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1 | AN ACT concerning regulation.
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2 | Be it enacted by the People of the State of Illinois, | ||||||
3 | represented in the General Assembly:
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4 | Section 5. The Environmental Protection Act is amended by | ||||||
5 | changing Section 22.59 as follows: | ||||||
6 | (415 ILCS 5/22.59) | ||||||
7 | Sec. 22.59. CCR surface impoundments. | ||||||
8 | (a) The General Assembly finds that: | ||||||
9 | (1) the State of Illinois has a long-standing policy to | ||||||
10 | restore, protect, and enhance the environment, including | ||||||
11 | the purity of the air, land, and waters, including | ||||||
12 | groundwaters, of this State; | ||||||
13 | (2) a clean environment is essential to the growth and | ||||||
14 | well-being of this State; | ||||||
15 | (3) CCR generated by the electric generating industry | ||||||
16 | has caused groundwater contamination and other forms of | ||||||
17 | pollution at active and inactive plants throughout this | ||||||
18 | State; | ||||||
19 | (4) poorly constructed and inadequately maintained CCR | ||||||
20 | surface impoundments have contributed to environmental | ||||||
21 | disasters outside of Illinois; | ||||||
22 | (5) the health effects of exposure to CCR have become | ||||||
23 | the subject of a number of studies; |
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1 | (6) (4) environmental laws should be supplemented to | ||||||
2 | ensure consistent, responsible regulation of all existing | ||||||
3 | CCR surface impoundments; and | ||||||
4 | (7) (5) meaningful participation of State residents, | ||||||
5 | especially vulnerable populations who may be affected by | ||||||
6 | regulatory actions, is critical to ensure that | ||||||
7 | environmental justice considerations are incorporated in | ||||||
8 | the development of, decision-making related to, and | ||||||
9 | implementation of environmental laws and rulemaking that | ||||||
10 | protects and improves the well-being of communities in this | ||||||
11 | State that bear disproportionate burdens imposed by | ||||||
12 | environmental pollution. | ||||||
13 | Therefore, the purpose of this Section is to promote a | ||||||
14 | healthful environment, including clean water, air, and land, | ||||||
15 | meaningful public involvement, and the responsible disposal | ||||||
16 | and storage of coal combustion residuals, so as to protect | ||||||
17 | public health and to prevent pollution of the environment of | ||||||
18 | this State. | ||||||
19 | The provisions of this Section shall be liberally construed | ||||||
20 | to carry out the purposes of this Section. | ||||||
21 | (b) No person shall: | ||||||
22 | (1) Cause, threaten, cause or allow the release | ||||||
23 | discharge of any contaminants from a CCR surface | ||||||
24 | impoundment into the environment so as to cause air, water, | ||||||
25 | or other pollution in Illinois, either alone or in | ||||||
26 | combination with contaminants from other sources, or so as |
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1 | to violate , directly or indirectly, a violation of this Act | ||||||
2 | Section or any regulations or standards adopted by the | ||||||
3 | Board under this Act. Section, either alone or in | ||||||
4 | combination with contaminants from other sources; | ||||||
5 | (2) Construct construct , install, modify, operate, or | ||||||
6 | close any CCR surface impoundment without a permit granted | ||||||
7 | by the Agency, or so as to violate any conditions imposed | ||||||
8 | by such permit, any provision of this Act Section or any | ||||||
9 | regulations or standards adopted by the Board under this | ||||||
10 | Act. Section; or | ||||||
11 | (3) (Blank). cause or allow, directly or indirectly, | ||||||
12 | the discharge, deposit, injection, dumping, spilling, | ||||||
13 | leaking, or placing of any CCR upon the land in a place and | ||||||
14 | manner so as to cause or tend to cause a violation this | ||||||
15 | Section or any regulations or standards adopted by the | ||||||
16 | Board under this Section. | ||||||
