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90_HB0757
415 ILCS 5/3.32 from Ch. 111 1/2, par. 1003.32
415 ILCS 5/57.8
415 ILCS 5/57.18 new
Amends the Environmental Protection Act to provide that a
portion of a site or facility used for treatment of petroleum
contaminated materials and for storage of petroleum
contaminated materials before treatment is not a pollution
control facility for purposes of the Act. Allows persons
completing documents required under the Underground Storage
Tank Title of the Act to use forms not prescribed by the
Agency, except in the case of certain cover sheets or
certifications. Provides that legal defense costs are
recoverable as corrective action under that Title if incurred
by the owner or operator of an affected site or underground
storage tank in the course of appealing a final Environmental
Protection Agency decision to recover other corrective action
costs.
LRB9003345DPcc
LRB9003345DPcc
1 AN ACT to amend the Environmental Protection Act by
2 changing Sections 3.32 and 57.8 and adding Section 57.18.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Environmental Protection Act is amended
6 by changing Sections 3.32 and 57.8 and adding Section 57.18
7 as follows:
8 (415 ILCS 5/3.32) (from Ch. 111 1/2, par. 1003.32)
9 Sec. 3.32. Pollution control facility.
10 (a) "Pollution control facility" is any waste storage
11 site, sanitary landfill, waste disposal site, waste transfer
12 station, waste treatment facility, or waste incinerator. This
13 includes sewers, sewage treatment plants, and any other
14 facilities owned or operated by sanitary districts organized
15 under the Metropolitan Water Reclamation District Act.
16 The following are not pollution control facilities:
17 (1) (Blank);
18 (2) waste storage sites regulated under 40 CFR,
19 Part 761.42;
20 (3) sites or facilities used by any person
21 conducting a waste storage, waste treatment, waste
22 disposal, waste transfer or waste incineration operation,
23 or a combination thereof, for wastes generated by such
24 person's own activities, when such wastes are stored,
25 treated, disposed of, transferred or incinerated within
26 the site or facility owned, controlled or operated by
27 such person, or when such wastes are transported within
28 or between sites or facilities owned, controlled or
29 operated by such person;
30 (4) sites or facilities at which the State is
31 performing removal or remedial action pursuant to Section
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1 22.2 or 55.3;
2 (5) abandoned quarries used solely for the disposal
3 of concrete, earth materials, gravel, or aggregate debris
4 resulting from road construction activities conducted by
5 a unit of government or construction activities due to
6 the construction and installation of underground pipes,
7 lines, conduit or wires off of the premises of a public
8 utility company which are conducted by a public utility;
9 (6) sites or facilities used by any person to
10 specifically conduct a landscape composting operation;
11 (7) regional facilities as defined in the Central
12 Midwest Interstate Low-Level Radioactive Waste Compact;
13 (8) the portion of a site or facility where coal
14 combustion wastes are stored or disposed of in accordance
15 with subdivision (r)(2) or (r)(3) of Section 21;
16 (9) the portion of a site or facility used for the
17 collection, storage or processing of waste tires as
18 defined in Title XIV;
19 (10) the portion of a site or facility used for
20 treatment of petroleum contaminated materials by
21 application onto or incorporation into the soil surface
22 and any portion of that site or facility used for storage
23 of petroleum contaminated materials before treatment.
24 Only those categories of petroleum listed in paragraph
25 (5) of subsection (a) of Section 22.18b are exempt under
26 this subdivision (10);
27 (11) the portion of a site or facility where used
28 oil is collected or stored prior to shipment to a
29 recycling or energy recovery facility, provided that the
30 used oil is generated by households or commercial
31 establishments, and the site or facility is a recycling
32 center or a business where oil or gasoline is sold at
33 retail;
34 (12) the portion of a site or facility utilizing
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1 coal combustion waste for stabilization and treatment of
2 only waste generated on that site or facility when used
3 in connection with response actions pursuant to the
4 federal Comprehensive Environmental Response,
5 Compensation, and Liability Act of 1980, the federal
6 Resource Conservation and Recovery Act of 1976, or the
7 Illinois Environmental Protection Act or as authorized by
8 the Agency.
