SB0009sam002 101ST GENERAL ASSEMBLY

Sen. Scott M. Bennett

Filed: 4/25/2019

10100SB0009sam002 LRB101 06168 LNS 59839 a

AMENDMENT TO SENATE BILL 9

AMENDMENT NO. ______. Amend Senate Bill 9 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Coal Ash Pollution Prevention Act.

Section 5. Findings; intent; construction. The General Assembly finds that a clean environment is essential to the growth and well-being of this State. This Act is intended to promote clean water, clean land, and the responsible disposal and storage of coal ash. This Act shall be interpreted broadly to protect public health and prevent pollution of the environment in this State.

Section 10. Definitions. In this Act:

"Agency" means the Illinois Environmental Protection Agency.

"Area of environmental justice concern" mean a community defined as an environmental justice community, based on existing methodologies and findings used by the Illinois Power Agency and its Administrator in the Illinois Power Agency's Illinois Solar for All Program under Section 1-56 of the Illinois Power Agency Act.

"Board" means the Illinois Pollution Control Board.

"CCR surface impoundment" or "CCR impoundment" means a natural topographic depression, man-made excavation, quarry, or diked area that is designed, or has been used, to hold an accumulation of CCR and liquids, and treats, stores, or disposes of CCR, regardless of whether CCR continues to be added to the impoundment, and regardless of whether the power plant that generated the CCR in the impoundment continues to produce power.

"CCR pollutant" means any of the following: antimony, arsenic, barium, beryllium, boron, cadmium, chromium, cobalt, fluoride, lead, lithium, mercury, molybdenum, selenium, thallium, and radium 226 and 228 combined, and any other pollutant included in 40 CFR Part 257, Appendix IV.

"Coal combustion residuals" or "CCR" means fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from burning coal for the purpose of generating electricity by electric utilities and independent power producers.

"Collateral bond" means an indemnity agreement in a sum certain executed by the permittee as principal which is supported by the deposit with the regulatory authority of one or more of the following:

(1) a cash account, which shall be the deposit of cash in one or more federally-insured or equivalently protected accounts, payable only to the regulatory authority upon demand, or the deposit of cash directly with the regulatory authority;

(2) negotiable bonds of the United States, a state, or a municipality, endorsed to the order of, and placed in the possession of, the regulatory authority;

(3) negotiable certificates of deposit, made payable or assigned to the regulatory authority and placed in its possession or held by a federally-insured bank;

(4) an irrevocable letter of credit of any bank organized or authorized to transact business in the United States, payable only to the regulatory authority upon presentation; or

(5) other investment-grade rated securities having a rating of AAA, AA, or A, or an equivalent rating issued by a nationally recognized securities rating service, endorsed to the order of, and placed in the possession of, the regulatory authority.

"Impoundment with prior approval" means a CCR impoundment for which closure by leaving CCR in place has been approved for closure by the Agency before final rules adopted pursuant to this Act take effect.

"Lined CCR surface impoundment" means any CCR Surface Impoundment with a liner meeting the specifications of 40 CFR 257.71(a)(1)(ii) or 40 CFR 257.71(a)(1)(iii).

"Location standards" means:

For a CCR surface impoundment, the location restrictions set out at 40 CFR 257.60 through 40 CFR 257.64, as well as a prohibition on being located, in whole or in part, in the 100-year floodplain.

For a CCR landfill, the location restriction for unstable areas set out at 40 CFR 257.64, as well as a prohibition on being located, in whole or in part, in the 100-year floodplain.

"Meaningful involvement" means:

(i) potentially affected populations have an appropriate opportunity to participate in decisions about a proposed activity, including rulemaking, that may affect the environment or health of the population;

(ii) the contributions of a population can influence the Agency's regulatory engagement and permitting decisions;

(iii) the concerns of all participants involved will be considered in the decision-making process; and

(iv) the Agency will seek out and facilitate the involvement of a population potentially affected by the Agency's regulatory engagement and permitting decisions.

