SB0072sam001 98TH GENERAL ASSEMBLY

Sen. William R. Haine

Filed: 3/1/2013

09800SB0072sam001 LRB098 02802 JDS 41722 a

AMENDMENT TO SENATE BILL 72

AMENDMENT NO. ______. Amend Senate Bill 72 on page 1, below line 9, by inserting the following:

"Section 7. The Commercial and Public Building Asbestos Abatement Act is amended by changing Section 20 as follows:

(225 ILCS 207/20)

Sec. 20. Powers and Duties of the Department.

(a) The Department is empowered to promulgate any rules necessary to ensure proper implementation and administration of this Act, and compliance with the federal Asbestos School Hazard Abatement Reauthorization Act of 1990.

(b) Rules promulgated by the Department shall include, but not be limited to, rules relating to the correct and safe performance of response action services, rules for the assessment of civil penalties for violations of this Act or rules promulgated under it, and rules providing for the training and licensing of persons and firms (i) to perform asbestos inspection, (ii) to perform abatement work, and (iii) to serve as asbestos abatement contractors, response action contractors, and asbestos workers. The Department is empowered to inspect activities regulated by this Act to ensure compliance.

Except as otherwise provided by Department rule, on and after the effective date of this amendatory Act of the 98th General Assembly any licensing requirement adopted pursuant to this Section that may be satisfied by an industrial hygienist licensed pursuant to the Industrial Hygienists Licensure Act repealed in this amendatory Act may be satisfied by a Certified Industrial Hygienist certified by the American Board of Industrial Hygiene.

(c) In carrying out its responsibilities under this Act, the Department shall:

(1) Publish a list of response action contractors licensed under this Act, except that the Department shall not be required to publish a list of licensed asbestos workers; and

(2) Adopt rules for the collection of fees for training course approval and for the licensing of inspectors, project designers, contractors, supervisors, and workers.

(d) The provisions of the Illinois Administrative Procedure Act are hereby expressly adopted and shall apply to all administrative rules and procedures of the Department of Public Health under this Act, except that in case of conflict between the Illinois Administrative Procedure Act and this Act the provisions of this Act shall control, and except that Section 5-35 of the Illinois Administrative Procedure Act relating to procedures for rulemaking does not apply to the adoption of any rule required by federal law in connection with which the Department is precluded by law from exercising any discretion.

(e) All final administrative decisions of the Department under this Act shall be subject to judicial review pursuant to the provisions of the Administrative Review Law and the rules adopted under it. The term "administrative decision" has the meaning ascribed to it in Section 3-101 of the Code of Civil Procedure.

(f) The Director, after notice and opportunity for hearing to the applicant or license holder, may deny, suspend, or revoke a license or expunge such person from the State list in any case in which he or she finds that there has been a substantial failure to comply with the provisions of this Act or the standards or rules established under it. Notice shall be provided by certified mail, return receipt requested, or by personal service setting forth the particular response for the proposed action and fixing a date, not less than 15 days from the date of such mailing or service, at which time the applicant, asbestos abatement contractor, or license holder shall be given an opportunity to request hearing.

The hearing shall be conducted by the Director or by an individual designated in writing by the Director as Hearing Officer to conduct the hearing. On the basis of any such hearing, or upon default of the asbestos abatement contractor, applicant or license holder, the Director shall make a determination specifying his or her findings and conclusions. A copy of the determination shall be sent by certified mail, return receipt requested, or served personally upon the applicant, contractor, or license holder.

