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Public Act 094-0314


 

Public Act 0314 94TH GENERAL ASSEMBLY


 


 
Public Act 094-0314
 
SB0241 Enrolled LRB094 07834 RSP 38014 b

    AN ACT concerning safety.
 
    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 Section 58.8 and by adding Sections 22.2d, 22.50, and
Title VI-D as follows:
 
    (415 ILCS 5/22.2d new)
    Sec. 22.2d. Authority of Director to issue orders.
    (a) The purpose of this Section is to allow the Director to
quickly and effectively respond to a release or substantial
threat of a release of a hazardous substance, pesticide, or
petroleum for which the Agency is required to give notice under
Section 25d-3(a) of this Act by authorizing the Director to
issue orders, unilaterally or on consent, requiring
appropriate response actions and by providing for the exclusive
administrative and judicial review of these orders. This
Section is also intended to allow persons subject to an order
under this Section to recover the costs of complying with the
order if it is overturned or if they remediate the share of a
release or threat of a release for which a bankrupt or
insolvent party is liable under this Act.
    (b) In addition to any other action taken by federal,
State, or local government, for any release or substantial
threat of release for which the Agency is required to give
notice under Section 25d-3(a) of this Act, the Director may
issue to any person who is potentially liable under this Act
for the release or substantial threat of release any order that
may be necessary to protect the public health and welfare and
the environment.
        (1) Any order issued under this Section shall require
    response actions consistent with the federal regulations
    and amendments thereto promulgated by the United States
    Environmental Protection Agency to implement Section 105
    of CERCLA, as amended, except that the remediation
    objectives for response actions ordered under this Section
    shall be determined in accordance with the risk-based
    remediation objectives adopted by the Board under Title
    XVII of this Act.
        (2) Before the Director issues any order under this
    Section, the Agency shall send a Special Notice Letter to
    all persons identified by the Agency as potentially liable
    under this Act for the release or threat of release. This
    Special Notice Letter to the recipients shall include at a
    minimum the following information:
            (A) that the Agency believes the recipient may be
        liable under the Act for responding to the release or
        threat of a release;
            (B) the reasons why the Agency believes the
        recipient may be liable under the Act for the release
        or threat of a release; and
            (C) the period of time, not less than 30 days from
        the date of issuance of the Special Notice Letter,
        during which the Agency is ready to negotiate with the
        recipient regarding their response to the release or
        threat of a release.
        (3) To encourage the prompt negotiation of a settlement
    agreement or an order on consent with a recipient of a
    Special Notice Letter required under this Section, the
    Director shall not issue any unilateral order under this
    Section to the recipient during the 30 days immediately
    following the date of issuance of the Special Notice
    Letter.
    (c) (1) The recipient of a unilateral order issued by the
Director under this Section may petition the Board for a
hearing on the order within 35 days after being served with the
order. The Board shall take final action on the petition within
60 days after the date the petition is filed with the Board
unless all parties to the proceeding agree to the extension. If
necessary to expedite the hearing and decision, the Board may
hold special meetings of the Board and may provide for
alternative public notice of the hearing and meeting, other
than as otherwise required by law. In any hearing on the order
the Agency shall have the burden of proof to establish that the
petitioner is liable under this Act for the release or threat
of release and that the actions required by the order are
consistent with the requirements of subsection (b)(1) of this
Section. The Board shall sustain the order if the petitioner is
liable under this Act for the release or threat of release and
to the extent the actions ordered are consistent with the
requirements of subsection (b)(1) of this Section and are not
otherwise unreasonable under the circumstances.
        (A) The order issued by the Agency shall remain in full
    force and effect pending the Board's final action on the
    petition for review of the order, provided that the Board
    may grant a stay of all or a portion of the order if it
    finds that (i) there is a substantial likelihood that the
    petitioner is not liable under this Act for the release or
    threat of release or (ii) there is a substantial likelihood
    that the actions required by the order are not consistent
    with the requirements of subsection (b)(1) of this Section
    and that the harm to the public from a stay of the order
    will be outweighed by the harm to the petitioner if a stay
    is not granted. Any stay granted by the Board under this
    subsection (c)(1)(A) shall expire upon the Board's
    issuance of its final action on the petition for review of
    the order.
        (B) If the Board finds that the petitioner is not
    liable under this Act for the release or threat of release
    it may authorize the payment of (i) all reasonable response
    costs incurred by the petitioner to comply with the order
    if it finds the petitioner's actions were consistent with
    the requirements of subsection (b)(1) of this Section and
    (ii) the petitioner's reasonable and appropriate costs,
    fees, and expenses incurred in petitioning the Board for
    review of the order, including, but not limited to,
    reasonable attorneys' fees and expenses.
    (2) Any party to a Board hearing under this subsection (c)
may obtain judicial review, by filing a petition for review
within 35 days from the date that a copy of the Board's final
action sought to be reviewed was served upon the party affected
by the final Board action complained of, under the provisions
of the Administrative Review Law and the rules adopted pursuant
