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90_HB2164sam002
SRS90HB2164JJsaam01
1 AMENDMENT TO HOUSE BILL 2164
2 AMENDMENT NO. . Amend House Bill 2164 on page 1, by
3 replacing lines 1 and 2 with the following:
4 "AN ACT to create the Drycleaner Environmental Response
5 Trust Fund Act, concerning environmental protection, and
6 amending named Acts."; and
7 on page 1, immediately below line 4, by inserting the
8 following:
9 "Section 1. Short title. This Act may be cited as the
10 Drycleaner Environmental Response Trust Fund Act.
11 Section 5. Definitions. As used in this Act:
12 (a) "Active drycleaning facility" means a drycleaning
13 facility actively engaged in drycleaning operations and
14 licensed under Section 60 of this Act.
15 (b) "Agency" means the Illinois Environmental Protection
16 Agency.
17 (c) "Claimant" means an owner or operator of a
18 drycleaning facility who has applied for reimbursement from
19 the remedial account or who has submitted a claim under the
20 insurance account with respect to a release.
21 (d) "Council" means the Drycleaner Environmental
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1 Response Trust Fund Council.
2 (e) "Drycleaner Environmental Response Trust Fund" or
3 "Fund" means the fund created under Section 10 of this Act.
4 (f) "Drycleaning facility" means a facility located in
5 this State that is or has been engaged in drycleaning
6 operations for the general public, other than a:
7 (1) facility located on a United States military
8 base;
9 (2) industrial laundry, commercial laundry, or
10 linen supply facility;
11 (3) prison or other penal institution that engages
12 in drycleaning only as part of a Correctional Industries
13 program to provide drycleaning to persons who are
14 incarcerated in a prison or penal institution or to
15 resident patients of a State-operated mental health
16 facility;
17 (4) not-for-profit hospital or other health care
18 facility; or a
19 (5) facility located or formerly located on federal
20 or State property.
21 (g) "Drycleaning operations" means drycleaning of
22 apparel and household fabrics for the general public, as
23 described in Standard Industrial Classification Industry No.
24 7215 and No. 7216 in the Standard Industrial Classification
25 Manual (SIC) by the Technical Committee on Industrial
26 Classification.
27 (h) "Drycleaning solvent" means a chlorine-based or
28 hydrocarbon-based formulation or product that is used as a
29 primary cleaning agent in drycleaning operations.
30 (i) "Emergency" or "emergency action" means a situation
31 or an immediate response to a situation to protect public
32 health or safety. "Emergency" or "emergency action" does not
33 mean removal of contaminated soils, recovery of free
34 product, or financial hardship. An "emergency" or "emergency
-3- SRS90HB2164JJsaam01
1 action" would normally be expected to be directly related to
2 a sudden event or discovery and would last until the threat
3 to public health is mitigated.
4 (j) "Groundwater" means underground water that occurs
5 within the saturated zone and geologic materials where the
6 fluid pressure in the pore space is equal to or greater than
7 the atmospheric pressure.
8 (k) "Inactive drycleaning facility" means a drycleaning
9 facility that is not being used for drycleaning operations
10 and is not registered under this Act.
11 (l) "Maintaining a place of business in this State" or
12 any like term means (1) having or maintaining within this
13 State, directly or through a subsidiary, an office,
14 distribution facility, distribution house, sales house,
15 warehouse, or other place of business or (2) operating within
16 this State as an agent or representative for a person or a
17 person's subsidiary engaged in the business of selling to
18 persons within this State, irrespective of whether the place
19 of business or agent or other representative is located in
20 this State permanently or temporary, or whether the person or
21 the person's subsidiary engages in the business of selling in
22 this State.
23 (m) "No Further Remediation Letter" means a letter
24 provided by the Agency pursuant to Section 58.10 of Title
25 XVII of the Environmental Protection Act.
26 (n) "Operator" means a person or entity holding a
27 business license to operate a licensed drycleaning facility
28 or the business operation of which the drycleaning facility
29 is a part.
30 (o) "Owner" means (1) a person who owns or has
31 possession or control of a drycleaning facility at the time a
32 release is discovered, regardless of whether the facility
33 remains in operation or (2) a parent corporation of the
34 person under item (1) of this subdivision.
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1 (p) "Parent corporation" means a business entity or
2 other business arrangement that has elements of common
3 ownership or control or that uses a long-term contractual
4 arrangement with a person to avoid direct responsibility for
5 conditions at a drycleaning facility.
6 (q) "Person" means an individual, trust, firm, joint
7 stock company, corporation, consortium, joint venture, or
8 other commercial entity.
9 (r) "Program year" means the period beginning on July 1
10 and ending on the following June 30, except that the initial
11 "program year" means the period beginning on July 1, 1997 or
12 on the effective date of this Act and ending on June 30,
13 1998.
14 (s) "Release" means any spilling, leaking, emitting,
15 discharging, escaping, leaching, or dispersing of drycleaning
16 solvents from a drycleaning facility to groundwater, surface
17 water, or subsurface soils.
18 (t) "Remedial action" means activities taken to comply
19 with Sections 58.6 and 58.7 of the Environmental Protection
20 Act and rules adopted by the Pollution Control Board under
21 those Sections.
22 (u) "Responsible party" means an owner, operator, or
23 other person financially responsible for costs of remediation
24 of a release of drycleaning solvents from a drycleaning
25 facility.
26 (v) "Service provider" means a consultant, testing
27 laboratory, monitoring well installer, soil boring
28 contractor, other contractor, lender, or any other person who
29 provides a product or service for which a claim for
30 reimbursement has been or will be filed against the remedial
31 account or insurance account, or a subcontractor of such a
32 person.