17 | (c) For purposes of this Section, a permit issued by the | ||||||
18 | Administrator of the United States Environmental Protection | ||||||
19 | Agency under Section 4005 of the federal Resource Conservation | ||||||
20 | and Recovery Act, shall be deemed to be a permit under this | ||||||
21 | Section and subsection (y) of Section 39. | ||||||
22 | (d) Before commencing closure of a CCR surface impoundment, | ||||||
23 | in accordance with Board rules, the owner of a CCR surface | ||||||
24 | impoundment must submit to the Agency for approval a closure | ||||||
25 | alternatives analysis that analyzes all closure methods being | ||||||
26 | considered and that otherwise satisfies all closure |
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1 | requirements adopted by the Board under this Act. Complete | ||||||
2 | removal of CCR, as specified by the Board's rules, from the CCR | ||||||
3 | surface impoundment must be considered and analyzed. Removal, | ||||||
4 | as that term is defined in Section 3.405 of this Act, does not | ||||||
5 | apply to the Board's rules specifying complete removal of CCR. | ||||||
6 | The selected closure method must ensure compliance with | ||||||
7 | regulations adopted by the Board pursuant to this Section. | ||||||
8 | (e) Owners or operators of CCR surface impoundments who | ||||||
9 | have submitted a closure plan to the Agency before May 1, 2019, | ||||||
10 | and who have completed closure prior to 24 months after July | ||||||
11 | 30, 2019 ( the effective date of Public Act 101-171) this | ||||||
12 | amendatory Act of the 101st General Assembly shall not be | ||||||
13 | required to obtain a construction permit for the surface | ||||||
14 | impoundment closure under this Section. | ||||||
15 | (f) Except for the State, its agencies and institutions, a | ||||||
16 | unit of local government, or not-for-profit electric | ||||||
17 | cooperative as defined in Section 3.4 of the Electric Supplier | ||||||
18 | Act, any person who owns or operates a CCR surface impoundment | ||||||
19 | in this State shall post with the Agency a performance bond or | ||||||
20 | other security for the purpose of: (i) ensuring closure of the | ||||||
21 | CCR surface impoundment and post-closure care in accordance | ||||||
22 | with this Act and its rules; and (ii) ensuring insuring | ||||||
23 | remediation of releases from the CCR surface impoundment. The | ||||||
24 | only acceptable forms of financial assurance are: a trust fund, | ||||||
25 | a surety bond guaranteeing payment, a surety bond guaranteeing | ||||||
26 | performance, or an irrevocable letter of credit , or insurance |
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1 | that is not self-insurance . | ||||||
2 | (1) The cost estimate for the post-closure care of a | ||||||
3 | CCR surface impoundment shall be calculated using a 30-year | ||||||
4 | post-closure care period or such longer period as may be | ||||||
5 | approved by the Agency under Board or federal rules. | ||||||
6 | (2) The Agency is authorized to enter into such | ||||||
7 | contracts and agreements as it may deem necessary to carry | ||||||
8 | out the purposes of this Section. Neither the State, nor | ||||||
9 | the Director, nor any State employee shall be liable for | ||||||
10 | any damages or injuries arising out of or resulting from | ||||||
11 | any action taken under this Section. | ||||||
12 | (3) The Agency shall have the authority to approve or | ||||||
13 | disapprove any performance bond or other security posted | ||||||
14 | under this subsection. Any person whose performance bond or | ||||||
15 | other security is disapproved by the Agency may contest the | ||||||
16 | disapproval as a permit denial appeal pursuant to Section | ||||||
17 | 40. | ||||||
18 | (4) If insurance is used as financial assurance it must | ||||||
19 | meet the following criteria: | ||||||
20 | (A) Insurance may only be used as financial | ||||||
21 | assurance if it is accompanied by: | ||||||
22 | (i) a surety bond or irrevocable letter of | ||||||
23 | credit covering the value of the total cost of | ||||||
24 | premiums over the life of the insurance policy, | ||||||
25 | plus 50% of that total cost; and | ||||||
