Public Act 93-0171

HB3508 Enrolled                      LRB093 02579 LRD 02589 b

    AN ACT in relation to environmental matters.

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

    Section  5.   The Environmental Protection Act is amended
by changing Sections 52.3-1, 52.3-2, and 52.3-4 as follows:

    (415 ILCS 5/52.3-1)
    Sec. 52.3-1.  Findings; purpose.
    (a)  The General Assembly finds that:
         (1)  During the last decade, considerable  expertise
    in    pollution   prevention,   sophisticated   emissions
    monitoring and tracking techniques,  compliance  auditing
    methods,    stakeholder   involvement,   and   innovative
    approaches to control pollution have been developed.
         (2)  Substantial opportunities exist to  reduce  the
    amount  of  or  prevent adverse impacts from emissions or
    discharges of pollutants or wastes  through  the  use  of
    innovative  and  cost  effective  measures  not currently
    recognized by or  allowed  under  existing  environmental
    laws, rules, and regulations.
         (3)  There  are persons regulated under this Act who
    have   demonstrated   excellence   and   leadership    in
    environmental  compliance  or  stewardship  or  pollution
    prevention  and, through the implementation of innovative
    measures, who can achieve further reductions in emissions
    or  discharges  of  pollutants  or  wastes  or  continued
    environmental stewardship.
         (4)  Current  environmental  laws  and   regulations
    have,   in   some   instances,   resulted  in  burdensome
    transactional requirements that are unnecessarily  costly
    and  complex for regulated entities and have proven to be
    frustrating  to  the  public  that  is  concerned   about
    environmental protection.
         (5)  The  goals  of environmental protection will be
    best served by promoting and evaluating  the  efforts  of
    those  persons  who  are  ready to achieve measurable and
    verifiable  pollution  reductions  in   excess   of   the
    otherwise    applicable    statutory    and    regulatory
    requirements  or  who  can demonstrate real environmental
    risk  reduction,  promote  pollution  prevention,  foster
    superior  environmental  compliance  by   other   persons
    regulated under this Act, and who can improve stakeholder
    involvement in environmental decision making.
         (6)  The   United  States  Environmental  Protection
    Agency is operating a pilot  program  entitled  "National
    Environmental  Performance  Track"  65  Federal  Register
    41655  (July 6, 2000) (Federal Performance Track Program)
    to recognize and reward businesses and public  facilities
    that  demonstrate strong environmental performance beyond
    current regulatory requirements. "Regulatory  Reinvention
    (XL)  Pilot  Project," 60 Federal Register 27282 (May 23,
    1995) (Federal XL  Program),  to  allow  members  of  the
    regulated    community   the   flexibility   to   develop
    alternative  strategies  that   will   replace   specific
    regulatory   requirements  on  the  condition  that  they
    produce   greater    environmental    benefits,    reduce
    administrative burdens, and enhance public participation.
    There   should   be  a  process  that  allows  regulatory
    flexibility available to a  participant  in  the  Federal
    Performance  Track  Program a proposal accepted under the
    Federal XL Program to be also granted in  implemented  at
    the   State  level  if  the  participant's  proposal  the
    proposal achieves one or more of  the  purposes  of  this
    Section and is acceptable to the Agency.
         (7)  A   process  for  implementing  and  evaluating
    innovative environmental  measures  on  a  pilot  project
    basis should be developed and implemented in this State.
    (b)  It  is  the  purpose  of  this  Section  to create a
voluntary pilot program by which the Agency  may  enter  into
Environmental   Management  System  Agreements  with  persons
regulated   under   this   Act   to   implement    innovative
environmental  measures  not  otherwise recognized or allowed
under existing laws and regulations of this  State  if  those
measures:
         (1)  achieve  emissions  reductions or reductions in
    discharges or  wastes  beyond  the  otherwise  applicable
    statutory  and  regulatory requirements through pollution
    prevention or other suitable means; or
         (2)  achieve real environmental  risk  reduction  or
    foster   environmental   compliance   by   other  persons
    regulated under this Act in  a  manner  that  is  clearly
    superior to the existing regulatory system.
    These Agreements may be executed with participants in the
Federal  Performance  Track Program if the provisions include
proposals accepted under the Federal XL Program, provided the
proposals achieve one or more purposes of  subsection  (b)(1)
or (2) of this Section and are acceptable to the Agency.
    (c)  This   program   is   a   voluntary  pilot  program.
Participation is at the discretion of  the  Agency,  and  any
decision  by  the  Agency to reject an initial proposal under
this Section is not appealable. An initial Agreement  may  be
renewed  for appropriate time periods if the Agency finds the
Agreement continues to meet applicable requirements  and  the
purposes of this Section.
    (d)  The Agency shall develop and make publicly available
a  program  guidance  document regarding participation in the
pilot program.  A draft document  shall  be  distributed  for
review and comment by interested parties and a final document
shall  be  completed by December 1, 1996.  At a minimum, this
document shall include the following:
         (1)  The approximate number  of  projects  that  the
    Agency envisions being part of the pilot program.
         (2)  The  types  of projects and facilities that the
    Agency believes would be most useful to be a part of  the
    pilot program.
         (3)  A    description    of    potentially    useful
    environmental management systems, such as ISO 14000.
         (4)  A   description   of   suitable   Environmental
    Performance  Plans,  including  appropriate provisions or
    opportunities  for  promoting  pollution  prevention  and
    sustainable development.
         (5)  A description of practices  and  procedures  to
    ensure that performance is measurable and verifiable.
         (6)  A  characterization of less-preferred practices
    that  can   generate   adverse   consequences   such   as
    multi-media pollutant transfers.
         (7)  A   description   of   suitable  practices  for
    productive stakeholder involvement in project development
    and implementation that may  include,  but  need  not  be
    limited   to,   consensus-based   decision   making   and
    appropriate technical assistance.
    (e)  The   Agency   has  the  authority  to  develop  and
distribute written guidance, fact sheets, or other  documents
that  explain, summarize, or describe programs operated under
this Act or regulations.  The written guidance, fact  sheets,
or  other  documents  shall not be considered rules and shall
not be subject to the Illinois Administrative Procedure Act.
(Source: P.A. 92-397, eff. 1-1-02.)