33 Section 10. Drycleaner Environmental Response Trust Fund.
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1 (a) The Drycleaner Environmental Response Trust Fund is
2 created as a special fund in the State Treasury. Moneys
3 deposited into the Fund shall be used solely for the purposes
4 of the Council, for the retention by the Agency of a firm of
5 certified public accountants to annually examine and audit
6 the Council's activities as described in Section 80, and for
7 other purposes provided in this Act. The Fund shall include
8 moneys credited to the Fund under this Act and other moneys
9 that by law may be credited to the Fund. The State Treasurer
10 may invest Funds deposited into the Fund at the direction of
11 the Council. Interest, income from the investments, and other
12 income earned by the Fund shall be credited to and deposited
13 into the Fund.
14 Pursuant to appropriation, all moneys in the Drycleaner
15 Environmental Response Trust Fund shall be disbursed by the
16 Agency to the Council for the purpose of making
17 disbursements, if any, in accordance with this Act and for
18 the purpose of paying the ordinary and contingent expenses of
19 the Council. As soon as may be practicable after June 30,
20 1997, the Comptroller shall order transferred and the
21 Treasurer shall transfer from the General Revenue Fund to the
22 Drycleaner Environmental Response Trust Fund $375,000 for the
23 ordinary and contingent expenses of the Council. As soon as
24 may be practicable after December 31, 1997, the Comptroller
25 shall order transferred and the Treasurer shall transfer from
26 the Drycleaner Environmental Response Trust Fund to the
27 General Revenue Fund $375,000 plus interest at the rate of 6%
28 per annum.
29 The Fund may be divided into different accounts with
30 different depositories to fulfill the purposes of the Act as
31 determined by the Council.
32 Moneys in the Fund at the end of a State fiscal year
33 shall be carried forward to the next fiscal year and shall
34 not revert to the General Revenue Fund.
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1 (b) The specific purposes of the Fund include but are
2 not limited to the following:
3 (1) To establish an account to Fund remedial action
4 of drycleaning solvent releases from drycleaning
5 facilities as provided by Section 40.
6 (2) To establish an insurance account for insuring
7 environmental risks from releases from drycleaning
8 facilities within this State as provided by Section 45.
9 (c) The State, the General Revenue Fund, and any other
10 Fund of the State, other than the Drycleaner Environmental
11 Response Trust Fund, shall not be liable for a claim or cause
12 of action in connection with a drycleaning facility not owned
13 or operated by the State or an agency of the State. All
14 expenses incurred by the Fund shall be payable solely from
15 the Fund and no liability or obligation shall be imposed upon
16 the State. The State is not liable for a claim presented
17 against the Fund.
18 (d) The liability of the Fund is limited to the extent
19 of coverage provided by the account under which a claim is
20 submitted, subject to the terms and conditions of that
21 coverage. The liability of the Fund is further limited by
22 the moneys made available to the Fund, and no remedy shall be
23 ordered that would require the Fund to exceed its then
24 current funding limitations to satisfy an award or which
25 would restrict the availability of moneys for higher priority
26 sites.
27 (e) Nothing in this Act shall be construed to limit,
28 restrict, or affect the authority and powers of the Agency or
29 another State agency or statute unless the State agency or
30 statute is specifically referenced and the limitation is
31 clearly set forth in this Act.
32 Section 15. Creation of Council.
33 (a) The Drycleaner Environmental Response Trust Fund
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1 Council is established and shall consist of the following
2 voting members to be appointed by the Governor:
3 (1) Three members who own or operate a drycleaning
4 facility. Two of these members must be members of the
5 Illinois State Fabricare Association. These members shall
6 serve 3 year terms, except that of the initial members
7 appointed, one shall be appointed for a term of one year,
8 one for a term of 2 years, and one for a term of 3 years.
9 (2) One member who represents wholesale
10 distributors of drycleaning solvents. This member shall
11 serve for a term of 3 years.
12 (3) One member who represents the drycleaning
13 equipment manufacturers and vendor community. This
14 member shall serve for a term of 3 years.
15 (4) Two members with experience in financial
16 markets or the insurance industry. These members shall
17 serve 3-year terms, except that of the initial
18 appointments, one shall be appointed for a term of 2
19 years, and one for a term of 3 years.
20 Each member shall have experience, knowledge, and
21 expertise relating to the subject matter of this Act.
22 (b) The Governor may remove any member of the Council
23 for incompetency, neglect of duty, or malfeasance in office
24 after service on him or her of a copy of the written charges
25 against him or her and after an opportunity to be publicly
26 heard in person or by counsel in his or her own defense no
27 earlier than 10 days after the Governor has provided notice
28 of the opportunity to the Council member. Evidence of
29 incompetency, neglect of duty, or malfeasance in office may
30 be provided to the Governor by the Agency or the Auditor
31 General following the annual audit described in Section 80.
32 (c) Members of the Council are entitled to receive
33 reimbursement of actual expenses incurred in the discharge of
34 their duties within the limit of funds appropriated to the
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1 Council or made available to the Fund. The Governor shall
2 appoint a chairperson of the Council from among the members
3 of the Council.
4 (d) The Attorney General's office or its designee shall
5 provide legal counsel to the Council.
6 Section 20. Council rules.
7 (a) The Council may adopt rules in accordance with the
8 emergency rulemaking provisions of Section 5-45 of the
9 Illinois Administrative Procedure Act for one year after the
10 effective date of this Act. Thereafter, the Council shall
11 conduct general rulemaking as provided under the Illinois
12 Administrative Procedure Act.
13 (b) The Council shall adopt rules regarding its practice
14 and procedures for investigating and settling claims made
15 against the Fund, determining reimbursement guidelines,
16 coordinating with the Agency, and otherwise implementing and
17 administering the Fund under this Act.
