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


Sen. Scott M. Bennett

Adopted in Senate on Nov 14, 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.
22    (f) Except for the State, its agencies and institutions, a
23unit of local government, or not-for-profit electric
24cooperative as defined in Section 3.4 of the Electric Supplier
25Act, any person who owns or operates a CCR surface impoundment
26in this State shall post with the Agency a performance bond or



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



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



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



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1                (ii) funds will be available without delay to
2            perform any required post-closure care, if used as
3            financial assurance for post-closure; and
4                (iii) funds will be available without delay
5            for remediation of releases, if used as financial
6            assurance for remediation of releases.
7            (G) For insurance used as financial assurance for
8        closure, the policy shall guarantee that once closure
9        begins the insurer will be responsible for payout of
10        funds up to an amount equal to the face amount of the
11        policy, upon the direction of the Agency, to the party
12        or parties the Agency specifies.
13            (H) The policy shall provide that payment of
14        insurance premiums may be made by the insured or by any
15        third party, including, but not limited to, the trustee
16        of the trust fund specified under subdivision (ii) of
17        subparagraph (A) of this paragraph (4).
18            (I) The policy must not be terminated, canceled, or
19        suspended for any reason other than failure to pay a
20        premium.
21            (J) If nonpayment of premiums by the owner or
22        operator of the CCR surface impoundment risks
23        terminating, cancelling, or suspending the policy, the
24        insurer shall provide notice by certified mail to the
25        owner or operator, the trustee of the trust fund
26        specified under subdivision (ii) of subparagraph (A)



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1        of this paragraph (4), and the Agency. Termination,
2        cancellation, or suspension shall not occur within 120
3        days after the date of receipt of the notice by the
4        owner or operator and the Agency, as evidenced by
5        return receipts.
6            (K) If nonpayment of premiums by the owner or
7        operator of the CCR surface impoundment risks
8        terminating, cancelling, or suspending the policy, and
9        after notice has been provided under subparagraph (J),
10        within 100 days of receiving that notice the owner or
11        operator shall acquire an acceptable substitute form
12        of financial assurance at least equal to the face value
13        of the policy. If the owner or operator fails to
14        acquire an acceptable substitute form of financial
15        assurance within the 100-day period, the surety bond or
16        irrevocable letter of credit specified under
17        subdivision (i) of subparagraph (A) of this paragraph
18        (4) shall be forfeited and the funds shall be directed
19        without delay, and in any event not more than 10 days
20        after the 100-day period, into the trust fund specified
21        under subdivision (ii) of subparagraph (A) of this
22        paragraph (4). Within 10 days of receipt of those funds
23        in the trust fund, the trustee of the fund shall use
24        the monies in the trust fund to pay any premiums that
25        are due or past due. Using the funds in the trust fund,
26        the trustee shall continue to pay the remaining



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1        premiums for the life of the policy.
2            (L) The Board's rules required under subsection
3        (g) of this Section shall address, among other things,
4        how to ensure continued payment of premiums if the
5        trustee of the trust fund specified under subdivision
6        (ii) of subparagraph (A) of this paragraph (4) fails to
7        make timely payment of premiums.
8            (M) The insurer shall be licensed to conduct
9        business in Illinois and have at least an "A-" rating,
10        or its equivalent, from a recognized rating agency.
11            (N) In the event of a transfer of ownership of the
12        CCR surface impoundment, the policy shall contain a
13        provision requiring continued payment of premiums by
14        the insured at least until any successor owner or
15        operator of the CCR surface impoundment obtains, and
16        the Agency approves, acceptable substitute financial
17        assurance with a value of, at a minimum, the face value
18        of the policy.
19        Failure to pay the premium, without substitution of
20    alternative financial assurance at least equal to face
21    value of the policy within the time period specified in
22    subparagraph (K), shall constitute a violation of this Act.
23    (g) The Board shall adopt rules establishing construction
24permit requirements, operating permit requirements, design
25standards, reporting, financial assurance, and closure and
26post-closure care requirements for CCR surface impoundments.



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1Not later than 8 months after July 30, 2019 (the effective date
2of Public Act 101-171) this amendatory Act of the 101st General
3Assembly the Agency shall propose, and not later than one year
4after receipt of the Agency's proposal the Board shall adopt,
5rules under this Section. The rules must, at a minimum:
6        (1) be at least as protective and comprehensive as the
7    federal regulations or amendments thereto promulgated by
8    the Administrator of the United States Environmental
9    Protection Agency in Subpart D of 40 CFR 257 governing CCR
10    surface impoundments;
11        (2) specify the minimum contents of CCR surface
12    impoundment construction and operating permit
13    applications, including the closure alternatives analysis
14    required under subsection (d);
15        (3) specify which types of permits include
16    requirements for closure, post-closure, remediation and
17    all other requirements applicable to CCR surface
18    impoundments;
19        (4) specify when permit applications for existing CCR
20    surface impoundments must be submitted, taking into
21    consideration whether the CCR surface impoundment must
22    close under the RCRA;
23        (5) specify standards for review and approval by the
24    Agency of CCR surface impoundment permit applications;
25        (6) specify meaningful public participation procedures
26    for the issuance of CCR surface impoundment construction



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



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



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



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1        and
2            $75,000 for each CCR surface impoundment that have
3        not completed closure.
4        (2) Annual fees to the Agency, beginning on July 1,
5    2020, of:
6            $25,000 for each CCR surface impoundment that has
7        not completed closure; and
8            $15,000 for each CCR surface impoundment that has
9        completed closure, but has not completed post-closure
10        care.
11    (k) All fees collected by the Agency under subsection (j)
12shall be deposited into the Environmental Protection Permit and
13Inspection Fund.
14    (l) The Coal Combustion Residual Surface Impoundment
15Financial Assurance Fund is created as a special fund in the
16State treasury. Any moneys forfeited to the State of Illinois
17from any performance bond or other security required under this
18Section shall be placed in the Coal Combustion Residual Surface
19Impoundment Financial Assurance Fund and shall, upon approval
20by the Governor and the Director, be used by the Agency for the
21purposes for which such performance bond or other security was
22issued. The Coal Combustion Residual Surface Impoundment
23Financial Assurance Fund is not subject to the provisions of
24subsection (c) of Section 5 of the State Finance Act.
25    (m) The provisions of this Section shall apply, without
26limitation, to all existing CCR surface impoundments and any



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1CCR surface impoundments constructed after July 30, 2019 (the
2effective date of Public Act 101-171) this amendatory Act of
3the 101st General Assembly, except to the extent prohibited by
4the Illinois or United States Constitutions.
5(Source: P.A. 101-171, eff. 7-30-19; revised 10-22-19.)
6    Section 99. Effective date. This Act takes effect upon
7becoming law.".