Illinois General Assembly - Full Text of SB1695
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Full Text of SB1695  102nd General Assembly




State of Illinois
2021 and 2022


Introduced 2/26/2021, by Sen. Scott M. Bennett


415 ILCS 5/22.59

    Amends the Environmental Protection Act. Requires insurance to be used as a financial assurance to meet specified criteria. Provides that rules by the Pollution Control Board must specify that any and all contractors, subcontractors, and installers utilized to construct, install, modify, operate, or close a CCR surface impoundment must be participants in specified training programs. Makes other changes. Effective immediately.

LRB102 14988 CPF 20343 b





SB1695LRB102 14988 CPF 20343 b

1    AN ACT concerning safety.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 5. The Environmental Protection Act is amended by
5changing Section 22.59 as follows:
6    (415 ILCS 5/22.59)
7    Sec. 22.59. CCR surface impoundments.
8    (a) The General Assembly finds that:
9        (1) the State of Illinois has a long-standing policy
10    to restore, protect, and enhance the environment,
11    including the purity of the air, land, and waters,
12    including groundwaters, of this State;
13        (2) a clean environment is essential to the growth and
14    well-being of this State;
15        (3) CCR generated by the electric generating industry
16    has caused groundwater contamination and other forms of
17    pollution at active and inactive plants throughout this
18    State;
19        (4) poorly constructed and inadequately maintained CCR
20    surface impoundments have contributed to environmental
21    disasters outside of Illinois;
22        (5) the health effects of exposure to CCR have become
23    the subject of a number of studies;



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1        (6) (4) environmental laws should be supplemented to
2    ensure consistent, responsible regulation of all existing
3    CCR surface impoundments; and
4        (7) (5) meaningful participation of State residents,
5    especially vulnerable populations who may be affected by
6    regulatory actions, is critical to ensure that
7    environmental justice considerations are incorporated in
8    the development of, decision-making related to, and
9    implementation of environmental laws and rulemaking that
10    protects and improves the well-being of communities in
11    this State that bear disproportionate burdens imposed by
12    environmental pollution.
13    Therefore, the purpose of this Section is to promote a
14healthful environment, including clean water, air, and land,
15meaningful public involvement, and the responsible disposal
16and storage of coal combustion residuals, so as to protect
17public health and to prevent pollution of the environment of
18this State.
19    The provisions of this Section shall be liberally
20construed to carry out the purposes of this Section.
21    (b) No person shall:
22        (1) Cause, threaten, cause or allow the release
23    discharge of any contaminants from a CCR surface
24    impoundment into the environment so as to cause air,
25    water, or other pollution in Illinois, either alone or in
26    combination with contaminants from other sources, or so as



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1    to violate , directly or indirectly, a violation of this
2    Act Section or any regulations or standards adopted by the
3    Board under this Act. Section, either alone or in
4    combination with contaminants from other sources;
5        (2) Construct construct, install, modify, operate, or
6    close any CCR surface impoundment without a permit granted
7    by the Agency, or so as to violate any conditions imposed
8    by such permit, any provision of this Act Section or any
9    regulations or standards adopted by the Board under this
10    Act. Section; or
11        (3) (Blank). cause or allow, directly or indirectly,
12    the discharge, deposit, injection, dumping, spilling,
13    leaking, or placing of any CCR upon the land in a place and
14    manner so as to cause or tend to cause a violation this
15    Section or any regulations or standards adopted by the
16    Board under this Section.
17    (c) For purposes of this Section, a permit issued by the
18Administrator of the United States Environmental Protection
19Agency under Section 4005 of the federal Resource Conservation
20and Recovery Act, shall be deemed to be a permit under this
21Section and subsection (y) of Section 39.
22    (d) Before commencing closure of a CCR surface
23impoundment, in accordance with Board rules, the owner of a
24CCR surface impoundment must submit to the Agency for approval
25a closure alternatives analysis that analyzes all closure
26methods being considered and that otherwise satisfies all