26 | (ii) proof of a trust fund that shall receive |
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1 | any forfeited funds from the surety bond or | ||||||
2 | irrevocable letter of credit under subdivision (i) | ||||||
3 | of this subparagraph (A) if the owner or operator | ||||||
4 | fails to pay insurance premiums. | ||||||
5 | (B) The life of the policy shall be the duration of | ||||||
6 | the closure and post-closure period, as well as any | ||||||
7 | period of remediation of release. | ||||||
8 | (C) The policy shall provide that insurance | ||||||
9 | premiums shall be paid no less than 2 years in advance | ||||||
10 | of the due date for that premium, except that the first | ||||||
11 | 2 years of premiums shall be paid in bulk as a single | ||||||
12 | payment upon issuance of the policy. The owner or | ||||||
13 | operator of the CCR surface impoundment or the | ||||||
14 | third-party payer shall submit to the Agency proof of | ||||||
15 | payment of each premium within 2 weeks after making | ||||||
16 | payment. | ||||||
17 | (D) The face value amount of the policy for which | ||||||
18 | insurance is serving as financial assurance shall be at | ||||||
19 | least equal to all of the following that apply: | ||||||
20 | (i) the cost estimate for closure, if used as | ||||||
21 | financial assurance for closure; | ||||||
22 | (ii) the cost estimate for post-closure, if | ||||||
23 | used as financial assurance for post-closure; or | ||||||
24 | (iii) the cost estimate for remediation of | ||||||
25 | releases, if used as financial assurance for | ||||||
26 | remediation of releases. |
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1 | When remediation of a release is required, within | ||||||
2 | 60 days after the Agency's approval of the cost | ||||||
3 | estimate for that remediation, the policy shall be | ||||||
4 | amended to cover that approved cost estimate or the | ||||||
5 | owner or operator of the CCR surface impoundment shall | ||||||
6 | obtain a separate policy covering the amount of the | ||||||
7 | approved cost estimate. | ||||||
8 | (E) The face value of the policy shall be updated | ||||||
9 | within 90 days after the Agency approves a revised cost | ||||||
10 | estimate. Cost estimates shall be updated: | ||||||
11 | (i) at least annually; | ||||||
12 | (ii) whenever there is a significant | ||||||
13 | modification to an approved plan for closure, | ||||||
14 | post-closure, or remediation of releases; and | ||||||
15 | (iii) upon request by the Agency. | ||||||
16 | (F) The policy shall guarantee that, | ||||||
17 | notwithstanding litigation: | ||||||
18 | (i) funds will be available without delay to | ||||||
19 | close, if used as financial assurance for closure; | ||||||
20 | (ii) funds will be available without delay to | ||||||
21 | perform any required post-closure care, if used as | ||||||
22 | financial assurance for post-closure; and | ||||||
23 | (iii) funds will be available without delay | ||||||
24 | for remediation of releases, if used as financial | ||||||
25 | assurance for remediation of releases. | ||||||
26 | (G) For insurance used as financial assurance for |
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1 | closure, the policy shall guarantee that once closure | ||||||
2 | begins the insurer will be responsible for payout of | ||||||
3 | funds up to an amount equal to the face amount of the | ||||||
4 | policy, upon the direction of the Agency, to the party | ||||||
5 | or parties the Agency specifies. | ||||||
6 | (H) The policy shall provide that payment of | ||||||
7 | insurance premiums may be made by the insured or by any | ||||||
8 | third party, including, but not limited to, the trustee | ||||||
9 | of the trust fund specified under subdivision (ii) of | ||||||
10 | subparagraph (A) of this paragraph (4). | ||||||
11 | (I) The policy must not be terminated, canceled, or | ||||||
12 | suspended for any reason other than failure to pay a | ||||||
13 | premium. | ||||||
14 | (J) If nonpayment of premiums by the owner or | ||||||
15 | operator of the CCR surface impoundment risks | ||||||
16 | terminating, cancelling, or suspending the policy, the | ||||||
