergoing remediation | 26 |
| pursuant to Section 3008(h) of the Resource |
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| Conservation and Recovery Act of 1976 (42 U.S.C. 6901 | 2 |
| et seq.); | 3 |
| (F) all sites or facilities undergoing remediation | 4 |
| pursuant to Section 7003 of the Resource Conservation | 5 |
| and Recovery Act of 1976 (42 U.S.C. 6901 et seq.); or | 6 |
| (G) all sites or facilities undergoing remediation | 7 |
| pursuant to a court or board order issued pursuant to | 8 |
| the Illinois Environmental Protection Act (415 ILCS | 9 |
| 5/1 et seq.) with the approval of the Agency. | 10 |
| (6) "Holder" means the grantee of an environmental covenant | 11 |
| as specified in Section 3(a). | 12 |
| (7) "Person" means an individual, corporation, business | 13 |
| trust, estate, trust, partnership, limited liability company, | 14 |
| association, joint venture, public corporation, government, | 15 |
| governmental subdivision, agency, or instrumentality, or any | 16 |
| other legal or commercial entity. | 17 |
| (8) "Prior interest" means a preceding or senior interest, | 18 |
| in time or in right, that is recorded with respect to the real | 19 |
| property, including but not limited to a mortgage, easement, or | 20 |
| other interest, lien, or encumbrance predating the recording of | 21 |
| an environmental covenant. | 22 |
| (9) "Record", used as a noun, means information that is | 23 |
| inscribed on a tangible medium or that is stored in an | 24 |
| electronic or other medium and is retrievable in perceivable | 25 |
| form. | 26 |
| (10) "State" means a state of the United States, the |
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| District of Columbia, Puerto Rico, the United States Virgin | 2 |
| Islands, or any territory or insular possession subject to the | 3 |
| jurisdiction of the United States. | 4 |
| Section 3. Nature of rights; subordination of interests. | 5 |
| (a) An owner or owners of real property may voluntarily | 6 |
| enter into an environmental covenant, as a grantor of an | 7 |
| interest in the real property, with an agency and, if | 8 |
| appropriate, one or more holders. No owner, agency, or other | 9 |
| person shall be required to enter into an environmental | 10 |
| covenant as part of an environmental response project; | 11 |
| provided, however, that (i) failure to enter into an | 12 |
| environmental covenant may result in disapproval of the | 13 |
| environmental response project; and (ii) once the owner, | 14 |
| agency, or other person assumes obligations in an environmental | 15 |
| covenant they must comply with those obligations of the | 16 |
| environmental covenant in accordance with this Act. | 17 |
| (b) Any person, including a person that owns an interest in | 18 |
| the real property, the agency, or a municipality or other unit | 19 |
| of local government, may be a holder. An environmental covenant | 20 |
| may identify more than one holder. The interest of a holder is | 21 |
| an interest in real property. | 22 |
| (c) A right of an agency under this Act or under an | 23 |
| environmental covenant, other than a right as a holder, is not | 24 |
| an interest in real property. | 25 |
| (d) An agency is bound by any obligation it assumes in an |
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| environmental covenant, but an agency does not assume | 2 |
| obligations merely by signing an environmental covenant. Any | 3 |
| other person that signs an environmental covenant is bound by | 4 |
| the obligations the person assumes in the covenant, but signing | 5 |
| the covenant does not change obligations, rights, or | 6 |
| protections granted or imposed under law other than this Act | 7 |
| except as provided in the covenant. | 8 |
| (e) The following rules apply to interests in real property | 9 |
| in existence at the time an environmental covenant is created | 10 |
| or amended: | 11 |
| (1) An interest that has priority under other law is | 12 |
| not affected by an environmental covenant unless the person | 13 |
| that owns the interest subordinates that interest to the | 14 |
| covenant. | 15 |
| (2) This Act does not require a person that owns a | 16 |
| prior interest to subordinate that interest to an | 17 |
| environmental covenant or to agree to be bound by the | 18 |
| covenant. | 19 |
| (3) A subordination agreement may be contained in an | 20 |