9 (b) A new pollution control facility is:
10 (1) a pollution control facility initially
11 permitted for development or construction after July 1,
12 1981; or
13 (2) the area of expansion beyond the boundary of a
14 currently permitted pollution control facility; or
15 (3) a permitted pollution control facility
16 requesting approval to store, dispose of, transfer or
17 incinerate, for the first time, any special or hazardous
18 waste.
19 (Source: P.A. 88-45; 88-681, eff. 12-22-94; 89-93, eff.
20 7-6-95.)
21 (415 ILCS 5/57.8)
22 Sec. 57.8. Underground Storage Tank Fund; payment;
23 options for State payment; deferred correction election to
24 commence corrective action upon availability of funds. If an
25 owner or operator is eligible to access the Underground
26 Storage Tank Fund pursuant to an Office of State Fire Marshal
27 eligibility/deductible final determination letter issued in
28 accordance with Section 57.9, the owner or operator may
29 submit a complete application for final or partial payment to
30 the Agency for activities taken in response to a confirmed
31 release. An owner or operator may submit a request for
32 partial or final payment regarding a site no more frequently
33 than once every 90 days.
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1 (a) Payment after completion of corrective action
2 measures. The owner or operator may submit an application for
3 payment for activities performed at a site after completion
4 of the requirements of Sections 57.6 and 57.7, or after
5 completion of any other required activities at the
6 underground storage tank site.
7 (1) In the case of any approved plan and budget for
8 which payment is being sought, the Agency shall make a
9 payment determination within 120 days of receipt of the
10 application. Such determination shall be considered a
11 final decision. The Agency's review shall be limited to
12 generally accepted auditing and accounting practices. In
13 no case shall the Agency conduct additional review of any
14 plan which was completed within the budget, beyond
15 auditing for adherence to the corrective action measures
16 in the proposal. If the Agency fails to approve the
17 payment application within 120 days, such application
18 shall be deemed approved by operation of law and the
19 Agency shall proceed to reimburse the owner or operator
20 the amount requested in the payment application.
21 However, in no event shall the Agency reimburse the owner
22 or operator an amount greater than the amount approved in
23 the plan.
24 (2) If sufficient funds are available in the
25 Underground Storage Tank Fund, the Agency shall, within
26 60 days, forward to the Office of the State Comptroller a
27 voucher in the amount approved under the payment
28 application.
29 (3) In the case of insufficient funds, the Agency
30 shall form a priority list for payment and shall notify
31 persons in such priority list monthly of the availability
32 of funds and when payment shall be made. Payment shall
33 be made to the owner or operator at such time as
34 sufficient funds become available for the costs
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1 associated with corrective action and costs expended for
2 activities performed where no proposal is required, if
3 applicable. Such priority list shall be available to any
4 owner or operator upon request. Priority for payment
5 shall be determined by the date the Agency receives a
6 complete request for partial or final payment. Upon
7 receipt of notification from the Agency that the
8 requirements of this Title have been met, the Comptroller
9 shall make payment to the owner or operator of the amount
10 approved by the Agency, if sufficient money exists in the
11 Fund. If there is insufficient money in the Fund, then
12 payment shall not be made. If the owner or operator
13 appeals a final Agency payment determination and it is
14 determined that the owner or operator is eligible for
15 payment or additional payment, the priority date for the
16 payment or additional payment shall be the same as the
17 priority date assigned to the original request for
18 partial or final payment.
19 (4) Any deductible, as determined pursuant to the
20 Office of the State Fire Marshal's eligibility and
21 deductibility final determination in accordance with
22 Section 57.9, shall be subtracted from any payment
23 invoice paid to an eligible owner or operator. Only one
24 deductible shall apply per underground storage tank site.