18 (c) The Council shall adopt rules regarding its practice
19 and procedures to develop underwriting standards, establish
20 insurance account coverage and risk factors, settle claims
21 made against the insurance account of the Fund, determine
22 appropriate deductibles or retentions in coverages or
23 benefits offered under the insurance account of the Fund,
24 determine reimbursement guidelines, and otherwise implement
25 and administer the insurance account under this Act.
26 (d) The Council shall adopt rules necessary for the
27 implementation and collection of insurance account premiums
28 prior to offering insurance to an owner or operator of a
29 drycleaning facility or other person.
30 (e) The Council shall adopt rules prescribing
31 requirements for the retention of records by an owner or
32 operator and the periods for which he or she must retain
33 those records.
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1 (f) Any hearings concerning a matter covered by this Act
2 shall be heard by the Council pursuant to rules adopted by
3 the Council.
4 (g) The Council shall adopt rules describing the manner
5 in which all disbursed moneys received from the Agency shall
6 be deposited with a bank or savings and loan association to
7 be approved by the Council. For purposes of this subsection,
8 the Council shall be considered a public agency and,
9 therefore, no bank or savings and loan association shall
10 receive public funds from the Council, and the Council shall
11 not make any investments, unless in accordance with the
12 Public Funds Investment Act.
13 (h) All final Council decisions regarding the Fund or
14 any reimbursement from the Fund and any decision concerning
15 the classification of drycleaning solvents pursuant to
16 subsection (a) of Section 65 of this Act shall be subject to
17 appeal by the affected parties. The Council shall determine
18 by rule persons who have standing to appeal final Council
19 decisions. All appeals of final Council decisions shall be
20 presented to and reviewed by the Council's administrative
21 hearing officer. An appeal of the administrative hearing
22 officer's decision will be subject to judicial review in
23 accordance with the Administrative Review Law.
24 The Council shall adopt rules relating to appeal
25 procedures that shall require the Council to deliver notice
26 of appeal to the affected parties within 30 days of receipt
27 of notice, require that the hearing be held within 180 days
28 of the filing of the petition unless good cause is shown for
29 the delay, and require that a final decision be issued no
30 later than 120 days following the close of the hearing. The
31 time restrictions in this subsection may be waived by mutual
32 agreement of the parties.
33 Section 25. Powers and duties of the Council.
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1 (a) The Council shall have all of the general powers
2 reasonably necessary and convenient to carry out its purposes
3 and may perform the following functions, subject to any
4 express limitations contained in this Act:
5 (1) Take actions and enter into agreements
6 necessary to reimburse claimants for eligible remedial
7 action expenses, assist the Agency to protect the
8 environment from releases, reduce costs associated with
9 remedial actions, and establish and implement an
10 insurance program.
11 (2) Acquire and hold personal property to be used
12 for the purpose of remedial action.
13 (3) Purchase, construct, improve, furnish, equip,
14 lease, option, sell, exchange, or otherwise dispose of
15 one or more improvements under the terms it determines.
16 The Council may define "improvements" by rule for
17 purposes of this Act.
18 (4) Grant a lien, pledge, assignment, or other
19 encumbrance on one or more revenues, assets of right,
20 accounts, or funds established or received in connection
21 with the Fund, including revenues derived from fees or
22 taxes collected under this Act.
23 (5) Contract for the acquisition or construction of
24 one or more improvements or parts of one or more
25 improvements or for the leasing, subleasing, sale, or
26 other disposition of one or more improvements in a manner
27 the Council determines.
28 (6) Cooperate with the Agency in the implementation
29 and administration of this Act to minimize unnecessary
30 duplication of effort, reporting, or paperwork and to
31 maximize environmental protection within the funding
32 limits of this Act.
33 (7) Except as otherwise provided by law, inspect
34 any document in the possession of an owner, operator,
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1 service provider, or any other person if the document is
2 relevant to a claim for reimbursement under this Section
3 or may inspect a drycleaning facility for which a claim
4 for benefits under this Act has been submitted.
5 (b) The Council shall pre-approve, and the contracting
6 parties shall seek pre-approval for, a contract entered into
7 under this Act if the cost of the contract exceeds $75,000.
8 The Council or its designee shall review and approve or
9 disapprove all contracts entered into under this Act.
10 However, review by the Council or its designee shall not be
11 required when an emergency situation exists. All contracts
12 entered into by the Council shall be awarded on a
13 competitive basis to the maximum extent practical. In those
14 situations where it is determined that bidding is not
15 practical, the basis for the determination of
16 impracticability shall be documented by the Council or its
17 designee.
18 (c) The Council may prioritize the expenditure of funds
19 from the remedial action account whenever it determines that
20 there are not sufficient funds to settle all current claims.
21 In prioritizing, the Council may consider the following:
22 (1) the degree to which human health is affected by
23 the exposure posed by the release;
24 (2) the reduction of risk to human health derived
25 from remedial action compared to the cost of the
26 remedial action;
27 (3) the present and planned uses of the impacted
28 property; and
29 (4) other factors as determined by the Council.
30 Section 30. Independent contractors retained by Council.
31 (a) A contract entered into to retain a person to act as
32 the administrator of the Fund shall be subject to public bid.
33 The Council may enter into a contract or an agreement
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1 authorized under this Act with a person, the Agency, the
2 Department of Revenue, other departments, agencies, or
3 governmental subdivisions of this State, another state, or
4 the United States, in connection with its administration and
5 implementation of this Act.
6 (b) The Council may reimburse a public or private
7 contractor retained pursuant to this Section for expenses
8 incurred in the execution of a contract or agreement.
9 Reimbursable expenses include the costs of performing duties
10 or powers specifically delegated by the Council.