"Operator" means the person who operates a CCR unit or part of a CCR unit.

"Overburdened community" means a geographic location in this State that potentially experiences cumulative environmental harms, exposures, and risks disproportionately from various factors including, but not limited to, indicators identified through the United States Environmental Protection Agency's Environmental Justice Screening and Mapping Tool.

"Owner" means the person who owns a CCR unit or part of a CCR unit.

"Person" means any individual, partnership, co-partnership, firm company, limited liability company, corporation, association, joint stock company, trust, estate, political subdivision, State agency, or any other legal entity, or its legal representative, agent, or assigns.

"Sole Source Aquifer" means an aquifer determined by the United States Environmental Protection Agency to be a Sole Source Aquifer pursuant to subsection (e) of Section 1424 of the Safe Drinking Water Act of 1974. "Sole Source Aquifer" includes, but is not limited to, the Mahomet Aquifer.

"Statistically significant increase" means, for a CCR pollutant, any statistically significant increase over a groundwater protection standard as determined pursuant to 40 CFR 257.93(f), (g), and (h)(1), for which a groundwater protection standard has been set by either the United States Environmental Protection Agency or under 35 Ill. Admin. Code Part 620, whichever is more restrictive.

"Surety bond" means an indemnity agreement in a sum certain payable to the regulatory authority, executed by the permittee as principal and that is supported by the performance guarantee of a corporation licensed to do business as a surety in the state where the operation is located.

"Unlined CCR surface impoundment" means any CCR surface impoundment that is not a lined CCR surface impoundment.

Section 15. Applicability.

(a) This Act applies to the owner or operator of an active and inactive CCR surface impoundment. Unless otherwise provided in this Section, the requirements also apply to a CCR surface impoundment located off-site of the electric utility or independent power producer.

(b) This Act does not apply to CCR placed at an active or abandoned underground or surface coal mine.

(c) This Act does not apply to waste, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, generated at a facility that is not part of an electric utility or independent power producer, including a manufacturing facility, university, and hospital.

Section 20. Rulemaking.

(a) Within 180 days after the effective date of this Act, the Agency shall publish on its website draft rules implementing the requirements of this Act.

During the period in which the Agency is developing the draft rules, the Agency shall convene an inclusive stakeholder process and hold stakeholder meetings to seek stakeholder input on the content of the rules and ensure meaningful involvement of impacted residents. Stakeholders shall include, but are not limited to, the Illinois Commission on Environmental Justice and community members from an area of environmental justice concern within 3 miles of a CCR surface impoundment, as well as community members from an overburdened community within 3 miles of a CCR surface impoundment.

(b) During the period in which the Agency is developing the draft rules pursuant to subsection (a), the Agency shall establish an electronic email list of interested parties to whom it will provide public notice pursuant to this Act. Persons invited to join the email list shall include, but are not limited to, all persons participating in a stakeholder meeting.

On the day the Agency publishes the draft rules on its website pursuant to subsection (a), the Agency shall notify the public, by means of the email list, of the opportunity to review and comment on the draft rules. The public comment period shall commence on the date that notice is provided and shall last 30 days.

The Agency shall hold at least one public hearing on the draft rules during the 30-day comment period in a central location within this State that is accessible by public transportation. The public hearing shall include an informational briefing on regulatory issues under consideration and an opportunity for public comment during hours accessible for working residents.

(c) Within 30 days after the close of the public comment period required by subsection (b), the Agency shall file its proposed rules with the Board pursuant to Section 28 of the Environmental Protective Act. The Agency shall take into account public comments and testimony from all public hearings held pursuant to subsection (b) in proposing those rules to the Board.

(d) Within 365 days after the Agency files its proposed rules pursuant to subsection (c), the Board shall adopt final rules reflecting the purpose of this Act and implementing the requirements of this Act.

Section 25. Minimal rule requirements.

