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|[ Introduced ]||[ House Amendment 001 ]|
90_HB1271eng New Act 30 ILCS 105/5.449 new 215 ILCS 5/2.5 new Creates the Drycleaner Environmental Response Trust Fund Act to support remediation of drycleaning solvent releases at drycleaning facilities through a reimbursement program for remediation of existing releases and an insurance program for prospective releases. Creates the Drycleaner Environmental Response Trust Fund Council to administer the Act. Sets forth a continuing appropriation of moneys in the Fund to the Council to make disbursements required under the Act. Authorizes civil and criminal penalties. Establishes a quantity-based drycleaning solvent fee to be imposed on a person selling and transferring drycleaning solvent to a person operating a drycleaning facility for use at the facility. Imposes a one-time drycleaning solvent floor stock fee to be assessed on January 1, 1998. Requires owners or operators of dry cleaning facilities to obtain a license under the Act in order to be eligible for reimbursement and insurance benefits under the Act. Repeals the license fee and sale and transfer fee provisions on July 1, 2007. Provides for a transfer of $375,000 from the General Revenue Fund to the Drycleaner Environmental Response Trust Fund, which, after 6 months, shall be transferred back to the General Revenue Fund. Amends the State Finance Act to add the Drycleaner Environmental Response Trust Fund. Amends the Illinois Insurance Code to exempt the Drycleaner Environmental Response Trust Fund from the provisions of the Code. Effective immediately. LRB9003709DPccC HB1271 Engrossed LRB9003709DPccC 1 AN ACT to create the Drycleaner Environmental Response 2 Trust Fund Act, amending named Acts. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 1. Short title. This Act may be cited as the 6 Drycleaner Environmental Response Trust Fund Act. 7 Section 5. Definitions. As used in this Act: 8 (a) "Active drycleaning facility" means a drycleaning 9 facility actively engaged in drycleaning operations and 10 licensed under Section 60 of this Act. 11 (b) "Agency" means the Illinois Environmental Protection 12 Agency. 13 (c) "Claimant" means an owner or operator of a 14 drycleaning facility who has applied for reimbursement from 15 the remedial account or who has submitted a claim under the 16 insurance account with respect to a release. 17 (d) "Council" means the Drycleaner Environmental 18 Response Trust Fund Council. 19 (e) "Drycleaner Environmental Response Trust Fund" or 20 "Fund" means the fund created under Section 10 of this Act. 21 (f) "Drycleaning facility" means a facility located in 22 this State that is or has been engaged in drycleaning 23 operations for the general public, other than a: 24 (1) facility located on a United States military 25 base; 26 (2) industrial laundry, commercial laundry, or 27 linen supply facility; 28 (3) prison or other penal institution; 29 (4) not-for-profit hospital or other health care 30 facility; or a 31 (5) facility located or formerly located on federal HB1271 Engrossed -2- LRB9003709DPccC 1 or State property. 2 (g) "Drycleaning operations" means drycleaning of 3 apparel and household fabrics for the general public, as 4 described in Standard Industrial Classification Industry No. 5 7215 and No. 7216 in the Standard Industrial Classification 6 Manual (SIC) by the Technical Committee on Industrial 7 Classification. 8 (h) "Drycleaning solvent" means a chlorine-based or 9 hydrocarbon-based formulation or product that is used as a 10 primary cleaning agent in drycleaning operations. 11 (i) "Emergency" or "emergency action" means a situation 12 or an immediate response to a situation to protect public 13 health or safety. "Emergency" or "emergency action" does not 14 mean removal of contaminated soils, recovery of free 15 product, or financial hardship. An "emergency" or "emergency 16 action" would normally be expected to be directly related to 17 a sudden event or discovery and would last until the threat 18 to public health is mitigated. 19 (j) "Groundwater" means underground water that occurs 20 within the saturated zone and geologic materials where the 21 fluid pressure in the pore space is equal to or greater than 22 the atmospheric pressure. 23 (k) "Inactive drycleaning facility" means a drycleaning 24 facility that is not being used for drycleaning operations 25 and is not registered under this Act. 26 (l) "No Further Remediation Letter" means a letter 27 provided by the Agency pursuant to Section 58.10 of Title 28 XVII of the Environmental Protection Act. 29 (m) "Operator" means a person or entity holding a 30 business license to operate a licensed drycleaning facility 31 or the business operation of which the drycleaning facility 32 is a part. 33 (n) "Owner" means (1) a person who owns or has 34 possession or control of a drycleaning facility at the time a HB1271 Engrossed -3- LRB9003709DPccC 1 release is discovered, regardless of whether the facility 2 remains in operation or (2) a parent corporation of the 3 person under item (1) of this subdivision. 4 (o) "Parent corporation" means a business entity or 5 other business arrangement that has elements of common 6 ownership or control or that uses a long-term contractual 7 arrangement with a person to avoid direct responsibility for 8 conditions at a drycleaning facility. 9 (p) "Person" means an individual, trust, firm, joint 10 stock company, corporation, consortium, joint venture, or 11 other commercial entity. 12 (q) "Program year" means the period beginning on July 1 13 and ending on the following June 30, except that the initial 14 "program year" means the period beginning on July 1, 1997 or 15 on the effective date of this Act and ending on June 30, 16 1998. 