97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB0250

 

Introduced 01/25/11, by Rep. Thomas Holbrook

 

SYNOPSIS AS INTRODUCED:
 
415 ILCS 5/58.1
415 ILCS 5/58.2
415 ILCS 5/58.9
415 ILCS 5/58.10

    Amends the Environmental Protection Act concerning the Site Remediation Program. Provides that certain limitations on liability and cost recovery for site remediation do not apply to sites: (i) that are subject to any remediation or remedial activity regulated under a State program authorized, approved, or delegated pursuant to any federal environmental statute or (ii) that do not qualify to participate in the Site Remediation Program. Provides that sites that are subject to post-closure, corrective action, or remediation requirements under certain federal or State solid hazardous waste laws do not qualify to participate in the Site Remediation Program. Specifies that a definition of "remedial action" applies only in the context of the Site Remediation Program. Provides that the Pollution Control Board may (now, "shall") adopt rules concerning liability for certain remedial actions following the release of a regulated substance. Provides that the Environmental Protection Agency's issuance of a No Further Remediation Letter to a site that is eligible for the Site Remediation Program (and not simply any site) signifies a release from further responsibilities. Makes other changes. Effective immediately.


LRB097 00087 JDS 40095 b

FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

HB0250LRB097 00087 JDS 40095 b

1    AN ACT concerning safety.
 
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 Sections 58.1, 58.2, 58.9, and 58.10 as follows:
 
6    (415 ILCS 5/58.1)
7    Sec. 58.1. Applicability.
8    (a) (1) This Title establishes the procedures for the
9investigative and remedial activities at sites where there is a
10release, threatened release, or suspected release of hazardous
11substances, pesticides, or petroleum and for the review and
12approval of those activities.
13    (2) (A) Except as provided in subparagraph (B), any Any
14person, including persons required to perform investigations
15and remediations under this Act, may elect to proceed under the
16Site Remediation Program.
17    (B) A site is prohibited from participating in the Site
18Remediation Program if: this Title unless (i) the site is on
19the National Priorities List (Appendix B of 40 CFR 300); , (ii)
20the site is a treatment, storage, or disposal site for which a
21permit has been issued, or that is subject to closure,
22post-closure, corrective action, or remediation requirements
23under federal or State solid or hazardous waste laws; , (iii)

 

 

HB0250- 2 -LRB097 00087 JDS 40095 b

1the site is subject to federal or State underground storage
2tank laws; , or (iv) investigation or remedial action at the
3site has been required by a federal court order or an order
4issued by the United States Environmental Protection Agency. To
5the extent allowed by federal law and regulations, the sites
6listed under items (i), (ii), (iii), and (iv) may utilize the
7provisions of the Site Remediation Program this Title,
8including the procedures for establishing risk-based
9remediation objectives under Section 58.5.
10    (b) Except for sites excluded under subdivision (a) (2) of
11this Section, the Remediation Applicant (RA) for any site that
12has not received an Agency letter under subsection (y) of
13Section 4 of this Act may elect to proceed under the provisions
14of this Title by submitting a written statement of the election
15to the Agency. In the absence of such election, the RA shall
16continue under the provisions of this Act as applicable prior
17to the effective date of this amendatory Act of 1995.
18    (c)  Except for sites excluded under subdivision (a)(2) of
19this Section, agrichemical facilities may elect to undertake
20corrective action in conformance with this Title and rules
21promulgated by the Board thereunder and land application
22programs administered by the Department of Agriculture as
23provided under Section 19 of the Illinois Pesticide Act, and
24shall be eligible for the relief provided under Section 58.10.
25    (d) Notwithstanding the provisions of subsections (a),
26(b), and (c) of this Section, the provisions of Section 58.9 do

 

 

HB0250- 3 -LRB097 00087 JDS 40095 b

1not apply to:
2        (1) any site covered by the provisions of item (2)(B)
3    of subsection (a) of this Section; or
4        (2) any remediation or remedial activity that is
5    regulated under a State program authorized, approved, or
6    delegated pursuant to any federal environmental statute
7    including, but not limited to, the Clean Air Act, the Clean
8    Water Act, the Resource Conservation and Recovery Act, the
9    Safe Drinking Water Act, the Toxic Substances Control Act,
10    and the Federal Insecticide, Fungicide, and Rodenticide
11    Act.
12(Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96.)
 