17 | insurer shall provide notice by certified mail to the | ||||||
18 | owner or operator, the trustee of the trust fund | ||||||
19 | specified under subdivision (ii) of subparagraph (A) | ||||||
20 | of this paragraph (4), and the Agency. Termination, | ||||||
21 | cancellation, or suspension shall not occur within 120 | ||||||
22 | days after the date of receipt of the notice by the | ||||||
23 | owner or operator and the Agency, as evidenced by | ||||||
24 | return receipts. | ||||||
25 | (K) If nonpayment of premiums by the owner or | ||||||
26 | operator of the CCR surface impoundment risks |
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1 | terminating, cancelling, or suspending the policy, and | ||||||
2 | after notice has been provided under subparagraph (J), | ||||||
3 | within 100 days of receiving that notice, the owner or | ||||||
4 | operator shall acquire an acceptable substitute form | ||||||
5 | of financial assurance at least equal to the face value | ||||||
6 | of the policy. If the owner or operator fails to | ||||||
7 | acquire an acceptable substitute form of financial | ||||||
8 | assurance within the 100-day period, the surety bond or | ||||||
9 | irrevocable letter of credit specified under | ||||||
10 | subdivision (i) of subparagraph (A) of this paragraph | ||||||
11 | (4) shall be forfeited and the funds shall be directed | ||||||
12 | without delay, and in any event not more than 10 days | ||||||
13 | after the 100-day period, into the trust fund specified | ||||||
14 | under subdivision (ii) of subparagraph (A) of this | ||||||
15 | paragraph (4). Within 10 days of receipt of those funds | ||||||
16 | in the trust fund, the trustee of the fund shall use | ||||||
17 | the monies in the trust fund to pay any premiums that | ||||||
18 | are due or past due. Using the funds in the trust fund, | ||||||
19 | the trustee shall continue to pay the remaining | ||||||
20 | premiums for the life of the policy. | ||||||
21 | (L) The Board's rules required under subsection | ||||||
22 | (g) of this Section shall address, among other things, | ||||||
23 | how to ensure continued payment of premiums if the | ||||||
24 | trustee of the trust fund specified under subdivision | ||||||
25 | (ii) of subparagraph (A) of this paragraph (4) fails to | ||||||
26 | make timely payment of premiums. |
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1 | (M) The insurer shall be licensed to conduct | ||||||
2 | business in Illinois and have at least an "A-" rating, | ||||||
3 | or its equivalent, from a recognized rating agency. | ||||||
4 | (N) In the event of a transfer of ownership of the | ||||||
5 | CCR surface impoundment, the policy shall contain a | ||||||
6 | provision requiring continued payment of premiums by | ||||||
7 | the insured at least until any successor owner or | ||||||
8 | operator of the CCR surface impoundment obtains, and | ||||||
9 | the Agency approves, acceptable substitute financial | ||||||
10 | assurance with a value of, at a minimum, the face value | ||||||
11 | of the policy. | ||||||
12 | Failure to pay the premium, without substitution of | ||||||
13 | alternative financial assurance at least equal to face | ||||||
14 | value of the policy within the time period specified in | ||||||
15 | subparagraph (K), shall constitute a violation of this Act. | ||||||
16 | (g) The Board shall adopt rules establishing construction | ||||||
17 | permit requirements, operating permit requirements, design | ||||||
18 | standards, reporting, financial assurance, and closure and | ||||||
19 | post-closure care requirements for CCR surface impoundments. | ||||||
20 | Not later than 8 months after July 30, 2019 ( the effective date | ||||||
21 | of Public Act 101-171) this amendatory Act of the 101st General | ||||||
22 | Assembly the Agency shall propose, and not later than one year | ||||||
23 | after receipt of the Agency's proposal the Board shall adopt, | ||||||
24 | rules under this Section. The rules must, at a minimum: | ||||||
25 | (1) be at least as protective and comprehensive as the | ||||||
26 | federal regulations or amendments thereto promulgated by |
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1 | the Administrator of the United States Environmental | ||||||