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1closure requirements adopted by the Board under this Act.
2Complete removal of CCR, as specified by the Board's rules,
3from the CCR surface impoundment must be considered and
4analyzed. Removal, as that term is defined in Section 3.405 of
5this Act, does not apply to the Board's rules specifying
6complete removal of CCR. The selected closure method must
7ensure compliance with regulations adopted by the Board
8pursuant to this Section.
9    (e) Owners or operators of CCR surface impoundments who
10have submitted a closure plan to the Agency before May 1, 2019,
11and who have completed closure prior to 24 months after July
1230, 2019 (the effective date of Public Act 101-171) this
13amendatory Act of the 101st General Assembly shall not be
14required to obtain a construction permit for the surface
15impoundment closure under this Section.
16    (f) Except for the State, its agencies and institutions, a
17unit of local government, or not-for-profit electric
18cooperative as defined in Section 3.4 of the Electric Supplier
19Act, any person who owns or operates a CCR surface impoundment
20in this State shall post with the Agency a performance bond or
21other security for the purpose of: (i) ensuring closure of the
22CCR surface impoundment and post-closure care in accordance
23with this Act and its rules; and (ii) ensuring insuring
24remediation of releases from the CCR surface impoundment. The
25only acceptable forms of financial assurance are: a trust
26fund, a surety bond guaranteeing payment, a surety bond



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1guaranteeing performance, or an irrevocable letter of credit,
2or insurance that is not self-insurance.
3        (1) The cost estimate for the post-closure care of a
4    CCR surface impoundment shall be calculated using a
5    30-year post-closure care period or such longer period as
6    may be approved by the Agency under Board or federal
7    rules.
8        (2) The Agency is authorized to enter into such
9    contracts and agreements as it may deem necessary to carry
10    out the purposes of this Section. Neither the State, nor
11    the Director, nor any State employee shall be liable for
12    any damages or injuries arising out of or resulting from
13    any action taken under this Section.
14        (3) The Agency shall have the authority to approve or
15    disapprove any performance bond or other security posted
16    under this subsection. Any person whose performance bond
17    or other security is disapproved by the Agency may contest
18    the disapproval as a permit denial appeal pursuant to
19    Section 40.
20        (4) If insurance is used as financial assurance it
21    must meet the following criteria:
22            (A) Insurance may only be used as financial
23        assurance if it is accompanied by:
24                (i) a surety bond or irrevocable letter of
25            credit covering the value of the total cost of
26            premiums over the life of the insurance policy,



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1            plus 50% of that total cost; and
2                (ii) proof of a trust fund that shall receive
3            any forfeited funds from the surety bond or
4            irrevocable letter of credit under subdivision (i)
5            of this subparagraph (A) if the owner or operator
6            fails to pay insurance premiums.
7            (B) The life of the policy shall be the duration of
8        the closure and post-closure period, as well as any
9        period of remediation of release.
10            (C) The policy shall provide that insurance
11        premiums shall be paid no less than 2 years in advance
12        of the due date for that premium, except that the first
13        2 years of premiums shall be paid in bulk as a single
14        payment upon issuance of the policy. The owner or
15        operator of the CCR surface impoundment or the
16        third-party payer shall submit to the Agency proof of
17        payment of each premium within 2 weeks after making
18        payment.
19            (D) The face value amount of the policy for which
20        insurance is serving as financial assurance shall be
21        at least equal to all of the following that apply:
22                (i) the cost estimate for closure, if used as
23            financial assurance for closure;
24                (ii) the cost estimate for post-closure, if
25            used as financial assurance for post-closure; or
26                (iii) the cost estimate for remediation of



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1            releases, if used as financial assurance for
2            remediation of releases.
3            When remediation of a release is required, within
4        60 days after the Agency's approval of the cost
5        estimate for that remediation the policy shall be
6        amended to cover that approved cost estimate or the
7        owner or operator of the CCR surface impoundment shall
8        obtain a separate policy covering the amount of the
9        approved cost estimate.
10            (E) The face value of the policy shall be updated
11        within 90 days after the Agency approves a revised
12        cost estimate. Cost estimates shall be updated:
13                (i) at least annually;
14                (ii) whenever there is a significant
15            modification to an approved plan for closure,
16            post-closure, or remediation of releases; and
17                (iii) upon request by the Agency.
18            (F) The policy shall guarantee that,
19        notwithstanding litigation:
20                (i) funds will be available without delay to
21            close, if used as financial assurance for closure;
22                (ii) funds will be available without delay to
23            perform any required post-closure care, if used as
24            financial assurance for post-closure; and
25                (iii) funds will be available without delay
26            for remediation of releases, if used as financial



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1            assurance for remediation of releases.
2            (G) For insurance used as financial assurance for
3        closure, the policy shall guarantee that once closure
4        begins the insurer will be responsible for payout of
5        funds up to an amount equal to the face amount of the
6        policy, upon the direction of the Agency, to the party
7        or parties the Agency specifies.
8            (H) The policy shall provide that payment of
9        insurance premiums may be made by the insured or by any
10        third party, including, but not limited to, the
11        trustee of the trust fund specified under subdivision
12        (ii) of subparagraph (A) of this paragraph (4).
13            (I) The policy must not be terminated, canceled,
14        or suspended for any reason other than failure to pay a
15        premium.
16            (J) If nonpayment of premiums by the owner or
17        operator of the CCR surface impoundment risks
18        terminating, cancelling, or suspending the policy, the
19        insurer shall provide notice by certified mail to the
20        owner or operator, the trustee of the trust fund
21        specified under subdivision (ii) of subparagraph (A)
22        of this paragraph (4), and the Agency. Termination,
23        cancellation, or suspension shall not occur within 120
24        days after the date of receipt of the notice by the
25        owner or operator and the Agency, as evidenced by
26        return receipts.



