SB0671sam002 101ST GENERAL ASSEMBLY

Sen. Scott M. Bennett

Adopted in Senate on Nov 14, 2019

10100SB0671sam002 LRB101 04433 CPF 64722 a

AMENDMENT TO SENATE BILL 671

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

"Section 5. The Environmental Protection Act is amended by changing Section 22.59 as follows:

(415 ILCS 5/22.59)

Sec. 22.59. CCR surface impoundments.

(a) The General Assembly finds that:

(1) the State of Illinois has a long-standing policy to restore, protect, and enhance the environment, including the purity of the air, land, and waters, including groundwaters, of this State;

(2) a clean environment is essential to the growth and well-being of this State;

(3) CCR generated by the electric generating industry has caused groundwater contamination and other forms of pollution at active and inactive plants throughout this State;

(4) poorly constructed and inadequately maintained CCR surface impoundments have contributed to environmental disasters outside of Illinois;

(5) the health effects of exposure to CCR have become the subject of a number of studies;

(6) (4) environmental laws should be supplemented to ensure consistent, responsible regulation of all existing CCR surface impoundments; and

(7) (5) meaningful participation of State residents, especially vulnerable populations who may be affected by regulatory actions, is critical to ensure that environmental justice considerations are incorporated in the development of, decision-making related to, and implementation of environmental laws and rulemaking that protects and improves the well-being of communities in this State that bear disproportionate burdens imposed by environmental pollution.

Therefore, the purpose of this Section is to promote a healthful environment, including clean water, air, and land, meaningful public involvement, and the responsible disposal and storage of coal combustion residuals, so as to protect public health and to prevent pollution of the environment of this State.

The provisions of this Section shall be liberally construed to carry out the purposes of this Section.

(b) No person shall:

(1) Cause, threaten, cause or allow the release discharge of any contaminants from a CCR surface impoundment into the environment so as to cause air, water, or other pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate , directly or indirectly, a violation of this Act Section or any regulations or standards adopted by the Board under this Act. Section, either alone or in combination with contaminants from other sources;

(2) Construct construct, install, modify, operate, or close any CCR surface impoundment without a permit granted by the Agency, or so as to violate any conditions imposed by such permit, any provision of this Act Section or any regulations or standards adopted by the Board under this Act. Section; or

(3) (Blank). cause or allow, directly or indirectly, the discharge, deposit, injection, dumping, spilling, leaking, or placing of any CCR upon the land in a place and manner so as to cause or tend to cause a violation this Section or any regulations or standards adopted by the Board under this Section.

(c) For purposes of this Section, a permit issued by the Administrator of the United States Environmental Protection Agency under Section 4005 of the federal Resource Conservation and Recovery Act, shall be deemed to be a permit under this Section and subsection (y) of Section 39.

(d) Before commencing closure of a CCR surface impoundment, in accordance with Board rules, the owner of a CCR surface impoundment must submit to the Agency for approval a closure alternatives analysis that analyzes all closure methods being considered and that otherwise satisfies all closure requirements adopted by the Board under this Act. Complete removal of CCR, as specified by the Board's rules, from the CCR surface impoundment must be considered and analyzed. Removal, as that term is defined in Section 3.405 of this Act, does not apply to the Board's rules specifying complete removal of CCR. The selected closure method must ensure compliance with regulations adopted by the Board pursuant to this Section.

(e) Owners or operators of CCR surface impoundments who have submitted a closure plan to the Agency before May 1, 2019, and who have completed closure prior to 24 months after July 30, 2019 (the effective date of Public Act 101-171) this amendatory Act of the 101st General Assembly shall not be required to obtain a construction permit for the surface impoundment closure under this Section.