13    (415 ILCS 5/58.2)
14    Sec. 58.2. Definitions. The following words and phrases
15when used in this Title shall have the meanings given to them
16in this Section unless the context clearly indicates otherwise:
17    "Agrichemical facility" means a site on which agricultural
18pesticides are stored or handled, or both, in preparation for
19end use, or distributed. The term does not include basic
20manufacturing facility sites.
21    "ASTM" means the American Society for Testing and
22Materials.
23    "Area background" means concentrations of regulated
24substances that are consistently present in the environment in
25the vicinity of a site that are the result of natural

 

 

HB0250- 4 -LRB097 00087 JDS 40095 b

1conditions or human activities, and not the result solely of
2releases at the site.
3    "Brownfields site" or "brownfields" means a parcel of real
4property, or a portion of the parcel, that has actual or
5perceived contamination and an active potential for
6redevelopment.
7    "Class I groundwater" means groundwater that meets the
8Class I Potable Resource groundwater criteria set forth in the
9Board rules adopted under the Illinois Groundwater Protection
10Act.
11    "Class III groundwater" means groundwater that meets the
12Class III Special Resource Groundwater criteria set forth in
13the Board rules adopted under the Illinois Groundwater
14Protection Act.
15    "Carcinogen" means a contaminant that is classified as a
16Category A1 or A2 Carcinogen by the American Conference of
17Governmental Industrial Hygienists; or a Category 1 or 2A/2B
18Carcinogen by the World Health Organizations International
19Agency for Research on Cancer; or a "Human Carcinogen" or
20"Anticipated Human Carcinogen" by the United States Department
21of Health and Human Service National Toxicological Program; or
22a Category A or B1/B2 Carcinogen by the United States
23Environmental Protection Agency in Integrated Risk Information
24System or a Final Rule issued in a Federal Register notice by
25the USEPA as of the effective date of this amendatory Act of
261995.

 

 

HB0250- 5 -LRB097 00087 JDS 40095 b

1    "Licensed Professional Engineer" (LPE) means a person,
2corporation, or partnership licensed under the laws of this
3State to practice professional engineering.
4    "Licensed Professional Geologist" means a person licensed
5under the laws of the State of Illinois to practice as a
6professional geologist.
7    "RELPEG" means a Licensed Professional Engineer or a
8Licensed Professional Geologist engaged in review and
9evaluation under this Title.
10    "Man-made pathway" means constructed routes that may allow
11for the transport of regulated substances including, but not
12limited to, sewers, utility lines, utility vaults, building
13foundations, basements, crawl spaces, drainage ditches, or
14previously excavated and filled areas.
15    "Municipality" means an incorporated city, village, or
16town in this State. "Municipality" does not mean a township,
17town when that term is used as the equivalent of a township,
18incorporated town that has superseded a civil township, county,
19or school district, park district, sanitary district, or
20similar governmental district.
21    "Natural pathway" means natural routes for the transport of
22regulated substances including, but not limited to, soil,
23groundwater, sand seams and lenses, and gravel seams and
24lenses.
25    "Person" means individual, trust, firm, joint stock
26company, joint venture, consortium, commercial entity,

 

 

HB0250- 6 -LRB097 00087 JDS 40095 b

1corporation (including a government corporation), partnership,
2association, State, municipality, commission, political
3subdivision of a State, or any interstate body including the
4United States Government and each department, agency, and
5instrumentality of the United States.
6    "Regulated substance" means any hazardous substance as
7defined under Section 101(14) of the Comprehensive
8Environmental Response, Compensation, and Liability Act of
91980 (P.L. 96-510) and petroleum products including crude oil
10or any fraction thereof, natural gas, natural gas liquids,
11liquefied natural gas, or synthetic gas usable for fuel (or
12mixtures of natural gas and such synthetic gas).
13    "Remedial action" means, for purposes of this Title,
14activities associated with compliance with the provisions of
15Sections 58.6 and 58.7.
16    "Remediation Applicant" (RA) means any person seeking to
17perform or performing investigative or remedial activities
18under this Title, including the owner or operator of the site
19or persons authorized by law or consent to act on behalf of or
20in lieu of the owner or operator of the site.
21    "Remediation costs" means reasonable costs paid for
22investigating and remediating regulated substances of concern
23consistent with the remedy selected for a site.
24    For purposes of Section 58.14, "remediation costs" shall
25not include costs incurred prior to January 1, 1998, costs
26incurred after the issuance of a No Further Remediation Letter

