Full Text of SB0671 101st General Assembly
SB0671sam001 101ST GENERAL ASSEMBLY | Sen. Scott M. Bennett Filed: 11/12/2019
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| 1 | | AMENDMENT TO SENATE BILL 671
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 671, by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The Environmental Protection Act is amended by | 5 | | changing 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 |
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| 1 | | pollution at active and inactive plants throughout this | 2 | | State; | 3 | | (4) poorly constructed and inadequately maintained CCR | 4 | | surface impoundments have contributed to environmental | 5 | | disasters outside of Illinois; | 6 | | (5) the health effects of exposure to CCR have become | 7 | | the subject of a number of studies; | 8 | | (6) (4) environmental laws should be supplemented to | 9 | | ensure consistent, responsible regulation of all existing | 10 | | CCR surface impoundments; and | 11 | | (7) (5) meaningful participation of State residents, | 12 | | especially vulnerable populations who may be affected by | 13 | | regulatory actions, is critical to ensure that | 14 | | environmental justice considerations are incorporated in | 15 | | the development of, decision-making related to, and | 16 | | implementation of environmental laws and rulemaking that | 17 | | protects and improves the well-being of communities in this | 18 | | State that bear disproportionate burdens imposed by | 19 | | environmental pollution. | 20 | | Therefore, the purpose of this Section is to promote a | 21 | | healthful environment, including clean water, air, and land, | 22 | | meaningful public involvement, and the responsible disposal | 23 | | and storage of coal combustion residuals, so as to protect | 24 | | public health and to prevent pollution of the environment of | 25 | | this State. | 26 | | The provisions of this Section shall be liberally construed |
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| 1 | | to carry out the purposes of this Section. | 2 | | (b) No person shall: | 3 | | (1) Cause, threaten, cause or allow the release | 4 | | discharge of any contaminants from a CCR surface | 5 | | impoundment into the environment so as to cause air, water, | 6 | | or other pollution in Illinois, either alone or in | 7 | | combination with contaminants from other sources, or so as | 8 | | to violate , directly or indirectly, a violation of this Act | 9 | | Section or any regulations or standards adopted by the | 10 | | Board under this Act. Section, either alone or in | 11 | | combination with contaminants from other sources; | 12 | | (2) Construct construct , install, modify, operate, or | 13 | | close any CCR surface impoundment without a permit granted | 14 | | by the Agency, or so as to violate any conditions imposed | 15 | | by such permit, any provision of this Act Section or any | 16 | | regulations or standards adopted by the Board under this | 17 | | Act. Section; or | 18 | | (3) (Blank). cause or allow, directly or indirectly, | 19 | | the discharge, deposit, injection, dumping, spilling, | 20 | | leaking, or placing of any CCR upon the land in a place and | 21 | | manner so as to cause or tend to cause a violation this | 22 | | Section or any regulations or standards adopted by the | 23 | | Board under this Section. | 24 | | (c) For purposes of this Section, a permit issued by the | 25 | | Administrator of the United States Environmental Protection | 26 | | Agency under Section 4005 of the federal Resource Conservation |
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| 1 | | and Recovery Act, shall be deemed to be a permit under this | 2 | | Section and subsection (y) of Section 39. | 3 | | (d) Before commencing closure of a CCR surface impoundment, | 4 | | in accordance with Board rules, the owner of a CCR surface | 5 | | impoundment must submit to the Agency for approval a closure | 6 | | alternatives analysis that analyzes all closure methods being | 7 | | considered and that otherwise satisfies all closure | 8 | | requirements adopted by the Board under this Act. Complete | 9 | | removal of CCR, as specified by the Board's rules, from the CCR | 10 | | surface impoundment must be considered and analyzed. Removal, | 11 | | as that term is defined in Section 3.405 of this Act, does not | 12 | | apply to the Board's rules specifying complete removal of CCR. | 13 | | The selected closure method must ensure compliance with | 14 | | regulations adopted by the Board pursuant to this Section. | 15 | | (e) Owners or operators of CCR surface impoundments who | 16 | | have submitted a closure plan to the