Public Act 93-0152

SB222 Enrolled                       LRB093 08816 AMC 09048 b

    AN ACT in relation to environmental protection.

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

         ARTICLE I.  Recommendations of the Illinois
         Environmental Regulatory Review Commission.

    Section 10.  The Environmental Protection Act is  amended
by  changing Sections 4, 5, 22.2, 30, 31, 33, 35, 36, 37, 42,
and 45 and adding Section 28.6 as follows:

    (415 ILCS 5/4) (from Ch. 111 1/2, par. 1004)
    Sec. 4. Environmental Protection  Agency;  establishment;
duties.
    (a)  There  is established in the Executive Branch of the
State Government an agency to be known as  the  Environmental
Protection   Agency.    This   Agency   shall  be  under  the
supervision  and  direction  of  a  Director  who  shall   be
appointed  by the Governor with the advice and consent of the
Senate.  The term of office of the Director shall  expire  on
the  third  Monday of January in odd numbered years, provided
that he or  she  shall  hold  office  until  a  successor  is
appointed  and  has qualified.  The Director shall receive an
annual salary as set by the Governor from time to time or  as
set  by  the Compensation Review Board, whichever is greater.
If set by the Governor, the Director's annual salary may  not
exceed 85% of the Governor's annual salary.  The Director, in
accord  with the Personnel Code, shall employ and direct such
personnel, and shall provide for such  laboratory  and  other
facilities,  as may be necessary to carry out the purposes of
this Act.  In addition, the Director may by agreement  secure
such  services as he or she may deem necessary from any other
department, agency, or unit of the State Government, and  may
employ   and   compensate   such  consultants  and  technical
assistants as may be required.
    (b)  The Agency  shall  have  the  duty  to  collect  and
disseminate  such  information,  acquire such technical data,
and conduct such experiments as may be required to carry  out
the  purposes  of  this  Act,  including ascertainment of the
quantity and nature of discharges from any contaminant source
and data on those sources, and to operate and arrange for the
operation of devices  for  the  monitoring  of  environmental
quality.
    (c)  The Agency shall have authority to conduct a program
of   continuing  surveillance  and  of  regular  or  periodic
inspection  of  actual  or  potential  contaminant  or  noise
sources, of public water supplies,  and  of  refuse  disposal
sites.
    (d)  In  accordance  with constitutional limitations, the
Agency shall have authority to enter at all reasonable  times
upon any private or public property for the purpose of:
         (1)  Inspecting   and   investigating  to  ascertain
    possible violations of this Act, any rule  or  regulation
    adopted  under  this Act, any permit or term or condition
    of a permit, or  any  Board  order;  or  the  Act  or  of
    regulations   thereunder,  or  of  permits  or  terms  or
    conditions thereof; or
         (2)  In accordance with the provisions of this  Act,
    taking   whatever   preventive   or   corrective  action,
    including but not limited to removal or remedial  action,
    that  is  necessary  or  appropriate  whenever there is a
    release or a substantial threat of a  release  of  (A)  a
    hazardous substance or pesticide or (B) petroleum from an
    underground storage tank.
    (e)  The  Agency  shall  have  the  duty  to  investigate
violations  of this Act, any rule or regulation adopted under
this Act, any permit or term or condition of a permit, or any
Board order; Act or of regulations adopted thereunder, or  of
permits   or   terms   or   conditions   thereof,   to  issue
administrative citations as provided in Section 31.1 of  this
Act;,  and  to  take  such  summary  enforcement action as is
provided for by Section 34 of this Act.
    (f)  The Agency shall appear  before  the  Board  in  any
hearing upon a petition for variance, the denial of a permit,
or  the  validity  or  effect  of a rule or regulation of the
Board, and shall have the  authority  to  appear  before  the
Board in any hearing under the Act.
    (g)  The  Agency  shall  have  the duty to administer, in
accord  with  Title  X  of  this   Act,   such   permit   and
certification systems as may be established by this Act or by
regulations  adopted  thereunder.   The Agency may enter into
written delegation agreements with any department, agency, or
unit of State or local government under which all or portions
of this duty may be delegated for public water supply storage
and  transport  systems,  sewage  collection  and   transport
systems,  air  pollution  control  sources  with uncontrolled
emissions of 100 tons per year or  less  and  application  of
algicides to waters of the State.  Such delegation agreements
will require that the work to be performed thereunder will be
in accordance with Agency criteria, subject to Agency review,
and  shall include such financial and program auditing by the
Agency as may be required.
    (h)  The Agency  shall  have  authority  to  require  the
submission  of  complete  plans  and  specifications from any
applicant for a permit required by this Act or by regulations
thereunder, and to require the  submission  of  such  reports
regarding  actual  or  potential  violations of this Act, any
rule or regulation adopted under this Act, any permit or term
or condition of a permit, or any Board order the  Act  or  of
regulations  thereunder, or of permits or terms or conditions
thereof, as may be necessary for the purposes of this Act.
    (i)  The   Agency   shall   have   authority   to    make
recommendations  to the Board for the adoption of regulations
under Title VII of the Act.
    (j)  The Agency shall have  the  duty  to  represent  the
State of Illinois in any and all matters pertaining to plans,
procedures,  or negotiations for interstate compacts or other
governmental   arrangements   relating    to    environmental
protection.
    (k)  The  Agency  shall  have  the  authority  to accept,
receive, and administer on behalf of the  State  any  grants,
gifts,  loans,  indirect  cost reimbursements, or other funds
made available to the State from any source for  purposes  of
this  Act or for air or water pollution control, public water
supply, solid  waste  disposal,  noise  abatement,  or  other
environmental  protection  activities,  surveys, or programs.
Any federal funds received by the  Agency  pursuant  to  this
subsection  shall be deposited in a trust fund with the State
Treasurer and held and disbursed by him  in  accordance  with
Treasurer  as  Custodian  of  Funds  Act,  provided that such
monies shall be used only for the purposes for which they are
contributed and any balance remaining shall  be  returned  to
the contributor.
    The  Agency  is authorized to promulgate such regulations
and enter into such contracts as it may  deem  necessary  for
carrying out the provisions of this subsection.
    (l)  The  Agency  is hereby designated as water pollution
agency for the state for all purposes of  the  Federal  Water
Pollution Control Act, as amended; as implementing agency for
the  State  for  all purposes of the Safe Drinking Water Act,
Public Law  93-523,  as  now  or  hereafter  amended,  except
Section  1425  of  that  Act; as air pollution agency for the
state for all purposes of the Clean Air Act of  1970,  Public
Law  91-604,  approved  December 31, 1970, as amended; and as
solid waste agency for the state  for  all  purposes  of  the
Solid Waste Disposal Act, Public Law 89-272, approved October
20,  1965,  and amended by the Resource Recovery Act of 1970,
Public Law 91-512, approved October 26, 1970, as amended, and
amended by the Resource  Conservation  and  Recovery  Act  of
1976, (P.L. 94-580) approved October 21, 1976, as amended; as
noise  control  agency  for the state for all purposes of the
Noise Control  Act  of  1972,  Public  Law  92-574,  approved
October  27, 1972, as amended; and as implementing agency for
the State for all purposes of the Comprehensive Environmental
Response, Compensation,  and  Liability  Act  of  1980  (P.L.
96-510),  as  amended;  and  otherwise  as  pollution control
agency for the State pursuant to federal laws integrated with
the foregoing laws, for financing purposes or otherwise.  The
Agency is hereby authorized to take all action  necessary  or
appropriate  to  secure  to  the  State  the benefits of such
federal Acts, provided that the Agency shall transmit to  the
United  States  without  change  any standards adopted by the
Pollution Control Board pursuant to Section 5(c) of this Act.
This subsection (l) of Section 4 shall not  be  construed  to
bar  or  prohibit  the  Environmental  Protection  Trust Fund
Commission from accepting, receiving, and   administering  on
behalf  of  the State any grants, gifts, loans or other funds
for  which  the  Commission  is  eligible  pursuant  to   the
Environmental  Protection  Trust  Fund  Act.   The  Agency is
hereby designated as the State agency  for  all  purposes  of
administering  the requirements of Section 313 of the federal
Emergency Planning and Community Right-to-Know Act of 1986.
    Any municipality, sanitary district, or  other  political
subdivision, or any Agency of the State or interstate Agency,
which  makes  application  for  loans  or  grants  under such
federal Acts shall notify the Agency of such application; the
Agency may participate  in  proceedings  under  such  federal
Acts.
    (m)  The  Agency  shall  have  authority, consistent with
Section 5(c) and  other  provisions  of  this  Act,  and  for
purposes  of  Section  303(e)  of the Federal Water Pollution
Control Act, as  now  or  hereafter  amended,  to  engage  in
planning  processes  and  activities  and to develop plans in
cooperation with units of local  government,  state  agencies
and  officers,  and  other  appropriate persons in connection
with the jurisdiction or duties of each  such  unit,  agency,
officer  or  person.    Public  hearings shall be held on the
planning process, at which any person shall be  permitted  to
appear  and  be  heard,  pursuant  to  procedural regulations
promulgated by the Agency.
    (n)  In accordance with the  powers  conferred  upon  the
Agency  by  Sections  10(g),  13(b), 19, 22(d) and 25 of this
Act, the Agency shall have authority to establish and enforce
minimum standards for the operation of laboratories  relating
to  analyses  and  laboratory  tests for air pollution, water
pollution, noise emissions, contaminant discharges onto  land
and   sanitary,   chemical,  and  mineral  quality  of  water
distributed by a public water supply.  The Agency  may  enter
into  formal  working  agreements  with  other departments or
agencies of state government under which all or  portions  of
this authority may be delegated to the cooperating department
or agency.
    (o)  The   Agency  shall  have  the  authority  to  issue
certificates  of  competency  to  persons  and   laboratories
meeting  the  minimum  standards established by the Agency in
accordance with Section 4(n) of this Act  and  to  promulgate
and  enforce  regulations relevant to the issuance and use of
such certificates.  The Agency may enter into formal  working
agreements  with  other  departments  or  agencies  of  state
government  under which all or portions of this authority may
be delegated to the cooperating department or agency.
    (p)  Except as provided in Section 17.7, the Agency shall
have the duty to analyze samples as required from each public
water supply to determine  compliance  with  the  contaminant
levels specified by the Pollution Control Board.  The maximum
number  of  samples  which  the  Agency  shall be required to
analyze for microbiological quality shall be 6 per month, but
the Agency may, at its option, analyze a larger  number  each
month  for  any  supply.   Results  of  sample  analyses  for
additional   required   bacteriological  testing,  turbidity,
residual chlorine and radionuclides are to be provided to the
Agency in  accordance  with  Section  19.   Owners  of  water
supplies may enter into agreements with the Agency to provide
for reduced Agency participation in sample analyses.
    (q)  The  Agency  shall  have  the  authority  to provide
notice to any person who may be liable  pursuant  to  Section
22.2(f)  of this Act for a release or a substantial threat of
a release of a hazardous substance or pesticide.  Such notice
shall  include  the  identified  response   action   and   an
opportunity for such person to perform the response action.
    (r)  The   Agency   may  enter  into  written  delegation
agreements with any unit of local government under  which  it
may delegate all or portions of its inspecting, investigating
and  enforcement functions.  Such delegation agreements shall
require that work performed thereunder be in accordance  with
Agency    criteria    and    subject    to   Agency   review.
Notwithstanding any other provision of law to  the  contrary,
no  unit  of  local government shall be liable for any injury
resulting from the exercise of its authority pursuant to such
a delegation  agreement  unless  the  injury  is  proximately
caused  by  the  willful and wanton negligence of an agent or
employee of the unit of local government, and any  policy  of
insurance  coverage  issued to a unit of local government may
provide for the denial of liability  and  the  nonpayment  of
claims  based  upon  injuries  for  which  the  unit of local
government is not liable pursuant to this subsection (r).
    (s)  The Agency shall have  authority  to  take  whatever
preventive  or corrective action is necessary or appropriate,
including  but  not  limited   to   expenditure   of   monies
appropriated  from the Build Illinois Bond Fund and the Build
Illinois  Purposes  Fund  for  removal  or  remedial  action,
whenever any hazardous substance or pesticide is released  or
there  is  a  substantial  threat  of such a release into the
environment.  The State, the Director, and any State employee
shall be indemnified for any damages or injury arising out of
or resulting from any action  taken  under  this  subsection.
The  Director  of the Agency is authorized to enter into such
contracts and agreements as are necessary to  carry  out  the
Agency's duties under this subsection.
    (t)  The   Agency  shall  have  authority  to  distribute
grants, subject to appropriation by the General Assembly, for
financing   and   construction   of   municipal    wastewater
facilities.  With respect to all monies appropriated from the
Build Illinois Bond Fund and the Build Illinois Purposes Fund
for   wastewater  facility  grants,  the  Agency  shall  make
distributions in conformity with the  rules  and  regulations
established  pursuant  to the Anti-Pollution Bond Act, as now
or hereafter amended.
    (u)  Pursuant to the  Illinois  Administrative  Procedure
Act,  the Agency shall have the authority to adopt such rules
as are necessary or appropriate for the Agency  to  implement
Section 31.1 of this Act.
    (v)  (Blank.)
    (w)  Neither  the State, nor the Director, nor the Board,
nor any State employee shall be liable  for  any  damages  or
injury  arising  out  of  or  resulting from any action taken
under subsection (s).
    (x)(1)  The Agency shall  have  authority  to  distribute
    grants, subject to appropriation by the General Assembly,
    to   units   of   local   government  for  financing  and
    construction of public  water  supply  facilities.   With
    respect   to  all  monies  appropriated  from  the  Build
    Illinois Bond Fund or the Build  Illinois  Purposes  Fund
    for public water supply grants, such grants shall be made
    in accordance with rules promulgated by the Agency.  Such
    rules  shall  include  a requirement for a local match of
    30% of the total project cost for projects funded through
    such grants.
         (2)  The Agency shall not terminate  a  grant  to  a
    unit   of   local   government   for  the  financing  and
    construction of public water supply facilities unless and
    until the Agency adopts rules that set forth precise  and
    complete  standards,  pursuant  to  Section  5-20  of the
    Illinois   Administrative   Procedure   Act,   for    the
    termination  of  such  grants.  The Agency shall not make
    determinations on whether specific grant  conditions  are
    necessary  to  ensure  the  integrity  of a project or on
    whether subagreements shall be awarded, with  respect  to
    grants for the financing and construction of public water
    supply  facilities,  unless  and  until the Agency adopts
    rules that set  forth  precise  and  complete  standards,
    pursuant  to  Section 5-20 of the Illinois Administrative
    Procedure  Act,  for  making  such  determinations.   The
    Agency shall not issue a stop-work order in  relation  to
    such  grants  unless  and until the Agency adopts precise
    and complete standards, pursuant to Section 5-20  of  the
    Illinois  Administrative  Procedure  Act, for determining
    whether to issue a stop-work order.
    (y)  The Agency  shall  have  authority  to  release  any
person   from   further   responsibility  for  preventive  or
corrective  action  under  this  Act   following   successful
completion  of  preventive or corrective action undertaken by
such person upon written request by the person.
(Source: P.A. 91-25, eff. 6-9-99; 92-574, eff. 6-26-02.)
    (415 ILCS 5/5) (from Ch. 111 1/2, par. 1005)
    Sec. 5. Pollution Control Board.
    (a)  There is hereby created an independent board  to  be
known  as  the  Pollution  Control  Board,  consisting  of  7
technically  qualified members, no more than 4 of whom may be
of the same political party, to be appointed by the  Governor
with the advice and consent of the Senate.
    All  members shall hold office for 3 years from the first
day of July in the year in which they were appointed,  except
in  case  of  an appointment to fill a vacancy.  In case of a
vacancy in the office when the Senate is not in session,  the
Governor  may  make  a  temporary  appointment until the next
meeting of the Senate, when he or  she  shall  nominate  some
person  to fill such office; and any person so nominated, who
is confirmed by the Senate, shall hold the office during  the
remainder of the term.
    Members  of  the  Board  shall  hold  office  until their
respective successors have been appointed and qualified.  Any
member  may  resign  from  office,  such  resignation to take
effect when a successor has been appointed and has qualified.
    Board members shall be paid $37,000 per year or an amount
set by the Compensation Review Board, whichever  is  greater,
and  the Chairman shall be paid $43,000 per year or an amount
set by the Compensation Review Board, whichever  is  greater.
Each  member  shall  be  reimbursed  for expenses necessarily
incurred, shall devote full time to the performance of his or
her  duties  and  shall  make  a  financial  disclosure  upon
appointment.  Each Board member may employ one secretary  and
one   assistant,   and  the  Chairman  one  secretary  and  2
assistants.  The Board also may employ and compensate hearing
officers to preside at hearings  under  this  Act,  and  such
other  personnel as may be necessary.  Hearing officers shall
be attorneys licensed to practice law in Illinois.
    The Governor shall  designate  one  Board  member  to  be
Chairman, who shall serve at the pleasure of the Governor.
    The  Board shall hold at least one meeting each month and
such additional meetings as may be prescribed by Board rules.
In addition, special meetings may be called by  the  Chairman
or  by any 2 Board members, upon delivery of 24 hours written
notice to the office of  each  member.   All  Board  meetings
shall  be  open  to  the  public,  and  public  notice of all
meetings shall be given at least 24 hours in advance of  each
meeting.   In emergency situations in which a majority of the
Board  certifies  that  exigencies  of   time   require   the
requirements  of  public notice and of 24 hour written notice
to members may be dispensed with,  and  Board  members  shall
receive such notice as is reasonable under the circumstances.
    Four  members of the Board shall constitute a quorum, and
4 votes shall be required for any final determination by  the
Board,  except  in  a  proceeding  to  remove  a  seal  under
paragraph  (d)  of  Section  34 of this Act.  The Board shall
keep a complete and accurate record of all its meetings.
    (b)  The Board shall determine, define and implement  the
environmental  control  standards  applicable in the State of
Illinois and may adopt rules and  regulations  in  accordance
with Title VII of this Act.
    (c)  The  Board shall have authority to act for the State
in regard to the adoption of standards for submission to  the
United  States under any federal law respecting environmental
protection.  Such standards shall be  adopted  in  accordance
with  Title  VII  of  the  Act  and  upon  adoption  shall be
forwarded  to  the  Environmental   Protection   Agency   for
submission  to  the United States pursuant to subsections (l)
and (m) of Section 4 of this Act.  Nothing in this  paragraph
shall  limit  the  discretion  of  the  Governor  to delegate
authority granted to the Governor under any federal law.
    (d)  The  Board   shall   have   authority   to   conduct
proceedings  upon complaints charging violations of this Act,
any rule or regulation adopted under this Act, or any  permit
or  term  or  condition of a permit, or any Board order; upon
administrative citations; upon  petitions  for  variances  or
adjusted standards; upon petitions for review of the Agency's
final  determinations  on  permit  applications in accordance
with Title X of this Act;  upon  petitions  to  remove  seals
under  Section  34  of this Act; and upon other petitions for
review of final determinations which  are  made  pursuant  to
this  Act or Board rule and which involve a subject which the
Board is authorized to regulate.  The Board may also  conduct
other proceedings as may be provided by this Act or any other
statute or rule.
    (e)  In   connection  with  any  proceeding  pursuant  to
subsection (b) or (d) of this Section, the Board may subpoena
and compel the attendance of witnesses and the production  of
evidence  reasonably  necessary  to  resolution of the matter
under consideration.  The Board shall  issue  such  subpoenas
upon   the  request  of  any  party  to  a  proceeding  under
subsection (d) of this Section or upon its own motion.
    (f)  The Board may prescribe reasonable fees for  permits
required  pursuant  to  this Act.  Such fees in the aggregate
may  not  exceed  the  total  cost  to  the  Agency  for  its
inspection and permit systems.  The Board may  not  prescribe
any  permit  fees  which  are  different in amount from those
established by this Act.
(Source: P.A. 92-574, eff. 6-26-02.)