(a) The Agency shall draft and propose, and the Board shall adopt, rules that are at least as protective as the federal rules governing a CCR surface impoundment, pursuant to 40 CFR Part 257, Subpart D.

(b) The Agency shall draft and propose, and the Board shall adopt, rules that are similar in substance to federal rules governing a CCR surface impoundment for the following:

(1) corrective action and selection of remedy, pursuant to 40 CFR 257.90 through 257.98;

(2) closure, pursuant to 40 CFR 257.100 through 257.103; and

(3) post-closure care, pursuant to 40 CFR 257.104.

(c) As part of its draft proposal, the Agency shall include:

(1) the identification of an area of environmental justice concern and overburdened community within 3 miles of a CCR surface impoundment;

(2) a plan to evaluate and address potential concerns for both an area of environmental justice concern and overburdened community in the regulatory process; and

(3) a plan to achieve meaningful involvement of all stakeholders in both the rulemaking and permitting processes, with special attention paid to the engagement of frontline residents, minority, low-income, and indigenous populations who may face unique barriers to participating in decision-making processes.

(d) The Agency shall draft and propose, and the Board shall adopt, rules that require an owner or operator of a CCR surface impoundment to obtain an operating permit for the operation of a CCR surface impoundment.

(e) The Agency shall draft and propose, and the Board shall adopt, rules that require an owner or operator of a CCR surface impoundment to obtain a construction permit for at least the following activities at a CCR surface impoundment: corrective action, closure, and, where applicable, post-closure care. The Agency may provide for a single construction permit to permit both closure and post-closure for a given CCR surface impoundment.

(f) The Agency shall draft and propose, and the Board shall adopt, rules that:

(1) Require an owner or operator of a CCR surface impoundment to obtain a modified permit for any change to a construction permit or an operating permit that is not a minor or administrative change.

(2) Specify when a permit modification is a significant modification triggering public notice, review, and comment pursuant to Section 30. The Agency shall specify that, at minimum: (i) changes in the method of closure of a CCR surface impoundment from removal to closure in place; (ii) changes in corrective action that are estimated to result in more time until remediation is achieved or a smaller area remediated; and (iii) decreases in the frequency of groundwater monitoring or in the number of groundwater monitoring wells are significant modifications subject to public participation requirements of Section 30.

(g) The Agency shall draft and propose, and the Board shall adopt, any other such rules deemed necessary to implement the requirements of this Act.

The Agency may draft and propose rules governing a CCR landfill, as defined under 40 CFR Part 257, that are at least as protective as the rules for a CCR landfill set forth in 40 CFR Part 257.

(h) The Agency shall draft and propose, and the Board shall adopt, rules that require an owner or operator of a CCR surface impoundment to analyze closure by removal of all CCR at a CCR surface impoundment as part of any construction permit for closure or corrective action.

The Agency shall draft and propose, and the Board shall adopt, rules that require an owner or operator of a CCR surface impoundment to submit a closure alternatives analysis with any application for a construction permit for closure of a CCR surface impoundment. The rules shall provide that the closure alternatives analysis shall include detailed discussion and supporting documentation addressing the following criteria for each closure method analyzed:

(1) overall protection of human health and environment over, at minimum, at period of 100 years starting when closure begins;

(2) whether the closure method will result in compliance with the groundwater quality standards set forth in 35 Ill. Admin. Code. Part 620, and if so, how quickly, and what concentrations of a CCR pollutant will result from the closure method;

(3) if the closure method involves leaving CCR in place, whether the closure method will meet the federal performance standards for closure when leaving CCR in place, set forth in 40 CFR 257.102(d);

(4) the long-term effectiveness and permanence of the closure method;

(5) the reduction of toxicity, mobility, or volume of toxins that the closure method will achieve;

(6) the short-term effectiveness of the closure method;

(7) the implementability of the closure method; and

(8) if the CCR surface impoundment for which the construction permit is sought is located in or adjacent to an area of environmental justice concern or overburdened community, the potential impact of the closure method on the area of environmental justice concern or overburdened community, taking into consideration the cumulative environmental burdens on the area of environmental justice concern or overburdened community.