Agency before May 1, 2019, | 17 | | and who have completed closure prior to 24 months after July | 18 | | 30, 2019 ( the effective date of Public Act 101-171) this | 19 | | amendatory Act of the 101st General Assembly shall not be | 20 | | required to obtain a construction permit for the surface | 21 | | impoundment closure under this Section. Owners or operators of | 22 | | CCR surface impoundments who have completed closure pursuant to | 23 | | an Agency approved closure plan or Board site specific | 24 | | rulemaking, but not post-closure care before July 30, 2019, | 25 | | shall only be required to obtain a post-closure care permit or | 26 | | other Agency approval as established by the Board pursuant to |
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| 1 | | this Section. | 2 | | (f) Except for the State, its agencies and institutions, a | 3 | | unit of local government, or not-for-profit electric | 4 | | cooperative as defined in Section 3.4 of the Electric Supplier | 5 | | Act, any person who owns or operates a CCR surface impoundment | 6 | | in this State shall post with the Agency a performance bond or | 7 | | other security for the purpose of: (i) ensuring closure of the | 8 | | CCR surface impoundment and post-closure care in accordance | 9 | | with this Act and its rules; and (ii) ensuring insuring | 10 | | remediation of releases from the CCR surface impoundment. The | 11 | | only acceptable forms of financial assurance are: a trust fund, | 12 | | a surety bond guaranteeing payment, a surety bond guaranteeing | 13 | | performance, or an irrevocable letter of credit , or insurance | 14 | | that is not self-insurance . | 15 | | (1) The cost estimate for the post-closure care of a | 16 | | CCR surface impoundment shall be calculated using a 30-year | 17 | | post-closure care period or such longer period as may be | 18 | | approved by the Agency under Board or federal rules. | 19 | | (2) The Agency is authorized to enter into such | 20 | | contracts and agreements as it may deem necessary to carry | 21 | | out the purposes of this Section. Neither the State, nor | 22 | | the Director, nor any State employee shall be liable for | 23 | | any damages or injuries arising out of or resulting from | 24 | | any action taken under this Section. | 25 | | (3) The Agency shall have the authority to approve or | 26 | | disapprove any performance bond or other security posted |
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| 1 | | under this subsection. Any person whose performance bond or | 2 | | other security is disapproved by the Agency may contest the | 3 | | disapproval as a permit denial appeal pursuant to Section | 4 | | 40. | 5 | | (4) If insurance is used as financial assurance it must | 6 | | meet the following criteria: | 7 | | (A) Insurance may only be used as financial | 8 | | assurance if it is accompanied by: | 9 | | (i) a surety bond or irrevocable letter of | 10 | | credit covering the value of the total cost of | 11 | | premiums over the life of the insurance policy, | 12 | | plus 50% of that total cost; and | 13 | | (ii) proof of a trust fund that shall receive | 14 | | any forfeited funds from the surety bond or | 15 | | irrevocable letter of credit under subdivision (i) | 16 | | of this subparagraph (A) if the owner or operator | 17 | | fails to pay insurance premiums. | 18 | | (B) The life of the policy shall be the duration of | 19 | | the closure and post-closure period, as well as any | 20 | | period of remediation of release. | 21 | | (C) The policy shall provide that insurance | 22 | | premiums shall be paid no less than 2 years in advance | 23 | | of the due date for that premium, except that the first | 24 | | 2 years of premiums shall be paid in bulk as a single | 25 | | payment upon issuance of the policy. The owner or | 26 | | operator of the CCR surface impoundment or the |
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| 1 | | third-party payer shall submit to the Agency proof of | 2 | | payment of each premium within 2 weeks after making | 3 | | payment. | 4 | | (D) The face value amount of the policy for which | 5 | | insurance is serving as financial assurance shall be at | 6 | | least equal to all of the following that apply: | 7 | | (i) the cost estimate for closure, if used as | 8 | | financial assurance for closure; | 9 | | (ii) the cost estimate for post-closure, if | 10 | | used as financial assurance for post-closure; or | 11 | | (iii) the cost estimate for remediation of | 12 | | releases, if used as financial assurance for | 13 | | remediation of releases. | 14 | | When remediation of a release is required, within | 15 | | 60 days after the Agency's approval of the cost | 16 | | estimate for that remediation the policy shall be | 17 | | amended to cover that approved cost estimate or the | 18 | | owner or operator of the CCR surface impoundment shall | 19 | | obtain a separate policy covering the amount of the | 20 | | approved cost estimate. | 21 | | (E) The face value of the policy shall be updated | 22 | | within 90 days after the Agency approves a revised cost | 23 | | estimate. Cost estimates shall be updated: | 24 | | (i) at least annually; | 25 | | (ii) whenever there is a significant | 26 | | modification to an approved plan for closure, |