    (415 ILCS 5/22.2) (from Ch. 111 1/2, par. 1022.2)
    Sec. 22.2. Hazardous waste; fees; liability.
    (a)  There are hereby created within the State Treasury 2
special funds to be  known  respectively  as  the  "Hazardous
Waste   Fund"   and  the  "Hazardous  Waste  Research  Fund",
constituted from the fees collected pursuant to this Section.
In addition to the fees collected  under  this  Section,  the
Hazardous   Waste   Fund  shall  include  other  moneys  made
available from any source for deposit into the Fund.
    (b) (1)  On and after January 1, 1989, the  Agency  shall
    collect  from  the  owner  or  operator  of  each  of the
    following sites a fee in the amount of:
              (A)  9 cents per gallon  or  $18.18  per  cubic
         yard,  if  the  hazardous  waste  disposal  site  is
         located  off the site where such waste was produced.
         The maximum amount payable  under  this  subdivision
         (A) with respect to the hazardous waste generated by
         a  single  generator  and  deposited in monofills is
         $30,000 per year.  If, as a result  of  the  use  of
         multiple  monofills,  waste  fees  in  excess of the
         maximum are assessed with respect to a single  waste
         generator, the generator may apply to the Agency for
         a credit.
              (B)  9  cents  or $18.18 per cubic yard, if the
         hazardous waste disposal site is located on the site
         where such waste was produced, provided however  the
         maximum  amount of fees payable under this paragraph
         (B) is $30,000 per  year  for  each  such  hazardous
         waste disposal site.
              (C)  If the hazardous waste disposal site is an
         underground  injection  well, $6,000 per year if not
         more than 10,000,000 gallons per year are  injected,
         $15,000 per year if more than 10,000,000 gallons but
         not  more  than  50,000,000  gallons  per  year  are
         injected,   and   $27,000  per  year  if  more  than
         50,000,000 gallons per year are injected.
              (D)  3 cents per gallon or $6.06 per cubic yard
         of hazardous  waste  received  for  treatment  at  a
         hazardous  waste  treatment  site,  if the hazardous
         waste treatment site is located off the  site  where
         such  waste was produced and if such hazardous waste
         treatment site is owned, controlled and operated  by
         a  person  other  than  the generator of such waste.
         After treatment at such  hazardous  waste  treatment
         site,  the  waste  shall not be subject to any other
         fee imposed by this subsection (b).  For purposes of
         this subsection (b), the term "treatment" is defined
         as in Section 3.505 but shall not include recycling,
         reclamation or reuse.
         (2)  The General Assembly shall annually appropriate
    to the Fund such amounts as it deems necessary to fulfill
    the purposes of this Act.
         (3)  The Agency shall have the authority to  accept,
    receive, and administer on behalf of the State any moneys
    made  available  to  the  State  from  any source for the
    purposes  of  the  Hazardous  Waste  Fund  set  forth  in
    subsection (d) of this Section.
         (4)  Of the amount collected as fees provided for in
    this Section, the Agency shall manage  the  use  of  such
    funds  to  assure that sufficient funds are available for
    match towards federal expenditures for response action at
    sites which are listed on the National  Priorities  List;
    provided,   however,   that   this  shall  not  apply  to
    additional monies appropriated to the Fund by the General
    Assembly, nor shall  it  apply  in  the  event  that  the
    Director  finds that revenues in the Hazardous Waste Fund
    must be used to address conditions which  create  or  may
    create  an  immediate danger to the environment or public
    health or to the welfare of the people of  the  State  of
    Illinois.
         (5)  Notwithstanding  the  other  provisions of this
    subsection (b), sludge from a publicly-owned sewage works
    generated in Illinois,  coal  mining  wastes  and  refuse
    generated in Illinois, bottom boiler ash, flyash and flue
    gas  desulphurization sludge from public utility electric
    generating facilities located  in  Illinois,  and  bottom
    boiler ash and flyash from all incinerators which process
    solely municipal waste shall not be subject to the fee.
         (6)  For   the  purposes  of  this  subsection  (b),
    "monofill" means a facility, or a  unit  at  a  facility,
    that accepts only wastes bearing the same USEPA hazardous
    waste  identification  number,  or  compatible  wastes as
    determined by the Agency.
    (c)  The Agency shall  establish  procedures,  not  later
than  January 1, 1984, relating to the collection of the fees
authorized by this Section. Such  procedures  shall  include,
but  not be limited to: (1) necessary records identifying the
quantities of hazardous waste received or disposed;  (2)  the
form  and  submission  of reports to accompany the payment of
fees to the Agency; and (3) the time and manner of payment of
fees to the Agency, which payments shall be  not  more  often
than quarterly.
    (d)  Beginning July 1, 1996, the Agency shall deposit all
such  receipts  in  the  State  Treasury to the credit of the
Hazardous Waste Fund, except as provided in subsection (e) of
this Section. All monies in the Hazardous Waste Fund shall be
used by the Agency for the following purposes:
         (1)  Taking whatever preventive or corrective action
    is necessary or appropriate, in  circumstances  certified
    by  the Director, including but not limited to removal or
    remedial  action  whenever  there   is   a   release   or
    substantial  threat of a release of a hazardous substance
    or pesticide; provided, the Agency shall expend  no  more
    than   $1,000,000   on   any   single   incident  without
    appropriation by the General Assembly.
         (2)  To meet any requirements which must be  met  by
    the  State  in  order to obtain federal funds pursuant to
    the Comprehensive  Environmental  Response,  Compensation
    and Liability Act of 1980, (P.L. 96-510).
         (3)  In  an amount up to 30% of the amount collected
    as fees provided for in this  Section,  for  use  by  the
    Agency  to  conduct  groundwater  protection  activities,
    including  providing grants to appropriate units of local
    government which are addressing protection of underground
    waters pursuant to the provisions of this Act.
         (4)  To fund the development and  implementation  of
    the model pesticide collection program under Section 19.1
    of the Illinois Pesticide Act.
         (5)  To  the  extent  the  Agency  has  received and
    deposited monies in the Fund other  than  fees  collected
    under subsection (b) of this Section, to pay for the cost
    of  Agency  employees  for services provided in reviewing
    the performance of response  actions  pursuant  to  Title
    XVII of this Act.
         (6)  In  an  amount  up to 15% of the fees collected
    annually under subsection (b) of this Section, for use by
    the Agency for administration of the provisions  of  this
    Section.
    (e)  The   Agency  shall  deposit  10%  of  all  receipts
collected under subsection (b) of this Section,  but  not  to
exceed $200,000 per year, in the State Treasury to the credit
of the Hazardous Waste Research Fund established by this Act.
Pursuant  to  appropriation, all monies in such Fund shall be
used by the Department of Natural Resources for the  purposes
set forth in this subsection.
    The  Department  of  Natural  Resources  may  enter  into
contracts with business, industrial, university, governmental
or  other qualified individuals or organizations to assist in
the research and development intended to recycle, reduce  the
volume   of,  separate,  detoxify  or  reduce  the  hazardous
properties of hazardous wastes in Illinois.   Monies  in  the
Fund  may also be used by the Department of Natural Resources
for technical studies, monitoring activities, and educational
and research activities which are related to  the  protection
of   underground  waters.   Monies  in  the  Hazardous  Waste
Research Fund may be used to administer the  Illinois  Health
and   Hazardous  Substances  Registry  Act.   Monies  in  the
Hazardous Waste Research Fund  shall  not  be  used  for  any
sanitary  landfill  or the acquisition or construction of any
facility.  This does not preclude the purchase  of  equipment
for  the  purpose  of  public  demonstration  projects.   The
Department  of  Natural  Resources shall adopt guidelines for
cost sharing, selecting,  and  administering  projects  under
this subsection.
    (f)  Notwithstanding  any other provision or rule of law,
and subject only to the defenses set forth in subsection  (j)
of  this  Section,  the following persons shall be liable for
all costs of removal or remedial action incurred by the State
of Illinois or any unit of local government as a result of  a
release  or  substantial  threat  of a release of a hazardous
substance or pesticide:
         (1)  the owner and operator of a facility or  vessel
    from  which  there  is a release or substantial threat of
    release of a hazardous substance or pesticide;
         (2)  any  person  who  at  the  time  of   disposal,
    transport,  storage or treatment of a hazardous substance
    or pesticide owned or operated  the  facility  or  vessel
    used  for  such disposal, transport, treatment or storage
    from which there was a release or substantial threat of a
    release of any such hazardous substance or pesticide;
         (3)  any  person  who  by  contract,  agreement,  or
    otherwise has arranged with another party or  entity  for
    transport,  storage,  disposal  or treatment of hazardous
    substances or pesticides owned, controlled  or  possessed
    by such person at a facility owned or operated by another
    party or entity from which facility there is a release or
    substantial   threat  of  a  release  of  such  hazardous
    substances or pesticides; and
         (4)  any  person  who  accepts   or   accepted   any
    hazardous  substances  or  pesticides  for  transport  to
    disposal,  storage  or treatment facilities or sites from
    which there is a release or a  substantial  threat  of  a
    release of a hazardous substance or pesticide.
    Any  monies received by the State of Illinois pursuant to
this subsection (f) shall be deposited in the State  Treasury
to the credit of the Hazardous Waste Fund.
    In  accordance with the other provisions of this Section,
costs of removal or remedial action incurred  by  a  unit  of
local  government  may  be  recovered in an action before the
Board  brought  by  the  unit  of  local   government   under
subsection  (i)  of  this  Section.   Any monies so recovered
shall be paid to the unit of local government.
    (g)(1)  No indemnification,  hold  harmless,  or  similar
    agreement  or  conveyance  shall be effective to transfer
    from the owner or operator of any vessel or  facility  or
    from  any  person  who  may  be  liable  for a release or
    substantial threat of a release under  this  Section,  to
    any   other  person  the  liability  imposed  under  this
    Section.  Nothing in this Section shall bar any agreement
    to insure, hold harmless or indemnify  a  party  to  such
    agreements for any liability under this Section.
         (2)  Nothing   in   this   Section,   including  the
    provisions of paragraph (g)(1) of this Section, shall bar
    a cause of action that an owner or operator or any  other
    person  subject  to  liability  under  this Section, or a
    guarantor, has or would have, by reason of subrogation or
    otherwise against any person.
    (h)  For purposes of this Section:
         (1)  The term "facility" means:
              (A)  any  building,  structure,   installation,
         equipment,   pipe  or  pipeline  including  but  not
         limited to any pipe into a sewer or  publicly  owned
         treatment    works,   well,   pit,   pond,   lagoon,
         impoundment,  ditch,  landfill,  storage  container,
         motor vehicle, rolling stock, or aircraft; or
              (B)  any  site  or  area  where   a   hazardous
         substance  has  been deposited, stored, disposed of,
         placed, or otherwise come to be located.
         (2)  The term "owner or operator" means:
              (A)  any person owning or operating a vessel or
         facility;
              (B)  in the case of an abandoned facility,  any
         person owning or operating the abandoned facility or
         any   person   who  owned,  operated,  or  otherwise
         controlled  activities  at  the  abandoned  facility
         immediately prior to such abandonment;
              (C)  in the case of a land trust as defined  in
         Section  2 of the Land Trustee as Creditor Act,  the
         person owning the beneficial interest  in  the  land
         trust;
              (D)  in  the  case of a fiduciary (other than a
         land trustee), the estate, trust  estate,  or  other
         interest  in  property held in a fiduciary capacity,
         and not the fiduciary.  For  the  purposes  of  this
         Section,  "fiduciary"  means  a  trustee,  executor,
         administrator,  guardian,  receiver,  conservator or
         other person holding  a  facility  or  vessel  in  a
         fiduciary capacity;
              (E)  in  the case of a "financial institution",
         meaning the Illinois Housing  Development  Authority
         and  that  term  as  defined  in  Section  2  of the
         Illinois Banking Act, that has  acquired  ownership,
         operation,  management,  or  control  of a vessel or
         facility through foreclosure or under the terms of a
         security interest held by the financial  institution
         or under the terms of an extension of credit made by
         the financial institution, the financial institution
         only  if  the financial institution takes possession
         of  the  vessel  or  facility  and   the   financial
         institution  exercises actual, direct, and continual
         or recurrent managerial control in the operation  of
         the  vessel  or  facility  that  causes a release or
         substantial threat  of  a  release  of  a  hazardous
         substance  or  pesticide  resulting  in  removal  or
         remedial action;
              (F)  In  the  case  of  an owner of residential
         property, the owner if the owner is a  person  other
         than an individual, or if the owner is an individual
         who owns more than 10 dwelling units in Illinois, or
         if   the   owner,   or   an  agent,  representative,
         contractor, or employee of the  owner,  has  caused,
         contributed to, or allowed the release or threatened
         release  of  a hazardous substance or pesticide. The
         term  "residential  property"  means  single  family
         residences of one to  4  dwelling  units,  including
         accessory    land,    buildings,   or   improvements
         incidental to those dwellings that  are  exclusively
         used  for  the residential use. For purposes of this
         subparagraph (F),  the  term  "individual"  means  a
         natural  person, and shall not include corporations,