11 Section 35. Illinois Insurance Code exemptions. The Fund,
12 including but not limited to insurance coverage offered under
13 the insurance account, is not subject to the provisions of
14 the Illinois Insurance Code. Notwithstanding any other
15 provision of law, the Fund shall not be considered an
16 insurance company or an insurer under the laws of this State
17 and shall not be a member of nor be entitled to a claim
18 against the Illinois Insurance Guaranty Fund.
19 Section 40. Remedial action account.
20 (a) The remedial action account is established to
21 provide reimbursement to eligible claimants for drycleaning
22 solvent investigation, remedial action planning, and remedial
23 action activities for existing drycleaning solvent
24 contamination discovered at their drycleaning facilities.
25 (b) The following persons are eligible for reimbursement
26 from the remedial action account:
27 (1) In the case of claimant who is the owner or
28 operator of an active drycleaning facility licensed by
29 the Council under this Act at the time of application for
30 remedial action benefits afforded under the Fund, the
31 claimant is only eligible for reimbursement of remedial
32 action costs incurred in connection with a release from
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1 that drycleaning facility, subject to any other
2 limitations under this Act.
3 (2) In the case of a claimant who is the owner of
4 an inactive drycleaning facility and was the owner or
5 operator of the drycleaning facility when it was an
6 active drycleaning facility, the claimant is only
7 eligible for reimbursement of remedial action costs
8 incurred in connection with a release from the
9 drycleaning facility, subject to any other limitations
10 under this Act.
11 (c) An eligible claimant requesting reimbursement from
12 the remedial action account shall meet all of the following:
13 (1) The claimant demonstrates that the source of
14 the release is from the claimant's drycleaning facility.
15 (2) At the time the release was discovered by the
16 claimant, the claimant and the drycleaning facility were
17 in compliance with the Agency reporting and technical
18 operating requirements.
19 (3) The claimant reported the release in a timely
20 manner to the Agency in accordance with State law.
21 (4) The claimant applying for reimbursement has not
22 filed for bankruptcy on or after the date of his or her
23 discovery of the release.
24 (5) If the claimant is the owner or operator of an
25 active drycleaning facility, the claimant has provided to
26 the Council proof of implementation and maintenance of
27 the following pollution prevention measures:
28 (A) That all drycleaning solvent wastes
29 generated at a drycleaning facility be managed in
30 accordance with applicable State waste management
31 laws and rules.
32 (B) A prohibition on the discharge of
33 wastewater from drycleaning machines or of
34 drycleaning solvent from drycleaning operations to a
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1 sanitary sewer or septic tank or to the surface or
2 in groundwater.
3 (C) That every drycleaning facility:
4 (I) install a containment dike or other
5 containment structure around each machine or
6 item of equipment or the entire drycleaning
7 area in which any drycleaning solvent is
8 utilized, which shall be capable of containing
9 any leak, spill, or release of drycleaning
10 solvent from that machine, item, or area; and
11 (II) seal or otherwise render impervious
12 those portions of diked floor surfaces on which
13 a drycleaning solvent may leak, spill, or
14 otherwise be released.
15 (D) A requirement that all drycleaning solvent
16 shall be delivered to drycleaning facilities by
17 means of closed, direct-coupled delivery systems.
18 (6) An active drycleaning facility has maintained
19 continuous financial assurance for environmental
20 liability coverage in the amount of at least $500,000 at
21 least since the date of award of benefits under this
22 Section or July 1, 1998, whichever is earlier.
23 (7) The release was discovered on or after July 1,
24 1997 and before July 1, 2002.
25 (d) A claimant shall submit a completed application form
26 provided by the Council. The application shall contain
27 documentation of activities, plans, and expenditures
28 associated with the eligible costs incurred in response to a
29 release of drycleaning solvent from a drycleaning facility.
30 Application for remedial action account benefits must be
31 submitted to the Council on or before June 30, 2002.
32 (e) Claimants shall be subject to the following
33 deductible requirements, unless modified pursuant to the
34 Council's authority under Section 75:
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1 (1) An eligible claimant submitting a claim for an
2 active drycleaning facility is responsible for the first
3 $5,000 of eligible investigation costs and for the first
4 $10,000 of eligible remedial action costs incurred in
5 connection with the release from the drycleaning facility
6 and is only eligible for reimbursement for costs that
7 exceed those amounts, subject to any other limitations of
8 this Act.
9 (2) An eligible claimant submitting a claim for an
10 inactive drycleaning facility is responsible for the
11 first $10,000 of eligible investigation costs and for the
12 first $10,000 of eligible remedial action costs incurred
13 in connection with the release from that drycleaning
14 facility, and is only eligible for reimbursement for
15 costs that exceed those amounts, subject to any other
16 limitations of this Act.
17 (f) Claimants are subject to the following limitations
18 on reimbursement:
19 (1) Subsequent to meeting the deductible
20 requirements of subsection (e), and pursuant to the
21 requirements of Section 75, reimbursement shall not
22 exceed:
23 (A) $160,000 per active drycleaning facility
24 for which an eligible claim is submitted during the
25 initial program year;
26 (B) $150,000 per active drycleaning facility
27 for which an eligible claim is submitted during the
28 program year beginning July 1, 1998;
29 (C) $140,000 per active drycleaning facility
30 for which an eligible claim is submitted during the
31 program year beginning July 1, 1999;
32 (D) $130,000 per active drycleaning facility
33 for which an eligible claim is submitted during the
34 program year beginning July 1, 2000;
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1 (E) $120,000 per active drycleaning facility
2 for which an eligible claim is submitted during the
3 program year beginning July 1, 2001; or
4 (F) $50,000 per inactive drycleaning facility.