| environmental covenant covering real property or in a | 21 |
| separate record. If the environmental covenant covers | 22 |
| commonly owned property in a common interest community, the | 23 |
| record may be signed by any person authorized by the | 24 |
| governing board of the owners association. | 25 |
| (4) An agreement by a person to subordinate a prior | 26 |
| interest to an environmental covenant affects the priority |
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| of that person's interest but does not by itself impose any | 2 |
| affirmative obligation on the person with respect to the | 3 |
| environmental covenant. | 4 |
| (f) Environmental covenants established under this Act | 5 |
| shall be subject to eminent domain or condemnation proceedings | 6 |
| by any agency of the State having a general grant of authority | 7 |
| to acquire property by the exercise of the right of eminent | 8 |
| domain under the laws of this State. No environmental covenant | 9 |
| established under this Act shall be terminated or modified | 10 |
| unless: | 11 |
| (1) The agency that signed the covenant is a party to | 12 |
| the proceeding; | 13 |
| (2) All persons identified in Section 10(a) and (b) are | 14 |
| given notice of the pendency of the proceeding; and | 15 |
| (3) The agency of the State exercising the right of | 16 |
| eminent domain or condemnation determines, after hearing, | 17 |
| that the termination or modification will not adversely | 18 |
| affect human health or the environment. | 19 |
| Section 4. Contents of environmental covenant. | 20 |
| (a) An environmental covenant must: | 21 |
| (1) State that the instrument is an environmental | 22 |
| covenant executed pursuant to this Act. | 23 |
| (2) Contain a legally sufficient description of the | 24 |
| real property subject to the covenant. | 25 |
| (3) Describe the activity and use limitations on the |
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| real property. | 2 |
| (4) Identify every holder. | 3 |
| (5) Be signed by the agency, every holder, and unless | 4 |
| waived by the agency every owner of the fee simple of the | 5 |
| real property subject to the covenant. | 6 |
| (6) Identify the name and location of any | 7 |
| administrative record for the environmental response | 8 |
| project reflected in the environmental covenant. | 9 |
| (b) In addition to the information required by subsection | 10 |
| (a), an environmental covenant may contain other information, | 11 |
| restrictions, and requirements agreed to by the persons who | 12 |
| signed it, including any: | 13 |
| (1) Requirements for notice following transfer of a | 14 |
| specified interest in, or concerning proposed changes in | 15 |
| use of, applications for building permits for, or proposals | 16 |
| for any site work affecting the contamination on, the | 17 |
| property subject to the covenant. | 18 |
| (2) Requirements for periodic reporting describing | 19 |
| compliance with the covenant. | 20 |
| (3) Rights of access to the property granted in | 21 |
| connection with implementation or enforcement of the | 22 |
| covenant. | 23 |
| (4) A brief narrative description of the contamination | 24 |
| and remedy, including the contaminants of concern, the | 25 |
| pathways of exposure, limits on exposure, and the location | 26 |
| and extent of the contamination. |
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| (5) Limitation on amendment or termination of the | 2 |
| covenant in addition to those contained in Sections 9 and | 3 |
| 10. | 4 |
| (6) Rights of the holder in addition to its right to | 5 |
| enforce the covenant pursuant to Section 11. | 6 |
| (c) In addition to other conditions for its approval of an | 7 |
| environmental covenant, the agency may require those persons | 8 |
| specified by the agency who have interests in the real property | 9 |
| to sign the covenant. | 10 |
| Section 5. Validity; effect on other instruments. | 11 |
| (a) An environmental covenant that complies with this Act | 12 |
| runs with the land. | 13 |
| (b) An environmental covenant that is otherwise effective | 14 |
| is valid and enforceable even if: | 15 |
| (1) It is not appurtenant to an interest in real | 16 |
| property. | 17 |
| (2) It can be or has been assigned to a person other | 18 |
| than the original holder. | 19 |
| (3) It is not of a character that has been recognized | 20 |
| traditionally at common law. | 21 |