         partnerships, trusts, or other non-natural persons.
              (G)  In the case  of  any  facility,  title  or
         control  of  which  was  conveyed due to bankruptcy,
         foreclosure,  tax   delinquency,   abandonment,   or
         similar   means   to   a  unit  of  State  or  local
         government,  any  person  who  owned,  operated,  or
         otherwise  controlled  activities  at  the  facility
         immediately beforehand.
              (H)  The term  "owner  or  operator"  does  not
         include  a  unit  of State or local government which
         acquired ownership or  control  through  bankruptcy,
         tax delinquency, abandonment, or other circumstances
         in  which the government acquires title by virtue of
         its function as sovereign.  The  exclusion  provided
         under this paragraph shall not apply to any State or
         local  government which has caused or contributed to
         the release or threatened  release  of  a  hazardous
         substance  from  the  facility,  and such a State or
         local government shall be subject to the  provisions
         of  this  Act  in  the  same  manner and to the same
         extent, both procedurally and substantively, as  any
         nongovernmental  entity,  including  liability under
         Section 22.2(f).
    (i)  The costs and damages provided for in  this  Section
may  be  imposed by the Board in an action brought before the
Board in accordance with Title VIII of this Act, except  that
Section 33(c) of this Act shall not apply to any such action.
    (j) (1)  There  shall  be no liability under this Section
for  a  person  otherwise  liable  who  can  establish  by  a
preponderance of the evidence that the release or substantial
threat of release of a hazardous substance  and  the  damages
resulting therefrom were caused solely by:
         (A)  an act of God;
         (B)  an act of war;
         (C)  an  act or omission of a third party other than
    an employee or agent of the defendant, or other than  one
    whose  act  or  omission  occurs  in  connection  with  a
    contractual    relationship,    existing    directly   or
    indirectly, with the defendant  (except  where  the  sole
    contractual  arrangement  arises  from a published tariff
    and acceptance for carriage by a common carrier by rail),
    if the defendant establishes by a  preponderance  of  the
    evidence  that  (i) he exercised due care with respect to
    the   hazardous   substance   concerned,   taking    into
    consideration   the  characteristics  of  such  hazardous
    substance,  in  light   of   all   relevant   facts   and
    circumstances,  and  (ii)  he  took  precautions  against
    foreseeable acts or omissions of any such third party and
    the  consequences that could foreseeably result from such
    acts or omissions; or
         (D)  any combination of the foregoing paragraphs.
    (2)  There shall be no liability under this  Section  for
any release permitted by State or federal law.
    (3)  There  shall  be no liability under this Section for
damages as a result of actions taken or omitted in the course
of rendering care, assistance, or advice in  accordance  with
this Section or the National Contingency Plan pursuant to the
Comprehensive   Environmental   Response,   Compensation  and
Liability Act of 1980 (P.L. 96-510) or at the direction of an
on-scene coordinator appointed under such plan, with  respect
to  an incident creating a danger to public health or welfare
or the environment as a result of any release of a  hazardous
substance  or  a substantial threat thereof.  This subsection
shall not preclude liability for damages  as  the  result  of
gross  negligence  or  intentional  misconduct on the part of
such person.  For the purposes  of  the  preceding  sentence,
reckless,  willful,  or  wanton  misconduct  shall constitute
gross negligence.
    (4)  There shall be no liability under this  Section  for
any  person  (including,  but  not  limited  to,  an owner of
residential  property  who  applies  a   pesticide   to   the
residential  property  or  who  has  another  person  apply a
pesticide to the residential property) for response costs  or
damages  as  the  result of the storage, handling and use, or
recommendation for storage, handling and use, of a  pesticide
consistent with:
         (A)  its directions for storage, handling and use as
    stated in its label or labeling;
         (B)  its  warnings  and  cautions  as  stated in its
    label or labeling; and
         (C)  the uses for which it is registered  under  the
    Federal  Insecticide,  Fungicide  and Rodenticide Act and
    the Illinois Pesticide Act.
    (4.5)  There shall  be  no  liability  under  subdivision
(f)(1)  of  this Section for response costs or damages as the
result of a release  of  a  pesticide  from  an  agrichemical
facility  site  if  the  Agency  has received notice from the
Department of Agriculture pursuant to  Section  19.3  of  the
Illinois   Pesticide  Act,  the  owner  or  operator  of  the
agrichemical facility is proceeding with a corrective  action
plan  under the Agrichemical Facility Response Action Program
implemented under that Section, and the Agency has provided a
written endorsement of a corrective action plan.
    (4.6)  There shall  be  no  liability  under  subdivision
(f)(1)  of  this Section for response costs or damages as the
result of a substantial threat of a release  of  a  pesticide
from an agrichemical facility site if the Agency has received
notice from the Department of Agriculture pursuant to Section
19.3  of the Illinois Pesticide Act and the owner or operator
of the agrichemical facility is proceeding with a  corrective
action  plan  under the Agrichemical Facility Response Action
Program implemented under that Section.
    (5)  Nothing in  this  subsection  (j)  shall  affect  or
modify  in any way the obligations or liability of any person
under any other provision of this Act  or  State  or  federal
law,  including  common  law,  for  damages,  injury, or loss
resulting from a release or substantial threat of  a  release
of  any hazardous substance or for removal or remedial action
or the costs of removal or remedial action of such  hazardous
substance.
    (6)(A)  The  term  "contractual  relationship",  for  the
purpose  of  this subsection includes, but is not limited to,
land contracts, deeds or other instruments transferring title
or possession, unless the real property on which the facility
concerned is located was acquired by the defendant after  the
disposal  or  placement of the hazardous substance on, in, or
at the  facility,  and  one  or  more  of  the  circumstances
described  in clause (i), (ii), or (iii) of this paragraph is
also established by the defendant by a preponderance  of  the
evidence:
         (i)  At the time the defendant acquired the facility
    the defendant did not know and had no reason to know that
    any  hazardous  substance  which  is  the  subject of the
    release or threatened release was disposed of on,  in  or
    at the facility.
         (ii)  The  defendant  is  a  government entity which
    acquired the facility by escheat, or  through  any  other
    involuntary  transfer  or  acquisition,  or  through  the
    exercise  of  eminent  domain  authority  by  purchase or
    condemnation.
         (iii)  The  defendant  acquired  the   facility   by
    inheritance or bequest.
    In  addition to establishing the foregoing, the defendant
must establish that he  has  satisfied  the  requirements  of
subparagraph (C) of paragraph (l) of this subsection (j).
    (B)  To establish the defendant had no reason to know, as
provided in clause (i) of subparagraph (A) of this paragraph,
the   defendant   must   have  undertaken,  at  the  time  of
acquisition,  all  appropriate  inquiry  into  the   previous
ownership  and  uses  of  the  property  consistent with good
commercial or customary practice in  an  effort  to  minimize
liability.  For purposes of the preceding sentence, the court
shall   take   into  account  any  specialized  knowledge  or
experience on the part of the defendant, the relationship  of
the   purchase   price  to  the  value  of  the  property  if
uncontaminated, commonly known  or  reasonably  ascertainable
information  about  the  property,  the  obviousness  of  the
presence or likely presence of contamination at the property,
and  the  ability to detect such contamination by appropriate
inspection.
    (C)  Nothing in this paragraph (6) or in subparagraph (C)
of paragraph  (1)  of  this  subsection  shall  diminish  the
liability  of any previous owner or operator of such facility
who would otherwise be liable under this Act. Notwithstanding
this  paragraph  (6),  if  the  defendant   obtained   actual
knowledge of the release or threatened release of a hazardous
substance  at such facility when the defendant owned the real
property and then subsequently transferred ownership  of  the
property to another person without disclosing such knowledge,
such  defendant  shall  be treated as liable under subsection
(f) of this Section and no defense under subparagraph (C)  of
paragraph  (1)  of this subsection shall be available to such
defendant.
    (D)  Nothing in  this  paragraph  (6)  shall  affect  the
liability  under  this  Act of a defendant who, by any act or
omission, caused or contributed to the release or  threatened
release  of a hazardous substance which is the subject of the
action relating to the facility.
    (E) (i)  Except  as  provided  in  clause  (ii)  of  this
subparagraph (E), a defendant who has acquired real  property
shall  have  established a rebuttable presumption against all
State claims and a conclusive presumption against all private
party claims that the  defendant  has  made  all  appropriate
inquiry  within  the  meaning  of  subdivision (6)(B) of this
subsection (j) if the defendant proves that immediately prior
to or at the time of the acquisition:
         (I)  the defendant obtained a Phase I  Environmental
    Audit  of  the  real  property  that meets or exceeds the
    requirements of this subparagraph (E), and  the  Phase  I
    Environmental  Audit  did  not  disclose  the presence or
    likely presence of a release or a substantial threat of a
    release of a hazardous substance or pesticide at, on, to,
    or from the real property; or
         (II)  the   defendant   obtained    a    Phase    II
    Environmental  Audit  of  the real property that meets or
    exceeds the requirements of this  subparagraph  (E),  and
    the  Phase  II  Environmental  Audit did not disclose the
    presence or likely presence of a release or a substantial
    threat of a release of a hazardous substance or pesticide
    at, on, to, or from the real property.
    (ii)  No presumption shall be created under clause (i) of
this subparagraph (E), and a  defendant  shall  be  precluded
from   demonstrating   that   the   defendant  has  made  all
appropriate inquiry within the meaning of subdivision  (6)(B)
of this subsection (j), if:
         (I)  the defendant fails to obtain all Environmental
    Audits  required  under this subparagraph (E) or any such
    Environmental  Audit  fails  to  meet   or   exceed   the
    requirements of this subparagraph (E);
         (II)  a  Phase  I  Environmental Audit discloses the
    presence or likely presence of a release or a substantial
    threat of a release of a hazardous substance or pesticide
    at, on, to, or from  real  property,  and  the  defendant
    fails to obtain a Phase II Environmental Audit;
         (III)  a  Phase II Environmental Audit discloses the
    presence or likely presence of a release or a substantial
    threat of a release of a hazardous substance or pesticide
    at, on, to, or from the real property;
         (IV)  the defendant  fails  to  maintain  a  written
    compilation   and   explanatory  summary  report  of  the
    information reviewed in the course of each  Environmental
    Audit under this subparagraph (E); or
         (V)  there   is  any  evidence  of  fraud,  material
    concealment,  or  material   misrepresentation   by   the
    defendant  of  environmental  conditions  or  of  related
    information   discovered   during   the   course   of  an
    Environmental Audit.
    (iii)  For purposes of this subparagraph  (E),  the  term
"environmental  professional" means an individual (other than
a  practicing  attorney)  who,  through  academic   training,
occupational  experience,  and reputation (such as engineers,
industrial hygienists, or geologists) can objectively conduct
one or more aspects of an Environmental Audit and who either:
         (I)  maintains at  the  time  of  the  Environmental
    Audit  and  for  at  least  one  year thereafter at least
    $500,000  of  environmental   consultants'   professional
    liability  insurance  coverage  issued  by  an  insurance
    company licensed to do business in Illinois; or
         (II)  is  an Illinois licensed professional engineer
    or an Illinois licensed industrial hygienist.
    An environmental professional may employ persons who  are
not  environmental professionals to assist in the preparation
of an Environmental Audit  if  such  persons  are  under  the
direct   supervision   and   control   of  the  environmental
professional.
    (iv)  For purposes of this  subparagraph  (E),  the  term
"real property" means any interest in any parcel of land, and
includes,  but  is  not  limited to, buildings, fixtures, and
improvements.
    (v)  For purposes of  this  subparagraph  (E),  the  term
"Phase  I Environmental Audit" means an investigation of real
property,  conducted  by  environmental   professionals,   to
discover  the  presence  or likely presence of a release or a
substantial threat of a release of a hazardous  substance  or
pesticide  at,  on,  to, or from real property, and whether a
release or a substantial threat of a release of  a  hazardous
substance  or pesticide has occurred or may occur at, on, to,
or from the real property.  Until such  time  as  the  United
States  Environmental Protection Agency establishes standards
for making appropriate inquiry into  the  previous  ownership
and   uses  of  the  facility  pursuant  to  42  U.S.C.  Sec.
9601(35)(B)(ii), the  investigation  shall  comply  with  the
procedures of the American Society for Testing and Materials,
including  the  document known as Standard E1527-97, entitled
"Standard Procedures for Environmental Site Assessment: Phase
1  Environmental  Site  Assessment  Process".    Upon   their
adoption,  the  standards promulgated by USEPA pursuant to 42
U.S.C. Sec. 9601(35)(B)(ii) shall govern the  performance  of
Phase  I  Environmental  Audits.   In  addition  to the above
requirements, the Phase I Environmental Audit shall include a
review of recorded land title  records  for  the  purpose  of
determining  whether  the  real  property  is  subject  to an
environmental land use  restriction  such  as  a  No  Further
Remediation   Letter,  Environmental  Land  Use  Control,  or
Highway Authority Agreement.  The investigation shall include
a review of  at  least  each  of  the  following  sources  of
information concerning the current and previous ownership and
use of the real property:
         (I)  Recorded chain of title documents regarding the
    real  property,  including  all deeds, easements, leases,
    restrictions, and covenants for a period of 50 years.
         (II)  Aerial photographs that may reflect prior uses