5 (2) A contract in which one of the parties to the
6 contract is a claimant, for goods or services that may be
7 payable or reimbursable from the Council, is void and
8 unenforcable unless and until the Council has found that
9 the contract terms are within the range of usual and
10 customary rates for similar or equivalent goods or
11 services within this State and has found that the goods
12 or services are necessary for the claimant to comply with
13 Council standards or other applicable regulatory
14 standards.
15 (3) A claimant may appoint the Council as an agent
16 for the purposes of negotiating contracts with suppliers
17 of goods or services reimbursable by the Fund. The
18 Council may select another contractor for goods or
19 services other than the one offered by the claimant if
20 the scope of the proposed work or actual work of the
21 claimant's offered contractor does not reflect the
22 quality of workmanship required or if the costs are
23 determined to be excessive, as determined by the Council.
24 (4) The Council may require a claimant to obtain
25 and submit 3 bids and may require specific terms and
26 conditions in a contract subject to approval.
27 (5) The Council may enter into a contract or an
28 exclusive contract with the supplier of goods or services
29 required by a claimant or class of claimants, in
30 connection with an expense reimbursable from the Fund,
31 for a specified good or service at a gross maximum price
32 or fixed rate, and may limit reimbursement accordingly.
33 (6) Unless emergency conditions exist, a service
34 provider shall obtain the Council's approval of the
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1 budget for the remediation work before commencing the
2 work. No expense incurred that is above the budgeted
3 amount shall be paid unless the Council approves the
4 expense prior to its being incurred. All invoices and
5 bills relating to the remediation work shall be submitted
6 with appropriate documentation, as deemed necessary by
7 the Council, not later than 30 days after the work has
8 been performed.
9 (7) Neither the Council nor an eligible claimant is
10 responsible for payment for costs incurred that have not
11 been previously approved by the Council, unless an
12 emergency exists.
13 (8) The Council may determine the usual and
14 customary costs of each item for which reimbursement may
15 be awarded under this Section. The Council may revise the
16 usual and customary costs from time to time as necessary,
17 but costs submitted for reimbursement shall be subject to
18 the rates in effect at the time the costs were incurred.
19 (9) If a claimant has pollution liability insurance
20 coverage other than coverage provided by the insurance
21 account under this Act, that coverage shall be primary.
22 Reimbursement from the remedial account shall be limited
23 to the deductible amounts under the primary coverage and
24 the amount that exceeds the policy limits of the primary
25 coverage, subject to the deductible amounts of this Act.
26 If there is a dispute between the claimant and the
27 primary insurance provider, reimbursement from the
28 remedial action account may be made to the claimant after
29 the claimant assigns all of his or her interests in the
30 insurance coverage to the Council.
31 (g) The source of funds for the remedial action account
32 shall be moneys allocated to the account by the Council
33 according to the Fund budget approved by the Council.
34 (h) A drycleaning facility will be classified as active
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1 or inactive for purposes of determining benefits under this
2 Section based on the status of the facility on the date a
3 claim is filed.
4 (i) Eligible claimants shall conduct remedial action in
5 accordance with the Site Remediation Program under the
6 Environmental Protection Act and Part 740 of Title 35 of the
7 Illinois Administrative Code and the Tiered Approach to
8 Cleanup Objectives under Part 742 of Title 35 of the Illinois
9 Administrative Code.
10 Section 45. Insurance account.
11 (a) The insurance account shall offer financial
12 assurance for a qualified owner or operator of a drycleaning
13 facility under the terms and conditions provided for under
14 this Section. Coverage may be provided to either the owner or
15 the operator of a drycleaning facility. The Council is not
16 required to resolve whether the owner or operator, or both,
17 are responsible for a release under the terms of an agreement
18 between the owner and operator.
19 (b) The source of funds for the insurance account shall
20 be as follows:
21 (1) Moneys appropriated to the Council or moneys
22 allocated to the insurance account by the Council
23 according to the Fund budget approved by the Council.
24 (2) Moneys collected as an insurance premium,
25 including service fees, if any.
26 (3) Investment income attributed to the insurance
27 account by the Council.
28 (c) An owner or operator may purchase coverage of up to
29 $500,000 per drycleaning facility subject to the terms and
30 conditions under this Section and those adopted by the
31 Council. Coverage shall be limited to remedial action costs
32 associated with soil and groundwater contamination resulting
33 from a release of drycleaning solvent at an insured
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1 drycleaning facility, including third-party liability for
2 soil and groundwater contamination. Coverage is not provided
3 for a release that occurred before the date of coverage.
4 (d) An owner or operator, subject to underwriting
5 requirements and terms and conditions deemed necessary and
6 convenient by the Council, may purchase insurance coverage
7 from the insurance account provided that the drycleaning
8 facility to be insured meets the following conditions:
9 (1) a site investigation designed to identify soil
10 and groundwater contamination resulting from the release
11 of a drycleaning solvent has been completed. The Council
12 shall determine if the site investigation is adequate.
13 This investigation must be completed by June 30, 2002.
14 For drycleaning facilities that become active after June
15 30, 2002, the site investigation must be completed prior
16 to issuance of insurance coverage; and
17 (2) the drycleaning facility is participating in
18 and meets all requirements of a drycleaning compliance
19 program approved by the Council.
20 (e) The annual premium for insurance coverage shall be:
21 (1) For the initial program year, $250 per
22 drycleaning facility.
23 (2) For the year July 1, 1998 through June 30,
24 1999, $375 per drycleaning facility.
25 (3) For the year July 1, 1999 through June 30,
26 2000, $500 per drycleaning facility.
27 (4) For the year July 1, 2000 through June 30,
28 2001, $625 per drycleaning facility.