The Agency shall not approve a construction permit for closure, other than closure by removal of all CCR, unless the closure alternatives analysis demonstrates, by the following threshold criteria, that the alternative to closure by removal: (i) is at least as protective of human health and environment, with consideration of the cumulative environmental burdens in an area of environmental justice concern and overburdened community, as removal, evaluated over, at minimum, a period of 100 years; (ii) will meet the groundwater quality standards set forth in 35 Ill. Admin. Code. Part 620, and will reduce the concentrations of a CCR pollutant in groundwater as much as removal; and (iii) will meet the federal performance standards for closure when leaving CCR in place set forth in 40 CFR 257.102(d).

When more than one closure method meets the threshold criteria, the Agency shall compare the closure methods by evaluating the following primary balancing criteria for each closure method that meets the following threshold criteria: long-term effectiveness and permanence; reduction of toxicity, mobility, or volume; and short-term effectiveness.

If the closure methods are not equally balanced under the primary balancing criteria, the Agency shall identify the closure method that outweighs the remaining closure methods under the primary balancing criteria, and shall require that closure method in the construction permit.

If the closure methods are equally balanced under the primary balancing criteria, the Agency shall compare the closure methods and identify an approved closure method which it shall require in the construction permit, by evaluating the implementability and community acceptance including, but not limited to, local consideration of future site reuse opportunities.

(i) An owner or operator of an impoundment with prior approval is not required to file with the Agency a closure alternatives analysis pursuant to subsection (g).

Within 60 days of the adoption of the rules required by this Act, an owner or operator of an impoundment with prior approval shall provide sufficient information to the Agency to allow the Agency to determine whether the approved closure method for the CCR surface impoundment meets the federal performance standards for closure by leaving CCR in place under 40 CFR 257.102(d).

Within 30 days of receiving the information required for the Agency to approve a construction permit for closure pursuant to subsection (h), the Agency shall post that information on its website, provide public notice, via the email list specified in subsection (b) of Section 20, of the opportunity for comment, and open a 30-day comment period on that information.

Following the close of the public comment period, the Agency shall determine whether the approved closure method for an impoundment with prior approval meets the federal performance standards for closure by leaving CCR in place under 40 CFR 257.102(d). In making that determination, the Agency shall take into account the information provided to the Agency to approve a construction permit for closure pursuant to subsection (h), by the owner or operator of the impoundment with prior approval, as well as all comments received during the public comment period on that information.

(j) The Agency shall draft and propose, and the Board shall adopt, rules that:

(1) Classify a CCR surface impoundment as high-risk, medium-risk, or low-risk, based on factors that include, but are not limited to, whether the surface impoundment poses an imminent threat to human health and the environment, is open to the atmosphere, has an exceedance of the groundwater quality standards, or has an unapproved cover. The Agency shall not consider whether a CCR surface impoundment is active or inactive in determining its risk classification.

(2) Identify a CCR surface impoundment that is in, or within 3 miles of, either an area of environmental justice concern or an overburdened community.

Except for the impoundments addressed in subsection (h) of this Section, an owner or operator of a CCR surface impoundment shall submit an application for a construction permit for closure to the Agency within 3 months of the effective date of the rules adopted pursuant to this Act.

The Agency shall draft and propose, and the Board shall adopt, rules setting deadlines for the Agency to issue a construction permit for closure of a CCR surface impoundment that is an unlined CCR surface impoundment or that fails to meet the location standards. The Agency shall determine the earliest feasible deadline for issuance of a closure permit for the CCR impoundment, taking into account the need to comply with this Act and the high-risk CCR surface impoundment and a CCR surface impoundment that is located in, or within 3 miles of, an area of environmental justice concern or overburdened community.

The Agency shall prioritize issuance of a construction permit for closure of a high-risk CCR surface impoundment and CCR surface impoundment that is located in, or within 3 miles of, an area of environmental justice concern and overburdened community. The Agency may specify later deadlines for issuance of a construction permit for closure for a CCR surface impoundment classified as medium-risk or low-risk.