17 (r) "Release" means any spilling, leaking, emitting, 18 discharging, escaping, leaching, or dispersing of drycleaning 19 solvents from a drycleaning facility to groundwater, surface 20 water, or subsurface soils. 21 (s) "Remedial action" means activities taken to comply 22 with Sections 58.6 and 58.7 of the Environmental Protection 23 Act and rules adopted by the Pollution Control Board under 24 those Sections. 25 (t) "Responsible party" means an owner, operator, or 26 other person financially responsible for costs of remediation 27 of a release of drycleaning solvents from a drycleaning 28 facility. 29 (u) "Service provider" means a consultant, testing 30 laboratory, monitoring well installer, soil boring 31 contractor, other contractor, lender, or any other person who 32 provides a product or service for which a claim for 33 reimbursement has been or will be filed against the remedial 34 account or insurance account, or a subcontractor of such a HB1271 Engrossed -4- LRB9003709DPccC 1 person. 2 Section 10. Drycleaner Environmental Response Trust Fund. 3 (a) The Drycleaner Environmental Response Trust Fund is 4 created as a special fund in the State Treasury. Moneys 5 deposited into the Fund shall be used solely for the purposes 6 of the Council as provided in this Act. The Fund shall 7 include moneys credited to the Fund under this Act and other 8 moneys that by law may be credited to the Fund. The State 9 Treasurer may invest Funds deposited into the Fund at the 10 direction of the Council. Interest, income from the 11 investments, and other income earned by the Fund shall be 12 credited to and deposited into the Fund. 13 For the purpose of making disbursements, if any, in 14 accordance with this Act, and for the purpose of paying the 15 ordinary and contingent expenses of the Council, there are 16 hereby appropriated from the Drycleaner Environmental 17 Response Trust Fund to the Council on a continuing basis sums 18 equal to the then current value of all disbursements or 19 expenses to be made from time to time under this Act. As 20 soon as may be practicable after June 30, 1997, the 21 Comptroller shall order transferred and the Treasurer shall 22 transfer from the General Revenue Fund to the Drycleaner 23 Environmental Response Trust Fund $375,000 for the ordinary 24 and contingent expenses of the Council. As soon as may be 25 practicable after December 31, 1997, the Comptroller shall 26 order transferred and the Treasurer shall transfer from the 27 Drycleaner Environmental Response Trust Fund to the General 28 Revenue Fund $375,000 plus interest at the rate of 6% per 29 annum. 30 The Fund may be divided into different accounts with 31 different depositories to fulfill the purposes of the Act as 32 determined by the Council. 33 Moneys in the Fund at the end of a State fiscal year HB1271 Engrossed -5- LRB9003709DPccC 1 shall be carried forward to the next fiscal year and shall 2 not revert to the General Revenue Fund. 3 (b) The specific purposes of the Fund include but are 4 not limited to the following: 5 (1) To establish an account to Fund remedial action 6 of drycleaning solvent releases from drycleaning 7 facilities as provided by Section 40. 8 (2) To establish an insurance account for insuring 9 environmental risks from releases from drycleaning 10 facilities within this State as provided by Section 45. 11 (c) The State, the General Revenue Fund, and any other 12 Fund of the State, other than the Drycleaner Environmental 13 Response Trust Fund, shall not be liable for a claim or cause 14 of action in connection with a drycleaning facility not owned 15 or operated by the State or an agency of the State. All 16 expenses incurred by the Fund shall be payable solely from 17 the Fund and no liability or obligation shall be imposed upon 18 the State. The State is not liable for a claim presented 19 against the Fund. 20 (d) The liability of the Fund is limited to the extent 21 of coverage provided by the account under which a claim is 22 submitted, subject to the terms and conditions of that 23 coverage. The liability of the Fund is further limited by 24 the moneys made available to the Fund, and no remedy shall be 25 ordered that would require the Fund to exceed its then 26 current funding limitations to satisfy an award or which 27 would restrict the availability of moneys for higher priority 28 sites. 29 (e) Nothing in this Act shall be construed to limit, 30 restrict, or affect the authority and powers of the Agency or 31 another State agency or statute unless the State agency or 32 statute is specifically referenced and the limitation is 33 clearly set forth in this Act. HB1271 Engrossed -6- LRB9003709DPccC 1 Section 15. Creation of Council. 2 (a) The Drycleaner Environmental Response Trust Fund 3 Council is established and shall consist of the following 4 voting members to be appointed by the Governor: 5 (1) Three members who own or operate a drycleaning 6 facility. Two of these members must be members of the 7 Illinois State Fabricare Association. These members shall 8 serve 3 year terms, except that of the initial members 9 appointed, one shall be appointed for a term of one year, 10 one for a term of 2 years, and one for a term of 3 years. 11 (2) One member who represents wholesale 12 distributors of drycleaning solvents. This member shall 13 serve for a term of 3 years. 14 (3) One member who represents the drycleaning 15 equipment manufacturers and vendor community. This 16 member shall serve for a term of 3 years. 17 (4) Two members with experience in financial 18 markets or the insurance industry. These members shall 19 serve 3-year terms, except that of the initial 20 appointments, one shall be appointed for a term of 2 21 years, and one for a term of 3 years. 