    of the real property and that are  reasonably  obtainable
    through  State,  federal, or local government agencies or
    bodies.
         (III)  Recorded environmental cleanup liens, if any,
    against the real property that have  arisen  pursuant  to
    this Act or federal statutes.
         (IV)  Reasonably   obtainable  State,  federal,  and
    local government records of sites or facilities  at,  on,
    or  near  the  real  property to discover the presence or
    likely presence of a hazardous  substance  or  pesticide,
    and  whether  a  release  or  a  substantial  threat of a
    release  of  a  hazardous  substance  or  pesticide   has
    occurred  or  may  occur  at,  on,  to,  or from the real
    property.  Such government records shall include, but not
    be limited to:  reasonably obtainable State, federal, and
    local government investigation reports for those sites or
    facilities; reasonably  obtainable  State,  federal,  and
    local government records of activities likely to cause or
    contribute  to  a  release  or  a threatened release of a
    hazardous substance or pesticide at, on, to, or from  the
    real  property,  including  landfill and other treatment,
    storage,  and  disposal  location  records,   underground
    storage  tank  records,  hazardous  waste transporter and
    generator records, and spill reporting records; and other
    reasonably   obtainable   State,   federal,   and   local
    government environmental records that report incidents or
    activities that are likely to cause or  contribute  to  a
    release  or a threatened release of a hazardous substance
    or pesticide at, on, to, or from the real  property.   In
    order  to  be  deemed "reasonably obtainable" as required
    herein, a copy or reasonable facsimile of the record must
    be obtainable from the government agency by  request  and
    upon  payment of a processing fee, if any, established by
    the government  agency.   The  Agency  is  authorized  to
    establish   a  reasonable  fee  for  processing  requests
    received under this subparagraph (E)  for  records.   All
    fees  collected  by  the Agency under this clause (v)(IV)
    shall be  deposited  into  the  Environmental  Protection
    Permit  and  Inspection  Fund  in accordance with Section
    22.8.
         Notwithstanding any other law, if the fee  is  paid,
    the  Agency  shall  process a request received under this
    subparagraph (E)  for  records  within  30  days  of  the
    receipt of such request.
         (V)  A  visual  site inspection of the real property
    and all facilities and improvements on the real  property
    and   a   visual  inspection  of  properties  immediately
    adjacent to the real property, including an investigation
    of any use,  storage,  treatment,  spills  from  use,  or
    disposal of hazardous substances, hazardous wastes, solid
    wastes,  or  pesticides.   If  the  person conducting the
    investigation is denied access to any  property  adjacent
    to  the  real property, the person shall conduct a visual
    inspection of that adjacent property from the property to
    which  the  person  does  have  access  and  from  public
    rights-of-way.
         (VI)  A review of business records for activities at
    or on the real property for a period of 50 years.
    (vi)  For purposes of subparagraph (E), the  term  "Phase
II  Environmental  Audit"  means  an  investigation  of  real
property,    conducted    by   environmental   professionals,
subsequent to a Phase I Environmental Audit.  If the Phase  I
Environmental Audit discloses the presence or likely presence
of  a  hazardous  substance  or a pesticide or a release or a
substantial threat of a release of a hazardous  substance  or
pesticide:
         (I)  In  or  to  soil, the defendant, as part of the
    Phase II Environmental Audit, shall perform a  series  of
    soil  borings  sufficient to determine whether there is a
    presence or likely presence of a hazardous  substance  or
    pesticide and whether there is or has been a release or a
    substantial  threat of a release of a hazardous substance
    or pesticide at, on, to, or from the real property.
         (II)  In or to groundwater, the defendant,  as  part
    of  the  Phase  II  Environmental  Audit,  shall:  review
    information   regarding   local   geology,   water   well
    locations, and locations of waters of the State as may be
    obtained   from  State,  federal,  and  local  government
    records, including but not limited to the  United  States
    Geological  Service, the State Geological Survey Division
    of the Department of Natural  Resources,  and  the  State
    Water  Survey  Division  of  the  Department  of  Natural
    Resources;  and perform groundwater monitoring sufficient
    to determine  whether  there  is  a  presence  or  likely
    presence  of  a  hazardous  substance  or  pesticide, and
    whether there is or has been a release or  a  substantial
    threat of a release of a hazardous substance or pesticide
    at, on, to, or from the real property.
         (III)  On   or   to   media   other   than  soil  or
    groundwater, the defendant,  as  part  of  the  Phase  II
    Environmental   Audit,  shall  perform  an  investigation
    sufficient to determine whether there is  a  presence  or
    likely  presence  of  a hazardous substance or pesticide,
    and  whether  there  is  or  has  been  a  release  or  a
    substantial threat of a release of a hazardous  substance
    or pesticide at, on, to, or from the real property.
    (vii)  The  findings of each Environmental Audit prepared
under this subparagraph (E) shall be set forth in  a  written
audit report.  Each audit report shall contain an affirmation
by  the  defendant and by each environmental professional who
prepared the Environmental Audit that the facts stated in the
report are true and are made under a penalty  of  perjury  as
defined  in Section 32-2 of the Criminal Code of 1961.  It is
perjury for any person to sign an audit report that  contains
a  false  material statement that the person does not believe
to be true.
    (viii)  The Agency is not required to review, approve, or
certify  the  results  of  any  Environmental   Audit.    The
performance of an Environmental Audit shall in no way entitle
a   defendant   to   a  presumption  of  Agency  approval  or
certification of the results of the Environmental Audit.
    The presence or absence of a disclosure document prepared
under the Responsible Property Transfer Act of 1988 shall not
be a defense  under  this  Act  and  shall  not  satisfy  the
requirements of subdivision (6)(A) of this subsection (j).
    (7)  No  person  shall  be  liable under this Section for
response costs or  damages  as  the  result  of  a  pesticide
release  if  the  Agency  has  found that a pesticide release
occurred based on  a  Health  Advisory  issued  by  the  U.S.
Environmental  Protection Agency or an action level developed
by the Agency, unless the Agency notified the manufacturer of
the pesticide and provided an opportunity of not less than 30
days for the manufacturer to comment  on  the  technical  and
scientific  justification  supporting  the Health Advisory or
action level.
    (8)  No person shall be liable  under  this  Section  for
response  costs  or  damages  as  the  result  of a pesticide
release that  occurs  in  the  course  of  a  farm  pesticide
collection   program  operated  under  Section  19.1  of  the
Illinois Pesticide Act, unless the release results from gross
negligence or intentional misconduct.
    (k)  If any  person  who  is  liable  for  a  release  or
substantial  threat  of  release  of a hazardous substance or
pesticide fails without sufficient cause to  provide  removal
or  remedial  action  upon or in accordance with a notice and
request by the Agency or upon or in accordance with any order
of the Board or any court, such person may be liable  to  the
State  for  punitive  damages in an amount at least equal to,
and not more than 3 times, the amount of any  costs  incurred
by  the State of Illinois as a result of such failure to take
such  removal  or  remedial  action.   The  punitive  damages
imposed by the Board  shall  be  in  addition  to  any  costs
recovered  from  such  person pursuant to this Section and in
addition to any other penalty or relief provided by this  Act
or any other law.
    Any  monies  received  by  the  State  pursuant  to  this
subsection  (k)  shall  be  deposited  in the Hazardous Waste
Fund.
    (l)  Beginning January 1, 1988, the Agency shall annually
collect a $250 fee for  each  Special  Waste  Hauling  Permit
Application  and, in addition, shall collect a fee of $20 for
each waste hauling vehicle identified in  the  annual  permit
application and for each vehicle which is added to the permit
during  the  annual  period.  The Agency shall deposit 85% of
such fees  collected  under  this  subsection  in  the  State
Treasury  to the credit of the Hazardous Waste Research Fund;
and shall deposit the remaining 15% of such fees collected in
the  State  Treasury  to  the  credit  of  the  Environmental
Protection Permit and Inspection Fund.  The majority of  such
receipts  which are deposited in the Hazardous Waste Research
Fund pursuant  to  this  subsection  shall  be  used  by  the
Department  of  Natural Resources for activities which relate
to the protection of underground waters. Persons  engaged  in
the  offsite transportation of hazardous waste by highway and
participating in the Uniform Program under  subsection  (l-5)
are  not  required  to  file  a  Special Waste Hauling Permit
Application.
    (l-5) (1)  As used in this subsection:
         "Base  state"  means  the  state   selected   by   a
    transporter according to the procedures established under
    the Uniform Program.
         "Base  state  agreement"  means an agreement between
    participating  states  electing  to  register  or  permit
    transporters.
         "Participating state"  means  a  state  electing  to
    participate  in  the  Uniform  Program by entering into a
    base state agreement.
         "Transporter" means a person engaged in the  offsite
    transportation of hazardous waste by highway.
         "Uniform application" means the uniform registration
    and  permit application form prescribed under the Uniform
    Program.
         "Uniform Program" means the Uniform State  Hazardous
    Materials  Transportation Registration and Permit Program
    established in the report submitted and amended  pursuant
    to  49  U.S.C.  Section  5119(b),  as  implemented by the
    Agency under this subsection.
         "Vehicle" means any  self-propelled  motor  vehicle,
    except  a  truck  tractor  without a trailer, designed or
    used for the transportation of hazardous waste subject to
    the hazardous waste manifesting requirements of 40 U.S.C.
    Section 6923(a)(3).
         (2)  Beginning  July  1,  1998,  the  Agency   shall
    implement   the   Uniform   State   Hazardous   Materials
    Transportation  Registration  and  Permit Program. On and
    after that date, no person shall engage  in  the  offsite
    transportation  of  hazardous  waste  by  highway without
    registering and obtaining  a  permit  under  the  Uniform
    Program.  A  transporter  with  its  principal  place  of
    business  in  Illinois  shall  register with and obtain a
    permit from the Agency.  A  transporter  that  designates
    another participating state in the Uniform Program as its
    base  state  shall  likewise  register  with and obtain a
    permit from  that  state  before  transporting  hazardous
    waste in Illinois.
         (3)  Beginning   July  1,  1998,  the  Agency  shall
    annually collect no more than a $250 processing and audit
    fee from each transporter  of  hazardous  waste  who  has
    filed  a uniform application and, in addition, the Agency
    shall   annually   collect   an    apportioned    vehicle
    registration  fee  of  $20. The amount of the apportioned
    vehicle registration fee shall be  calculated  consistent
    with   the   procedures  established  under  the  Uniform
    Program.
         All  moneys  received  by  the   Agency   from   the
    collection  of fees pursuant to the Uniform Program shall
    be deposited into the Hazardous Waste Transporter account
    hereby created within the Environmental Protection Permit
    and Inspection Fund.   Moneys remaining in the account at
    the close of the fiscal  year  shall  not  lapse  to  the
    General  Revenue  Fund.   The State Treasurer may receive
    money or other assets from any source  for  deposit  into
    the  account.   The  Agency  may  expend  moneys from the
    account, upon appropriation, for  the  implementation  of
    the Uniform Program, including the costs to the Agency of
    fee  collection  and  administration.  In addition, funds
    not  expended  for  the  implementation  of  the  Uniform
    Program  may  be  utilized  for  emergency  response  and
    cleanup   activities   related   to    hazardous    waste
    transportation that are initiated by the Agency.
         Whenever   the   amount   of   the  Hazardous  Waste
Transporter account  exceeds  by  115%  the  amount  annually
appropriated by the General Assembly, the Agency shall credit
participating  transporters  an amount, proportionately based
on the amount of the vehicle fee paid, equal to the excess in
the account, and shall  determine  the  need  to  reduce  the
amount  of  the  fee  charged  transporters in the subsequent
fiscal year by the amount of the credit.
         (4) (A)  The Agency may propose and the Board  shall
    adopt  rules  as  necessary  to implement and enforce the
    Uniform Program.  The Agency is authorized to enter  into
    agreements with other agencies of this State as necessary
    to  carry  out administrative functions or enforcement of
    the Uniform Program.
         (B)  The Agency shall recognize  a  Uniform  Program
    registration as valid for one year from the date a notice
    of  registration form is issued and a permit as valid for
    3 years from the date issued or until a transporter fails
    to renew its registration, whichever occurs first.
         (C)  The Agency may inspect  or  examine  any  motor
    vehicle  or facility operated by a transporter, including
    papers, books, records, documents, or other materials  to
    determine  if a transporter is complying with the Uniform
    Program.  The Agency may also conduct investigations  and
    audits  as  necessary  to  determine  if a transporter is
    entitled to a permit or to make suspension or  revocation
    determinations  consistent  with  the  standards  of  the
    Uniform Program.
         (5)  The  Agency  may  enter  into  agreements  with
    federal   agencies,   national   repositories,  or  other
    participating  states  as  necessary  to  allow  for  the
    reciprocal registration and  permitting  of  transporters
    pursuant  to  the  Uniform  Program.  The  agreements may
    include procedures for  determining  a  base  state,  the
    collection and distribution of registration fees, dispute
    resolution, the exchange of information for reporting and
    enforcement  purposes,  and other provisions necessary to
    fully implement,  administer,  and  enforce  the  Uniform
    Program.
    (m)  (Blank).
    (n)  (Blank).
(Source: P.A. 91-36, eff. 6-15-99; 92-574, eff. 6-26-02.)