 

 

HB0250- 7 -LRB097 00087 JDS 40095 b

1under Section 58.10 of this Act, or costs incurred more than 12
2months prior to acceptance into the Site Remediation Program.
3    For the purpose of Section 58.14a, "remediation costs" do
4not include any costs incurred before January 1, 2007, any
5costs incurred after the issuance of a No Further Remediation
6Letter under Section 58.10, or any costs incurred more than 12
7months before acceptance into the Site Remediation Program.
8    "Residential property" means any real property that is used
9for habitation by individuals and other property uses defined
10by Board rules such as education, health care, child care and
11related uses.
12    "River Edge Redevelopment Zone" has the meaning set forth
13under the River Edge Redevelopment Zone Act.
14    "Site" means any single location, place, tract of land or
15parcel of property, or portion thereof, including contiguous
16property separated by a public right-of-way.
17    "Regulated substance of concern" means any contaminant
18that is expected to be present at the site based upon past and
19current land uses and associated releases that are known to the
20Remediation Applicant based upon reasonable inquiry.
21(Source: P.A. 95-454, eff. 8-27-07.)
 
22    (415 ILCS 5/58.9)
23    Sec. 58.9. Liability.
24    (a) Cost assignment.
25        (1) Except as provided in subsection (d) of Section

 

 

HB0250- 8 -LRB097 00087 JDS 40095 b

1    58.1 and notwithstanding subsection (f) of Section 22.2
2    Notwithstanding any other provisions of this Act to the
3    contrary, including subsection (f) of Section 22.2, in no
4    event may the Agency, the State of Illinois, or any person
5    bring an action pursuant to this Act or the Groundwater
6    Protection Act to require any person to conduct remedial
7    action or to seek recovery of costs for remedial activity
8    conducted by the State of Illinois or any person beyond the
9    remediation of releases of regulated substances that may be
10    attributed to being proximately caused by such person's act
11    or omission or beyond such person's proportionate degree of
12    responsibility for costs of the remedial action of releases
13    of regulated substances that were proximately caused or
14    contributed to by 2 or more persons.
15        (2) Except as provided in subsection (d) of Section
16    58.1 and notwithstanding subsection (f) of Section 22.2
17    Notwithstanding any provisions in this Act to the contrary,
18    including subsection (f) of Section 22.2, in no event may
19    the State of Illinois or any person require the performance
20    of remedial action pursuant to this Act against any of the
21    following:
22            (A) A person who neither caused nor contributed to
23        in any material respect a release of regulated
24        substances on, in, or under the site that was
25        identified and addressed by the remedial action taken
26        pursuant to this Title.

 

 

HB0250- 9 -LRB097 00087 JDS 40095 b

1            (B) Notwithstanding a landlord's rights against a
2        tenant, a landlord, if the landlord did not know, and
3        could not have reasonably known, of the acts or
4        omissions of a tenant that caused or contributed to, or
5        were likely to have caused or contributed to, a release
6        of regulated substances that resulted in the
7        performance of remedial action at the site.
8            (C) The State of Illinois or any unit of local
9        government if it involuntarily acquires ownership or
10        control of the site by virtue of its function as a
11        sovereign through such means as escheat, bankruptcy,
12        tax delinquency, or abandonment, unless the State of
13        Illinois or unit of local government takes possession
14        of the site and exercises actual, direct, and continual
15        or recurrent managerial control in the operation of the
16        site that causes a release or substantial threat of a
17        release of a regulated substance resulting in removal
18        or remedial activity.
19            (D) The State of Illinois or any unit of local
20        government if it voluntarily acquires ownership or
21        control of the site through purchase, appropriation,
22        or other means, unless the State of Illinois or the
23        unit of local government takes possession of the site
24        and exercises actual, direct, and continual or
25        recurrent managerial control in the operation of the
26        site that causes a release or substantial threat of a

