Illinois General Assembly - Full Text of HB3549
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Full Text of HB3549  93rd General Assembly

HB3549 93rd General Assembly


093_HB3549

 
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 1        AN ACT concerning environment protection.

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

 4        Section 5.    The Environmental Protection Act is amended
 5    by adding Title XVIII as follows:

 6        (415 ILCS 5/Title XVIII heading new)
 7          TITLE XVIII: BENEFICIAL USE DETERMINATION PROGRAM

 8        (415 ILCS 5/59 new)
 9        Sec. 59.  Intent and purpose.
10        (a)  It is the intent of this Title:
11             (1)  To   encourage   the   beneficial   use  in  an
12        environmentally sound manner of  certain  materials  that
13        would otherwise be managed or discarded as waste.
14             (2)  To establish procedures for determining whether
15        a  material  no  longer  used for its originally intended
16        purpose:
17                  (i)  is  being   discarded,   and   should   be
18             considered a waste; or
19                  (ii)  is  being  beneficially  used, and should
20             not be considered a waste.
21             (3)  To assure that a material no  longer  used  for
22        its  originally  intended purpose is managed or discarded
23        in accordance with applicable State and federal laws  and
24        regulations.
25        (b)  If  any  provision  of this Title conflicts with any
26    federal law, the  federal  law  takes  precedence  over  such
27    provision.

28        (415 ILCS 5/59.1 new)
29        Sec.   59.1.    Applicability.   This  Title  applies  to
 
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 1    materials that, absent a beneficial use determination by  the
 2    Agency  under  this  Title,  would  be considered waste.  Any
 3    generator or proposed user may use the procedures under  this
 4    Title  to  request  a  beneficial  use determination from the
 5    Agency for a specific material and process being conducted at
 6    a specifically identified  facility.   The  procedures  under
 7    this  Title,  however,  do  not apply to any of the following
 8    materials:
 9             (1)  Clean  construction  or  demolition  debris  as
10        defined in Section 3.160;
11             (2)  Coal combustion waste  as  defined  in  Section
12        3.140;
13             (3)  Coal   combustion  by-products  as  defined  in
14        Section 3.135;
15             (4)  Potentially infectious medical waste as defined
16        in Section 3.360;
17             (5)  Landscape waste as defined in Section 3.270;
18             (6)  Used oil as defined in Section 3.520;
19             (7)  Solid or dissolved material in domestic sewage;
20             (8)  Solid  or  dissolved  materials  in  irrigation
21        return flows;
22             (9)  Industrial discharges that  are  point  sources
23        subject  to  permits under Section 402 of the Clean Water
24        Act;
25             (10)  Source,  special   nuclear,   or   by-products
26        materials as defined by the Atomic Energy Act;
27             (11)  Solid  or dissolved material from any facility
28        subject  to  the  federal  Surface  Mining  Control   and
29        Reclamations   Act   of  1977  or  rules  or  regulations
30        thereunder or any law or regulations adopted by the State
31        of Illinois pursuant thereto;
32             (12)  Any hazardous  waste  as  defined  in  Section
33        3.220;
34             (13)  Any waste regulated under the Toxic Substances
 
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 1        Control Act (P.L. 94-469), as amended; or
 2             (14)  Any material to be burned or incinerated.

 3        (415 ILCS 5/59.2 new)
 4        Sec.   59.2.    Program.   The  General  Assembly  hereby
 5    establishes a Beneficial  Use  Determination  Program  to  be
 6    administered  by the Illinois Environmental Protection Agency
 7    under this Title XVIII and in accordance with  rules  adopted
 8    by the Illinois Pollution Control Board.

 9        (415 ILCS 5/59.3 new)
10        Sec. 59.3.  Review and approval.
11        (a)  Application    requirements.    All   requests   for
12    determinations that are submitted under this  Title  must  be
13    submitted  in  writing  for  review or approval in accordance
14    with this Section and rules adopted under Section  59.8.  The
15    request  must be on application forms prescribed and provided
16    by the Agency.
17        (b)  Content  of  application.    At   a   minimum,   the
18    application must include the following:
19             (1)  A  demonstration that the material proposed for
20        the program is not a hazardous waste;
21             (2)  A description of the material and its  proposed
22        use;
23             (3)  The  physical and chemical characteristics, and
24        the organic and inorganic compounds,  that  comprise  the
25        material,  or  a  representative sample of such material,
26        and will comprise each proposed product;
27             (4)  A description  of  the  expected  physical  and
28        chemical   characteristics,   including  volume,  of  any
29        leachate or runoff  from  the  proposed  process  if  the
30        material will be applied to the land;
31             (5)  An  application  fee in accordance with Section
32        59.4 for each determination that is requested;
 