22 Each member shall have experience, knowledge, and 23 expertise relating to the subject matter of this Act. 24 (b) Members of the Council are entitled to receive 25 reimbursement of actual expenses incurred in the discharge of 26 their duties within the limit of funds appropriated to the 27 Council or made available to the Fund. The governor shall 28 appoint a chairperson of the Council from among the members 29 of the Council. 30 (c) The attorney general's office or its designee shall 31 provide legal counsel to the Council. 32 Section 20. Council rules. 33 (a) The Council may adopt rules in accordance with the HB1271 Engrossed -7- LRB9003709DPccC 1 emergency rulemaking provisions of Section 5-45 of the 2 Illinois Administrative Procedure Act for one year after the 3 effective date of this Act. Thereafter, the Council shall 4 conduct general rulemaking as provided under the Illinois 5 Administrative Procedure Act. 6 (b) The Council shall adopt rules regarding its practice 7 and procedures for investigating and settling claims made 8 against the Fund, determining reimbursement guidelines, 9 coordinating with the Agency, and otherwise implementing and 10 administering the Fund under this Act. 11 (c) The Council shall adopt rules regarding its practice 12 and procedures to develop underwriting standards, establish 13 insurance account coverage and risk factors, settle claims 14 made against the insurance account of the Fund, determine 15 appropriate deductibles or retentions in coverages or 16 benefits offered under the insurance account of the Fund, 17 determine reimbursement guidelines, and otherwise implement 18 and administer the insurance account under this Act. 19 (d) The Council shall adopt rules necessary for the 20 implementation and collection of insurance account premiums 21 prior to offering insurance to an owner or operator of a 22 drycleaning facility or other person. 23 (e) The Council shall adopt rules prescribing 24 requirements for the retention of records by an owner or 25 operator and the periods for which he or she must retain 26 those records. 27 (f) All final Council decisions shall be subject to 28 appeal by the affected parties. The Council shall determine 29 by rule persons who have standing to appeal final Council 30 decisions. All appeals of final Council decisions shall be 31 presented to and reviewed by an administrative hearing 32 officer. An appeal of the administrative hearing officer's 33 decision will be subject to judicial review in accordance 34 with the Administrative Review Law. HB1271 Engrossed -8- LRB9003709DPccC 1 The Council shall adopt rules relating to appeal 2 procedures that shall require the Council to deliver notice 3 of appeal to the affected parties within 30 days of receipt 4 of notice, require that the hearing be held within 180 days 5 of the filing of the petition unless good cause is shown for 6 the delay, and require that a final decision be issued no 7 later than 120 days following the close of the hearing. The 8 time restrictions in this subsection may be waived by mutual 9 agreement of the parties. 10 Section 25. Council administration of Fund. 11 (a) In administering the Fund, the Council shall have 12 all of the general powers reasonably necessary and convenient 13 to carry out its purposes and may perform the following 14 functions, subject to any express limitations contained in 15 this Act: 16 (1) Take actions and enter into agreements 17 necessary to reimburse claimants for eligible remedial 18 action expenses, assist the Agency to protect the 19 environment from releases, reduce costs associated with 20 remedial actions, and establish and implement an 21 insurance program. 22 (2) Acquire and hold personal property to be used 23 for the purpose of remedial action. 24 (3) Purchase, construct, improve, furnish, equip, 25 lease, option, sell, exchange, or otherwise dispose of 26 one or more improvements under the terms it determines. 27 The Council may define "improvements" by rule for 28 purposes of this Act. 29 (4) Grant a lien, pledge, assignment, or other 30 encumbrance on one or more revenues, assets of right, 31 accounts, or funds established or received in connection 32 with the fund, including revenues derived from fees 33 collected under this Act. HB1271 Engrossed -9- LRB9003709DPccC 1 (5) Contract for the acquisition or construction of 2 one or more improvements or parts of one or more 3 improvements or for the leasing, subleasing, sale, or 4 other disposition of one or more improvements in a manner 5 the Council determines. 6 (6) Cooperate with the Agency in the implementation 7 and administration of this Act to minimize unnecessary 8 duplication of effort, reporting, or paperwork and to 9 maximize environmental protection within the funding 10 limits of this Act. 11 (7) Except as otherwise provided by law, inspect 12 any document in the possession of an owner, operator, 13 service provider, or any other person if the document is 14 relevant to a claim for reimbursement under this Section 15 or may inspect a drycleaning facility for which a claim 16 for benefits under this Act has been submitted. 17 (b) The Council shall pre-approve, and the contracting 18 parties shall seek pre-approval for, a contract entered into 19 under this Act if the cost of the contract exceeds $75,000. 20 The Council or its designee shall review and approve or 21 disapprove all contracts entered into under this Act. 22 However, review by the Council or its designee shall not be 23 required when an emergency situation exists. All contracts 24 entered into by the Council shall be awarded on a 25 competitive basis to the maximum extent practical. In those 26 situations where it is determined that bidding is not 27 practical, the basis for the determination of 28 impracticability shall be documented by the Council or its 29 designee. 