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| 1 | | post-closure, or remediation of releases; and | 2 | | (iii) upon request by the Agency. | 3 | | (F) The policy shall guarantee that, | 4 | | notwithstanding litigation: | 5 | | (i) funds will be available without delay to | 6 | | close, if used as financial assurance for closure; | 7 | | (ii) funds will be available without delay to | 8 | | perform any required post-closure care, if used as | 9 | | financial assurance for post-closure; and | 10 | | (iii) funds will be available without delay | 11 | | for remediation of releases, if used as financial | 12 | | assurance for remediation of releases. | 13 | | (G) For insurance used as financial assurance for | 14 | | closure, the policy shall guarantee that once closure | 15 | | begins the insurer will be responsible for payout of | 16 | | funds up to an amount equal to the face amount of the | 17 | | policy, upon the direction of the Agency, to the party | 18 | | or parties the Agency specifies. | 19 | | (H) The policy shall provide that payment of | 20 | | insurance premiums may be made by the insured or by any | 21 | | third party, including, but not limited to, the trustee | 22 | | of the trust fund specified under subdivision (ii) of | 23 | | subparagraph (A) of this paragraph (4). | 24 | | (I) The policy must not be terminated, canceled, or | 25 | | suspended for any reason other than failure to pay a | 26 | | premium. |
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| 1 | | (J) If nonpayment of premiums by the owner or | 2 | | operator of the CCR surface impoundment risks | 3 | | terminating, cancelling, or suspending the policy, the | 4 | | insurer shall provide notice by certified mail to the | 5 | | owner or operator, the trustee of the trust fund | 6 | | specified under subdivision (ii) of subparagraph (A) | 7 | | of this paragraph (4), and the Agency. Termination, | 8 | | cancellation, or suspension shall not occur within 120 | 9 | | days after the date of receipt of the notice by the | 10 | | owner or operator and the Agency, as evidenced by | 11 | | return receipts. | 12 | | (K) If nonpayment of premiums by the owner or | 13 | | operator of the CCR surface impoundment risks | 14 | | terminating, cancelling, or suspending the policy, and | 15 | | after notice has been provided under subparagraph (J), | 16 | | within 100 days of receiving that notice the owner or | 17 | | operator shall acquire an acceptable substitute form | 18 | | of financial assurance at least equal to the face value | 19 | | of the policy. If the owner or operator fails to | 20 | | acquire an acceptable substitute form of financial | 21 | | assurance within the 100-day period, the surety bond or | 22 | | irrevocable letter of credit specified under | 23 | | subdivision (i) of subparagraph (A) of this paragraph | 24 | | (4) shall be forfeited and the funds shall be directed | 25 | | without delay, and in any event not more than 10 days | 26 | | after the 100-day period, into the trust fund specified |
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| 1 | | under subdivision (ii) of subparagraph (A) of this | 2 | | paragraph (4). Within 10 days of receipt of those funds | 3 | | in the trust fund, the trustee of the fund shall use | 4 | | the monies in the trust fund to pay any premiums that | 5 | | are due or past due. Using the funds in the trust fund, | 6 | | the trustee shall continue to pay the remaining | 7 | | premiums for the life of the policy. | 8 | | (L) The Board's rules required under subsection | 9 | | (g) of this Section shall address, among other things, | 10 | | how to ensure continued payment of premiums if the | 11 | | trustee of the trust fund specified under subdivision | 12 | | (ii) of subparagraph (A) of this paragraph (4) fails to | 13 | | make timely payment of premiums. | 14 | | (M) The insurer shall be licensed to conduct | 15 | | business in Illinois and have at least an "A-" rating, | 16 | | or its equivalent, from a recognized rating agency. | 17 | | (N) In the event of a transfer of ownership of the | 18 | | CCR surface impoundment, the policy shall contain a | 19 | | provision requiring continued payment of premiums by | 20 | | the insured at least until any successor owner or | 21 | | operator of the CCR surface impoundment obtains, and | 22 | | the Agency approves, acceptable substitute financial | 23 | | assurance with a value of, at a minimum, the face value | 24 | | of the policy. | 25 | | Failure to pay the premium, without substitution of | 26 | | alternative financial assurance at least equal to face |