2 | Protection Agency in Subpart D of 40 CFR 257 governing CCR | ||||||
3 | surface impoundments; | ||||||
4 | (2) specify the minimum contents of CCR surface | ||||||
5 | impoundment construction and operating permit | ||||||
6 | applications, including the closure alternatives analysis | ||||||
7 | required under subsection (d); | ||||||
8 | (3) specify which types of permits include | ||||||
9 | requirements for closure, post-closure, remediation and | ||||||
10 | all other requirements applicable to CCR surface | ||||||
11 | impoundments; | ||||||
12 | (4) specify when permit applications for existing CCR | ||||||
13 | surface impoundments must be submitted, taking into | ||||||
14 | consideration whether the CCR surface impoundment must | ||||||
15 | close under the RCRA; | ||||||
16 | (5) specify standards for review and approval by the | ||||||
17 | Agency of CCR surface impoundment permit applications; | ||||||
18 | (6) specify meaningful public participation procedures | ||||||
19 | for the issuance of CCR surface impoundment construction | ||||||
20 | and operating permits, including, but not limited to, | ||||||
21 | public notice of the submission of permit applications, an | ||||||
22 | opportunity for the submission of public comments, an | ||||||
23 | opportunity for a public hearing prior to permit issuance, | ||||||
24 | and a summary and response of the comments prepared by the | ||||||
25 | Agency; | ||||||
26 | (7) prescribe the type and amount of the performance |
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1 | bonds or other securities required under subsection (f), | ||||||
2 | and the conditions under which the State is entitled to | ||||||
3 | collect moneys from such performance bonds or other | ||||||
4 | securities; | ||||||
5 | (8) specify a procedure to identify areas of | ||||||
6 | environmental justice concern in relation to CCR surface | ||||||
7 | impoundments; | ||||||
8 | (9) specify a method to prioritize CCR surface | ||||||
9 | impoundments required to close under RCRA if not otherwise | ||||||
10 | specified by the United States Environmental Protection | ||||||
11 | Agency, so that the CCR surface impoundments with the | ||||||
12 | highest risk to public health and the environment, and | ||||||
13 | areas of environmental justice concern are given first | ||||||
14 | priority; | ||||||
15 | (10) define when complete removal of CCR is achieved | ||||||
16 | and specify the standards for responsible removal of CCR | ||||||
17 | from CCR surface impoundments, including, but not limited | ||||||
18 | to, dust controls and the protection of adjacent surface | ||||||
19 | water and groundwater; and | ||||||
20 | (11) describe the process and standards for | ||||||
21 | identifying a specific alternative source of groundwater | ||||||
22 | pollution when the owner or operator of the CCR surface | ||||||
23 | impoundment believes that groundwater contamination on the | ||||||
24 | site is not from the CCR surface impoundment. | ||||||
25 | (12) Specify that an owner or operator of a CCR surface | ||||||
26 | impoundment shall certify to the Agency that all |
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1 | contractors, subcontractors, and installers utilized to | ||||||
2 | construct, install, modify, or close a CCR surface | ||||||
3 | impoundment in accordance with a permit issued under this | ||||||
4 | Act are participants in: | ||||||
5 | (i) a training program that is approved by and | ||||||
6 | registered with the United States Department of | ||||||
7 | Labor's Employment and Training Administration and | ||||||
8 | that includes instruction in erosion control and | ||||||
9 | environmental remediation, including, but not limited | ||||||
10 | to, a 40-hour hazardous waste worker training course | ||||||
11 | and a hazardous waste supervisor training course as | ||||||
12 | prescribed under 29 C.F.R. 1926.65; and | ||||||
13 | (ii) a training program that is approved by and | ||||||
14 | registered with the United States Department of | ||||||
15 | Labor's Employment and Training Administration and | ||||||
16 | that includes instruction in the operation of heavy | ||||||
