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


Sen. Scott M. Bennett

Filed: 11/12/2019





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2    AMENDMENT NO. ______. Amend Senate Bill 671, by replacing
3everything after the enacting clause with the following:
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



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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
21healthful environment, including clean water, air, and land,
22meaningful public involvement, and the responsible disposal
23and storage of coal combustion residuals, so as to protect
24public health and to prevent pollution of the environment of
25this State.
26    The provisions of this Section shall be liberally construed



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1to 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
25Administrator of the United States Environmental Protection
26Agency under Section 4005 of the federal Resource Conservation



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1and Recovery Act, shall be deemed to be a permit under this
2Section and subsection (y) of Section 39.
3    (d) Before commencing closure of a CCR surface impoundment,
4in accordance with Board rules, the owner of a CCR surface
5impoundment must submit to the Agency for approval a closure
6alternatives analysis that analyzes all closure methods being
7considered and that otherwise satisfies all closure
8requirements adopted by the Board under this Act. Complete
9removal of CCR, as specified by the Board's rules, from the CCR
10surface impoundment must be considered and analyzed. Removal,
11as that term is defined in Section 3.405 of this Act, does not
12apply to the Board's rules specifying complete removal of CCR.
13The selected closure method must ensure compliance with
14regulations adopted by the Board pursuant to this Section.
15    (e) Owners or operators of CCR surface impoundments who
16have submitted a closure plan to the Agency before May 1, 2019,
17and who have completed closure prior to 24 months after July
1830, 2019 (the effective date of Public Act 101-171) this
19amendatory Act of the 101st General Assembly shall not be
20required to obtain a construction permit for the surface
21impoundment closure under this Section. Owners or operators of
22CCR surface impoundments who have completed closure pursuant to
23an Agency approved closure plan or Board site specific
24rulemaking, but not post-closure care before July 30, 2019,
25shall only be required to obtain a post-closure care permit or
26other Agency approval as established by the Board pursuant to



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1this Section.
2    (f) Except for the State, its agencies and institutions, a
3unit of local government, or not-for-profit electric
4cooperative as defined in Section 3.4 of the Electric Supplier
5Act, any person who owns or operates a CCR surface impoundment
6in this State shall post with the Agency a performance bond or
7other security for the purpose of: (i) ensuring closure of the
8CCR surface impoundment and post-closure care in accordance
9with this Act and its rules; and (ii) ensuring insuring
10remediation of releases from the CCR surface impoundment. The
11only acceptable forms of financial assurance are: a trust fund,
12a surety bond guaranteeing payment, a surety bond guaranteeing
13performance, or an irrevocable letter of credit, or insurance
14that 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
4permit requirements, operating permit requirements, design
5standards, reporting, financial assurance, and closure and
6post-closure care permit requirements for CCR surface
7impoundments. Not later than 8 months after July 30, 2019 (the
8effective date of Public Act 101-171) this amendatory Act of
9the 101st General Assembly the Agency shall propose, and not
10later than one year after receipt of the Agency's proposal the
11Board shall adopt, rules under this Section. The rules must, at
12a 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,
8subcontractors, and installers" shall not apply to
9construction-related professional services.
10"Construction-related professional services" includes, but is
11not limited to, those services within the scope of: the
12practice of architecture as defined in Section 4 of the
13Illinois Architecture Practice Act of 1989; professional
14engineering as defined in Section 4 of the Professional
15Engineering Practice Act of 1989; the practice of a structural
16engineer under the Structural Engineering Practice Act of 1989;
17or land surveying under the Illinois Professional Land Surveyor
18Act of 1989.
19    (h) Any owner of a CCR surface impoundment that generates
20CCR and sells or otherwise provides coal combustion byproducts
21pursuant to Section 3.135 of this Act shall, every 12 months,
22post on its publicly available website a report specifying the
23volume or weight of CCR, in cubic yards or tons, that it sold
24or provided during the past 12 months.
25    (i) The owner of a CCR surface impoundment shall post all
26closure plans, permit applications, and supporting



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1documentation, as well as any Agency approval of the plans or
2applications on its publicly available website.
3    (j) The owner or operator of a CCR surface impoundment
4shall 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)
20shall be deposited into the Environmental Protection Permit and
21Inspection Fund.
22    (l) The Coal Combustion Residual Surface Impoundment
23Financial Assurance Fund is created as a special fund in the
24State treasury. Any moneys forfeited to the State of Illinois
25from any performance bond or other security required under this
26Section shall be placed in the Coal Combustion Residual Surface



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1Impoundment Financial Assurance Fund and shall, upon approval
2by the Governor and the Director, be used by the Agency for the
3purposes for which such performance bond or other security was
4issued. The Coal Combustion Residual Surface Impoundment
5Financial Assurance Fund is not subject to the provisions of
6subsection (c) of Section 5 of the State Finance Act.
7    (m) The provisions of this Section shall apply, without
8limitation, to all existing CCR surface impoundments and any
9CCR surface impoundments constructed after July 30, 2019 (the
10effective date of Public Act 101-171) this amendatory Act of
11the 101st General Assembly, except to the extent prohibited by
12the 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
15becoming law.".