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1            (K) If nonpayment of premiums by the owner or
2        operator of the CCR surface impoundment risks
3        terminating, cancelling, or suspending the policy, and
4        after notice has been provided under subparagraph (J),
5        within 100 days of receiving that notice the owner or
6        operator shall acquire an acceptable substitute form
7        of financial assurance at least equal to the face
8        value of the policy. If the owner or operator fails to
9        acquire an acceptable substitute form of financial
10        assurance within the 100-day period, the surety bond
11        or irrevocable letter of credit specified under
12        subdivision (i) of subparagraph (A) of this paragraph
13        (4) shall be forfeited and the funds shall be directed
14        without delay, and in any event not more than 10 days
15        after the 100-day period, into the trust fund
16        specified under subdivision (ii) of subparagraph (A)
17        of this paragraph (4). Within 10 days of receipt of
18        those funds in the trust fund, the trustee of the fund
19        shall use the monies in the trust fund to pay any
20        premiums that are due or past due. Using the funds in
21        the trust fund, the trustee shall continue to pay the
22        remaining premiums for the life of the policy.
23            (L) The Board's rules required under subsection
24        (g) of this Section shall address, among other things,
25        how to ensure continued payment of premiums if the
26        trustee of the trust fund specified under subdivision



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1        (ii) of subparagraph (A) of this paragraph (4) fails
2        to make timely payment of premiums.
3            (M) The insurer shall be licensed to conduct
4        business in Illinois and have at least an "A-" rating,
5        or its equivalent, from a recognized rating agency.
6            (N) In the event of a transfer of ownership of the
7        CCR surface impoundment, the policy shall contain a
8        provision requiring continued payment of premiums by
9        the insured at least until any successor owner or
10        operator of the CCR surface impoundment obtains, and
11        the Agency approves, acceptable substitute financial
12        assurance with a value of, at a minimum, the face value
13        of the policy.
14        Failure to pay the premium, without substitution of
15    alternative financial assurance at least equal to face
16    value of the policy within the time period specified in
17    subparagraph (K), shall constitute a violation of this
18    Act.
19    (g) The Board shall adopt rules establishing construction
20permit requirements, operating permit requirements, design
21standards, reporting, financial assurance, and closure and
22post-closure care requirements for CCR surface impoundments.
23Not later than 8 months after July 30, 2019 (the effective date
24of Public Act 101-171) this amendatory Act of the 101st
25General Assembly the Agency shall propose, and not later than
26one year after receipt of the Agency's proposal the Board



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1shall adopt, rules under this Section. The rules must, at a
3        (1) be at least as protective and comprehensive as the
4    federal regulations or amendments thereto promulgated by
5    the Administrator of the United States Environmental
6    Protection Agency in Subpart D of 40 CFR 257 governing CCR
7    surface impoundments;
8        (2) specify the minimum contents of CCR surface
9    impoundment construction and operating permit
10    applications, including the closure alternatives analysis
11    required under subsection (d);
12        (3) specify which types of permits include
13    requirements for closure, post-closure, remediation and
14    all other requirements applicable to CCR surface
15    impoundments;
16        (4) specify when permit applications for existing CCR
17    surface impoundments must be submitted, taking into
18    consideration whether the CCR surface impoundment must
19    close under the RCRA;
20        (5) specify standards for review and approval by the
21    Agency of CCR surface impoundment permit applications;
22        (6) specify meaningful public participation procedures
23    for the issuance of CCR surface impoundment construction
24    and operating permits, including, but not limited to,
25    public notice of the submission of permit applications, an
26    opportunity for the submission of public comments, an