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 1             (6)  A  demonstration  that  there  is  a  known  or
 2        expected market for the  intended  use  of  the  material
 3        under   review  and  all  of  the  proposed  products  by
 4        providing one or more of the following:
 5                  (A)  A contract, letter  of  intent,  or  other
 6             written  agreement  to purchase the proposed product
 7             or to have the material under  review  used  in  the
 8             manner proposed;
 9                  (B)  A  description of how the proposed product
10             will be used;
11                  (C)  A demonstration that the proposed  product
12             complies  with industry standards and specifications
13             for that product; or
14                  (D)  Other documentation demonstrating  that  a
15             market exists for the proposed product or use, which
16             shall include submittal of documentation pursuant to
17             subparagraph (A); and
18             (7)  A  demonstration  that  the  management  of the
19        material under review will  not  adversely  affect  human
20        health  and  safety  or  the  environment  by providing a
21        control plan that includes, at a minimum, the following:
22                  (A)  The source of the material  under  review,
23             including    contractual   arrangements   with   the
24             supplier;
25                  (B)  Procedures for  periodic  testing  of  the
26             material  under  review  and the proposed product to
27             ensure that  the  proposed  material  and  product's
28             composition has not changed significantly;
29                  (C)  The  disposition  of any material that may
30             result from the  manufacture  of  the  product  into
31             which  the  material  under review is intended to be
32             incorporated;
33                  (D)  A description of the type of  storage  and
34             the  maximum  anticipated  inventory of the material
 
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 1             under review before being used;
 2                  (E)  Procedures for run-on and run-off  control
 3             of  the storage areas for the material under review;
 4             and
 5                  (F)  A  plan  and  implementation  schedule  of
 6             management methods designed to minimize uncontrolled
 7             dispersion of the material under review  before  and
 8             during  all  aspects of its storage as inventory and
 9             during beneficial use.
10        (c)  Standard of review.
11             (1)  The Agency shall determine  in  writing,  on  a
12        case-by-case  basis,  whether  a  proposal  constitutes a
13        beneficial use based on  adequate  demonstration  by  the
14        applicant   that   all  of  the  following  criteria  are
15        satisfied:
16                  (A)  That  the  proposed  material   management
17             activity:
18                       (i)  will not cause a release or threat of
19                  release  to the land, air, or water (surface or
20                  ground  water)  that  would  exceed   standards
21                  promulgated by the Board; and
22                       (ii)  will   otherwise   provide  adequate
23                  protection of human health or the environment;
24                  (B)  That a  market  exists  for  the  material
25             under  review or the product into which the material
26             under review is proposed to be incorporated;
27                  (C)  That  the  nature  of  the  proposed   use
28             constitutes a legitimate reuse of the material as an
29             ingredient or raw material rather than disposal;
30                  (D)  That the material under review is intended
31             to  function or serve as an effective substitute for
32             an analogous raw material; and
33                  (E)  That  a  material  that  is  proposed  for
34             incorporation into a manufacturing process does  not
 
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 1             need  to  be  decontaminated  or otherwise specially
 2             handled or processed before  such  incorporation  in
 3             order  to  minimize  loss  of material or to provide
 4             adequate protection of human health or safety or the
 5             environment.
 6             (2)  Except as otherwise provided by  Section  59.5,
 7        any  beneficial use determination granted pursuant to the
 8        provisions of this Title shall be granted  for  a  period
 9        not  to  exceed  5  years.  If  the  applicant  desires a
10        continuation of the beneficial use determination beyond 5
11        years, the applicant must reapply for a new determination
12        90 days before the expiration of the  5-year  period  and
13        must  send  the  Agency the appropriate fee under Section
14        59.4.
15        (d)  Certification.   All  applications   submitted   for
16    review must include a certification by the applicant that all
17    the  information presented is true, accurate, and complete to
18    the best knowledge of the applicant.  Where applications  for
19    a  beneficial use determination include technical information
20    that would require the supervision of a Licensed Professional
21    Engineer or Licensed Professional Geologist, as  appropriate,
22    there must also be a certification by the LPE or the LPG that
23    the  information  compiled  was  prepared  under  his  or her
24    personal supervision and, to the best of his or her knowledge
25    and belief, the information is true, accurate, and complete.
26        (e)  Agency review.
27             (1)  Within 90 days after receipt by the Agency of a
28        request meeting the requirements  of  this  Section,  the
29        Agency  shall  issue a letter to the applicant approving,
30        disapproving, or approving with  conditions  the  request
31        submitted.   The  applicant  may  waive  this deadline in
32        writing.  If a request is disapproved  or  approved  with
33        conditions,  the  Agency's  letter  shall  set  forth the
34        reasons for the disapproval or  conditions.   Any  letter
 
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 1        disapproving  a  request  or  approving  a  request  with
 2        conditions  shall  be  sent   by  certified  mail, return
 3        receipt requested.
 4             (2)  In approving beneficial use determinations, the
 5        Agency  may  impose  such  conditions  as  it  may   deem
 6        necessary to accomplish the purposes of this Act that are
 7        not  inconsistent  with  the  rules  adopted by the Board
 8        under this Title.
 9             (3)  If the Agency disapproves a request or approves
10        a request with conditions, the applicant may,  within  35
11        days  of receipt of the Agency's decision, petition for a
12        hearing before the Board to contest the decision.  If the
13        Agency fails to act within 90 days after the receipt of a
14        request, the request shall be deemed granted  until  such
15        time  as  the  Agency  has taken final action to approve,
16        disapprove,  or  approve  with  conditions  the  request.
17        Appeals to the Board must be in the manner  provided  for
18        the review of permits in Section 40.
19             (4)  The  Agency  may adopt procedural rules, as may
20        be necessary to carry out its duties  under  this  Title,
21        that  are  not inconsistent with the requirements of this
22        Title.