30 (c) The Council may prioritize the expenditure of funds 31 from the remedial action account whenever it determines that 32 there are not sufficient funds to settle all current claims. 33 In prioritizing, the Council may consider the following: 34 (1) the degree to which human health is affected by HB1271 Engrossed -10- LRB9003709DPccC 1 the exposure posed by the release; 2 (2) the reduction of risk to human health derived 3 from remedial action compared to the cost of the 4 remedial action; 5 (3) the present and planned uses of the impacted 6 property; and 7 (4) other factors as determined by the Council. 8 Section 30. Independent contractors retained by Council. 9 (a) A contract entered into to retain a person to act as 10 the administrator of the Fund shall be subject to public bid. 11 The Council may enter into a contract or an agreement 12 authorized under this Act with a person, the Agency, the 13 Department of Revenue, other departments, agencies, or 14 governmental subdivisions of this State, another state, or 15 the United States, in connection with its administration and 16 implementation of this Act. 17 (b) The Council may reimburse a public or private 18 contractor retained pursuant to this Section for expenses 19 incurred in the execution of a contract or agreement. 20 Reimbursable expenses include the costs of performing duties 21 or powers specifically delegated by the Council. 22 Section 35. Illinois Insurance Code exemptions. The Fund, 23 including but not limited to insurance coverage offered under 24 the insurance account, is not subject to the provisions of 25 the Illinois Insurance Code. Notwithstanding any other 26 provision of law, the Fund shall not be considered an 27 insurance company or an insurer under the laws of this State 28 and shall not be a member of nor be entitled to a claim 29 against the Illinois Insurance Guaranty Fund. 30 Section 40. Remedial action account. 31 (a) The remedial action account is established to HB1271 Engrossed -11- LRB9003709DPccC 1 provide reimbursement to eligible claimants for drycleaning 2 solvent investigation, remedial action planning, and remedial 3 action activities for existing drycleaning solvent 4 contamination discovered at their drycleaning facilities. 5 (b) The following persons are eligible for reimbursement 6 from the remedial action account: 7 (1) In the case of claimant who is the owner or 8 operator of an active drycleaning facility licensed by 9 the Council under this Act at the time of application for 10 remedial action benefits afforded under the Fund, the 11 claimant is only eligible for reimbursement of remedial 12 action costs incurred in connection with a release from 13 that drycleaning facility, subject to any other 14 limitations under this Act. 15 (2) In the case of a claimant who is the owner of 16 an inactive drycleaning facility and was the owner or 17 operator of the drycleaning facility when it was an 18 active drycleaning facility, the claimant is only 19 eligible for reimbursement of remedial action costs 20 incurred in connection with a release from the 21 drycleaning facility, subject to any other limitations 22 under this Act. 23 (c) An eligible claimant requesting reimbursement from 24 the remedial action account shall meet all of the following: 25 (1) The claimant demonstrates that the source of 26 the release is from the claimant's drycleaning facility. 27 (2) At the time the release was discovered by the 28 claimant, the claimant and the drycleaning facility were 29 in compliance with the Agency reporting and technical 30 operating requirements. 31 (3) The claimant reported the release in a timely 32 manner to the Agency in accordance with State law. 33 (4) The claimant applying for reimbursement has not 34 filed for bankruptcy on or after the date of his or her HB1271 Engrossed -12- LRB9003709DPccC 1 discovery of the release. 2 (5) If the claimant is the owner or operator of an 3 active drycleaning facility, the claimant has provided to 4 the Council proof of implementation and maintenance of 5 the following pollution prevention measures: 6 (A) That all drycleaning solvent wastes 7 generated at a drycleaning facility be managed in 8 accordance with applicable State waste management 9 laws and rules. 10 (B) A prohibition on the discharge of 11 wastewater from drycleaning machines or of 12 drycleaning solvent from drycleaning operations to a 13 sanitary sewer or septic tank or to the surface or 14 in groundwater. 15 (C) That every drycleaning facility: 16 (I) install a containment dike or other 17 containment structure around each machine or 18 item of equipment or the entire drycleaning 19 area in which any drycleaning solvent is 20 utilized, which shall be capable of containing 21 any leak, spill, or release of drycleaning 22 solvent from that machine, item, or area; and 23 (II) seal or otherwise render impervious 24 those portions of diked floor surfaces on which 25 a drycleaning solvent may leak, spill, or 26 otherwise be released. 27 (D) A requirement that all drycleaning solvent 28 shall be delivered to drycleaning facilities by 29 means of closed, direct-coupled delivery systems. 30 (6) An active drycleaning facility has maintained 31 continuous financial assurance for environmental 32 liability coverage in the amount of at least $500,000 at 33 least since the date of award of benefits under this 34 Section or July 1, 1998, whichever is earlier. HB1271 Engrossed -13- LRB9003709DPccC 1 (7) The release was discovered on or after July 1, 2 1997 and before July 1, 2002. 