thereto, except that the review shall be afforded in the
appellate court for the district in which the cause of action
arose and not in the circuit court. The appellate court shall
retain jurisdiction during the pendency of any further action
conducted by the Board under an order by the appellate court.
The appellate court shall have jurisdiction to review all
issues of law and fact presented upon appeal.
        (A) The order issued by the Agency shall remain in full
    force and effect pending the appellate court's ruling on
    the order, provided that the appellate court may grant a
    stay of all or a portion of the order if it finds that (i)
    there is a substantial likelihood that the petitioner is
    not liable under this Act for the release or threat of
    release or (ii) there is a substantial likelihood that the
    actions required by the order are not consistent with the
    requirements of subsection (b)(1) of this Section and that
    the harm to the public from a stay of the order will be
    outweighed by the harm to the petitioner if a stay is not
    granted. Any stay granted by the appellate court under this
    subsection (c)(2)(A) shall expire upon the issuance of the
    appellate court's ruling on the appeal of the Board's final
    action.
        (B) If the appellate court finds that the petitioner is
    not liable under this Act for the release or threat of
    release it may authorize the payment of (i) all reasonable
    response costs incurred by the petitioner to comply with
    the order if it finds that the petitioner's actions were
    consistent with the requirements of subsection (b)(1) of
    this Section and (ii) the petitioner's reasonable and
    appropriate costs, fees, and expenses incurred in
    petitioning the Appellate Court for review of the order,
    including, but not limited to, reasonable attorneys' fees
    and expenses.
    (d) Any person who receives and complies with the terms of
any order issued under this Section may, within 60 days after
completion of the required action, petition the Director for
reimbursement for the reasonable costs of that action, plus
interest, subject to all of the following terms and conditions:
        (1) The interest payable under this subsection accrues
    on the amounts expended from the date of expenditure to the
    date of payment of reimbursement at the rate set forth in
    Section 3-2 of the Uniform Penalty and Interest Act.
        (2) If the Director refuses to grant all or part of a
    petition made under this subsection, the petitioner may,
    within 35 days after receipt of the refusal, file a
    petition with the Board seeking reimbursement.
        (3) To obtain reimbursement, the petitioner must
    establish, by a preponderance of the evidence, that:
            (A) the only costs for which the petitioner seeks
        reimbursement are costs incurred by the petitioner in
        remediating the share of a release or threat of a
        release for which a bankrupt or insolvent party is
        liable under this Act, the costs of the share are a
        fair and accurate apportionment among the persons
        potentially liable under this Act for the release or
        threat of a release, and the bankrupt or insolvent
        party failed to pay the costs of the share; and
            (B) the petitioner's response actions were
        consistent with the federal regulations and amendments
        thereto promulgated by the Administrator of the United
        States Environmental Protection Agency to implement
        Section 105 of CERCLA, as amended, except that the
        remediation objectives for response actions shall be
        determined in accordance with the risk-based
        remediation objectives adopted by the Board under
        Title XVII of this Act; and
            (C) the costs for which the petitioner seeks
        reimbursement are reasonable in light of the action
        required by the relevant order.
        (4) Reimbursement awarded by the Board under item (3)
    of subsection (d) may include appropriate costs, fees, and
    other expenses incurred in petitioning the Director or
    Board for reimbursement under subsection (d), including,
    but not limited to, reasonable fees and expenses of
    attorneys.
        (5) Costs paid to a petitioner under a policy of
    insurance, another written agreement, or a court order are
    not eligible for payment under this subsection (d). A
    petitioner who receives payment under a policy of
    insurance, another written agreement, or a court order
    shall reimburse the State to the extent that such payment
    covers costs for which payment was received under this
    subsection (d). Any monies received by the State under this
    item (5) shall be deposited into the Hazardous Waste Fund.
    (e) Except as otherwise provided in subsection (c) of this
Section, no court nor the Board has jurisdiction to review any
order issued under this Section or any administrative or
judicial action related to the order.
    (f) Except as provided in subsection (g) of this Section,
any person may seek contribution from any other person who is
liable for the costs of response actions under this Section. In
resolving contribution claims, the Board or court may allocate
response costs among liable parties using such equitable
factors as the court determines are appropriate.
    (g) A person who has complied with an order under this
Section and has resolved their liability under this Act with
respect to the release or threat of a release shall not be
liable for claims for contribution relating to the release or
threat of a release.
    (h) The provisions of Section 58.9 of this Act do not apply
to any action taken under this Section.
    (i) This Section does not apply to releases or threats of
releases from underground storage tanks subject to Title XVI of
this Act. Orders issued by the Agency in response to such
releases or threats of releases shall be issued under Section
57.12(d) of this Act instead of this Section, and the costs of
complying with said orders shall be reimbursed in accordance
with Title XVI of this Act instead of this Section.
    (j) Any person who, without sufficient cause, willfully
violates or fails or refuses to comply with any order issued
under this Section is in violation of this Act.
    (k) The Agency may adopt rules as necessary for the
implementation of this Section.
 