29 (5) For subsequent years, an owner or operator
30 applying for coverage shall pay an annual
31 actuarially-sound insurance premium for coverage by the
32 insurance account. The Council may approve Fund coverage
33 through the payment of a premium established on an
34 actuarially-sound basis, taking into consideration the
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1 risk to the insurance account presented by the insured.
2 Risk factor adjustments utilized to determine
3 actuarially-sound insurance premiums should reflect the
4 range of risk presented by the variety of drycleaning
5 systems, monitoring systems, drycleaning volume, risk
6 management practices, and other factors as determined by
7 the Council. As used in this item, "actuarially sound" is
8 not limited to Fund premium revenue equaling or exceeding
9 Fund expenditures for the general drycleaning facility
10 population. Actuarially-determined premiums shall be
11 published at least 180 days prior to the premiums
12 becoming effective.
13 (f) If coverage is purchased for any part of a year, the
14 purchaser shall pay the full annual premium. The insurance
15 premium is fully earned upon issuance of the insurance
16 policy.
17 (g) The insurance coverage shall be provided with a
18 $10,000 deductible policy.
19 (h) A future repeal of this Section shall not terminate
20 the obligations under this Section or authority necessary to
21 administer the obligations until the obligations are
22 satisfied, including but not limited to the payment of claims
23 filed prior to the effective date of any future repeal
24 against the insurance account until moneys in the account are
25 exhausted. Upon exhaustion of the moneys in the account, any
26 remaining claims shall be invalid. If moneys remain in the
27 account following satisfaction of the obligations under this
28 Section, the remaining moneys and moneys due the account
29 shall be used to assist current insureds to obtain a viable
30 insuring mechanism as determined by the Council after public
31 notice and opportunity for comment.
32 Section 50. Cost recovery; enforcement.
33 (a) The Council may seek recovery from a potentially
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1 responsible party liable for a release that is the subject of
2 a remedial action and for which the Fund has expended moneys
3 for remedial action. The amount of recovery sought by the
4 Council shall be equal to all moneys expended by the Fund for
5 and in connection with the remediation, including but not
6 limited to reasonable attorneys fees and costs of litigation
7 expended by the Fund in connection with the release.
8 (b) Except as provided in subsections (c) and (d):
9 (1) The Council shall not seek recovery for
10 expenses in connection with remedial action for a release
11 from a claimant eligible for reimbursement except for any
12 unpaid portion of the deductible.
13 (2) A claimant's liability for a release for which
14 coverage is admitted under the insurance account shall
15 not exceed the amount of the deductible, subject to the
16 limits of insurance coverage.
17 (c) Notwithstanding subsection (b), the liability of a
18 claimant to the Fund shall be the total costs of remedial
19 action incurred by the Fund, as specified in subsection (a),
20 if the claimant has not complied with the Environmental
21 Protection Act and its rules or with this Act and its rules.
22 (d) Notwithstanding subsection (b), the liability of a
23 claimant to the Fund shall be the total costs of remedial
24 action incurred by the Fund, as specified in subsection (a),
25 if the claimant received reimbursement from the Fund through
26 misrepresentation or fraud, and the claimant shall be liable
27 for the amount of the reimbursement.
28 (e) Upon reimbursement by the Fund for remedial action
29 under this Act, the rights of the claimant to recover payment
30 from a potentially responsible party are assumed by the
31 Council to the extent the remedial action was paid by the
32 Fund. A claimant is precluded from receiving double
33 compensation for the same injury. A claimant may elect to
34 permit the Council to pursue the claimant's cause of action
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1 for an injury not compensated by the Fund against a
2 potentially responsible party, provided the Attorney General
3 or his or her designee determines the representation would
4 not be a conflict of interest.
5 (f) This Section does not preclude, limit, or in any way
6 affect any of the provisions of or causes of action pursuant
7 to Section 22.2 of the Environmental Protection Act.
8 Section 55. Limitation on actions; admissions.
9 (a) An award or reimbursement made by the Council under
10 this Act shall be the claimant's exclusive method for the
11 recovery of the costs of drycleaning facility remediation.
12 (b) If a person conducts a remedial action activity for
13 a release at a drycleaning facility site, whether or not the
14 person files a claim under this Act, the claim and remedial
15 action activity conducted are not evidence of liability or
16 an admission of liability for any potential or actual
17 environmental pollution or damage.
18 Section 60. Drycleaning facility license.
19 (a) On and after January 1, 1998, no person shall
20 operate a drycleaning facility in this State without a
21 license issued by the Council.
22 (b) The Council shall issue an initial or renewal
23 license to a drycleaning facility on submission by an
24 applicant of a completed form prescribed by the Council and
25 proof of payment of the required fee to the Department of
26 Revenue.
27 (c) The annual fees for licensure are as follows:
28 (1) $500 for a facility that purchases 140 gallons
29 or less of chlorine-based drycleaning solvents annually
30 or 1400 gallons or less of hydrocarbon-based drycleaning
31 solvents annually.
32 (2) $1,000 for a facility that purchases more than
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1 140 gallons but less than 360 gallons of chlorine-based
2 drycleaning solvents annually or more than 1400 gallons
3 but less than 3600 gallons of hydrocarbon-based
4 drycleaning solvents annually.
5 (3) $1,500 for a facility that purchases 360
6 gallons or more of chlorine-based drycleaning solvents
7 annually or 3600 gallons or more of hydrocarbon-based
8 drycleaning solvents annually.
9 For purpose of this subsection, the quantity of
10 drycleaning solvents purchased annually shall be determined
11 as follows:
12 (1) in the case of an initial applicant, the
13 quantity of drycleaning solvents that the applicant
14 estimates will be used during his or her initial license
15 year. A fee assessed under this subdivision is subject to
16 audited adjustment for that year; or
17 (2) in the case of a renewal applicant, the
18 quantity of drycleaning solvents actually used in the
19 preceding license year.