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1    opportunity for a public hearing prior to permit issuance,
2    and a summary and response of the comments prepared by the
3    Agency;
4        (7) prescribe the type and amount of the performance
5    bonds or other securities required under subsection (f),
6    and the conditions under which the State is entitled to
7    collect moneys from such performance bonds or other
8    securities;
9        (8) specify a procedure to identify areas of
10    environmental justice concern in relation to CCR surface
11    impoundments;
12        (9) specify a method to prioritize CCR surface
13    impoundments required to close under RCRA if not otherwise
14    specified by the United States Environmental Protection
15    Agency, so that the CCR surface impoundments with the
16    highest risk to public health and the environment, and
17    areas of environmental justice concern are given first
18    priority;
19        (10) define when complete removal of CCR is achieved
20    and specify the standards for responsible removal of CCR
21    from CCR surface impoundments, including, but not limited
22    to, dust controls and the protection of adjacent surface
23    water and groundwater; and
24        (11) describe the process and standards for
25    identifying a specific alternative source of groundwater
26    pollution when the owner or operator of the CCR surface



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1    impoundment believes that groundwater contamination on the
2    site is not from the CCR surface impoundment.
3        (12) Specify that an owner or operator of a CCR
4    surface impoundment shall certify to the Agency that all
5    contractors, subcontractors, and installers utilized to
6    construct, install, modify, or close a CCR surface
7    impoundment in accordance with a permit issued under this
8    Act are participants in:
9            (i) a training program that is approved by and
10        registered with the United States Department of
11        Labor's Employment and Training Administration and
12        that includes instruction in erosion control and
13        environmental remediation, including, but not limited
14        to, a 40-hour hazardous waste worker training course
15        and a hazardous waste supervisor training course as
16        prescribed under 29 C.F.R. 1926.65; and
17            (ii) a training program that is approved by and
18        registered with the United States Department of
19        Labor's Employment and Training Administration and
20        that includes instruction in the operation of heavy
21        equipment and excavation.
22    For purposes of this Section, "contractors,
23subcontractors, and installers" shall not apply to
24construction-related professional services.
25"Construction-related professional services" includes, but is
26not limited to, those services within the scope of: the



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1practice of architecture as defined in Section 4 of the
2Illinois Architecture Practice Act of 1989; professional
3engineering as defined in Section 4 of the Professional
4Engineering Practice Act of 1989; the practice of a structural
5engineer under the Structural Engineering Practice Act of
61989; or land surveying under the Illinois Professional Land
7Surveyor Act of 1989.
8    (h) Any owner of a CCR surface impoundment that generates
9CCR and sells or otherwise provides coal combustion byproducts
10pursuant to Section 3.135 of this Act shall, every 12 months,
11post on its publicly available website a report specifying the
12volume or weight of CCR, in cubic yards or tons, that it sold
13or provided during the past 12 months.
14    (i) The owner of a CCR surface impoundment shall post all
15closure plans, permit applications, and supporting
16documentation, as well as any Agency approval of the plans or
17applications on its publicly available website.
18    (j) The owner or operator of a CCR surface impoundment
19shall pay the following fees:
20        (1) An initial fee to the Agency within 6 months after
21    July 30, 2019 (the effective date of Public Act 101-171)
22    this amendatory Act of the 101st General Assembly of:
23            $50,000 for each closed CCR surface impoundment;
24        and
25            $75,000 for each CCR surface impoundment that have
26        not completed closure.



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1        (2) Annual fees to the Agency, beginning on July 1,
2    2020, of:
3            $25,000 for each CCR surface impoundment that has
4        not completed closure; and
5            $15,000 for each CCR surface impoundment that has
6        completed closure, but has not completed post-closure
7        care.
8    (k) All fees collected by the Agency under subsection (j)
9shall be deposited into the Environmental Protection Permit
10and Inspection Fund.
11    (l) The Coal Combustion Residual Surface Impoundment
12Financial Assurance Fund is created as a special fund in the
13State treasury. Any moneys forfeited to the State of Illinois
14from any performance bond or other security required under
15this Section shall be placed in the Coal Combustion Residual
16Surface Impoundment Financial Assurance Fund and shall, upon
17approval by the Governor and the Director, be used by the
18Agency for the purposes for which such performance bond or
19other security was issued. The Coal Combustion Residual
20Surface Impoundment Financial Assurance Fund is not subject to
21the provisions of subsection (c) of Section 5 of the State
22Finance Act.
23    (m) The provisions of this Section shall apply, without
24limitation, to all existing CCR surface impoundments and any
25CCR surface impoundments constructed after July 30, 2019 (the
26effective date of Public Act 101-171) this amendatory Act of



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1the 101st General Assembly, except to the extent prohibited by
2the Illinois or United States Constitutions.
3(Source: P.A. 101-171, eff. 7-30-19; revised 10-22-19.)
4    Section 99. Effective date. This Act takes effect upon
5becoming law.