    (415 ILCS 5/22.50 new)
    Sec. 22.50. Compliance with land use limitations. No
person shall use, or cause or allow the use of, any site for
which a land use limitation has been imposed under this Act in
a manner inconsistent with the land use limitation unless
further investigation or remedial action has been conducted
that documents the attainment of remedial objectives
appropriate for the new land use and a new closure letter has
been obtained from the Agency and recorded in the chain of
title for the site. For the purpose of this Section, the term
"land use limitation" shall include, but shall not be limited
to, institutional controls and engineered barriers imposed
under this Act and the regulations adopted under this Act. For
the purposes of this Section, the term "closure letter" shall
include, but shall not be limited to, No Further Remediation
Letters issued under Titles XVI and XVII of this Act and the
regulations adopted under those Titles.
 
    (415 ILCS 5/Title VI-D heading new)
TITLE VI-D. RIGHT-TO-KNOW

 
    (415 ILCS 5/25d-1 new)
    Sec. 25d-1. Definitions. For the purposes of this Title,
the terms "community water system", "non-community water
system", "potable", "private water system", and "semi-private
water system" have the meanings ascribed to them in the
Illinois Groundwater Protection Act.
 
    (415 ILCS 5/25d-2 new)
    Sec. 25d-2. Contaminant evaluation. The Agency shall
evaluate releases of contaminants whenever it determines that
the extent of soil or groundwater contamination may extend
beyond the boundary of the site where the release occurred. The
Agency shall take appropriate actions in response to the
release, which may include, but shall not be limited to, public
notices, investigations, administrative orders under Sections
22.2d or 57.12(d) of this Act, and enforcement referrals.
Except as provided in Section 25d-3 of this Act, for releases
undergoing investigation or remediation under Agency oversight
the Agency may determine that no further action is necessary to
comply with this Section.
 
