Illinois General Assembly - Full Text of SB0671
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Full Text of SB0671  101st General Assembly



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1    AN ACT concerning regulation.
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 to
10    restore, protect, and enhance the environment, including
11    the purity of the air, land, and waters, including
12    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 this
11    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 construed
20to 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, water,
25    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 Act
2    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 impoundment,
23in accordance with Board rules, the owner of a CCR surface
24impoundment must submit to the Agency for approval a closure
25alternatives analysis that analyzes all closure methods being
26considered and that otherwise satisfies all closure



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1requirements adopted by the Board under this Act. Complete
2removal of CCR, as specified by the Board's rules, from the CCR
3surface impoundment must be considered and analyzed. Removal,
4as that term is defined in Section 3.405 of this Act, does not
5apply to the Board's rules specifying complete removal of CCR.
6The selected closure method must ensure compliance with
7regulations adopted by the Board pursuant to this Section.
8    (e) Owners or operators of CCR surface impoundments who
9have submitted a closure plan to the Agency before May 1, 2019,
10and who have completed closure prior to 24 months after July
1130, 2019 (the effective date of Public Act 101-171) this
12amendatory Act of the 101st General Assembly shall not be
13required to obtain a construction permit for the surface
14impoundment closure under this Section.
15    (f) Except for the State, its agencies and institutions, a
16unit of local government, or not-for-profit electric
17cooperative as defined in Section 3.4 of the Electric Supplier
18Act, any person who owns or operates a CCR surface impoundment
19in this State shall post with the Agency a performance bond or
20other security for the purpose of: (i) ensuring closure of the
21CCR surface impoundment and post-closure care in accordance
22with this Act and its rules; and (ii) ensuring insuring
23remediation of releases from the CCR surface impoundment. The
24only acceptable forms of financial assurance are: a trust fund,
25a surety bond guaranteeing payment, a surety bond guaranteeing
26performance, or an irrevocable letter of credit, or insurance



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1that is not self-insurance.
2        (1) The cost estimate for the post-closure care of a
3    CCR surface impoundment shall be calculated using a 30-year
4    post-closure care period or such longer period as may be
5    approved by the Agency under Board or federal rules.
6        (2) The Agency is authorized to enter into such
7    contracts and agreements as it may deem necessary to carry
8    out the purposes of this Section. Neither the State, nor
9    the Director, nor any State employee shall be liable for
10    any damages or injuries arising out of or resulting from
11    any action taken under this Section.
12        (3) The Agency shall have the authority to approve or
13    disapprove any performance bond or other security posted
14    under this subsection. Any person whose performance bond or
15    other security is disapproved by the Agency may contest the
16    disapproval as a permit denial appeal pursuant to Section
17    40.
18        (4) If insurance is used as financial assurance it must
19    meet the following criteria:
20            (A) Insurance may only be used as financial
21        assurance if it is accompanied by:
22                (i) a surety bond or irrevocable letter of
23            credit covering the value of the total cost of
24            premiums over the life of the insurance policy,
25            plus 50% of that total cost; and
26                (ii) proof of a trust fund that shall receive



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



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



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



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



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



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1    the Administrator of the United States Environmental
2    Protection Agency in Subpart D of 40 CFR 257 governing CCR
3    surface impoundments;
4        (2) specify the minimum contents of CCR surface
5    impoundment construction and operating permit
6    applications, including the closure alternatives analysis
7    required under subsection (d);
8        (3) specify which types of permits include
9    requirements for closure, post-closure, remediation and
10    all other requirements applicable to CCR surface
11    impoundments;
12        (4) specify when permit applications for existing CCR
13    surface impoundments must be submitted, taking into
14    consideration whether the CCR surface impoundment must
15    close under the RCRA;
16        (5) specify standards for review and approval by the
17    Agency of CCR surface impoundment permit applications;
18        (6) specify meaningful public participation procedures
19    for the issuance of CCR surface impoundment construction
20    and operating permits, including, but not limited to,
21    public notice of the submission of permit applications, an
22    opportunity for the submission of public comments, an
23    opportunity for a public hearing prior to permit issuance,
24    and a summary and response of the comments prepared by the
25    Agency;
26        (7) prescribe the type and amount of the performance