3 (d) A claimant shall submit a completed application form 4 provided by the Council. The application shall contain 5 documentation of activities, plans, and expenditures 6 associated with the eligible costs incurred in response to a 7 release of drycleaning solvent from a drycleaning facility. 8 Application for remedial action account benefits must be 9 submitted to the Council on or before June 30, 2002. 10 (e) Claimants shall be subject to the following 11 deductible requirements, unless modified pursuant to the 12 Council's authority under Section 75: 13 (1) An eligible claimant submitting a claim for an 14 active drycleaning facility is responsible for the first 15 $5,000 of eligible investigation costs and for the first 16 $10,000 of eligible remedial action costs incurred in 17 connection with the release from the drycleaning facility 18 and is only eligible for reimbursement for costs that 19 exceed those amounts, subject to any other limitations of 20 this Act. 21 (2) An eligible claimant submitting a claim for an 22 inactive drycleaning facility is responsible for the 23 first $10,000 of eligible investigation costs and for the 24 first $10,000 of eligible remedial action costs incurred 25 in connection with the release from that drycleaning 26 facility, and is only eligible for reimbursement for 27 costs that exceed those amounts, subject to any other 28 limitations of this Act. 29 (f) Claimants are subject to the following limitations 30 on reimbursement: 31 (1) Subsequent to meeting the deductible 32 requirements of subsection (e), and pursuant to the 33 requirements of Section 75, reimbursement shall not 34 exceed: HB1271 Engrossed -14- LRB9003709DPccC 1 (A) $160,000 per active drycleaning facility 2 for which an eligible claim is submitted during the 3 initial program year; 4 (B) $150,000 per active drycleaning facility 5 for which an eligible claim is submitted during the 6 program year beginning July 1, 1998; 7 (C) $140,000 per active drycleaning facility 8 for which an eligible claim is submitted during the 9 program year beginning July 1, 1999; 10 (D) $130,000 per active drycleaning facility 11 for which an eligible claim is submitted during the 12 program year beginning July 1, 2000; 13 (E) $120,000 per active drycleaning facility 14 for which an eligible claim is submitted during the 15 program year beginning July 1, 2001; or 16 (F) $50,000 per inactive drycleaning facility. 17 (2) A contract in which one of the parties to the 18 contract is a claimant, for goods or services that may be 19 payable or reimbursable from the Council, is void and 20 unenforcable unless and until the Council has found that 21 the contract terms are within the range of usual and 22 customary rates for similar or equivalent goods or 23 services within this State and has found that the goods 24 or services are necessary for the claimant to comply with 25 Council standards or other applicable regulatory 26 standards. 27 (3) A claimant may appoint the Council as an agent 28 for the purposes of negotiating contracts with suppliers 29 of goods or services reimbursable by the Fund. The 30 Council may select another contractor for goods or 31 services other than the one offered by the claimant if 32 the scope of the proposed work or actual work of the 33 claimant's offered contractor does not reflect the 34 quality of workmanship required or if the costs are HB1271 Engrossed -15- LRB9003709DPccC 1 determined to be excessive, as determined by the Council. 2 (4) The Council may require a claimant to obtain 3 and submit 3 bids and may require specific terms and 4 conditions in a contract subject to approval. 5 (5) The Council may enter into a contract or an 6 exclusive contract with the supplier of goods or services 7 required by a claimant or class of claimants, in 8 connection with an expense reimbursable from the Fund, 9 for a specified good or service at a gross maximum price 10 or fixed rate, and may limit reimbursement accordingly. 11 (6) Unless emergency conditions exist, a service 12 provider shall obtain the Council's approval of the 13 budget for the remediation work before commencing the 14 work. No expense incurred that is above the budgeted 15 amount shall be paid unless the Council approves the 16 expense prior to its being incurred. All invoices and 17 bills relating to the remediation work shall be submitted 18 with appropriate documentation, as deemed necessary by 19 the Council, not later than 30 days after the work has 20 been performed. 21 (7) Neither the Council nor an eligible claimant is 22 responsible for payment for costs incurred that have not 23 been previously approved by the Council, unless an 24 emergency exists. 25 (8) The Council may determine the usual and 26 customary costs of each item for which reimbursement may 27 be awarded under this Section. The Council may revise the 28 usual and customary costs from time to time as necessary, 29 but costs submitted for reimbursement shall be subject to 30 the rates in effect at the time the costs were incurred. 31 (9) If a claimant has pollution liability insurance 32 coverage other than coverage provided by the insurance 33 account under this Act, that coverage shall be primary. 34 Reimbursement from the remedial account shall be limited HB1271 Engrossed -16- LRB9003709DPccC 1 to the deductible amounts under the primary coverage and 2 the amount that exceeds the policy limits of the primary 3 coverage, subject to the deductible amounts of this Act. 4 If there is a dispute between the claimant and the 5 primary insurance provider, reimbursement from the 6 remedial action account may be made to the claimant after 7 the claimant assigns all of his or her interests in the 8 insurance coverage to the Council. 