The procedure governing hearings authorized by this Section shall be in accordance with rules promulgated by the Department. A full and complete record shall be kept of all proceedings, including the notice of hearing, complaint, and all other documents in the nature of pleadings, written motions filed in the proceedings, and the report and orders of the Director and Hearing Officer. All testimony shall be reported but need not be transcribed unless the decision is sought to be reviewed under the Administrative Review Law. A copy or copies of the transcript may be obtained by any interested party on payment of the cost of preparing the copy or copies. The Director or Hearing Officer shall, upon his or her own motion or on the written request of any party to the proceeding, issue subpoenas requiring the attendance and the giving of testimony by witnesses, and subpoenas duces tecum requiring the production of books, papers, records, or memoranda. All subpoenas and subpoenas duces tecum issued under this Act may be served by any person of legal age. The fees of witnesses for attendance and travel shall be the same as the fees of witnesses before the courts of this State, such fees to be paid when the witness is excused from further attendance. When the witness is subpoenaed at the instance of the Director or Hearing Officer, such fees shall be paid in the same manner as other expenses of the Department, and when the witness is subpoenaed at the instance of any other party to any such proceeding the Department may require that the cost of service of the subpoena or subpoena duces tecum and the fee of the witness be borne by the party at whose instance the witness is summoned. In such case, the Department in its discretion may require a deposit to cover the cost of such service and witness fees. A subpoena or subpoena duces tecum so issued as above stated shall be served in the same manner as a subpoena issued by a circuit court.

Any circuit court of this State, upon the application of the Director, or upon the application of any other party to the proceeding, may, in its discretion, compel the attendance of witnesses, the production of books, papers, records, or memoranda and the giving of testimony before the Director or Hearing Officer conducting an investigation or holding a hearing authorized by this Act, by an attachment for contempt or otherwise, in the same manner as production of evidence may be compelled before the court.

The Director or Hearing Officer, or any party in an investigation or hearing before the Department, may cause the depositions of witnesses within this State to be taken in the manner prescribed by law for like depositions in civil actions in courts of this State, and, to that end, compel the attendance of witnesses and the production of books, papers, records, or memoranda.

(Source: P.A. 89-143, eff. 7-14-95.)

Section 8. The Lead Poisoning Prevention Act is amended by changing Section 11.1 as follows:

(410 ILCS 45/11.1) (from Ch. 111 1/2, par. 1311.1)

Sec. 11.1. Licensing of lead abatement contractors and workers. Except as otherwise provided in this Act, performing lead abatement or mitigation without a license is a Class A misdemeanor. The Department shall provide by rule for the licensing of lead abatement contractors and lead abatement workers and shall establish standards and procedures for the licensure. The Department may collect a reasonable fee for the licenses. The fees shall be deposited into the Lead Poisoning Screening, Prevention, and Abatement Fund and used by the Department for the costs of licensing lead abatement contractors and workers and other activities prescribed by this Act.

The Department shall promote and encourage minorities and females and minority and female owned entities to apply for licensure under this Act as either licensed lead abatement workers or licensed lead abatement contractors.

The Department may adopt any rules necessary to ensure proper implementation and administration of this Act and of the federal Toxic Substances Control Act, 15 USC 2682 and 2684, and the regulations promulgated thereunder: Lead; Requirements for Lead-Based Paint Activities (40 CFR 745). The application of this Section shall not be limited to the activities taken in regard to lead poisoned children and shall include all activities related to lead abatement, mitigation and training.

Except as otherwise provided by Department rule, on and after the effective date of this amendatory Act of the 98th General Assembly any licensing requirement adopted pursuant to this Section that may be satisfied by an industrial hygienist licensed pursuant to the Industrial Hygienists Licensure Act repealed in this amendatory Act may be satisfied by a Certified Industrial Hygienist certified by the American Board of Industrial Hygiene.

(Source: P.A. 89-381, eff. 8-18-95.)"; and

on page 32, below line 26, by inserting the following:

"Section 13. The Illinois Pesticide Act is amended by changing Section 19.3 as follows:

(415 ILCS 60/19.3)

Sec. 19.3. Agrichemical Facility Response Action Program.

(a) It is the policy of the State of Illinois that an Agrichemical Facility Response Action Program be implemented to reduce potential agrichemical pollution and minimize environmental degradation risk potential at these sites. In this Section, "agrichemical facility" means a site where agrichemicals are stored or handled, or both, in preparation for end use. "Agrichemical facility" does not include basic manufacturing or central distribution sites utilized only for wholesale purposes. As used in this Section, "agrichemical" means pesticides or commercial fertilizers at an agrichemical facility.

The program shall provide guidance for assessing the threat of soil agrichemical contaminants to groundwater and recommending which sites need to establish a voluntary corrective action program.