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



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1    contractors, subcontractors, and installers utilized to
2    construct, install, modify, or close a CCR surface
3    impoundment in accordance with a permit issued under this
4    Act are participants in:
5            (i) a training program that is approved by and
6        registered with the United States Department of
7        Labor's Employment and Training Administration and
8        that includes instruction in erosion control and
9        environmental remediation, including, but not limited
10        to, a 40-hour hazardous waste worker training course
11        and a hazardous waste supervisor training course as
12        prescribed under 29 C.F.R. 1926.65; and
13            (ii) a training program that is approved by and
14        registered with the United States Department of
15        Labor's Employment and Training Administration and
16        that includes instruction in the operation of heavy
17        equipment and excavation.
18    For purposes of this Section, "contractors,
19subcontractors, and installers" shall not apply to
20construction-related professional services.
21"Construction-related professional services" includes, but is
22not limited to, those services within the scope of: the
23practice of architecture as defined in Section 4 of the
24Illinois Architecture Practice Act of 1989; professional
25engineering as defined in Section 4 of the Professional
26Engineering Practice Act of 1989; the practice of a structural



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1engineer under the Structural Engineering Practice Act of 1989;
2or land surveying under the Illinois Professional Land Surveyor
3Act of 1989.
4    (h) Any owner of a CCR surface impoundment that generates
5CCR and sells or otherwise provides coal combustion byproducts
6pursuant to Section 3.135 of this Act shall, every 12 months,
7post on its publicly available website a report specifying the
8volume or weight of CCR, in cubic yards or tons, that it sold
9or provided during the past 12 months.
10    (i) The owner of a CCR surface impoundment shall post all
11closure plans, permit applications, and supporting
12documentation, as well as any Agency approval of the plans or
13applications on its publicly available website.
14    (j) The owner or operator of a CCR surface impoundment
15shall pay the following fees:
16        (1) An initial fee to the Agency within 6 months after
17    July 30, 2019 (the effective date of Public Act 101-171)
18    this amendatory Act of the 101st General Assembly of:
19            $50,000 for each closed CCR surface impoundment;
20        and
21            $75,000 for each CCR surface impoundment that have
22        not completed closure.
23        (2) Annual fees to the Agency, beginning on July 1,
24    2020, of:
25            $25,000 for each CCR surface impoundment that has
26        not completed closure; and



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1            $15,000 for each CCR surface impoundment that has
2        completed closure, but has not completed post-closure
3        care.
4    (k) All fees collected by the Agency under subsection (j)
5shall be deposited into the Environmental Protection Permit and
6Inspection Fund.
7    (l) The Coal Combustion Residual Surface Impoundment
8Financial Assurance Fund is created as a special fund in the
9State treasury. Any moneys forfeited to the State of Illinois
10from any performance bond or other security required under this
11Section shall be placed in the Coal Combustion Residual Surface
12Impoundment Financial Assurance Fund and shall, upon approval
13by the Governor and the Director, be used by the Agency for the
14purposes for which such performance bond or other security was
15issued. The Coal Combustion Residual Surface Impoundment
16Financial Assurance Fund is not subject to the provisions of
17subsection (c) of Section 5 of the State Finance Act.
18    (m) The provisions of this Section shall apply, without
19limitation, to all existing CCR surface impoundments and any
20CCR surface impoundments constructed after July 30, 2019 (the
21effective date of Public Act 101-171) this amendatory Act of
22the 101st General Assembly, except to the extent prohibited by
23the Illinois or United States Constitutions.
24(Source: P.A. 101-171, eff. 7-30-19; revised 10-22-19.)
25    Section 99. Effective date. This Act takes effect upon
26becoming law.