25 (5) In the event that costs are or will be incurred
26 in addition to those approved by the Agency, or after
27 payment, the owner or operator may submit successive
28 plans containing amended budgets. The requirements of
29 Section 57.7 shall apply to any amended plans.
30 (6) For purposes of this Section, a complete
31 application shall consist of:
32 (A) A certification from a Licensed
33 Professional Engineer as required under this Title
34 and acknowledged by the owner or operator.
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1 (B) A statement of the amount approved in the
2 plan and the amount actually sought for payment
3 along with a certified statement that the amount so
4 sought shall be expended in conformance with the
5 approved budget.
6 (C) A copy of the Office of the State Fire
7 Marshal's eligibility and deductibility
8 determination.
9 (D) Proof that approval of the payment
10 requested will not result in the limitations set
11 forth in subsection (g) of this Section being
12 exceeded.
13 (E) A federal taxpayer identification number
14 and legal status disclosure certification on a form
15 prescribed and provided by the Agency.
16 (b) Commencement of corrective action upon availability
17 of funds. The Board shall adopt regulations setting forth
18 procedures based on risk to human health or the environment
19 under which the owner or operator who has received approval
20 for any budget plan submitted pursuant to Section 57.7, and
21 who is eligible for payment from the Underground Storage Tank
22 Fund pursuant to an Office of the State Fire Marshal
23 eligibility and deductibility determination, may elect to
24 defer site classification, low priority groundwater
25 monitoring, or remediation activities until funds are
26 available in an amount equal to the amount approved in the
27 budget plan. The regulations shall establish criteria based
28 on risk to human health or the environment to be used for
29 determining on a site-by-site basis whether deferral is
30 appropriate. The regulations also shall establish the
31 minimum investigatory requirements for determining whether
32 the risk based criteria are present at a site considering
33 deferral and procedures for the notification of owners or
34 operators of insufficient funds, Agency review of request for
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1 deferral, notification of Agency final decisions, returning
2 deferred sites to active status, and earmarking of funds for
3 payment.
4 (c) When the owner or operator requests indemnification
5 for payment of costs incurred as a result of a release of
6 petroleum from an underground storage tank, if the owner or
7 operator has satisfied the requirements of subsection (a) of
8 this Section, the Agency shall forward a copy of the request
9 to the Attorney General. The Attorney General shall review
10 and approve the request for indemnification if:
11 (1) there is a legally enforceable judgment entered
12 against the owner or operator and such judgment was
13 entered due to harm caused by a release of petroleum from
14 an underground storage tank and such judgment was not
15 entered as a result of fraud; or
16 (2) a settlement with a third party due to a
17 release of petroleum from an underground storage tank is
18 reasonable.
19 (d) Notwithstanding any other provision of this Title,
20 the Agency shall not approve payment to an owner or operator
21 from the Fund for costs of corrective action or
22 indemnification incurred during a calendar year in excess of
23 the following aggregate amounts based on the number of
24 petroleum underground storage tanks owned or operated by such
25 owner or operator in Illinois.
26 Amount Number of Tanks
27 $1,000,000............................fewer than 101
28 $2,000,000...............................101 or more
29 (1) Costs incurred in excess of the aggregate
30 amounts set forth in paragraph (1) of this subsection
31 shall not be eligible for payment in subsequent years.
32 (2) For purposes of this subsection, requests
33 submitted by any of the agencies, departments, boards,
34 committees or commissions of the State of Illinois shall
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1 be acted upon as claims from a single owner or operator.
2 (3) For purposes of this subsection, owner or
3 operator includes (i) any subsidiary, parent, or joint
4 stock company of the owner or operator and (ii) any
5 company owned by any parent, subsidiary, or joint stock
6 company of the owner or operator.