    (415 ILCS 5/28.6 new)
    Sec.   28.6.   Rulemaking   to  update  incorporation  by
reference.
    (a)  Any person may file a proposal  with  the  Board  to
update  an  incorporation  by  reference  included in a Board
rule.  The Board or the Agency may also make such a  proposal
on its own initiative.
    (b)  A rulemaking to update an incorporation by reference
under this Section shall be for the sole purpose of replacing
a  reference  to  an  older or obsolete version of a document
with a reference to the current version of that  document  or
its successor document.
    (c)  A rulemaking to update an incorporation by reference
under  this  Section shall comply with Sections 5-40 and 5-75
of the Illinois Administrative Procedure Act. Sections 27 and
28 of this Act do not apply to rulemaking under this Section.
    (d)  If an objection to the proposed amendment  is  filed
during  the public comment period required under Section 5-40
of  the  Illinois  Administrative  Procedure  Act,  then  the
proposed amendment shall not  be  adopted  pursuant  to  this
Section.  Nothing in this Section precludes the adoption of a
change  to an incorporation by reference through other lawful
rulemaking procedures.
    (e)  The Board may adopt procedural  rules  to  implement
this Section.

    (415 ILCS 5/30) (from Ch. 111 1/2, par. 1030)
    Sec.   30.   Investigations.    The  Agency  shall  cause
investigations to be made upon the request of  the  Board  or
upon  receipt  of information concerning an alleged violation
of this Act, or of any rule or regulation adopted under  this
Act,  promulgated thereunder, or of any permit granted by the
Agency or any term or condition of a any such permit, or  any
Board   order,   and   may   cause  to  be  made  such  other
investigations as it shall deem advisable.
(Source: P.A. 92-574, eff. 6-26-02.)