The program shall establish appropriate site-specific soil cleanup objectives, which shall be based on the potential for the agrichemical contaminants to move from the soil to groundwater and the potential of the specific soil agrichemical contaminants to cause an exceedence of a Class I or Class III groundwater quality standard or a health advisory level. The Department shall use the information found and procedures developed in the Agrichemical Facility Site Contamination Study or other appropriate physical evidence to establish the soil agrichemical contaminant levels of concern to groundwater in the various hydrological settings to establish site-specific cleanup objectives.

No remediation of a site may be recommended unless (i) the agrichemical contamination level in the soil exceeds the site-specific cleanup objectives or (ii) the agrichemical contaminant level in the soil exceeds levels where physical evidence and risk evaluation indicates probability of the site causing an exceedence of a groundwater quality standard.

When a remediation plan must be carried out over a number of years due to limited financial resources of the owner or operator of the agrichemical facility, those soil agrichemical contaminated areas that have the greatest potential to adversely impact vulnerable Class I groundwater aquifers and adjacent potable water wells shall receive the highest priority rating and be remediated first.

(b) The Agrichemical Facility Response Action Program Board ("the Board") is created. The Board members shall consist of the following:

(1) The Director or the Director's designee.

(2) One member who represents pesticide manufacturers.

(3) Two members who represent retail agrichemical dealers.

(4) One member who represents agrichemical distributors.

(5) One member who represents active farmers.

(6) One member at large.

The public members of the Board shall be appointed by the Governor for terms of 2 years. Those persons on the Board who represent pesticide manufacturers, agrichemical dealers, agrichemical distributors, and farmers shall be selected from recommendations made by the associations whose membership reflects those specific areas of interest. The members of the Board shall be appointed within 90 days after the effective date of this amendatory Act of 1995. Vacancies on the Board shall be filled within 30 days. The Board may fill any membership position vacant for a period exceeding 30 days.

The members of the Board shall be paid no compensation, but shall be reimbursed for their expenses incurred in performing their duties. If a civil proceeding is commenced against a Board member arising out of an act or omission occurring within the scope of the Board member's performance of his or her duties under this Section, the State, as provided by rule, shall indemnify the Board member for any damages awarded and court costs and attorney's fees assessed as part of a final and unreversed judgement, or shall pay the judgment, unless the court or jury finds that the conduct or inaction that gave rise to the claim or cause of action was intentional, wilful or wanton misconduct and was not intended to serve or benefit interests of the State.

The chairperson of the Board shall be selected by the Board from among the public members.

(c) The Board has the authority to do the following:

(1) Cooperate with the Department and review and approve an agrichemical facility remediation program as outlined in the handbook or manual as set forth in subdivision (d)(8) of this Section.

(2) Review and give final approval to each agrichemical facility corrective action plan.

(3) Approve any changes to an agrichemical facility's corrective action plan that may be necessary.

(4) Upon completion of the corrective action plan, recommend to the Department that the site-specific cleanup objectives have been met and that a notice of closure be issued by the Department stating that no further remedial action is required to remedy the past agrichemical contamination.

(5) When a soil agrichemical contaminant assessment confirms that remedial action is not required in accordance with the Agrichemical Facility Response Action Program, recommend that a notice of closure be issued by the Department stating that no further remedial action is required to remedy the past agrichemical contamination.

(6) Periodically review the Department's administration of the Agrichemical Incident Response Trust Fund and actions taken with respect to the Fund. The Board shall also provide advice to the Interagency Committee on Pesticides regarding the proper handling of agrichemical incidents at agrichemical facilities in Illinois.

(d) The Director has the authority to do the following:

(1) When requested by the owner or operator of an agrichemical facility, may investigate the agrichemical facility site contamination.

(2) After completion of the investigation under subdivision (d)(1) of this Section, recommend to the owner or operator of an agrichemical facility that a voluntary assessment be made of the soil agrichemical contaminant when there is evidence that the evaluation of risk indicates that groundwater could be adversely impacted.

(3) Review and make recommendations on any corrective action plan submitted by the owner or operator of an agrichemical facility to the Board for final approval.