9 (g) The source of funds for the remedial action account 10 shall be moneys allocated to the account by the Council 11 according to the Fund budget approved by the Council. 12 (h) A drycleaning facility will be classified as active 13 or inactive for purposes of determining benefits under this 14 Section based on the status of the facility on the date a 15 claim is filed. 16 (i) Eligible claimants shall conduct remedial action in 17 accordance with the Site Remediation Program under the 18 Environmental Protection Act and Part 740 of Title 35 of the 19 Illinois Administrative Code and the Tiered Approach to 20 Cleanup Objectives under Part 742 of Title 35 of the Illinois 21 Administrative Code. 22 Section 45. Insurance account. 23 (a) The insurance account shall offer financial 24 assurance for a qualified owner or operator of a drycleaning 25 facility under the terms and conditions provided for under 26 this Section. Coverage may be provided to either the owner or 27 the operator of a drycleaning facility. The Council is not 28 required to resolve whether the owner or operator, or both, 29 are responsible for a release under the terms of an agreement 30 between the owner and operator. 31 (b) The source of funds for the insurance account shall 32 be as follows: 33 (1) Moneys appropriated to the Council or moneys HB1271 Engrossed -17- LRB9003709DPccC 1 allocated to the insurance account by the Council 2 according to the Fund budget approved by the Council. 3 (2) Moneys collected as an insurance premium, 4 including service fees, if any. 5 (3) Investment income attributed to the insurance 6 account by the Council. 7 (c) An owner or operator may purchase coverage of up to 8 $500,000 per drycleaning facility subject to the terms and 9 conditions under this Section and those adopted by the 10 Council. Coverage shall be limited to remedial action costs 11 associated with soil and groundwater contamination resulting 12 from a release of drycleaning solvent at an insured 13 drycleaning facility, including third-party liability for 14 soil and groundwater contamination. Coverage is not provided 15 for a release that occurred before the date of coverage. 16 (d) An owner or operator, subject to underwriting 17 requirements and terms and conditions deemed necessary and 18 convenient by the Council, may purchase insurance coverage 19 from the insurance account provided that the drycleaning 20 facility to be insured meets the following conditions: 21 (1) a site investigation designed to identify soil 22 and groundwater contamination resulting from the release 23 of a drycleaning solvent has been completed. The Council 24 shall determine if the site investigation is adequate. 25 This investigation must be completed by June 30, 2002. 26 For drycleaning facilities that become active after June 27 30, 2002, the site investigation must be completed prior 28 to issuance of insurance coverage; and 29 (2) the drycleaning facility is participating in 30 and meets all requirements of a drycleaning compliance 31 program approved by the Council. 32 (e) The annual premium for insurance coverage shall be: 33 (1) For the initial program year, $250 per 34 drycleaning facility. HB1271 Engrossed -18- LRB9003709DPccC 1 (2) For the year July 1, 1998 through June 30, 2 1999, $375 per drycleaning facility. 3 (3) For the year July 1, 1999 through June 30, 4 2000, $500 per drycleaning facility. 5 (4) For the year July 1, 2000 through June 30, 6 2001, $625 per drycleaning facility. 7 (5) For subsequent years, an owner or operator 8 applying for coverage shall pay an annual 9 actuarially-sound insurance premium for coverage by the 10 insurance account. The Council may approve Fund coverage 11 through the payment of a premium established on an 12 actuarially-sound basis, taking into consideration the 13 risk to the insurance account presented by the insured. 14 Risk factor adjustments utilized to determine 15 actuarially-sound insurance premiums should reflect the 16 range of risk presented by the variety of drycleaning 17 systems, monitoring systems, drycleaning volume, risk 18 management practices, and other factors as determined by 19 the Council. As used in this item, "actuarially sound" is 20 not limited to Fund premium revenue equaling or exceeding 21 Fund expenditures for the general drycleaning facility 22 population. Actuarially-determined premiums shall be 23 published at least 180 days prior to the premiums 24 becoming effective. 25 (f) If coverage is purchased for any part of a year, the 26 purchaser shall pay the full annual premium. The insurance 27 premium is fully earned upon issuance of the insurance 28 policy. 29 (g) The insurance coverage shall be provided with a 30 $10,000 deductible policy. 31 (h) A future repeal of this Section shall not terminate 32 the obligations under this Section or authority necessary to 33 administer the obligations until the obligations are 34 satisfied, including but not limited to the payment of claims HB1271 Engrossed -19- LRB9003709DPccC 1 filed prior to the effective date of any future repeal 2 against the insurance account until moneys in the account are 3 exhausted. Upon exhaustion of the moneys in the account, any 4 remaining claims shall be invalid. If moneys remain in the 5 account following satisfaction of the obligations under this 6 Section, the remaining moneys and moneys due the account 7 shall be used to assist current insureds to obtain a viable 8 insuring mechanism as determined by the Council after public 9 notice and opportunity for comment. 10 Section 50. Cost recovery; enforcement. 