    (415 ILCS 5/31) (from Ch. 111 1/2, par. 1031)
    Sec. 31. Notice; complaint; hearing.
    (a)(1)  Within 180 days of becoming aware of  an  alleged
    violation of the Act or any rule adopted under the Act or
    of  a  permit  granted  by the Agency or condition of the

    permit, the Agency shall issue and  serve,  by  certified
    mail, upon the person complained against a written notice
    informing that person that the Agency has evidence of the
    alleged  violation.   At  a  minimum,  the written notice
    shall contain:
              (A)  notification  to  the  person   complained
         against  of  the  requirement  to  submit  a written
         response addressing the violations alleged  and  the
         option  to meet with appropriate agency personnel to
         resolve any alleged violations that  could  lead  to
         the filing of a formal complaint;
              (B)  a  detailed  explanation  by the Agency of
         the violations alleged;
              (C)  an  explanation  by  the  Agency  of   the
         actions  that  the  Agency  believes may resolve the
         alleged  violations,  including  an  estimate  of  a
         reasonable time period  for  the  person  complained
         against to complete the suggested resolution; and
              (D)  an  explanation  of  any alleged violation
         that the Agency believes cannot be resolved  without
         the  involvement  of  the  Office  of  the  Illinois
         Attorney  General  or  the  State's  Attorney of the
         county in which the alleged violation  occurred  and
         the basis for the Agency's belief.
         (2)  A  written  response  to the violations alleged
    shall be submitted to  the  Agency,  by  certified  mail,
    within  45  days  of  receipt  of  notice  by  the person
    complained  against,  unless  the  Agency  agrees  to  an
    extension.  The written response shall include:
              (A)  information in  rebuttal,  explanation  or
         justification of each alleged violation;
              (B)  a proposed Compliance Commitment Agreement
         that  includes  specified  times  for achieving each
         commitment and which  may  consist  of  a  statement
         indicating   that   the  person  complained  against
         believes that compliance has been achieved; and
              (C)  a request for a meeting  with  appropriate
         Agency  personnel  if  a  meeting  is desired by the
         person complained against.
         (3)  If  the  person  complained  against  fails  to
    respond  in   accordance   with   the   requirements   of
    subdivision  (2)  of  this subsection (a), the failure to
    respond shall be considered a waiver of the  requirements
    of  this subsection (a) and nothing in this Section shall
    preclude  the  Agency   from   proceeding   pursuant   to
    subsection (b) of this Section.
         (4)  A meeting requested pursuant to subdivision (2)
    of   this   subsection   (a)  shall  be  held  without  a
    representative of the Office  of  the  Illinois  Attorney
    General  or  the  State's Attorney of the county in which
    the alleged violation occurred, within 60 days of receipt
    of notice by the person complained  against,  unless  the
    Agency  agrees  to  a  postponement.  At the meeting, the
    Agency  shall  provide  an  opportunity  for  the  person
    complained against to respond to each alleged  violation,
    suggested  resolution,  and suggested implementation time
    frame, and to suggest alternate resolutions.
         (5)  If a meeting requested pursuant to  subdivision
    (2) of this subsection (a) is held, the person complained
    against  shall,  within  21 days following the meeting or
    within an extended  time  period  as  agreed  to  by  the
    Agency,  submit by certified mail to the Agency a written
    response to the alleged violations. The written  response
    shall include:
              (A)  additional    information   in   rebuttal,
         explanation  or  justification   of   each   alleged
         violation;
              (B)  a proposed Compliance Commitment Agreement
         that  includes  specified  times  for achieving each
         commitment and which  may  consist  of  a  statement
         indicating   that   the  person  complained  against
         believes that compliance has been achieved; and
              (C)  a statement indicating  that,  should  the
         person   complained  against  so  wish,  the  person
         complained against chooses to rely upon the  initial
         written  response  submitted pursuant to subdivision
         (2) of this subsection (a).
         (6)  If  the  person  complained  against  fails  to
    respond  in   accordance   with   the   requirements   of
    subdivision  (5)  of  this subsection (a), the failure to
    respond shall be considered a waiver of the  requirements
    of  this subsection (a) and nothing in this Section shall
    preclude  the  Agency   from   proceeding   pursuant   to
    subsection (b) of this Section.
         (7)  Within  30  days  of  the Agency's receipt of a
    written  response  submitted  by  the  person  complained
    against pursuant to subdivision (2)  of  this  subsection
    (a), if a meeting is not requested, or subdivision (5) of
    this  subsection  (a),  if a meeting is held, or within a
    later time period as agreed to  by  the  Agency  and  the
    person  complained  against,  the  Agency shall issue and
    serve, by certified  mail,  upon  the  person  complained
    against  a  written  notice  informing  the person of its
    acceptance, rejection, or proposed  modification  to  the
    proposed  Compliance  Commitment  Agreement  as contained
    within the written response.
         (8)  Nothing in this subsection (a) is  intended  to
    require  the  Agency  to enter into Compliance Commitment
    Agreements for any  alleged  violation  that  the  Agency
    believes  cannot  be  resolved without the involvement of
    the  Office  of  the  Attorney  General  or  the  State's
    Attorney of the county in  which  the  alleged  violation
    occurred,  for,  among  other purposes, the imposition of
    statutory penalties.
         (9)  The Agency's failure to respond  to  a  written
    response  submitted  pursuant  to subdivision (2) of this
    subsection  (a),  if  a  meeting  is  not  requested,  or
    subdivision (5) of this subsection (a), if a  meeting  is
    held, within 30 days, or within the time period otherwise
    agreed  to  in  writing  by  the  Agency  and  the person
    complained against, shall be deemed an acceptance by  the
    Agency  of  the  proposed Compliance Commitment Agreement
    for the violations alleged in the written  notice  issued
    under subdivision (1) of this subsection (a) as contained
    within the written response.
         (10)  If the person complained against complies with
    the  terms  of a Compliance Commitment Agreement accepted
    pursuant to this subsection (a),  the  Agency  shall  not
    refer the alleged violations which are the subject of the
    Compliance  Commitment  Agreement  to  the  Office of the
    Illinois Attorney General or the State's Attorney of  the
    county  in which the alleged violation occurred. However,
    nothing in this subsection is intended  to  preclude  the
    Agency  from  continuing  negotiations  with  the  person
    complained  against  or  from  proceeding pursuant to the
    provisions of subsection (b) of this Section for  alleged
    violations  which  remain  the  subject  of  disagreement
    between  the  Agency  and  the  person complained against
    following  fulfillment  of  the  requirements   of   this
    subsection (a).
         (11)  Nothing  in this subsection (a) is intended to
    preclude the person complained against from submitting to
    the Agency, by certified mail, at any time,  notification
    that  the person complained against consents to waiver of
    the requirements of  subsections  (a)  and  (b)  of  this
    Section.
    (b)  For  alleged  violations  that remain the subject of
disagreement between the Agency  and  the  person  complained
against   following   fulfillment   of  the  requirements  of
subsection (a) of this Section, and as a precondition to  the
Agency's  referral  or  request to the Office of the Illinois
Attorney General or the State's Attorney  of  the  county  in
which the alleged violation occurred for legal representation
regarding an alleged violation that may be addressed pursuant
to  subsection  (c)  or  (d)  of  this Section or pursuant to
Section 42 of this Act, the Agency shall issue and serve,  by
certified  mail, upon the person complained against a written
notice informing that  person  that  the  Agency  intends  to
pursue  legal  action.    Such notice shall notify the person
complained against of the violations to be alleged and  offer
the  person  an  opportunity  to meet with appropriate Agency
personnel in an effort to resolve any alleged violations that
could lead to the filing of a formal complaint.  The  meeting
with Agency personnel shall be held within 30 days of receipt
of  notice served pursuant to this subsection upon the person
complained  against,  unless   the   Agency   agrees   to   a
postponement or the person notifies the Agency that he or she
will  not  appear at a meeting within the 30 day time period.
Nothing in this subsection is intended to preclude the Agency
from following the provisions of subsection  (c)  or  (d)  of
this  Section  or from requesting the legal representation of
the Office of the Illinois Attorney General  or  the  State's
Attorney  of  the  county  in  which  the  alleged violations
occurred for alleged violations which remain the  subject  of
disagreement  between  the  Agency  and the person complained
against  after  the  provisions  of   this   subsection   are
fulfilled.
      (c)(1) For  alleged violations which remain the subject
    of  disagreement  between  the  Agency  and  the   person
    complained   against   following   waiver,   pursuant  to
    subdivision (10) of subsection (a) of  this  Section,  or
    fulfillment  of  the  requirements of subsections (a) and
    (b) of this Section, the Office of the Illinois  Attorney
    General  or  the  State's Attorney of the county in which
    the alleged violation occurred shall issue and serve upon
    the person complained against a written notice,  together
    with   a   formal  complaint,  which  shall  specify  the
    provision of the Act or the rule or regulation or  permit
    or  term  or condition thereof under which such person is
    said to be in violation, and a statement  of  the  manner
    in,  and  the  extent  to  which  such  person is said to
    violate the Act or such rule or regulation or  permit  or
    term or condition thereof and shall require the person so
    complained  against  to answer the charges of such formal
    complaint at a hearing before the Board  at  a  time  not
    less  than 21 days after the date of notice by the Board,
    except as provided  in  Section  34  of  this  Act.  Such
    complaint  shall  be accompanied by a notification to the
    defendant that financing may be  available,  through  the
    Illinois   Environmental  Facilities  Financing  Act,  to
    correct such violation.  A copy of such  notice  of  such
    hearings  shall  also  be  sent  to  any  person that has
    complained to the Agency respecting the respondent within
    the six months preceding the date of the  complaint,  and
    to  any  person  in  the  county  in  which the offending
    activity  occurred   that   has   requested   notice   of
    enforcement  proceedings; 21 days notice of such hearings
    shall  also  be  published  in  a  newspaper  of  general
    circulation in such county.  The respondent  may  file  a
    written  answer, and at such hearing the rules prescribed
    in Sections 32 and 33 of this Act shall  apply.   In  the
    case  of  actual  or  threatened  acts  outside  Illinois
    contributing  to  environmental  damage  in Illinois, the
    extraterritorial   service-of-process    provisions    of
    Sections  2-208  and 2-209 of the Code of Civil Procedure
    shall apply.
         With respect to  notices  served  pursuant  to  this
    subsection  (c)(1)  which  involve  hazardous material or
    wastes in any manner, the Agency shall annually publish a
    list of all such notices served.  The list shall  include
    the date the investigation commenced, the date notice was
    sent,  the  date  the matter was referred to the Attorney
    General, if applicable, and the  current  status  of  the
    matter.
         (2)  Notwithstanding  the  provisions of subdivision
    (1) of this subsection (c), whenever a complaint has been
    filed on behalf of the Agency or by  the  People  of  the
    State  of Illinois, the parties may file with the Board a
    stipulation and proposal for settlement accompanied by  a
    request  for  relief  from  the  requirement of a hearing
    pursuant to subdivision (1). Unless  the  Board,  in  its
    discretion,  concludes  that  a hearing will be held, the
    Board shall cause notice of the stipulation, proposal and
    request for relief to be published and sent in  the  same
    manner as is required for hearing pursuant to subdivision
    (1)  of  this  subsection.  The  notice  shall  include a
    statement that any person may file a written  demand  for
    hearing within 21 days after receiving the notice. If any
    person  files  a  timely  written demand for hearing, the
    Board shall deny the request for relief  from  a  hearing
    and   shall   hold  a  hearing  in  accordance  with  the
    provisions of subdivision (1).
         (3)  Notwithstanding the provisions  of  subdivision
    (1)  of  this subsection (c), if the Agency becomes aware
    of a violation of this Act arising from, or as  a  result
    of, voluntary pollution prevention activities, the Agency
    shall  not  proceed  with  the written notice required by
    subsection (a) of this Section unless:
              (A)  the person fails to take corrective action
         or  eliminate  the  reported  violation   within   a
         reasonable time; or
              (B)  the  Agency  believes  that  the violation
         poses a  substantial  and  imminent  danger  to  the
         public  health  or  welfare or the environment.  For
         the purposes of  this  item  (B),  "substantial  and
         imminent danger" means a danger with a likelihood of
         serious or irreversible harm.
         (d)(1)  Any   person  may  file  with  the  Board  a
    complaint, meeting the requirements of subsection (c)  of
    this Section, against any person allegedly violating this
    Act,  any  rule or regulation adopted under this Act, any
    permit or term or condition of a  permit,  or  any  Board
    order. or any rule or regulation thereunder or any permit
    or  term  or  condition  thereof.   The complainant shall
    immediately serve a  copy  of  such  complaint  upon  the
    person  or  persons  named  therein.   Unless  the  Board
    determines   that   such   complaint  is  duplicative  or
    frivolous, it shall schedule a hearing and serve  written
    notice  thereof upon the person or persons named therein,
    in accord with subsection (c) of this Section.
         (2)  Whenever a complaint has been filed by a person
    other than the Attorney General or the State's  Attorney,
    the  parties  may  file  with the Board a stipulation and
    proposal for settlement  accompanied  by  a  request  for
    relief from the hearing requirement of subdivision (c)(1)
    of  this  Section.   Unless the Board, in its discretion,
    concludes that a hearing should be held,  no  hearing  on
    the stipulation and proposal for settlement is required.
    (e)  In  hearings  before  the Board under this Title the
burden shall be on the Agency or other  complainant  to  show
either  that the respondent has caused or threatened to cause
air or water pollution or that the respondent has violated or
threatens to violate any provision of this Act or any rule or
regulation of the  Board  or  permit  or  term  or  condition
thereof.  If such proof has been made, the burden shall be on
the  respondent  to  show  that  compliance  with the Board's
regulations  would  impose  an  arbitrary   or   unreasonable
hardship.
    (f)  The  provisions  of  this Section shall not apply to
administrative citation actions commenced under Section  31.1
of this Act.
(Source: P.A. 92-574, eff. 6-26-02.)