 

 

HB0250- 10 -LRB097 00087 JDS 40095 b

1        release of a regulated substance resulting in removal
2        or remedial activity.
3            (E) A financial institution, as that term is
4        defined in Section 2 of the Illinois Banking Act and to
5        include the Illinois Housing Development Authority,
6        that has acquired the ownership, operation,
7        management, or control of a site through foreclosure, a
8        deed in lieu of foreclosure, receivership, by
9        exercising of an assignment of rents, as mortgagee in
10        possession or otherwise under the terms of a security
11        interest held by the financial institution, or under
12        the terms of an extension of credit made by the
13        financial institution, unless the financial
14        institution takes actual physical possession of the
15        site and, in so doing, directly causes a release of a
16        regulated substance that results in removal or
17        remedial activity.
18            (F) A corporate fiduciary that has acquired
19        ownership, operation, management, or control of a site
20        through acceptance of a fiduciary appointment unless
21        the corporate fiduciary directly causes a release of a
22        regulated substance resulting in a removal or remedial
23        activity.
24    (b) In the event that the State of Illinois seeks to
25require a person who may be liable pursuant to this Act to
26conduct remedial action at a Site covered by this Section

 

 

HB0250- 11 -LRB097 00087 JDS 40095 b

1activities for a release or threatened release of a regulated
2substance, the Agency shall provide notice to such person. Such
3notice shall include the necessity to conduct remedial action
4pursuant to this Title and an opportunity for the person to
5perform the remedial action.
6    (c) In any instance in which the Agency has issued notice
7pursuant to subsection (b) of this Section, the Agency and the
8person to whom such notice was issued may attempt to determine
9the costs of conducting the remedial action that are
10attributable to the releases to which such person or any other
11person caused or contributed. Determinations pursuant to this
12Section may be made in accordance with rules promulgated by the
13Board.
14    (d) The Board may shall adopt, not later than January 1,
151999, pursuant to Sections 27 and 28 of this Act, rules and
16procedures for determining proportionate share. Such rules
17shall, at a minimum, provide for criteria for the determination
18of apportioned responsibility based upon the degree to which a
19person directly caused or contributed to a release of regulated
20substances on, in, or under the site identified and addressed
21in the remedial action; procedures to establish how and when
22such persons may file a petition for determination of such
23apportionment; and any other standards or procedures which the
24Board may adopt pursuant to this Section. In developing such
25rules, the Board shall take into consideration any
26recommendations and proposals of the Agency and the Site

 

 

HB0250- 12 -LRB097 00087 JDS 40095 b

1Remediation Advisory Committee established in Section 58.11 of
2this Act and other interested participants.
3    (e) Nothing in this Section shall limit the authority of
4the Agency to provide notice under subsection (q) of Section 4
5or to undertake investigative, preventive, or corrective
6action under any other applicable provisions of this Act. The
7Director of the Agency is authorized to enter into such
8contracts and agreements as may be necessary to carry out the
9Agency's duties and responsibilities under this Section as
10expeditiously as possible.
11    (f) This Section does not apply to any cost recovery action
12brought by the State under Section 22.2 to recover costs
13incurred by the State prior to July 1, 1996.
14(Source: P.A. 89-443, eff. 7-1-96; 90-484, eff. 8-17-97.)
 