11 (a) The Council may seek recovery from a potentially 12 responsible party liable for a release that is the subject of 13 a remedial action and for which the Fund has expended moneys 14 for remedial action. The amount of recovery sought by the 15 Council shall be equal to all moneys expended by the Fund for 16 and in connection with the remediation, including but not 17 limited to reasonable attorneys fees and costs of litigation 18 expended by the Fund in connection with the release. 19 (b) Except as provided in subsections (c) and (d): 20 (1) The Council shall not seek recovery for 21 expenses in connection with remedial action for a release 22 from a claimant eligible for reimbursement except for any 23 unpaid portion of the deductible. 24 (2) A claimant's liability for a release for which 25 coverage is admitted under the insurance account shall 26 not exceed the amount of the deductible, subject to the 27 limits of insurance coverage. 28 (c) Notwithstanding subsection (b), the liability of a 29 claimant to the Fund shall be the total costs of remedial 30 action incurred by the Fund, as specified in subsection (a), 31 if the claimant has not complied with the Environmental 32 Protection Act and its rules or with this Act and its rules. 33 (d) Notwithstanding subsection (b), the liability of a HB1271 Engrossed -20- LRB9003709DPccC 1 claimant to the Fund shall be the total costs of remedial 2 action incurred by the Fund, as specified in subsection (a), 3 if the claimant received reimbursement from the Fund through 4 misrepresentation or fraud, and the claimant shall be liable 5 for the amount of the reimbursement. 6 (e) Upon reimbursement by the Fund for remedial action 7 under this Act, the rights of the claimant to recover payment 8 from a potentially responsible party are assumed by the 9 Council to the extent the remedial action was paid by the 10 Fund. A claimant is precluded from receiving double 11 compensation for the same injury. A claimant may elect to 12 permit the Council to pursue the claimant's cause of action 13 for an injury not compensated by the Fund against a 14 potentially responsible party, provided the Attorney General 15 or his or her designee determines the representation would 16 not be a conflict of interest. 17 (f) This Section does not preclude, limit, or in any way 18 affect any of the provisions of or causes of action pursuant 19 to Section 22.2 of the Environmental Protection Act. 20 Section 55. Limitation on actions; admissions. 21 (a) An award or reimbursement made by the Council under 22 this Act shall be the claimant's exclusive method for the 23 recovery of the costs of drycleaning facility remediation. 24 (b) If a person conducts a remedial action activity for 25 a release at a drycleaning facility site, whether or not the 26 person files a claim under this Act, the claim and remedial 27 action activity conducted are not evidence of liability or 28 an admission of liability for any potential or actual 29 environmental pollution or damage. 30 Section 60. Drycleaning facility license. 31 (a) On and after January 1, 1998, no person shall 32 operate a drycleaning facility in this State without a HB1271 Engrossed -21- LRB9003709DPccC 1 license issued by the Council. 2 (b) The Council shall issue a license to a drycleaning 3 facility on submission by an applicant of a completed form 4 prescribed by the Council and payment of the required fee. 5 (c) The annual fees for licensure are as follows: 6 (1) $500 for a facility that purchases 140 gallons 7 or less of chlorine-based drycleaning solvents annually 8 or 1400 gallons or less of hydrocarbon-based drycleaning 9 solvents annually. 10 (2) $1,000 for a facility that purchases more than 11 140 gallons but less than 360 gallons of chlorine-based 12 drycleaning solvents annually or more than 1400 gallons 13 but less than 3600 gallons of hydrocarbon-based 14 drycleaning solvents annually. 15 (3) $1,500 for a facility that purchases 360 16 gallons or more of chlorine-based drycleaning solvents 17 annually or 3600 gallons or more of hydrocarbon-based 18 drycleaning solvents annually. 19 For purpose of this subsection, the quantity of 20 drycleaning solvents purchased annually shall be determined 21 as follows: 22 (1) in the case of an initial applicant, the 23 quantity of drycleaning solvents that the applicant 24 estimates will be used during his or her initial license 25 year. A fee assessed under this subdivision is subject to 26 audited adjustment for that year; or 27 (2) in the case of a renewal applicant, the 28 quantity of drycleaning solvents actually used in the 29 preceding license year. 30 The Council may adjust licensing fees annually based on 31 the published Consumer Price Index - All Urban Consumers 32 ("CPI-U") or as otherwise determined by the Council. 33 (d) A license issued under this Section shall expire one 34 year after the date of issuance and may be renewed on HB1271 Engrossed -22- LRB9003709DPccC 1 reapplication to the Council and payment of the appropriate 2 fee in accordance with subsection (c). At least 30 days 3 before payment of a renewal licensing fee is due, the Council 4 shall attempt to: 5 (1) notify the operator of each licensed 6 drycleaning facility concerning the requirements of this 7 Section; and 8 (2) submit a license fee payment form to the 9 licensed operator of each drycleaning facility. 10 (e) An applicant for a license under this Section shall 11 complete an application form prescribed by the Council and 12 shall pay the required fee, as determined under subsection 13 (c). 14 (f) The Council shall provide a receipt to each operator 15 who pays a license fee. The receipt or a copy of the receipt 16 must be produced for inspection at the request of an 17 authorized representative of the Council. 