    (415 ILCS 5/33) (from Ch. 111 1/2, par. 1033)
    Sec. 33. Board orders.
    (a)  After  due  consideration  of  the  written and oral
statements,  the  testimony  and  arguments  that  shall   be
submitted  at  the  hearing, or upon default in appearance of
the respondent on return day specified  in  the  notice,  the
Board  shall  issue  and enter such final order, or make such
final determination, as it shall deem appropriate  under  the
circumstances.   It  shall  not  be  a defense to findings of
violations of  the  provisions  of  this  Act,  any  rule  or
regulation  adopted  under  this  Act,  any permit or term or
condition of a permit, or any Board order, the Act  or  Board
regulations  or  a  bar  to the assessment of civil penalties
that the person has come into compliance  subsequent  to  the
violation,   except  where  such  action  is  barred  by  any
applicable State or federal statute of  limitation.   In  all
such  matters  the  Board  shall  file  and publish a written
opinion  stating  the  facts  and  reasons  leading  to   its
decision.   The Board shall immediately notify the respondent
of such order in writing by registered mail.
    (b)  Such order may include  a  direction  to  cease  and
desist  from  violations  of this Act, any rule or regulation
adopted under this Act, any permit or term or condition of  a
permit,  or  any  Board order the Act or of the Board's rules
and regulations any permit  or  term  or  condition  thereof,
and/or  the  imposition  by  the  Board of civil penalties in
accord with Section 42 of  this  Act.   The  Board  may  also
revoke  the permit as a penalty for violation.  If such order
includes  a  reasonable  delay  during  which  to  correct  a
violation, the Board may require the  posting  of  sufficient
performance  bond  or other security to assure the correction
of such violation within the time prescribed.
    (c)  In making its orders and determinations,  the  Board
shall take into consideration all the facts and circumstances
bearing  upon the reasonableness of the emissions, discharges
or deposits involved including, but not limited to:
         (i)  the character  and  degree  of  injury  to,  or
    interference  with  the protection of the health, general
    welfare and physical property of the people;
         (ii)  the social and economic value of the pollution
    source;
         (iii)  the  suitability  or  unsuitability  of   the
    pollution  source  to  the  area  in which it is located,
    including the question of priority  of  location  in  the
    area involved;
         (iv)  the   technical  practicability  and  economic
    reasonableness of reducing or eliminating the  emissions,
    discharges  or  deposits  resulting  from  such pollution
    source; and
         (v)  any subsequent compliance.
    Whenever a proceeding before the  Board  may  affect  the
right  of  the public individually or collectively to the use
of  community  sewer  or  water  facilities  provided  by   a
municipally  owned  or  publicly regulated company, the Board
shall at least 30 days prior to the  scheduled  date  of  the
first  hearing  in  such proceeding, give notice of the date,
time,  place,  and  purpose  of  such   hearing   by   public
advertisement  in  a  newspaper of general circulation in the
area of the State concerned. The Board shall conduct  a  full
and  complete  hearing  into  the  social and economic impact
which would result from restriction or denial of the right to
use  such  facilities  and  allow  all  persons  claiming  an
interest to intervene as parties and present evidence of such
social and economic impact.
    (d)  All orders issued and entered by the Board  pursuant
to this Section shall be enforceable by injunction, mandamus,
or other appropriate remedy, in accordance with Section 42 of
this Act.
(Source: P.A. 85-1041; 86-1363.)

    (415 ILCS 5/35) (from Ch. 111 1/2, par. 1035)
    Sec.  35.   Variances; general provisions.  To the extent
consistent with applicable provisions of  the  Federal  Water
Pollution  Control  Act,  as  now  or  hereafter amended, the
Federal Safe Drinking Water Act  (P.L.  93-523),  as  now  or
hereafter amended, the Clean Air Act as amended in 1977 (P.L.
95-95),  and  regulations pursuant thereto, and to the extent
consistent with applicable provisions of the Federal Resource
Conservation and Recovery Act  of  1976  (P.L.  94-580),  and
regulations pursuant thereto:,
    (a)  The  Board may grant individual variances beyond the
limitations prescribed in this Act,  whenever  it  is  found,
upon presentation of adequate proof, that compliance with any
rule  or  regulation, requirement or order of the Board would
impose an arbitrary or unreasonable hardship.   However,  the
Board   is   not  required  to  find  that  an  arbitrary  or
unreasonable  hardship   exists   exclusively   because   the
regulatory   standard  is  under  review  and  the  costs  of
compliance are  substantial  and  certain.   In  granting  or
denying a variance the Board shall file and publish a written
opinion   stating  the  facts  and  reasons  leading  to  its
decision.
    (b)  The Agency Board shall grant  provisional  variances
whenever  it  is  found, upon presentation of adequate proof,
only upon notification from the Agency that compliance  on  a
short  term basis with any rule or regulation, requirement or
order of the Board, or with  any  permit  requirement,  would
impose   an   arbitrary   or   unreasonable   hardship.  Such
provisional variances shall be issued within 2  working  days
of notification from the Agency.
(Source: P.A. 86-671.)

    (415 ILCS 5/36) (from Ch. 111 1/2, par. 1036)
    Sec. 36. Variances and provisional variances.
    (a)  In  granting  a  variance  the Board may impose such
conditions as the policies of this Act may require.   If  the
hardship  complained  of  consists  solely  of the need for a
reasonable delay in which to correct a violation of this  Act
or  of  the  Board regulations, the Board shall condition the
grant  of  such  variance  upon  the  posting  of  sufficient
performance bond or other security to assure  the  completion
of the work covered by the variance.  The Board shall have no
authority  to  delegate  to  the Agency its powers to require
such  performance  bond.  The   original   amount   of   such
performance  bond shall not exceed the reasonable cost of the
work to be completed pursuant to the variance. The obligation
under such bond shall at no time exceed the  reasonable  cost
of work remaining pursuant to the variance.
    (b)  Except  as  provided  by Section 38 of this Act, any
variance granted pursuant to the provisions of  this  Section
shall  be granted for such period of time, not exceeding five
years, as shall be specified by the Board at the time of  the
grant  of  such  variance,  and  upon  the condition that the
person who receives such variance shall  make  such  periodic
progress  reports  as the Board shall specify.  Such variance
may be extended from year to year by  affirmative  action  of
the Board, but only if satisfactory progress has been shown.
    (c)  Any provisional variance granted by the Agency Board
pursuant  to  subsection  (b)  of  Section  35 shall be for a
period of time not to exceed 45 days.  A provisional variance
may be extended Upon receipt of  a  recommendation  from  the
Agency  to  extend this time period, the Board shall grant up
to an additional 45 days by written decision of  the  Agency.
The provisional variances granted to any one person shall not
exceed a total of 90 days during any calendar year.
(Source: P.A. 81-1442.)

    (415 ILCS 5/37) (from Ch. 111 1/2, par. 1037)
    Sec. 37. Variances; procedures.
    (a)  Any person seeking a variance pursuant to subsection
(a) of Section 35 shall  do  so  by  filing  a  petition  for
variance  with  the  Board and the Agency.  Any person filing
such a petition shall pay a filing  fee.   The  Agency  shall
promptly  give  written notice of such petition to any person
in the county in which the installation or property for which
variance is sought is located who has  in  writing  requested
notice  of  variance  petitions, the State's attorney of such
county, the Chairman of the County Board of such county,  and
to  each  member of the General Assembly from the legislative
district in which that installation or property  is  located,
and  shall  publish  a  single  notice  of such petition in a
newspaper of general circulation in such county.  The notices
required by this Section shall include  the  street  address,
and  if there is no street address then the legal description
or the location with reference to any  well  known  landmark,
highway, road, thoroughfare or intersection.
    The  Agency  shall promptly investigate such petition and
consider the views of persons who might be adversely affected
by  the  grant  of  a  variance.  The  Agency  shall  make  a
recommendation to the Board as  to  the  disposition  of  the
petition.   If the Board, in its discretion, concludes that a
hearing would be advisable, or if the  Agency  or  any  other
person  files  a  written  objection  to  the  grant  of such
variance within 21 days, together with a written request  for
hearing,  then  a  hearing  shall  be  held,  under the rules
prescribed in Sections 32 and 33 (a) of  this  Act,  and  the
burden of proof shall be on the petitioner.
    (b)  Any  person  seeking a provisional variance pursuant
to subsection (b) of Section 35 shall make a request  to  the
Agency.   The  Agency shall promptly investigate and consider
the merits of the request.  The Agency may notify  the  Board
of  its  recommendation.    If the Agency fails to take final
action within 30 days after receipt  of  the  request  for  a
provisional  variance,  or  if the Agency denies the request,
the person may initiate a proceeding  with  the  Board  under
subsection (a) of Section 35.
    If  the Agency grants a  provisional variance, the Agency
must promptly file a copy of its written  decision  with  the
Board,  and  the Board shall give prompt notice of its action
to the public by issuing a press release for distribution  to
newspapers  of  general circulation in the county.  The Board
must maintain for public inspection copies of all provisional
variances filed with it by the Agency.
(Source: P.A. 87-914; 88-474.)