| (4) It imposes a negative burden. | 22 |
| (5) It imposes an affirmative obligation on a person | 23 |
| having an interest in the real property or on the holder. | 24 |
| (6) The benefit or burden does not touch or concern | 25 |
| real property. |
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| (7) There is no privity of estate or contract. | 2 |
| (8) The holder dies, ceases to exist, resigns, or is | 3 |
| replaced. | 4 |
| (9) The owner of an interest subject to the | 5 |
| environmental covenant and the holder are the same person. | 6 |
| (c) An instrument that creates restrictions or obligations | 7 |
| with respect to real property that would qualify as activity | 8 |
| and use limitations except for the fact that the instrument was | 9 |
| recorded before the effective date of this Act is not invalid | 10 |
| or unenforceable because of any of the limitations on | 11 |
| enforcement of interests described in subsection (b) or because | 12 |
| it was identified as an easement, servitude, deed restriction, | 13 |
| or other interest. This Act does not apply in any other respect | 14 |
| to such an instrument. | 15 |
| (d) This Act does not invalidate or render unenforceable | 16 |
| any interest, whether designated as an environmental covenant | 17 |
| or other interest, that is otherwise enforceable under the law | 18 |
| of this State, including but not limited to interests compliant | 19 |
| with 35 Ill. Adm. Code 742, Subpart J. | 20 |
| Section 6. Relationship to other land-use law. This Act | 21 |
| does not authorize a use of real property that is otherwise | 22 |
| prohibited by zoning, by law other than this Act regulating use | 23 |
| of real property, or by a recorded instrument that has priority | 24 |
| over the environmental covenant. An environmental covenant may | 25 |
| prohibit or restrict uses of real property which are authorized |
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| by zoning or by law other than this Act. | 2 |
| Section 7. Notice. | 3 |
| (a) A copy of an environmental covenant shall be provided | 4 |
| by the persons and in the manner required by the agency to: | 5 |
| (1) Each person that signed the covenant. | 6 |
| (2) Each person holding a recorded interest in the real | 7 |
| property subject to the covenant. | 8 |
| (3) Each person in possession of the real property | 9 |
| subject to the covenant. | 10 |
| (4) Each municipality or other unit of local government | 11 |
| in which real property subject to the covenant is located. | 12 |
| (5) Any other person the agency requires. | 13 |
| (b) The validity of a covenant is not affected by failure | 14 |
| to provide a copy of the covenant as required under this | 15 |
| Section. | 16 |
| Section 8. Recording. | 17 |
| (a) An environmental covenant and any amendment or | 18 |
| termination of the covenant must be recorded in every county in | 19 |
| which any portion of the real property subject to the covenant | 20 |
| is located. For purposes of indexing, a holder shall be treated | 21 |
| as a grantee. | 22 |
| (b) Except as otherwise provided in Section 9(c), an | 23 |
| environmental covenant is subject to the laws of this State | 24 |
| governing recording and priority of interests in real property. |
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| Section 9. Duration; amendment by court action. | 2 |
| (a) An environmental covenant is perpetual unless it is: | 3 |
| (1) By its terms limited to a specific duration or | 4 |
| terminated by the occurrence of a specific event. | 5 |
| (2) Terminated by consent pursuant to Section 10. | 6 |
| (3) Terminated pursuant to subsection (b). | 7 |
| (4) Terminated by foreclosure of an interest that has | 8 |
| priority over the environmental covenant. | 9 |
| (5) Terminated or modified in an eminent domain | 10 |
| proceeding, but only if: | 11 |
| (A) The agency that signed the covenant is a party | 12 |
| to the proceeding. | 13 |
| (B) All persons identified in Section 10(a) and (b) | 14 |
| are given notice of the pendency of the proceeding. | 15 |
| (C) The court determines, after hearing, that the | 16 |
| termination or modification will not adversely affect | 17 |
| human health or the environment. | 18 |
| (b) If the agency that signed an environmental covenant has | 19 |
| determined that the intended benefits of the covenant can no | 20 |