15    (415 ILCS 5/58.10)
16    Sec. 58.10. Effect of completed remediation; liability
17releases.
18    (a) The Agency's issuance of the No Further Remediation
19Letter to a site eligible for the Site Remediation Program
20under Section 58.1 signifies a release from further
21responsibilities under this Act in performing the approved
22remedial action and shall be considered prima facie evidence
23that the site does not constitute a threat to human health and
24the environment and does not require further remediation under
25this Act, so long as the site is utilized in accordance with

 

 

HB0250- 13 -LRB097 00087 JDS 40095 b

1the terms of the No Further Remediation Letter.
2    (b) Within 30 days of the Agency's approval of a Remedial
3Action Completion Report, the Agency shall issue a No Further
4Remediation Letter applicable to the site. In the event that
5the Agency fails to issue the No Further Remediation Letter
6within 30 days after approval of the Remedial Action Completion
7Report, the No Further Remediation Letter shall issue by
8operation of law. A No Further Remediation Letter issued
9pursuant to this Section shall be limited to and shall include
10all of the following:
11        (1) An acknowledgment that the requirements of the
12    Remedial Action Plan and the Remedial Action Completion
13    Report were satisfied;
14        (2) A description of the location of the affected
15    property by adequate legal description or by reference to a
16    plat showing its boundaries;
17        (3) The level of the remediation objectives,
18    specifying, as appropriate, any land use limitation
19    imposed as a result of such remediation efforts;
20        (4) A statement that the Agency's issuance of the No
21    Further Remediation Letter signifies a release from
22    further responsibilities under this Act in performing the
23    approved remedial action and shall be considered prima
24    facie evidence that the site does not constitute a threat
25    to human health and the environment and does not require
26    further remediation under the Act, so long as the site is

 

 

HB0250- 14 -LRB097 00087 JDS 40095 b

1    utilized in accordance with the terms of the No Further
2    Remediation Letter;
3        (5) The prohibition against the use of any site in a
4    manner inconsistent with any land use limitation imposed as
5    a result of such remediation efforts without additional
6    appropriate remedial activities;
7        (6) A description of any preventive, engineering, and
8    institutional controls required in the approved Remedial
9    Action Plan and notification that failure to manage the
10    controls in full compliance with the terms of the Remedial
11    Action Plan may result in voidance of the No Further
12    Remediation Letter;
13        (7) The recording obligations pursuant to Section
14    58.8;
15        (8) The opportunity to request a change in the recorded
16    land use pursuant to Section 58.8;
17        (9) Notification that further information regarding
18    the site can be obtained from the Agency through a request
19    under the Freedom of Information Act (5 ILCS 140); and
20        (10) If only a portion of the site or only selected
21    regulated substances at a site were the subject of
22    corrective action, any other provisions agreed to by the
23    Agency and the RA.
24    (c) The Agency may deny a No Further Remediation Letter if
25fees applicable under the review and evaluation services
26agreement have not been paid in full.

 

 

HB0250- 15 -LRB097 00087 JDS 40095 b

1    (d) The No Further Remediation Letter shall apply in favor
2of the following persons:
3        (1) The RA or other person to whom the letter was
4    issued.
5        (2) The owner and operator of the site.
6        (3) Any parent corporation or subsidiary of the owner
7    of the site.
8        (4) Any co-owner, either by joint-tenancy, right of
9    survivorship, or any other party sharing a legal
10    relationship with the owner of the site.
11        (5) Any holder of a beneficial interest of a land trust
12    or inter vivos trust, whether revocable or irrevocable,
13    involving the site.
14        (6) Any mortgagee or trustee of a deed of trust of the
15    owner of the site or any assignee, transferee, or any
16    successor-in-interest thereto.
17        (7) Any successor-in-interest of the owner of the site.
18        (8) Any transferee of the owner of the site whether the
19    transfer was by sale, bankruptcy proceeding, partition,
20    dissolution of marriage, settlement or adjudication of any
21    civil action, charitable gift, or bequest.
22        (9) Any heir or devisee of the owner of the site.
23        (10) Any financial institution, as that term is defined
24    in Section 2 of the Illinois Banking Act and to include the
25    Illinois Housing Development Authority, that has acquired
26    the ownership, operation, management, or control of a site

 

 