18 (g) An operator of a dry cleaning facility who is 19 required to pay a license fee under this Act and fails to pay 20 the license fee when the fee is due shall be assessed a 21 penalty of $5 for each day after the license fee is due and 22 until the license fee is paid. 23 (h) The Council may adopt rules as necessary to 24 administer the licensing requirements of this Act. 25 Section 65. Drycleaning solvent fee. 26 (a) On and after January 1, 1998, there is imposed upon 27 a seller or transferor of drycleaning solvent to a person 28 operating a drycleaning facility a fee on the sale or 29 transfer of the drycleaning solvent that is acquired for use 30 in a drycleaning facility. The fee imposed on the drycleaning 31 solvent shall be $3.50 per gallon of perchloroethylene or 32 other chlorinated drycleaning solvents used in drycleaning 33 operations and $.35 per gallon of petroleum-based HB1271 Engrossed -23- LRB9003709DPccC 1 drycleaning solvent. The Council shall have authority to 2 determine what products are chlorine-based solvents and 3 petroleum-based solvents. All drycleaning solvents shall be 4 considered chlorinated solvents unless the Council determines 5 that the solvents are petroleum-based drycleaning solvents 6 subject to the lower fee. The Council shall define 7 "transferor" and "transfer" for purposes of this Section. 8 (b) Drycleaning solvent that is not acquired for use in 9 a drycleaning facility but which is used in a drycleaning 10 facility shall be treated as acquired for use, and the fee 11 shall be due, when it is first used. 12 (c) If, in connection with the acquisition of the 13 drycleaning solvent, the operator did not receive a bill or 14 invoice showing the amount of the fee imposed on the sale or 15 transfer to the operator, the fee must be paid to the 16 Department of Revenue by the processor of the drycleaning 17 solvent. 18 (d) No fee shall be imposed under this Section on the 19 sale or transfer of drycleaning solvent if, prior to the sale 20 or transfer, the purchaser or transferee and the seller or 21 transferor certify that: 22 (1) the drycleaning solvent will not be used in a 23 drycleaning facility; 24 (2) the purchaser or transferee does not operate a 25 drycleaning facility; or 26 (3) a floor stock fee has been imposed on the 27 drycleaning solvent. 28 A person who provides a false certification under this 29 subsection shall be liable for a civil penalty not to exceed 30 $500 for a first violation and a civil penalty not to exceed 31 $5,000 for a second or subsequent violation. 32 (e) On January 1, 1998, there is imposed on each 33 operator of a drycleaning facility a fee on drycleaning 34 solvent held by the operator on that date for use in a HB1271 Engrossed -24- LRB9003709DPccC 1 drycleaning facility. The fee imposed shall be the fee that 2 would have been imposed under subsection (a) if the 3 drycleaning solvent held by the operator on that date had 4 been sold or transferred to the operator during the first 5 year of this Act. 6 (f) The fees imposed by this Section in any calendar 7 quarter shall be due and payable on the 25th day of the 1st 8 month following the end of the calendar quarter. The fee on 9 drycleaning solvents used in drycleaning facilities and the 10 floor stock fee shall be reported on forms provided by the 11 Department of Revenue. 12 (g) The fee on drycleaning solvents used in drycleaning 13 facilities and the floor stock fee shall be administered by 14 the Department of Revenue under rules developed by that 15 Department. 16 (h) A person who violates a provision of this Section is 17 subject to appropriate penalty provisions of the Uniform 18 Penalty and Interest Act. 19 (i) On and after January 1, 1998, no person shall 20 knowingly sell or transfer drycleaning solvent to an operator 21 of a drycleaning facility that is not licensed by the Council 22 under Section 60. A person who violates this subsection is 23 liable for a civil penalty not to exceed $500 for a first 24 violation and a civil penalty not to exceed $5,000 for a 25 second or subsequent violation. 26 (j) The Department of Revenue may adopt rules as 27 necessary to implement this Section. 28 Section 70. Deposit of fees. Licensing fees collected by 29 the Council under Section 60 shall be deposited into the 30 Fund. Fees on drycleaning solvents used in drycleaning 31 facilities and the floor stocks fees collected by the 32 Department of Revenue under Section 65 shall be deposited 33 into the Fund. HB1271 Engrossed -25- LRB9003709DPccC 1 Section 75. Adjustment of fees. Beginning January 1, 2 1999, and annually after that date, the Council shall adjust 3 the copayment obligation of subsection (e) of Section 40, the 4 drycleaning solvent fees of Section 65, the license fees of 5 Section 60, or any combination of adjustment of each, after 6 notice and opportunity for public comment, in a manner 7 determined necessary and appropriate to ensure viability of 8 the Fund. Viability of the Fund shall consider the 9 settlement of all current claims subject to prioritization of 10 benefits under subsection (c) of Section 25, consistent with 11 the purposes of this Act. 12 Section 80. Repeal of fee provisions. Sections 60 and 65 13 of this Act are repealed on July 1, 2007. 14 Section 150. The State Finance Act is amended by adding 15 Section 5.449 as follows: 16 (30 ILCS 105/5.449 new) 17 Sec. 5.449. The Drycleaner Environmental Response Trust 18 Fund. 19 Section 200. The Illinois Insurance Code is amended by 20 adding Section 2.5 as follows: 21 (215 ILCS 5/2.5 new) 22 Sec. 2.5. Exemption. This Code shall not be construed to 23 apply to the administration of the Drycleaner Environmental 24 Response Trust Fund under the Drycleaner Environmental 25 Response Trust Fund Act. 26 Section 999. Effective date. This Act takes effect upon 27 becoming law.
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