| longer be realized, a court, under the doctrine of changed | 21 |
| circumstances, in an action in which all persons identified in | 22 |
| Section 10(a) and (b) have been given notice, may terminate the | 23 |
| covenant or reduce its burden on the real property subject to | 24 |
| the covenant. The agency's determination or its failure to make | 25 |
| a determination upon request is subject to review pursuant to |
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| the Administrative Review Law. | 2 |
| (c) Except as otherwise provided in subsections (a) and | 3 |
| (b), an environmental covenant may not be extinguished, | 4 |
| limited, or impaired through issuance of a tax deed, | 5 |
| foreclosure of a tax lien, or application of the doctrine of | 6 |
| adverse possession, prescription, abandonment, waiver, lack of | 7 |
| enforcement, or acquiescence, or a similar doctrine. | 8 |
| (d) An environmental covenant may not be extinguished, | 9 |
| limited, or impaired by application of any Illinois Law | 10 |
| concerning marketable title or dormant mineral interests. | 11 |
| Section 10. Amendment or termination by consent. | 12 |
| (a) An environmental covenant may be amended or terminated | 13 |
| by consent only if the amendment or termination is signed by: | 14 |
| (1) The agency. | 15 |
| (2) Unless waived by the agency, the current owner of | 16 |
| the fee simple of the real property subject to the | 17 |
| covenant. | 18 |
| (3) Each person that originally signed the covenant, | 19 |
| unless the person waived in a signed record the right to | 20 |
| consent or a court finds that the person no longer exists | 21 |
| or cannot be located or identified with the exercise of | 22 |
| reasonable diligence. | 23 |
| (4) Except as otherwise provided in subsection (d)(2), | 24 |
| the holder. | 25 |
| (b) If an interest in real property is subject to an |
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| environmental covenant, the interest is not affected by an | 2 |
| amendment of the covenant unless the current owner of the | 3 |
| interest consents to the amendment or has waived in a signed | 4 |
| record the right to consent to amendments. | 5 |
| (c) Except for an assignment undertaken pursuant to a | 6 |
| governmental reorganization, assignment of an environmental | 7 |
| covenant to a new holder is an amendment. | 8 |
| (d) Except as otherwise provided in an environmental | 9 |
| covenant: | 10 |
| (1) A holder may not assign its interest without | 11 |
| consent of the other parties. | 12 |
| (2) A holder may be removed and replaced by agreement | 13 |
| of the other parties specified in subsection (a). | 14 |
| (3) A court of competent jurisdiction may fill a | 15 |
| vacancy in the position of holder. | 16 |
| Section 11. Enforcement of environmental covenant. | 17 |
| (a) A civil action for injunctive or other equitable relief | 18 |
| for violation of an environmental covenant may be maintained | 19 |
| by: | 20 |
| (1) A party to the covenant. | 21 |
| (2) The agency or, if it is not the agency, the | 22 |
| Illinois Environmental Protection Agency. | 23 |
| (3) Any person to whom the covenant expressly grants | 24 |
| power to enforce. | 25 |
| (4) A person whose interest in the real property or |
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| whose collateral or liability may be affected by the | 2 |
| alleged violation of the covenant. | 3 |
| (5) A municipality or other unit of local government in | 4 |
| which the real property subject to the covenant is located. | 5 |
| (b) This Act does not limit the regulatory authority of the | 6 |
| agency or the Illinois Environmental Protection Agency under | 7 |
| law other than this Act with respect to an environmental | 8 |
| response project. | 9 |
| (c) A person is not responsible for or subject to liability | 10 |
| for environmental remediation solely because it has the right | 11 |
| to enforce an environmental covenant. | 12 |
| Section 12. Registry; substitute notice. | 13 |
| (a) The Illinois Environmental Protection Agency shall | 14 |
| establish and maintain a registry that contains all | 15 |
| environmental covenants and any amendment or termination of | 16 |
| those covenants. The registry may also contain any other | 17 |
| information concerning environmental covenants and the real | 18 |
| property subject to them which the Illinois Environmental | 19 |