7 (e) Costs of corrective action or indemnification
8 incurred by an owner or operator which have been paid to an
9 owner or operator under a policy of insurance, another
10 written agreement, or a court order are not eligible for
11 payment under this Section. An owner or operator who
12 receives payment under a policy of insurance, another written
13 agreement, or a court order shall reimburse the State to the
14 extent such payment covers costs for which payment was
15 received from the Fund. Any monies received by the State
16 under this subsection (e) shall be deposited into the Fund.
17 (f) Until the Board adopts regulations pursuant to
18 Section 57.14, handling charges are eligible for payment only
19 if they are equal to or less than the amount determined by
20 the following table:
21 Subcontract or field Eligible Handling Charges
22 Purchase Cost as a Percentage of Cost
23 $0 - $5,000...........................................12%
24 $5,001 - $15,000.............$600+10% of amt. over $5,000
25 $15,001 - $50,000...........$1600+8% of amt. over $15,000
26 $50,001 - $100,000..........$4400+5% of amt. over $50,000
27 $100,001 - $1,000,000......$6900+2% of amt. over $100,000
28 (g) The Agency shall not approve any payment from the
29 Fund to pay an owner or operator:
30 (1) for costs of corrective action incurred by such
31 owner operator in an amount in excess of $1,000,000 per
32 occurrence; and
33 (2) for costs of indemnification of such owner or
34 operator in an amount in excess of $1,000,000 per
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1 occurrence.
2 (h) Payment of any amount from the Fund for corrective
3 action or indemnification shall be subject to the State
4 acquiring by subrogation the rights of any owner, operator,
5 or other person to recover the costs of corrective action or
6 indemnification for which the Fund has compensated such
7 owner, operator, or person from the person responsible or
8 liable for the release.
9 (i) If the Agency refuses to pay or authorizes only a
10 partial payment, the affected owner or operator may petition
11 the Board for a hearing in the manner provided for the review
12 of permit decisions in Section 40 of this Act.
13 (j) Costs of corrective action or indemnification
14 incurred by an owner or operator prior to July 28, 1989,
15 shall not be eligible for payment or reimbursement under this
16 Section.
17 (k) The Agency shall not pay costs of corrective action
18 or indemnification incurred before providing notification of
19 the release of petroleum in accordance with the provisions of
20 this Title.
21 (l) Corrective action does not include legal defense
22 costs, except that legal defense costs shall be considered
23 corrective action when incurred by an owner or operator to
24 appeal a final agency decision to the Board to recover other
25 corrective action costs under this Title or under Part 731 or
26 732 of Title 35 of the Illinois Administrative Code, unless
27 the Agency's final decision is upheld by the Board. If the
28 Agency's final decision is successfully negotiated or settled
29 prior to a hearing before the Board, the legal defense costs
30 shall be prorated in accordance with the percentages of
31 settled amounts. The costs of legal defense under this
32 subsection shall be reimbursed from the UST Fund personnel
33 services line item. Legal defense costs include legal costs
34 for seeking payment under this Title unless the owner or
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1 operator prevails before the Board in which case the Board
2 may authorize payment of legal fees.
3 (m) The Agency may apportion payment of costs for plans
4 submitted under Section 57.7(c)(4)(E)(iii) if:
5 (1) the owner or operator was deemed eligible to
6 access the Fund for payment of corrective action costs
7 for some, but not all, of the underground storage tanks
8 at the site; and
9 (2) the owner or operator failed to justify all
10 costs attributable to each underground storage tank at
11 the site.
12 (Source: P.A. 88-496; 88-668, eff. 9-16-94; 89-428, eff.
13 1-1-96; 89-457, eff. 5-22-96.)
14 (415 ILCS 5/57.18 new)
15 Sec. 57.18. Forms. A plan, report, budget plan,
16 application for payment, or other document required by the
17 Agency under this Title may be completed on a form prescribed
18 by the Agency or on a similar document containing identical
19 information, except that cover sheets or certifications
20 required by the Agency to be submitted with a plan, report,
21 budget plan, application for payment, or other document shall
22 be completed on forms prescribed by the Agency.