HB0250- 16 -LRB097 00087 JDS 40095 b

1    through foreclosure or under the terms of a security
2    interest held by the financial institution, under the terms
3    of an extension of credit made by the financial
4    institution, or any successor in interest thereto.
5        (11) In the case of a fiduciary (other than a land
6    trustee), the estate, trust estate, or other interest in
7    property held in a fiduciary capacity, and a trustee,
8    executor, administrator, guardian, receiver, conservator,
9    or other person who holds the remediated site in a
10    fiduciary capacity, or a transferee of such party.
11    (e) The No Further Remediation Letter shall be voidable if
12the site activities are not managed in full compliance with the
13provisions of this Title, any rules adopted under it, or the
14approved Remedial Action Plan or remediation objectives upon
15which the issuance of the No Further Remediation Letter was
16based. Specific acts or omissions that may result in voidance
17of the No Further Remediation Letter include, but shall not be
18limited to:
19        (1) Any violation of institutional controls or land use
20    restrictions, if applicable;
21        (2) The failure of the owner, operator, RA, or any
22    subsequent transferee to operate and maintain preventive
23    or engineering controls or comply with a groundwater
24    monitoring plan, if applicable;
25        (3) The disturbance or removal of contamination that
26    has been left in place in accordance with the Remedial

 

 

HB0250- 17 -LRB097 00087 JDS 40095 b

1    Action Plan;
2        (4) The failure to comply with the recording
3    requirements of Section 58.8;
4        (5) Obtaining the No Further Remediation Letter by
5    fraud or misrepresentation;
6        (6) Subsequent discovery of contaminants, not
7    identified as part of the investigative or remedial
8    activities upon which the issuance of the No Further
9    Remediation Letter was based, that pose a threat to human
10    health or the environment; or
11        (7) The failure to pay the No Further Remediation
12    Assessment required under subsection (g) of this Section.
13    (f) If the Agency seeks to void a No Further Remediation
14Letter, it shall provide notice by certified letter to the
15current title holder of the site and to the RA at his or her
16last known address. The notice shall specify the cause for the
17voidance and describe facts in support of that cause.
18        (1) Within 35 days of the receipt of the notice of
19    voidance, the RA or current title holder may appeal the
20    Agency's decision to the Board in the manner provided for
21    the review of permits in Section 40 of this Act. If the
22    Board fails to take final action on the petition within 120
23    days, unless such time period is waived by the petitioner,
24    the petition shall be deemed denied and the petitioner
25    shall be entitled to an Appellate Court order pursuant to
26    subsection (d) of Section 41 of this Act. The Agency shall

 

 

HB0250- 18 -LRB097 00087 JDS 40095 b

1    have the burden of proof in any such action.
2        (2) If the Agency's action is not appealed, the Agency
3    shall submit the notice of voidance to the Office of the
4    Recorder or the Registrar of Titles for the county in which
5    the site is located. The notice shall be filed in
6    accordance with Illinois law so that it forms a permanent
7    part of the chain of title for the site.
8        (3) If the Agency's action is appealed, the action
9    shall not become effective until the appeal process has
10    been exhausted and a final decision reached by the Board or
11    courts.
12        (4) Upon receiving notice of appeal, the Agency shall
13    file a notice of lis pendens with the Office of the
14    Recorder or the Registrar of Titles for the county in which
15    the site is located. The notice shall be filed in
16    accordance with Illinois law so that it becomes a part of
17    the chain of title for the site. However, if the Agency's
18    action is not upheld on appeal, the notice of lis pendens
19    shall be removed in accordance with Illinois law within 45
20    days of receipt of the final decision of the Board or the
21    courts.
22    (g) Within 30 days after the receipt of a No Further
23Remediation Letter issued by the Agency or by operation of law
24pursuant to this Section, the recipient of the letter shall
25forward to the Agency a No Further Remediation Assessment in
26the amount of the lesser of $2,500 or an amount equal to the

 

 

HB0250- 19 -LRB097 00087 JDS 40095 b

1costs incurred for the site by the Agency under Section 58.7.
2The assessment shall be made payable to the State of Illinois,
3for deposit in the Hazardous Waste Fund. The No Further
4Remediation Assessment is in addition to any other costs that
5may be incurred by the Agency pursuant to Section 58.7.
6(Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96;
789-626, eff. 8-9-96.)
 
8    Section 99. Effective date. This Act takes effect upon
9becoming law.