20 The Council may adjust licensing fees annually based on
21 the published Consumer Price Index - All Urban Consumers
22 ("CPI-U") or as otherwise determined by the Council.
23 (d) A license issued under this Section shall expire one
24 year after the date of issuance and may be renewed on
25 reapplication to the Council and submission of proof of
26 payment of the appropriate fee to the Department of Revenue
27 in accordance with subsections (c) and (e). At least 30 days
28 before payment of a renewal licensing fee is due, the Council
29 shall attempt to:
30 (1) notify the operator of each licensed
31 drycleaning facility concerning the requirements of this
32 Section; and
33 (2) submit a license fee payment form to the
34 licensed operator of each drycleaning facility.
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1 (e) An operator of a drycleaning facility shall submit
2 the appropriate application form provided by the Council with
3 the license fee in the form of cash or guaranteed remittance
4 to the Department of Revenue. The license fee payment form
5 and the actual license fee payment shall be administered by
6 the Department of Revenue under rules adopted by that
7 Department.
8 (f) The Department of Revenue shall issue a proof of
9 payment receipt to each operator of a drycleaning facility
10 who has paid the appropriate fee in cash or by guaranteed
11 remittance. However, the Department of Revenue shall not
12 issue a proof of payment receipt to a drycleaning facility
13 that is liable to the Department of Revenue for a tax imposed
14 under this Act. The original receipt shall be presented to
15 the Council by the operator of a drycleaning facility.
16 (g) An operator of a dry cleaning facility who is
17 required to pay a license fee under this Act and fails to pay
18 the license fee when the fee is due shall be assessed a
19 penalty of $5 for each day after the license fee is due and
20 until the license fee is paid.
21 (h) The Council and the Department of Revenue may adopt
22 rules as necessary to administer the licensing requirements
23 of this Act.
24 Section 65. Drycleaning solvent tax.
25 (a) On and after January 1, 1998, a tax is imposed upon
26 the use of drycleaning solvent by a person engaged in the
27 business of operating a drycleaning facility in this State at
28 the rate of $3.50 per gallon of perchloroethylene or other
29 chlorinated drycleaning solvents used in drycleaning
30 operations and $0.35 per gallon of petroleum-based
31 drycleaning solvent. The Council shall determine by rule
32 which products are chlorine-based solvents and which
33 products are petroleum-based solvents. All drycleaning
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1 solvents shall be considered chlorinated solvents unless the
2 Council determines that the solvents are petroleum-based
3 drycleaning solvents subject to the lower tax.
4 (b) The tax imposed by this Act shall be collected from
5 the purchaser at the time of sale by a seller of drycleaning
6 solvents maintaining a place of business in this State and
7 shall be remitted to the Department of Revenue under the
8 provisions of this Act.
9 (c) The tax imposed by this Act that is not collected by
10 a seller of drycleaning solvents shall be paid directly to
11 the Department of Revenue by the purchaser or end user who is
12 subject to the tax imposed by this Act.
13 (d) No tax shall be imposed upon the use of drycleaning
14 solvent if the drycleaning solvent will not be used in a
15 drycleaning facility or if a floor stock tax has been imposed
16 and paid on the drycleaning solvent. Prior to the purchase
17 of the solvent, the purchaser shall provide a written and
18 signed certificate to the drycleaning solvent seller stating:
19 (1) the name and address of the purchaser;
20 (2) the purchaser's signature and date of signing;
21 and
22 (3) one of the following:
23 (A) that the drycleaning solvent will not be
24 used in a drycleaning facility; or
25 (B) that a floor stock tax has been imposed
26 and paid on the drycleaning solvent.
27 A person who provides a false certification under this
28 subsection shall be liable for a civil penalty not to exceed
29 $500 for a first violation and a civil penalty not to exceed
30 $5,000 for a second or subsequent violation.
31 (e) On January 1, 1998, there is imposed on each
32 operator of a drycleaning facility a tax on drycleaning
33 solvent held by the operator on that date for use in a
34 drycleaning facility. The tax imposed shall be the tax that
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1 would have been imposed under subsection (a) if the
2 drycleaning solvent held by the operator on that date had
3 been purchased by the operator during the first year of this
4 Act.
5 (f) On or before the 25th day of the 1st month following
6 the end of the calendar quarter, a seller of drycleaning
7 solvents who has collected a tax pursuant to this Section
8 during the previous calendar quarter, or a purchaser or end
9 user of drycleaning solvents required under subsection (c) to
10 submit the tax directly to the Department, shall file a
11 return with the Department of Revenue. The return shall be
12 filed on a form prescribed by the Department of Revenue and
13 shall contain information that the Department of Revenue
14 reasonably requires. Each seller of drycleaning solvent
15 maintaining a place of business in this State who is required
16 or authorized to collect the tax imposed by this Act shall
17 pay to the Department the amount of the tax at the time when
18 he or she is required to file his or her return for the
19 period during which the tax was collected. Purchasers or end
20 users remitting the tax directly to the Department under
21 subsection (c) shall file a return with the Department of
22 Revenue and pay the tax so incurred by the purchaser or end
23 user during the preceding calendar quarter.
24 (g) The tax on drycleaning solvents used in drycleaning
25 facilities and the floor stock tax shall be administered by
26 Department of Revenue under rules adopted by that Department.
27 (h) On and after January 1, 1998, no person shall
28 knowingly sell or transfer drycleaning solvent to an operator
29 of a drycleaning facility that is not licensed by the Council
30 under Section 60. A person who violates this subsection is
31 liable for a civil penalty not to exceed $500 for a first
32 violation and a civil penalty not to exceed $5,000 for a
33 second or subsequent violation.