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| 1 | | value of the policy within the time period specified in | 2 | | subparagraph (K), shall constitute a violation of this Act. | 3 | | (g) The Board shall adopt rules establishing construction | 4 | | permit requirements, operating permit requirements, design | 5 | | standards, reporting, financial assurance, and closure and | 6 | | post-closure care permit requirements for CCR surface | 7 | | impoundments. Not later than 8 months after July 30, 2019 ( the | 8 | | effective date of Public Act 101-171) this amendatory Act of | 9 | | the 101st General Assembly the Agency shall propose, and not | 10 | | later than one year after receipt of the Agency's proposal the | 11 | | Board shall adopt, rules under this Section. The rules must, at | 12 | | a minimum: | 13 | | (1) be at least as protective and comprehensive as the | 14 | | federal regulations or amendments thereto promulgated by | 15 | | the Administrator of the United States Environmental | 16 | | Protection Agency in Subpart D of 40 CFR 257 governing CCR | 17 | | surface impoundments; | 18 | | (2) specify the minimum contents of CCR surface | 19 | | impoundment construction , and operating , and post-closure | 20 | | care permit applications, including the closure | 21 | | alternatives analysis required under subsection (d); | 22 | | (3) specify which types of permits include | 23 | | requirements for construction, operation, and | 24 | | post-closure, as well as closure, post-closure, | 25 | | remediation , and all other requirements applicable to CCR | 26 | | surface impoundments; |
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| 1 | | (4) specify when permit applications for existing CCR | 2 | | surface impoundments must be submitted, taking into | 3 | | consideration whether the CCR surface impoundment must | 4 | | close under the RCRA; | 5 | | (5) specify standards for review and approval by the | 6 | | Agency of CCR surface impoundment permit applications; | 7 | | (6) specify meaningful public participation procedures | 8 | | for the issuance of CCR surface impoundment construction | 9 | | and operating permits, including, but not limited to, | 10 | | public notice of the submission of permit applications, an | 11 | | opportunity for the submission of public comments, an | 12 | | opportunity for a public hearing prior to permit issuance, | 13 | | and a summary and response of the comments prepared by the | 14 | | Agency; | 15 | | (7) prescribe the type and amount of the performance | 16 | | bonds or other securities required under subsection (f), | 17 | | and the conditions under which the State is entitled to | 18 | | collect moneys from such performance bonds or other | 19 | | securities; | 20 | | (8) specify a procedure to identify areas of | 21 | | environmental justice concern in relation to CCR surface | 22 | | impoundments; | 23 | | (9) specify a method to prioritize CCR surface | 24 | | impoundments required to close under RCRA if not otherwise | 25 | | specified by the United States Environmental Protection | 26 | | Agency, so that the CCR surface impoundments with the |
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| 1 | | highest risk to public health and the environment, and | 2 | | areas of environmental justice concern are given first | 3 | | priority; | 4 | | (10) define when complete removal of CCR is achieved | 5 | | and specify the standards for responsible removal of CCR | 6 | | from CCR surface impoundments, including, but not limited | 7 | | to, dust controls and the protection of adjacent surface | 8 | | water and groundwater; and | 9 | | (11) describe the process and standards for | 10 | | identifying a specific alternative source of groundwater | 11 | | pollution when the owner or operator of the CCR surface | 12 | | impoundment believes that groundwater contamination on the | 13 | | site is not from the CCR surface impoundment. | 14 | | (12) Specify that an owner or operator of a CCR surface | 15 | | impoundment shall certify to the Agency that all | 16 | | contractors, subcontractors, and installers utilized to | 17 | | construct, install, modify, or close a CCR surface | 18 | | impoundment in accordance with a permit issued under this | 19 | | Act are participants in: | 20 | | (i) a training program that is approved by and | 21 | | registered with the United States Department of | 22 | | Labor's Employment and Training Administration and | 23 | | that includes instruction in erosion control and | 24 | | environmental remediation, including, but not limited | 25 | | to, a 40-hour hazardous waste worker training course | 26 | | and a hazardous waste supervisor training course as |