A construction permit for closure shall require a CCR surface impoundment that is an unlined CCR surface impoundment, or that fails to meet the location standards for a CCR surface impoundment, to commence closure within 30 days of the issuance of the permit unless closure is enjoined by the Board or a court of law.

(k) The Agency shall draft and propose, and the Board shall adopt, rules that require an owner or operator of a CCR surface impoundment to provide financial assurances covering closure, any required post-closure, and corrective action.

The Agency shall draft and propose, and the Board shall adopt, rules requiring an owner or operator of a CCR surface impoundment to periodically submit revised cost estimates underpinning financial assurances and to require an owner or operator of a CCR surface impoundment to update financial assurances accordingly.

Financial assurances shall only take the form of a surety bond or collateral bond.

Self-bonding is not permitted.

(l) The Agency shall draft and propose, and the Board shall adopt, rules that require an owner or operator of a CCR surface impoundment that closes by removal to protect against pollution and harm from removal of CCR. The rules shall set out measures permittees shall take to: (i) protect CCR removal and transport workers, as well as communities through which CCR is transported, from CCR dust pollution and other dust pollution; and (ii) protect against pollution of any adjacent surface waters and groundwater while removal is taking place.

The Agency shall draft and propose, and the Board shall adopt, rules limiting where CCR removed from a CCR surface impoundment may be disposed. The rules shall prohibit the disposal of removed CCR in: (i) any CCR surface impoundment that is unlined, fails to meet any location standard for a CCR surface impoundment, or where a statistically significant increase in a CCR pollutant is found; and (ii) any landfill that is located over a Sole Source Aquifer, that does not meet the requirements of 35 Ill. Adm. Code Part 811 Subpart C, or that fails to meet the location standards for a CCR landfill.

(m) Any alternative source demonstration conducted pursuant to federal requirements, this Act, or this Act's implementing rules is required to identify the specific alternative source with sufficient particularity. If the owner or operator of the CCR unit fails to do so, it shall be deemed to have not met its burden of establishing an alternative source of CCR pollutants.

Section 30. Public participation.

(a) The Agency shall facilitate a robust public participation process, accessible to all residents of this State, especially residents in areas of environmental justice concern and overburdened communities, to provide transparency and meaningful involvement in decision-making in issuing a final operating permit and construction permit. The public participation process shall include:

(1) Public notice.

(A) The Agency shall draft and propose, and the Board shall approve, rules specifying the mechanisms by which the public will be notified of applications for an operating permit and construction permit under this Act, a draft operating permit and draft construction permit the Agency proposes to issue under this Act, and a final operating permit and final construction permit issued under this Act.

(B) Public notice of an operating permit and construction permit application and draft permit shall include, at minimum, notice to the email list specified in subsection (b) of Section 20 and publication in a newspaper circulating in the community in which the CCR surface impoundment for which the permit is sought is located.

(C) The public notice shall include, at minimum, the website and physical location at which the permit application materials, draft permit, or final permit are available for review, as well as instructions for signing up for the email list specified in subsection (b) of Section 20. For a draft permit, the notice shall also include the deadline for submission of public comments, instructions for submitting such comments, and instructions for requesting a public hearing on the draft permit.

(2) Public comment. The Agency shall provide a public comment period of at least 45 days on all draft operating and construction permits. The Agency shall accept and review all comments timely submitted electronically or in hard copy.

(3) Public hearings.

(A) Any member of the public may request a public hearing on a draft operating or construction permit under this Act. If any such request is received by the Agency, the Agency shall hold a public hearing on that draft permit.

(B) If a public hearing is requested, the Agency shall provide notice of the public hearing at least 10 days in advance of the hearing. Notice shall be provided to the email list specified in subsection (b) of Section 20 and by publication in a newspaper circulating in the community in which the CCR surface impoundment for which the permit is sought is located. The notice shall include the date, time, and location of the hearing; the name and contact information of an Agency staff person to contact for questions; and instructions on how to sign up to testify at the hearing.