34 (i) The Department of Revenue may adopt rules as
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1 necessary to implement this Section.
2 Section 67. Certification of registration. On and after
3 January 1, 1998, no person shall engage in the business of
4 selling drycleaning solvents in this State without a
5 certificate of registration issued by the Department of
6 Revenue. A person, officer or director of a corporation,
7 partner or member of a partnership, or manager or member of a
8 limited liability company who engages in the business of
9 selling drycleaning solvents in this State without a
10 certificate of registration issued by the Department of
11 Revenue is guilty of a Class A misdemeanor. A person,
12 manager or member of a limited liability company, officer or
13 director of a corporation, or partner or member of a
14 partnership who engages in the business of selling
15 drycleaning solvents in this State after the certificate of
16 registration has been revoked is guilty of a Class A
17 misdemeanor. Each day that the person, officer or director
18 of the corporation, manager or member of the limited
19 liability company, or partner or member of the partnership is
20 engaged in business without a certificate of registration, or
21 after the certification of registration has been revoked,
22 constitutes a separate offense.
23 A purchaser who obtains a registration number or resale
24 number from the Department of Revenue through
25 misrepresentation, who represents to a seller that the
26 purchaser has a registration number or a resale number from
27 the Department of Revenue when he or she knows that he or she
28 does not have the number, or who knowingly uses his or her
29 registration number or resale number to make a seller believe
30 that he or she is buying drycleaning solvents for resale when
31 the purchaser in fact knows that is not the purpose of the
32 purchase, is guilty of a Class 4 felony.
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1 Section 68. Incorporation by reference. All of the
2 provisions of Sections 2a and 2b of the Retailers' Occupation
3 Tax Act shall apply to persons in the business of selling
4 drycleaning solvents in this State to the same extent as if
5 those Sections were included in this Act. All of the
6 provisions of Section 4 (except that the time limitation
7 provision shall run from the date when the tax is due rather
8 than from the date when gross receipts are received), Section
9 5 (except that the time limitation provisions on the issuance
10 of notices of tax liability shall run from the date when the
11 tax is due rather than from the date when gross receipts are
12 received), 5a, 5b, 5c, 5e, 5f, 5g, 5i, 5j, 6, 6a, 6b, 6c, 7,
13 8, 9, 10, 11, 11a, and 12 of the Retailers' Occupation Tax
14 Act, Sections 3-45, 9, and 10 of the Use Tax Act, and all
15 applicable provisions of the Uniform Penalty and Interest Act
16 that are not inconsistent with the Act, shall apply to
17 sellers of drycleaning solvents and operators of drycleaning
18 facilities to the same extent as if those provisions were
19 included in this Act. Reference in the incorporated Sections
20 of the Retailers' Occupation Tax Act to retailers, sellers,
21 or persons engaged in the business of selling tangible
22 personal property shall mean sellers of drycleaning solvents
23 when used in this Act. Reference in the incorporated
24 Sections to sales of tangible personal property shall mean
25 sales of drycleaning solvents when used in this Act.
26 Section 70. Deposit of fees and taxes. All license fees
27 and taxes collected by the Department of Revenue under this
28 Act shall be deposited into the Fund, less 4% of the moneys
29 collected which shall be deposited by the State Treasurer
30 into the Tax Compliance and Administration Fund and shall be
31 used, subject to appropriation, by the Department of Revenue
32 to cover the costs of the Department in collecting the
33 license fees and taxes under this Act, and less an amount
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1 sufficient to provide refunds under this Act.
2 Section 75. Adjustment of fees and taxes. Beginning
3 January 1, 1999, and annually after that date, the Council
4 shall adjust the copayment obligation of subsection (e) of
5 Section 40, the drycleaning solvent taxes of Section 65, the
6 license fees of Section 60, or any combination of adjustment
7 of each, after notice and opportunity for public comment, in
8 a manner determined necessary and appropriate to ensure
9 viability of the Fund. Viability of the Fund shall consider
10 the settlement of all current claims subject to
11 prioritization of benefits under subsection (c) of Section
12 25, consistent with the purposes of this Act.
13 Section 80. Audits and reports.
14 (a) The accounts, books, and other financial records of
15 the Council, including but not limited to its receipts,
16 disbursements, contracts, and other matters relating to its
17 finance, operation, and affairs, shall be examined and
18 audited annually by the Auditor General in accordance with
19 the audit standards under the Illinois State Auditing Act.
20 This audit shall be provided to the Agency for review.
21 (b) Upon request by the Auditor General, the Agency
22 shall retain a firm of certified public accountants to
23 examine and audit the Council as described in subsection (a)
24 on behalf of the Auditor General.
25 (c) The accounts, books, and other financial records of
26 the Council shall be maintained in accordance with the State
27 Records Act and accepted accounting practices established by
28 the State.
29 Section 85. Repeal of fee and tax provisions. Sections 60
30 and 65 of this Act are repealed on July 1, 2007.
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1 Section 150. The State Finance Act is amended by adding
2 Section 5.449 as follows:
3 (30 ILCS 105/5.449 new)
4 Sec. 5.449. The Drycleaner Environmental Response Trust
5 Fund.
6 Section 200. The Illinois Insurance Code is amended by
7 adding Section 2.5 as follows:
8 (215 ILCS 5/2.5 new)
9 Sec. 2.5. Exemption. This Code shall not be construed to
10 apply to the administration of the Drycleaner Environmental
11 Response Trust Fund under the Drycleaner Environmental
12 Response Trust Fund Act."; and
13 on page 1, in line 5, by replacing "Section 5" with "Section
14 250"; and
15 on page 3, in line 4, by replacing "Section 99" with "Section
16 999".