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| 1 | | prescribed under 29 C.F.R. 1926.65; and | 2 | | (ii) a training program that is approved by and | 3 | | registered with the United States Department of | 4 | | Labor's Employment and Training Administration and | 5 | | that includes instruction in the operation of heavy | 6 | | equipment and excavation. | 7 | | For purposes of this Section, "contractors, | 8 | | subcontractors, and installers" shall not apply to | 9 | | construction-related professional services. | 10 | | "Construction-related professional services" includes, but is | 11 | | not limited to, those services within the scope of: the | 12 | | practice of architecture as defined in Section 4 of the | 13 | | Illinois Architecture Practice Act of 1989; professional | 14 | | engineering as defined in Section 4 of the Professional | 15 | | Engineering Practice Act of 1989; the practice of a structural | 16 | | engineer under the Structural Engineering Practice Act of 1989; | 17 | | or land surveying under the Illinois Professional Land Surveyor | 18 | | Act of 1989. | 19 | | (h) Any owner of a CCR surface impoundment that generates | 20 | | CCR and sells or otherwise provides coal combustion byproducts | 21 | | pursuant to Section 3.135 of this Act shall, every 12 months, | 22 | | post on its publicly available website a report specifying the | 23 | | volume or weight of CCR, in cubic yards or tons, that it sold | 24 | | or provided during the past 12 months. | 25 | | (i) The owner of a CCR surface impoundment shall post all | 26 | | closure plans, permit applications, and supporting |
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| 1 | | documentation, as well as any Agency approval of the plans or | 2 | | applications on its publicly available website. | 3 | | (j) The owner or operator of a CCR surface impoundment | 4 | | shall pay the following fees: | 5 | | (1) An initial fee to the Agency within 6 months after | 6 | | July 30, 2019 ( the effective date of Public Act 101-171) | 7 | | this amendatory Act of the 101st General Assembly of: | 8 | | $50,000 for each closed CCR surface impoundment; | 9 | | and | 10 | | $75,000 for each CCR surface impoundment that have | 11 | | not completed closure. | 12 | | (2) Annual fees to the Agency, beginning on July 1, | 13 | | 2020, of: | 14 | | $25,000 for each CCR surface impoundment that has | 15 | | not completed closure; and | 16 | | $15,000 for each CCR surface impoundment that has | 17 | | completed closure, but has not completed post-closure | 18 | | care. | 19 | | (k) All fees collected by the Agency under subsection (j) | 20 | | shall be deposited into the Environmental Protection Permit and | 21 | | Inspection Fund. | 22 | | (l) The Coal Combustion Residual Surface Impoundment | 23 | | Financial Assurance Fund is created as a special fund in the | 24 | | State treasury. Any moneys forfeited to the State of Illinois | 25 | | from any performance bond or other security required under this | 26 | | Section shall be placed in the Coal Combustion Residual Surface |
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| 1 | | Impoundment Financial Assurance Fund and shall, upon approval | 2 | | by the Governor and the Director, be used by the Agency for the | 3 | | purposes for which such performance bond or other security was | 4 | | issued. The Coal Combustion Residual Surface Impoundment | 5 | | Financial Assurance Fund is not subject to the provisions of | 6 | | subsection (c) of Section 5 of the State Finance Act. | 7 | | (m) The provisions of this Section shall apply, without | 8 | | limitation, to all existing CCR surface impoundments and any | 9 | | CCR surface impoundments constructed after July 30, 2019 ( the | 10 | | effective date of Public Act 101-171) this amendatory Act of | 11 | | the 101st General Assembly , except to the extent prohibited by | 12 | | the Illinois or United States Constitutions.
| 13 | | (Source: P.A. 101-171, eff. 7-30-19; revised 10-22-19.)
| 14 | | Section 99. Effective date. This Act takes effect upon | 15 | | becoming law.".
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