    (415 ILCS 5/25d-3 new)
    Sec. 25d-3. Notices.
    (a) Beginning January 1, 2006, if the Agency determines
that:
        (1) Soil contamination beyond the boundary of the site
    where the release occurred poses a threat of exposure to
    the public above the appropriate Tier 1 remediation
    objectives, based on the current use of the off-site
    property, adopted by the Board under Title XVII of this
    Act, the Agency shall give notice of the threat to the
    owner of the contaminated property; or
        (2) Groundwater contamination poses a threat of
    exposure to the public above the Class I groundwater
    quality standards adopted by the Board under this Act and
    the Groundwater Protection Act, the Agency shall give
    notice of the threat to the following:
        (A) for any private, semi-private, or non-community
        water system, the owners of the properties served by
        the system; and
        (B) for any community water system, the owners and
        operators of the system.
The Agency's determination must be based on the credible,
scientific information available to it, and the Agency is not
required to perform additional investigations or studies
beyond those required by applicable federal or State laws.
    (b) Beginning January 1, 2006, if any of the following
actions occur: (i) the Agency refers a matter for enforcement
under Section 43(a) of this Act; (ii) the Agency issues a seal
order under Section 34(a) of this Act; or (iii) the Agency, the
United States Environmental Protection Agency (USEPA), or a
third party under Agency or USEPA oversight performs an
immediate removal under the federal Comprehensive
Environmental Response, Compensation, and Liability Act, as
amended, then, within 60 days after the action, the Agency must
give notice of the action to the owners of all property within
2,500 feet of the subject contamination or any closer or
farther distance that the Agency deems appropriate under the
circumstances. Within 30 days after a request by the Agency,
the appropriate officials of the county in which the property
is located must provide to the Agency the names and addresses
of all property owners to whom the Agency is required to give
notice under this subsection (b), these owners being the
persons or entities that appear from the authentic tax records
of the county.
    (c) The methods by which the Agency gives the notices
required under this Section shall be determined in consultation
with members of the public and appropriate members of the
regulated community and may include, but shall not be limited
to, personal notification, public meetings, signs, electronic
notification, and print media. For sites at which a responsible
party has implemented a community relations plan, the Agency
may allow the responsible party to provide Agency-approved
notices in lieu of the notices required to be given by the
Agency. Notices issued under this Section may contain the
following information:
        (1) the name and address of the site or facility where
    the release occurred or is suspected to have occurred;
        (2) the identification of the contaminant released or
    suspected to have been released;
        (3) information as to whether the contaminant was
    released or suspected to have been released into the air,
    land, or water;
        (4) a brief description of the potential adverse health
    effects posed by the contaminant;
        (5) a recommendation that water systems with wells
    impacted or potentially impacted by the contaminant be
    appropriately tested; and
        (6) the name, business address, and phone number of
    persons at the Agency from whom additional information
    about the release or suspected release can be obtained.
    (d) Any person who is a responsible party with respect to
the release or substantial threat of release for which notice
is given under this Section is liable for all reasonable costs
incurred by the State in giving the notice. All moneys received
by the State under this subsection (d) for costs related to
releases and substantial threats of releases of hazardous
substances, pesticides, and petroleum other than releases and
substantial threats of releases of petroleum from underground
storage tanks subject to Title XVI of this Act must be
deposited in and used for purposes consistent with the
Hazardous Waste Fund. All moneys received by the State under
this subsection (d) for costs related to releases and
substantial threats of releases of petroleum from underground
storage tanks subject to Title XVI of this Act must be
deposited in and used for purposes consistent with the
Underground Storage Tank Fund.
 
    (415 ILCS 5/25d-4 new)
    Sec. 25d-4. Agency authority. Whenever the Agency
determines that a public notice should be issued under this
Title, the Agency has the authority to issue an information
demand letter to the owner or operator of the site or facility
where the release occurred or is suspected to have occurred
that requires the owner or operator to provide the Agency with
the information necessary, to the extent practicable, to give
the notices required under Section 25d-3 of this Title. In the
case of a release or suspected release from an underground
storage tank subject to Title XVI of this Act, the Agency has
the authority to issue such a letter to the owner or operator
of the underground storage tank. Within 30 days after the
issuance of a letter under this Section, or within a greater
period specified by the Agency, the person who receives the
letter shall provide the Agency with the required information.
Any person who, without sufficient cause, willfully violates,
or fails or refuses to comply with, any letter issued under
this Section is in violation of this Act.
 
    (415 ILCS 5/25d-5 new)
    Sec. 25d-5. Contamination information. Beginning July 1,
2006, the Agency shall make all of the following information
available on the Internet:
        (i) Copies of all notifications given under Section
    25d-3 of this Section. The copies must be indexed and the
    index shall, at a minimum, be searchable by notification
    date, zip code, site or facility name, and geographic
    location.
        (ii) Appropriate Agency databases containing
    information about releases or suspected releases of
    contaminants in the State. The databases must, at a
    minimum, be searchable by notification date, zip code, site
    or facility name, and geographic location.
        (iii) Links to appropriate USEPA databases containing
    information about releases or suspected releases of
    contaminants in the State.
 