23        (415 ILCS 5/59.4 new)
24        Sec. 59.4.  Fees.  The fee for a review  conducted  under
25    this  Title is in addition to any other fees or payments that
26    are  legally  applicable.   The  fee  for  a  request  for  a
27    beneficial use determination under this Title is  $1,250  for
28    each determination.  The application fee must be made payable
29    to  the State of Illinois, for deposit into the Environmental
30    Protection Permit and Inspection Fund.   All  fees  collected
31    are  non-refundable.  The fee under this Title will not apply
32    to government applicants that have agreed to pay the Agency's
33    costs  to  review  the  application  under   an   independent
 
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 1    agreement.    Pursuant to appropriation, the Agency shall use
 2    the fees collected  under  this  Title  for  development  and
 3    administration of the Beneficial Use Determination Program.

 4        (415 ILCS 5/59.5 new)
 5        Sec.  59.5.   Revocation.  The Agency may seek revocation
 6    from  the  Board  on  a  beneficial  use   determination   in
 7    accordance  with procedures adopted pursuant to Section 59.8.
 8    Either of the following may constitute grounds for revocation
 9    of a beneficial use determination:
10             (1)  demonstration that a determination was made  on
11        the basis of fraud or misrepresentation; or
12             (2)  demonstration that, due to a change in law, the
13        determination  no  longer satisfies the intent or purpose
14        for a beneficial use under this Title.

15        (415 ILCS 5/59.6 new)
16        Sec. 59.6.  Effect of a beneficial use determination.
17        (a)  As  long  as  all  applicable  conditions   of   the
18    beneficial  use determination are complied with, the material
19    or process is not a waste.  If any  applicable  condition  of
20    the  beneficial  use  determination is not complied with, the
21    material or process is a waste.
22        (b)  The effective date of a beneficial use determination
23    is the date of issuance, will be prospective only,  and  will
24    be  for  a  period  of 5 years unless otherwise stated in the
25    determination.

26        (415 ILCS 5/59.7 new)
27        Sec.  59.7.   Beneficial   Use   Determination   Advisory
28    Committee.
29        (a)  There  is  hereby established a 10-member Beneficial
30    Use  Determination  Advisory  Committee,   which   shall   be
31    appointed by the Governor within 6 months after the effective
 
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 1    date  of  this  Title. The Committee shall include one member
 2    recommended by the Illinois State Chamber  of  Commerce,  one
 3    member    recommended    by   the   Illinois   Manufacturers'
 4    Association,  one  member  recommended  by   the   Consulting
 5    Engineers  Council,  one  member  recommended by the National
 6    Solid Waste Management Association, one member recommended by
 7    the  Illinois  Recycling  Association,  one  member  from  an
 8    environmental  advocacy  group,  one  member  from  a  public
 9    interest community organization, one member from a  community
10    development   corporation,   one  member  from  the  Illinois
11    Department of Natural Resources,  and  one  member  from  the
12    Illinois   Department  of  Commerce  and  Community  Affairs.
13    Members shall serve without compensation.
14        (b)  The  Committee  shall  review,  evaluate,  and  make
15    recommendations regarding proposed rules to be adopted  under
16    Section 59.8. The Committee shall terminate its functions not
17    more than 24 months after the effective date of this Title.

18        (415 ILCS 5/59.8 new)
19        Sec. 59.8.  Board rules.
20        (a)  Within  12  months  after the effective date of this
21    Title, the Agency, after consideration of the recommendations
22    of the Committee, shall propose rules prescribing  procedures
23    and  standards  for  administration of this Title.  Within 12
24    months after receipt of  the  Agency's  proposed  rules,  the
25    Board shall adopt, pursuant to Sections 27 and 28, rules that
26    are consistent with this Title.
27        (b)  Prior  to  the  effective  date of the rules adopted
28    under this Section,  the  Agency  is  authorized  to  conduct
29    reviews   of   and   make   determinations  relative  to  the
30    applications under this Title.  The Agency is  authorized  to
31    prepare  and  distribute  guidance  documents relative to its
32    administration of this Title.   Guidance  documents  prepared
33    under  this  Title shall not be considered rules for purposes
 
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 1    of the Illinois Administrative Procedure Act.

 2        (415 ILCS 5/59.9 new)
 3        Sec. 59.9.  Severability.
 4        The provisions of this Title XVIII  are  severable  under
 5    Section 1.31 of the Statute on Statutes.

 6        Section 99.  Effective Date.  This Act takes effect takes
 7    effect upon becoming law.