(C) Public hearings shall be held during evening or weekend hours to facilitate attendance, and shall be held in accessible locations in the county in which the CCR surface impoundment for which the permit is sought is located. The hearing shall be scheduled for no fewer than 2 hours, although the Agency may end the hearing after one hour if all persons who signed up to testify have already done so.

(D) All persons who sign up to testify at the public hearing shall be allowed to testify if the person attends the hearing. The Agency shall also have a form to sign up to testify available at the hearing.

The Agency shall provide enhanced participation procedures for a permit concerning a CCR surface impoundment located in, or within 3 miles of, an area of environmental justice concern and overburdened community. The procedures shall include, but are not limited to, preparation and distribution of written materials about the permit at issue in Spanish or other languages commonly spoken in the community where the CCR surface impoundment is located; at least one public meeting to inform the community about the permit and potential environmental impacts associated with it; and a guaranteed public hearing.

(b) Prior to issuing any permit under this Act, the Agency shall review and consider all public comments and all testimony from any public hearing on the permit in determining whether the applicant has met applicable standards for the permit it seeks.

(c) At the time of issuance of the final construction or operating permit, the Agency shall provide a responsiveness summary that responds to all substantive issues raised in public comments and public hearings.

Section 35. Permit appeals.

(a) If the Agency grants, with conditions, a construction or operating permit under this Act and its implementing rules, the permit applicant may petition the Board for review of the permitting decision. The Board shall hear the petition in accordance with the terms of subsection (a) of Section 40 of the Environmental Protection Act and its procedural rules governing denial appeals. The hearing shall be based exclusively on the record before the Agency.

(b) If the Agency grants, or grants with conditions, a construction permit pursuant to this Act and its implementing rules, a person who has submitted public comment or testified in a public hearing on the permit, other than the permit applicant or Agency, may, within 35 days after the date on which the Agency issued its decision, petition the Board for a hearing to contest the issuance or terms of the permit.

(1) Unless the Board determines that such petition is duplicative or frivolous, or that the petitioner has not shown that he or she may be affected by the permitted CCR surface impoundment, the Board shall hear the petition in accordance with the terms of paragraph (1) of subsection (a) of Section 40 of the Environmental Protection Act and its procedural rules governing appeals. The hearing shall be based exclusively on the record before the Agency.

(2) The burden of proof shall be on the petitioner.

(3) The Agency and the permit applicant shall be named co-respondents.

(4) If there is no final action by the Board within 120 days after the date on which it received the petition, the petitioner shall be entitled to an Appellate Court order pursuant to subsection (d) of Section 41 of the Environmental Protection Act.

Section 40. Fees. The owner or operator of a CCR surface impoundment shall pay fees to the Agency as follows:

(1) A one-time fee of:

$50,000 for a closed CCR surface impoundment; or

$75,000 for a CCR surface impoundment that has not completed closure.

(2) An annual operating permit fee of $30,000 until completion of closure and post-closure.

Section 45. Reporting requirements for beneficial use. All utilities and independent power producers that generate CCR and sell or otherwise provide coal combustion byproducts pursuant to Section 3.135 of the Environmental Protection Act shall, every 6 months, file with the Agency a report specifying:

(1) the volume or weight of CCR, in cubic yards or tons, that it sold or provided during the past 6 months for each different allowable type of use under Section 3.135 of the Environmental Protection Act, specifying the volume or weight for each use and, if known, the region of this State where that CCR is being used; and

(2) the volume or weight of CCR, in cubic yards or tons, that it expects to sell or provide in the next 6 months for each different allowable type of use under Section 3.135 of the Environmental Protection Act, specifying the volume or weight for each use and, if known, the region of this State where that CCR will be used.

Section 99. Effective date. This Act takes effect upon becoming law.".