| Protection Agency considers appropriate. The registry is a | 20 |
| public record for purposes of the Freedom of Information Act. | 21 |
| (b) After an environmental covenant or an amendment or | 22 |
| termination of a covenant is filed in the registry established | 23 |
| pursuant to subsection (a), a notice of the covenant, | 24 |
| amendment, or termination that complies with this Section may | 25 |
| be recorded in the land records in lieu of recording the entire |
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| covenant. Any such notice must contain: | 2 |
| (1) A legally sufficient description and any available | 3 |
| street address of the real property subject to the | 4 |
| covenant. | 5 |
| (2) The name and address of the owner of the fee simple | 6 |
| interest in the real property, the agency, and the holder | 7 |
| if other than the agency. | 8 |
| (3) A statement that the covenant, amendment, or | 9 |
| termination is available in a registry at the Environmental | 10 |
| Protection Agency at its office in Springfield, which | 11 |
| discloses the method of any electronic access. | 12 |
| (4) A statement that the notice is notification of an | 13 |
| environmental covenant executed pursuant to this Act. | 14 |
| (c) A statement in substantially the following form, | 15 |
| executed with the same formalities as a deed in this State, | 16 |
| satisfies the requirements of subsection (b): | 17 |
| (1) This notice is filed in the land records of (insert | 18 |
| name of county in which the real property is located) | 19 |
| pursuant to Section 12 of the Uniform Environmental | 20 |
| Covenants Act. | 21 |
| (2) This notice and the covenant, amendment or | 22 |
| termination to which it refers may impose significant | 23 |
| obligations with respect to the property described below. | 24 |
| (3) A legal description of the property is attached as | 25 |
| Exhibit A to this notice. The address of the property that | 26 |
| is subject to the environmental covenant is (insert address |
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| of property). | 2 |
| (4) The name and address of the owner of the fee simple | 3 |
| interest in the real property on the date of this notice is | 4 |
| (insert name of current owner of the property and the | 5 |
| owner's current address as shown on the tax records of the | 6 |
| jurisdiction in which the property is located). | 7 |
| (5) The environmental covenant, amendment or | 8 |
| termination was signed by (insert name and address of the | 9 |
| agency). | 10 |
| (6) The environmental covenant, amendment, or | 11 |
| termination was filed in the registry on (insert date of | 12 |
| filing). | 13 |
| (7) The full text of the covenant, amendment, or | 14 |
| termination and any other information required by the | 15 |
| agency is on file and available for inspection and copying | 16 |
| in the registry maintained for that purpose by the Illinois | 17 |
| Environmental Protection Agency at (insert address and | 18 |
| room of buildings in which the registry is maintained). The | 19 |
| covenant, amendment or termination may be found | 20 |
| electronically at (insert web address for covenant). | 21 |
| Section 13. Uniformity of application and construction. In | 22 |
| applying and construing this uniform Act, consideration must be | 23 |
| given to the need to promote uniformity of the law with respect | 24 |
| to its subject matter among states that enact it.
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| Section 14. Relation to Electronic Signatures in Global and | 2 |
| National Commerce Act. This Act modifies, limits, or supersedes | 3 |
| the federal Electronic Signatures in Global and National | 4 |
| Commerce Act (15 U.S.C. Section 7001 et seq.) but does not | 5 |
| modify, limit, or supersede Section 101 of that Act (15 U.S.C. | 6 |
| Section 7001(a)) or authorize electronic delivery of any of the | 7 |
| notices described in Section 103 of that Act (15 U.S.C. Section | 8 |
| 7003(b)). | 9 |
| Section 15. Severability. If any provision of this Act or | 10 |
| its application to any person or circumstance is held invalid, | 11 |
| the invalidity does not affect other provisions or applications | 12 |
| of this Act which can be given effect without the invalid | 13 |
| provision or application, and to this end the provisions of | 14 |
| this Act are severable.
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