(4) On approval by the Board, issue an order to the owner or operator of an agrichemical facility that has filed a voluntary corrective action plan that the owner or operator may proceed with that plan.

(5) Provide remedial project oversight, monitor remedial work progress, and report to the Board on the status of remediation projects.

(6) Provide staff to support the activities of the Board.

(7) Take appropriate action on the Board's recommendations regarding policy needed to carry out the Board's responsibilities under this Section.

(8) In cooperation with the Board, incorporate the following into a handbook or manual: the procedures for site assessment; pesticide constituents of concern and associated parameters; guidance on remediation techniques, land application, and corrective action plans; and other information or instructions that the Department may find necessary.

(9) Coordinate preventive response actions at agrichemical facilities pursuant to the Groundwater Quality Standards adopted pursuant to Section 8 of the Illinois Groundwater Protection Act to mitigate resource groundwater impairment.

Upon completion of the corrective action plan and upon recommendation of the Board, the Department shall issue a notice of closure stating that site-specific cleanup objectives have been met and no further remedial action is required to remedy the past agrichemical contamination.

When a soil agrichemical contaminant assessment confirms that remedial action is not required in accordance with the Agrichemical Facility Response Action Program and upon the recommendation of the Board, a notice of closure shall be issued by the Department stating that no further remedial action is required to remedy the past agrichemical contamination.

(e) Upon receipt of notification of an agrichemical contaminant in groundwater pursuant to the Groundwater Quality Standards, the Department shall evaluate the severity of the agrichemical contamination and shall submit to the Environmental Protection Agency an informational notice characterizing it as follows:

(1) An agrichemical contaminant in Class I or Class III groundwater has exceeded the levels of a standard adopted pursuant to the Illinois Groundwater Protection Act or a health advisory established by the Illinois Environmental Protection Agency or the United States Environmental Protection Agency; or

(2) An agrichemical has been detected at a level that requires preventive notification pursuant to a standard adopted pursuant to the Illinois Groundwater Protection Act.

(f) When agrichemical contamination is characterized as in subdivision (e)(1) of this Section, a facility may elect to participate in the Agrichemical Facility Response Action Program. In these instances, the scope of the corrective action plans developed, approved, and completed under this program shall be limited to the soil agrichemical contamination present at the site unless implementation of the plan is coordinated with the Illinois Environmental Protection Agency as follows:

(1) Upon receipt of notice of intent to include groundwater in an action by a facility, the Department shall also notify the Illinois Environmental Protection Agency.

(2) Upon receipt of the corrective action plan, the Department shall coordinate a joint review of the plan with the Illinois Environmental Protection Agency.

(3) The Illinois Environmental Protection Agency may provide a written endorsement of the corrective action plan.

(4) The Illinois Environmental Protection Agency may approve a groundwater management zone for a period of 5 years after the implementation of the corrective action plan to allow for groundwater impairment mitigation results.

(5) The Department, in cooperation with the Illinois Environmental Protection Agency, shall recommend a proposed corrective action plan to the Board for final approval to proceed with remediation. The recommendation shall be based on the joint review conducted under subdivision (f)(2) of this Section and the status of any endorsement issued under subdivision (f)(3) of this Section.

(6) The Department, in cooperation with the Illinois Environmental Protection Agency, shall provide remedial project oversight, monitor remedial work progress, and report to the Board on the status of the remediation project.

(7) The Department shall, upon completion of the corrective action plan and recommendation of the Board, issue a notice of closure stating that no further remedial action is required to remedy the past agrichemical contamination.

(g) When an owner or operator of an agrichemical facility initiates a soil contamination assessment on the owner's or operator's own volition and independent of any requirement under this Section 19.3, information contained in that assessment may be held as confidential information by the owner or operator of the facility.

(h) Except as otherwise provided by Department rule, on and after the effective date of this amendatory Act of the 98th General Assembly any Agrichemical Facility Response Action Program requirement that may be satisfied by an industrial hygienist licensed pursuant to the Industrial Hygienists Licensure Act repealed in this amendatory Act may be satisfied by a Certified Industrial Hygienist certified by the American Board of Industrial Hygiene.

(Source: P.A. 92-113, eff. 7-20-01.)".