    (415 ILCS 5/52.3-2)
    Sec. 52.3-2.  Agency authority; scope of agreement.
    (a)  The Agency may enter into an  initial  Environmental
Management  System  Agreement with any person regulated under
this Act to implement innovative environmental measures  that
relate  to  or involve provisions of this Act, even if one or
more of the terms of such an Agreement would be  inconsistent
with  an  otherwise  applicable statute or regulation of this
State.  Participation in this program  is  limited  to  those
persons who have submitted an Environmental Management System
Agreement  that  is  acceptable to the Agency and who are not
currently subject to enforcement action under this Act.
    (b)  The Agency may adopt rules to implement this Section
if less than 6 Agreements are executed, but shall adopt rules
to implement  this  Section  if  6  or  more  Agreements  are
executed.     Without   limiting   the   generality  of  this
authority, those regulations may, among other things:
         (1)  Specify the criteria an applicant must meet  to
    participate in this program.
         (2)  Specify  the  minimum  contents  of  a proposed
    Environmental  Management  System  Agreement,  including,
    without limitation, the following:
              (A)  requiring identification of all State  and
         federal  statutes, rules, and regulations applicable
         to the facility;
              (B)  requiring identification of all  statutes,
         rules,  and  regulations  that are inconsistent with
         one or more  terms  of  the  proposed  Environmental
         Management System Agreement;
              (C)  requiring  a statement of how the proposed
         Environmental  Management  System   Agreement   will
         achieve one or more of the purposes of this Section;
              (D)  requiring  identification of those members
         of the  general  public,  representatives  of  local
         communities,  and  environmental groups who may have
         an interest in the Environmental  Management  System
         Agreement; and
              (E)  requiring    identification   of   how   a
         participant will demonstrate ongoing compliance with
         the terms of  its  Environmental  Management  System
         Agreement,  which  may  include  an  evaluation of a
         participant's performance  under  the  Environmental
         Management   System   Agreement  by  a  third  party
         acceptable  to  the  Agency.   Compliance  with  the
         Agreement  shall  be  determined   not   less   than
         annually.
         (3)  Specify the procedures for review by the Agency
    of Environmental Management System Agreements.
         (4)  Specify the procedures for public participation
    in,  including  notice  of  and comment on, Environmental
    Management System Agreements and stakeholder  involvement
    in  design  and  implementation of specific projects that
    are undertaken.
         (5)  Specify   the    procedures    for    voluntary
    termination   of   an   Environmental  Management  System
    Agreement.
         (6)  Specify the type of performance guarantee to be
    provided  by  an  applicant  for  participation  in  this
    program.  The nature of the performance  guarantee  shall
    be   directly   related   to   the   complexity   of  and
    environmental   risk   associated   with   the   proposed
    Environmental Management System Agreement.
    (c)  The Agency shall propose by December 31,  1996,  and
the  Board  shall  promulgate,  criteria  and  procedures for
involuntary termination of  Environmental  Management  System
Agreements. The Board shall complete such rulemaking no later
than 180 days after receipt of the Agency's proposal.
    (d)  After  July 1, 2003, On or before December 31, 2001,
the Agency may enter into an initial Environmental Management
System  Agreement  with  any  participant  in   the   Federal
Performance  Track Program Agreements prior to adopting rules
under this Section, if the proposals for the Agreements  have
been  accepted  under  the  Federal XL Program, in accordance
with the following:
         (1)  The  participant  submits  An  applicant  shall
    submit, in writing, a proposed  Environmental  Management
    System Agreement to the Director of the Agency.
         (1.5)  The   Agency  shall  provide  notice  to  the
    public, including an opportunity for public  comment  and
    hearing in accordance with the procedures set forth in 35
    Ill.  Adm. Code Part 164, on each proposal filed with the
    Agency under this subsection (d).
         (2)  The Agency shall have 120 days after the public
    comment  period,  unless  the   participant   grants   an
    extension,  to execute to review a proposed Environmental
    Management System Agreement.
         (3)  The Agency's Failure to  execute  an  agreement
    notify  an  applicant  in  writing that it has accepted a
    proposal shall be deemed a rejection.
         (4)  A  rejection  of   a   proposed   Environmental
    Management  System  Agreement  by the Agency shall not be
    appealable.
         (5)  The Agency shall provide notice to the  public,
    including  an  opportunity for public comment and hearing
    in accordance with the procedures set forth  in  35  Ill.
    Adm.  Code  Part  164,  on  each proposal accepted by the
    Agency under  this  subsection  (d).   The  Agency  shall
    provide  such notice, including an opportunity for public
    comment and hearing, prior to executing an  Environmental
    Management System Agreement.
         (6)  Prior  to  promulgation  of rules under Section
    52.3-2(c), each Agreement shall  specify  the  terms  and
    conditions  under  which  the  Agency  may  terminate the
    Agreement.
         (7)  Each Agreement shall  provide  for  appropriate
    stakeholder  involvement in a manner that is conducive to
    productive participation, equitable decision  making  and
    open   exchange   of   information   in   developing  and
    implementing the Agreement.
(Source: P.A. 92-397, eff. 1-1-02.)