    (415 ILCS 5/42) (from Ch. 111 1/2, par. 1042)
    Sec. 42. Civil penalties.
    (a)  Except as provided in this Section, any person  that
violates  any provision of this Act or any regulation adopted
by the Board, or any permit or term or condition thereof,  or
that  violates  any  determination  or  order  of  the  Board
pursuant  to this Act, shall be liable for to a civil penalty
of not to exceed $50,000 for the violation and an  additional
civil  penalty  of  not to exceed $10,000 for each day during
which the violation continues; such penalties may, upon order
of the Board or a court of competent  jurisdiction,  be  made
payable  to  the  Environmental  Protection Trust Fund, to be
used in accordance with the provisions of  the  Environmental
Protection Trust Fund Act.
    (b)  Notwithstanding  the provisions of subsection (a) of
this Section:
         (1)  Any person that violates Section 12(f) of  this
    Act  or any NPDES permit or term or condition thereof, or
    any filing requirement, regulation or order  relating  to
    the  NPDES  permit  program,  shall  be liable to a civil
    penalty of not to exceed $10,000 per day of violation.
         (2)  Any person that violates Section 12(g) of  this
    Act  or  any  UIC permit or term or condition thereof, or
    any filing requirement, regulation or order  relating  to
    the  State  UIC  program  for  all wells, except Class II
    wells as defined by the Board under this  Act,  shall  be
    liable to a civil penalty not to exceed $2,500 per day of
    violation; provided, however, that any person who commits
    such  violations  relating  to  the State UIC program for
    Class II wells, as defined by the Board under  this  Act,
    shall  be  liable  to  a  civil  penalty of not to exceed
    $10,000 for the violation and an additional civil penalty
    of not to exceed $1,000 for each  day  during  which  the
    violation continues.
         (3)  Any person that violates Sections 21(f), 21(g),
    21(h) or 21(i) of this Act, or any RCRA permit or term or
    condition  thereof, or any filing requirement, regulation
    or order relating to the State  RCRA  program,  shall  be
    liable  to  a  civil penalty of not to exceed $25,000 per
    day of violation.
         (4)  In  an  administrative  citation  action  under
    Section 31.1 of  this  Act,  any  person  found  to  have
    violated any provision of subsection (o) of Section 21 of
    this  Act  shall  pay  a  civil  penalty of $500 for each
    violation of each such provision, plus any hearing  costs
    incurred  by  the  Board  and the Agency.  Such penalties
    shall be made payable  to  the  Environmental  Protection
    Trust  Fund, to be used in accordance with the provisions
    of the Environmental Protection Trust  Fund  Act;  except
    that   if   a   unit   of  local  government  issued  the
    administrative citation, 50% of the civil  penalty  shall
    be payable to the unit of local government.
         (4-5)  In  an  administrative  citation action under
    Section 31.1 of  this  Act,  any  person  found  to  have
    violated any provision of subsection (p) of Section 21 of
    this  Act  shall  pay  a civil penalty of $1,500 for each
    violation of each such provision, plus any hearing  costs
    incurred  by  the  Board  and the Agency, except that the
    civil penalty amount shall be a first offense and  $3,000
    for  each violation of any provision of subsection (p) of
    Section 21 that is the person's a  second  or  subsequent
    adjudicated violation of that provision offense, plus any
    hearing  costs incurred by the Board and the Agency.  The
    penalties  shall  be  deposited  into  the  Environmental
    Protection Trust Fund, to be used in accordance with  the
    provisions  of  the  Environmental  Protection Trust Fund
    Act; except that if a unit of local government issued the
    administrative citation, 50% of the civil  penalty  shall
    be payable to the unit of local government.
         (5)  Any person who violates subsection 6 of Section
    39.5  of  this  Act  or  any  CAAPP  permit,  or  term or
    condition thereof, or any fee or filing  requirement,  or
    any  duty  to  allow  or  carry  out inspection, entry or
    monitoring  activities,  or  any  regulation   or   order
    relating to the CAAPP shall be liable for a civil penalty
    not to exceed $10,000 per day of violation.
    (b.5)  In  lieu of the penalties set forth in subsections
(a) and (b) of this Section, any person who fails to file, in
a timely manner, toxic chemical release forms with the Agency
pursuant to Section 25b-2 of this Act shall be liable  for  a
civil  penalty  of  $100  per  day for each day the forms are
late, not to exceed a maximum total penalty of $6,000.   This
daily  penalty  shall  begin accruing on the thirty-first day
after the date that the person receives  the  warning  notice
issued  by  the Agency pursuant to Section 25b-6 of this Act;
and the penalty shall  be  paid  to  the  Agency.  The  daily
accrual  of  penalties  shall  cease  as  of January 1 of the
following  year.  All  penalties  collected  by  the   Agency
pursuant  to  this  subsection  shall  be  deposited into the
Environmental Protection Permit and Inspection Fund.
    (c)  Any person that  violates  this  Act,  any  rule  or
regulation  adopted  under  this  Act,  any permit or term or
condition of a permit, or any Board  order  or  an  order  or
other  determination  of  the Board under this Act and causes
the death of fish or aquatic life shall, in addition  to  the
other penalties provided by this Act, be liable to pay to the
State  an additional sum for the reasonable value of the fish
or aquatic life destroyed.  Any money so recovered  shall  be
placed in the Wildlife and Fish Fund in the State Treasury.
    (d)  The  penalties  provided  for in this Section may be
recovered in a civil action.
    (e)  The State's Attorney of  the  county  in  which  the
violation  occurred,  or  the  Attorney  General, may, at the
request of the Agency or on his own motion, institute a civil
action for an injunction to restrain violations of this  Act,
any  rule or regulation adopted under this Act, any permit or
term or condition of a permit, or any Board order.
    (f)  The State's Attorney of  the  county  in  which  the
violation occurred, or the Attorney General, shall bring such
actions  in  the name of the people of the State of Illinois.
Without limiting any other authority which may exist for  the
awarding  of  attorney's fees and costs, the Board or a court
of competent jurisdiction  may  award  costs  and  reasonable
attorney's  fees,  including  the  reasonable costs of expert
witnesses and consultants, to the  State's  Attorney  or  the
Attorney  General  in a case where he has prevailed against a
person who  has  committed  a  wilful,  knowing  or  repeated
violation  of  this Act, any rule or regulation adopted under
this Act, any permit or term or condition of a permit, or any
Board order the Act.
    Any funds collected under this subsection  (f)  in  which
the  Attorney General has prevailed shall be deposited in the
Hazardous Waste Fund created in Section  22.2  of  this  Act.
Any  funds  collected  under  this  subsection (f) in which a
State's Attorney has  prevailed  shall  be  retained  by  the
county in which he serves.
    (g)  All  final  orders imposing civil penalties pursuant
to this Section shall prescribe the time for payment of  such
penalties.   If  any such penalty is not paid within the time
prescribed, interest on such penalty at the rate set forth in
subsection (a) of Section 1003 of  the  Illinois  Income  Tax
Act,  shall  be  paid for the period from the date payment is
due until the date payment is received.  However, if the time
for payment is stayed  during  the  pendency  of  an  appeal,
interest shall not accrue during such stay.
    (h)  In  determining  the appropriate civil penalty to be
imposed  under subdivisions  (a), (b)(1), (b)(2),  (b)(3), or
(b)(5) of this Section, the Board is authorized  to  consider
any  matters  of  record  in  mitigation  or  aggravation  of
penalty, including but not limited to the following factors:
         (1)  the duration and gravity of the violation;
         (2)  the presence or absence of due diligence on the
    part  of  the  violator  in  attempting  to  comply  with
    requirements of this Act and regulations thereunder or to
    secure relief therefrom as provided by this Act;
         (3)  any  economic  benefits accrued by the violator
    because of delay in compliance with requirements;
         (4)  the amount of monetary penalty which will serve
    to deter  further  violations  by  the  violator  and  to
    otherwise aid in enhancing voluntary compliance with this
    Act  by  the violator and other persons similarly subject
    to the Act; and
         (5)  the number, proximity in time, and  gravity  of
    previously  adjudicated  violations  of  this  Act by the
    violator.
(Source: P.A. 90-773, eff. 8-14-98; 91-82, eff. 1-1-00.)

    (415 ILCS 5/45) (from Ch. 111 1/2, par. 1045)
    Sec. 45. Injunctive and other relief.
    (a)  No  existing  civil  or  criminal  remedy  for   any
wrongful  action  shall  be excluded or impaired by this Act.
Nothing in this Act shall be construed to limit or  supersede
the provisions of the Illinois Oil and Gas Act and the powers
therein  granted  to prevent the intrusion of water into oil,
gas or coal strata and to  prevent  the  pollution  of  fresh
water supplies by oil, gas or salt water or oil field wastes,
except  that  water  quality  standards  as  set forth by the
Pollution Control Board apply to and are effective within the
areas covered by  and  affected  by  permits  issued  by  the
Department  of Natural Resources.  However, if the Department
of Natural Resources fails to act upon any complaint within a
period  of  10  working  days  following  the  receipt  of  a
complaint by the  Department,  the  Environmental  Protection
Agency may proceed under the provisions of this Act.
    (b)  Any person adversely affected in fact by a violation
of  this  Act, any rule or regulation adopted under this Act,
or any permit or term or condition of a permit, or any  Board
order  may  sue for injunctive relief against such violation.
However, except as provided in subsections subsection (d) and
(e), no action shall be brought under this Section  until  30
days  after the plaintiff has been denied relief by the Board
in a proceeding brought under subdivision  (d)(1)  subsection
(d) of Section 31 of this Act.  The prevailing party shall be
awarded costs and reasonable attorneys' fees.
    (c)  Nothing  in Section 39.4 of this Act shall limit the
authority of the Agency to proceed with enforcement under the
provisions of this Act for violations of terms and conditions
of an endorsed  agrichemical  facility  permit,  an  endorsed
lawncare  containment  permit,  or  this  Act  or regulations
hereunder caused or threatened by an agrichemical facility or
a lawncare wash water containment area, provided  that  prior
notice  is  given  to  the  Department  of  Agriculture which
provides  that  Department  an  opportunity  to  respond   as
appropriate.
    (d)  If the State brings an action under this Act against
a  person  with  an  interest in real property upon which the
person is alleged  to  have  allowed  open  dumping  or  open
burning  by  a  third  party  in violation of this Act, which
action seeks to compel the defendant to remove the  waste  or
otherwise clean up the site, the defendant may, in the manner
provided  by  law  for  third-party complaints, bring in as a
third-party defendant a  person  who  with  actual  knowledge
caused  or  contributed  to  the illegal open dumping or open
burning, or who is or may be liable for all or  part  of  the
removal  and cleanup costs.  The court may include any of the
parties which it determines to have, with  actual  knowledge,
allowed, caused or contributed to the illegal open dumping or
open burning in any order that it may issue to compel removal
of  the  waste and cleanup of the site, and may apportion the
removal and cleanup costs among such  parties,  as  it  deems
appropriate.  However,  a  person may not seek to recover any
fines or civil penalties imposed upon him under this Act from
a third-party defendant  in  an  action  brought  under  this
subsection.
    (e)  A  final  order  issued  by  the  Board  pursuant to
Section 33 of this Act may be enforced through a civil action
for injunctive or other relief instituted by a person who was
a party to the Board  enforcement  proceeding  in  which  the
Board issued the final order.
(Source: P.A. 91-357, eff. 7-29-99; 92-574, eff. 6-26-02.)

             ARTICLE II.  Non-IERRC provisions.

    Section  25.   The State Finance Act is amended by adding
Section 5.595 as follows:

    (30 ILCS 105/5.595 new)
    Sec. 5.595.  The Oil Spill Response Fund.

    Section 30.  The Environmental Protection Act is  amended
by adding Title VI-C as follows:

    (415 ILCS 5/Tit. VI-C heading new)
               TITLE VI-C:  OIL SPILL RESPONSE

    (415 ILCS 5/25c-1 new)
    Sec. 25c-1.  Oil Spill Response Fund.
    (a)  There is hereby created within the State treasury an
interest-bearing  special  fund  to be known as the Oil Spill
Response Fund.  There shall be deposited into  the  Fund  all
monies recovered as reimbursement for response costs incurred
by  the  Agency  from  parties  responsible  for  releases or
threats of release of petroleum, monies provided to the State
from the federal Oil Spill Liability  Trust  Fund,  and  such
other  monies  as  may  be  received for this purpose through
contributions, gifts, or supplemental environmental projects,
pursuant to court  orders  or  decrees,  or  from  any  other
source.
    (b)  Pursuant  to  appropriation,  all  monies in the Oil
Spill Response Fund may be used by the Agency for all of  the
following purposes:
         (1)  Responding to releases or threats of release of
    petroleum that may constitute a substantial danger to the
    environment or human health or welfare.
         (2)  Contractual expenses and purchases of equipment
    or  supplies  necessary  to  enable  prompt  response  to
    releases  or  threats  of  release  of  petroleum  and to
    provide effective mitigation of such releases or  threats
    of release.
         (3)  Costs  of  investigation  and assessment of the
    source, nature, and extent of  a  release  or  threatened
    release  of  petroleum  and  any  resulting  injuries  or
    damages.
         (4)  Costs associated with planning and training for
    response to releases and threats of release of petroleum.
         (5)  Costs  associated with preparing and submitting
    claims of the Agency to the federal Oil  Spill  Liability
    Trust Fund.
    (c)  For  the  purposes  of  implementing  this  Section,
"petroleum"    means    crude    oil,    refined   petroleum,
intermediates, fractions or constituents of petroleum,  brine
or  salt  water  from oil production, oil sheens, hydrocarbon
vapors, and any other form of oil or petroleum.
    (d)  In addition to any other authority provided by State
or federal law, the Agency shall be entitled to  recovery  of
costs  incurred  by it in response to releases and threats of
release of petroleum from any persons who are responsible for
causing, allowing, or threatening such releases.

    Section   35.     The    Response    Action    Contractor
Indemnification  Act  is amended by changing Sections 4 and 5
as follows:

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

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

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