17 | equipment and excavation. | ||||||
18 | For purposes of this Section, "contractors, | ||||||
19 | subcontractors, and installers" shall not apply to | ||||||
20 | construction-related professional services. | ||||||
21 | "Construction-related professional services" includes, but is | ||||||
22 | not limited to, those services within the scope of: the | ||||||
23 | practice of architecture as defined in Section 4 of the | ||||||
24 | Illinois Architecture Practice Act of 1989; professional | ||||||
25 | engineering as defined in Section 4 of the Professional | ||||||
26 | Engineering Practice Act of 1989; the practice of a structural |
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1 | engineer under the Structural Engineering Practice Act of 1989; | ||||||
2 | or land surveying under the Illinois Professional Land Surveyor | ||||||
3 | Act of 1989. | ||||||
4 | (h) Any owner of a CCR surface impoundment that generates | ||||||
5 | CCR and sells or otherwise provides coal combustion byproducts | ||||||
6 | pursuant to Section 3.135 of this Act shall, every 12 months, | ||||||
7 | post on its publicly available website a report specifying the | ||||||
8 | volume or weight of CCR, in cubic yards or tons, that it sold | ||||||
9 | or provided during the past 12 months. | ||||||
10 | (i) The owner of a CCR surface impoundment shall post all | ||||||
11 | closure plans, permit applications, and supporting | ||||||
12 | documentation, as well as any Agency approval of the plans or | ||||||
13 | applications on its publicly available website. | ||||||
14 | (j) The owner or operator of a CCR surface impoundment | ||||||
15 | shall pay the following fees: | ||||||
16 | (1) An initial fee to the Agency within 6 months after | ||||||
17 | July 30, 2019 ( the effective date of Public Act 101-171) | ||||||
18 | this amendatory Act of the 101st General Assembly of: | ||||||
19 | $50,000 for each closed CCR surface impoundment; | ||||||
20 | and | ||||||
21 | $75,000 for each CCR surface impoundment that have | ||||||
22 | not completed closure. | ||||||
23 | (2) Annual fees to the Agency, beginning on July 1, | ||||||
24 | 2020, of: | ||||||
25 | $25,000 for each CCR surface impoundment that has | ||||||
26 | not completed closure; and |
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1 | $15,000 for each CCR surface impoundment that has | ||||||
2 | completed closure, but has not completed post-closure | ||||||
3 | care. | ||||||
4 | (k) All fees collected by the Agency under subsection (j) | ||||||
5 | shall be deposited into the Environmental Protection Permit and | ||||||
6 | Inspection Fund. | ||||||
7 | (l) The Coal Combustion Residual Surface Impoundment | ||||||
8 | Financial Assurance Fund is created as a special fund in the | ||||||
9 | State treasury. Any moneys forfeited to the State of Illinois | ||||||
10 | from any performance bond or other security required under this | ||||||
11 | Section shall be placed in the Coal Combustion Residual Surface | ||||||
12 | Impoundment Financial Assurance Fund and shall, upon approval | ||||||
13 | by the Governor and the Director, be used by the Agency for the | ||||||
14 | purposes for which such performance bond or other security was | ||||||
15 | issued. The Coal Combustion Residual Surface Impoundment | ||||||
16 | Financial Assurance Fund is not subject to the provisions of | ||||||
17 | subsection (c) of Section 5 of the State Finance Act. | ||||||
18 | (m) The provisions of this Section shall apply, without | ||||||
19 | limitation, to all existing CCR surface impoundments and any | ||||||
20 | CCR surface impoundments constructed after July 30, 2019 ( the | ||||||
21 | effective date of Public Act 101-171) this amendatory Act of | ||||||
22 | the 101st General Assembly , except to the extent prohibited by | ||||||
23 | the Illinois or United States Constitutions.
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24 | (Source: P.A. 101-171, eff. 7-30-19; revised 10-22-19.)
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25 | Section 99. Effective date. This Act takes effect upon | ||||||
26 | becoming law.
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