    (415 ILCS 5/52.3-4)
    Sec. 52.3-4.  Performance assurance.
    (a)  The Agency  shall  ensure  that  each  Environmental
Management  System  Agreement contains appropriate provisions
for performance assurance.    Those  provisions  may  specify
types  of  performance  guarantees  to  be  provided  by  the
participant to assure performance of the terms and conditions
of the Agreement.
    (b)  In  the case of deficient performance of any term or
condition in an  Environmental  Management  System  Agreement
that   prevents   achievement   of  the  stated  purposes  in
subsection (b) of Section 52.3-1, the  Agency  may  terminate
the   Agreement   and  the  participant  may  be  subject  to
enforcement in accordance with the provisions of  Section  31
or 42 of this Act.
    (b-5)  The  Agency  may  terminate  an Agreement executed
pursuant to subsection (d) of Section 52.3-1 if participation
in the Federal Performance Track Program ceases.
    (c)  If the Agreement is terminated, the  facility  shall
have  sufficient  time to apply for and receive any necessary
permits to continue  the  operations  in  effect  during  the
course  of  the  Environmental  Management Systems Agreement.
Any such application  shall  also  be  deemed  a  timely  and
complete  application for renewal of an existing permit under
applicable law.
    (d)  The Agency may adopt rules  that  are  necessary  to
carry  out  its  duties under this Section including, but not
limited to, rules that  provide  mechanisms  for  alternative
dispute resolution and performance assurance.
    (e)  Nothing in this Section shall limit the authority or
ability  of  a  State's  Attorney  or the Attorney General to
proceed pursuant to Section 43(a) of this Act, or to  enforce
Section  44 or 44.1 of this Act, except that for the purposes
of enforcement under Section 43(a), 44, or 44.1, an Agreement
shall be deemed to be a  permit  issued  under  this  Act  to
engage in activities authorized under the Agreement.
(Source: P.A. 89-465, eff. 6-13-96.)

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