    (415 ILCS 5/25d-6 new)
    Sec. 25d-6. Agency coordination. Beginning January 1,
2006, the Agency shall coordinate with the Department of Public
Health to provide training to regional and local health
department staff on the use of the information posted on the
Internet under Section 25d-5 of this Title. Also beginning
January 1, 2006, the Agency shall coordinate with the
Department of Public Health to provide training to licensed
water well drillers on the use of the information posted on the
Internet under Section 25d-5 of this Title in relation to the
location and installation of new wells serving private,
semi-private, and non-community water systems.
 
    (415 ILCS 5/25d-7 new)
    Sec. 25d-7. Rulemaking.
    (a) Within 180 days after the effective date of this
amendatory Act of the 94th General Assembly, the Agency shall
evaluate the Board's rules and propose amendments to the rules
as necessary to require potable water supply well surveys and
community relations activities where such surveys and
activities are appropriate in response to releases of
contaminants that have impacted or that may impact offsite
potable water supply wells. Within 240 days after receiving the
Agency's proposal, the Board shall amend its rules as necessary
to require potable water supply well surveys and community
relations activities where such surveys and activities are
appropriate in response to releases of contaminants that have
impacted or that may impact offsite potable water supply wells.
Community relations activities required by the Board shall
include, but shall not be limited to, submitting a community
relations plan for Agency approval, maintaining a public
information repository that contains timely information about
the actions being taken in response to a release, and
maintaining dialogue with the community through means such as
public meetings, fact sheets, and community advisory groups.
    (b) The Agency shall adopt rules setting forth costs for
which persons may be liable to the State under Section 25d-3(d)
of this Act. In addition, the Agency shall have the authority
to adopt other rules as necessary for the administration of
this Title.
 
    (415 ILCS 5/25d-8 new)
    Sec. 25d-8. Liability. Except for willful and wanton
misconduct, neither the State, the Director, nor any State
employee shall be liable for any damages or injuries arising
out of or resulting from any act or omission occurring under
this amendatory Act of the 94th General Assembly.
 
    (415 ILCS 5/25d-9 new)
    Sec. 25d-9. Admissibility. The Agency's giving of notice or
failure to give notice under Section 25d-3 of this Title shall
not be admissible for any purpose in any administrative or
judicial proceeding.
 
    (415 ILCS 5/25d-10 new)
    Sec. 25d-10. Avoiding duplication. The Agency shall take
whatever steps it deems necessary to eliminate the potential
for duplicative notices required by this Title and Section 9.1
of the Illinois Groundwater Protection Act.
 
    (415 ILCS 5/58.8)
    Sec. 58.8. Duty to record.
    (a) The RA receiving a No Further Remediation Letter from
the Agency pursuant to Section 58.10, shall submit the letter
to the Office of the Recorder or the Registrar of Titles of the
county in which the site is located within 45 days of receipt
of the letter. The Office of the Recorder or the Registrar of
Titles shall accept and record that letter in accordance with
Illinois law so that it forms a permanent part of the chain of
title for the site.
    (b) A No Further Remediation Letter shall not become
effective until officially recorded in accordance with
subsection (a) of this Section. The RA shall obtain and submit
to the Agency a certified copy of the No Further Remediation
Letter as recorded.
    (c) (Blank). At no time shall any site for which a land use
limitation has been imposed as a result of remediation
activities under this Title be used in a manner inconsistent
with the land use limitation unless further investigation or
remedial action has been conducted that documents the
attainment of objectives appropriate for the new land use and a
new No Further Remediation Letter obtained and recorded in
accordance with this Title.
    (d) In the event that a No Further Remediation Letter
issues by operation of law pursuant to Section 58.10, the RA
may, for purposes of this Section, file an affidavit stating
that the letter issued by operation of law. Upon receipt of the
No Further Remediation Letter from the Agency, the RA shall
comply with the requirements of subsections (a) and (b) of this
Section.
(Source: P.A. 92-574, eff. 6-26-02.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 07/25/2005