(f) Except for the State, its agencies and institutions, a unit of local government, or not-for-profit electric cooperative as defined in Section 3.4 of the Electric Supplier Act, any person who owns or operates a CCR surface impoundment in this State shall post with the Agency a performance bond or other security for the purpose of: (i) ensuring closure of the CCR surface impoundment and post-closure care in accordance with this Act and its rules; and (ii) ensuring insuring remediation of releases from the CCR surface impoundment. The only acceptable forms of financial assurance are: a trust fund, a surety bond guaranteeing payment, a surety bond guaranteeing performance, or an irrevocable letter of credit, or insurance that is not self-insurance.

(1) The cost estimate for the post-closure care of a CCR surface impoundment shall be calculated using a 30-year post-closure care period or such longer period as may be approved by the Agency under Board or federal rules.

(2) The Agency is authorized to enter into such contracts and agreements as it may deem necessary to carry out the purposes of this Section. Neither the State, nor the Director, nor any State employee shall be liable for any damages or injuries arising out of or resulting from any action taken under this Section.

(3) The Agency shall have the authority to approve or disapprove any performance bond or other security posted under this subsection. Any person whose performance bond or other security is disapproved by the Agency may contest the disapproval as a permit denial appeal pursuant to Section 40.

(4) If insurance is used as financial assurance it must meet the following criteria:

(A) Insurance may only be used as financial assurance if it is accompanied by:

(i) a surety bond or irrevocable letter of credit covering the value of the total cost of premiums over the life of the insurance policy, plus 50% of that total cost; and

(ii) proof of a trust fund that shall receive any forfeited funds from the surety bond or irrevocable letter of credit under subdivision (i) of this subparagraph (A) if the owner or operator fails to pay insurance premiums.

(B) The life of the policy shall be the duration of the closure and post-closure period, as well as any period of remediation of release.

(C) The policy shall provide that insurance premiums shall be paid no less than 2 years in advance of the due date for that premium, except that the first 2 years of premiums shall be paid in bulk as a single payment upon issuance of the policy. The owner or operator of the CCR surface impoundment or the third-party payer shall submit to the Agency proof of payment of each premium within 2 weeks after making payment.

(D) The face value amount of the policy for which insurance is serving as financial assurance shall be at least equal to all of the following that apply:

(i) the cost estimate for closure, if used as financial assurance for closure;

(ii) the cost estimate for post-closure, if used as financial assurance for post-closure; or

(iii) the cost estimate for remediation of releases, if used as financial assurance for remediation of releases.

When remediation of a release is required, within 60 days after the Agency's approval of the cost estimate for that remediation the policy shall be amended to cover that approved cost estimate or the owner or operator of the CCR surface impoundment shall obtain a separate policy covering the amount of the approved cost estimate.

(E) The face value of the policy shall be updated within 90 days after the Agency approves a revised cost estimate. Cost estimates shall be updated:

(i) at least annually;

(ii) whenever there is a significant modification to an approved plan for closure, post-closure, or remediation of releases; and

(iii) upon request by the Agency.

(F) The policy shall guarantee that, notwithstanding litigation:

(i) funds will be available without delay to close, if used as financial assurance for closure;

(ii) funds will be available without delay to perform any required post-closure care, if used as financial assurance for post-closure; and

(iii) funds will be available without delay for remediation of releases, if used as financial assurance for remediation of releases.

(G) For insurance used as financial assurance for closure, the policy shall guarantee that once closure begins the insurer will be responsible for payout of funds up to an amount equal to the face amount of the policy, upon the direction of the Agency, to the party or parties the Agency specifies.

(H) The policy shall provide that payment of insurance premiums may be made by the insured or by any third party, including, but not limited to, the trustee of the trust fund specified under subdivision (ii) of subparagraph (A) of this paragraph (4).

(I) The policy must not be terminated, canceled, or suspended for any reason other than failure to pay a premium.

(J) If nonpayment of premiums by the owner or operator of the CCR surface impoundment risks terminating, cancelling, or suspending the policy, the insurer shall provide notice by certified mail to the owner or operator, the trustee of the trust fund specified under subdivision (ii) of subparagraph (A) of this paragraph (4), and the Agency. Termination, cancellation, or suspension shall not occur within 120 days after the date of receipt of the notice by the owner or operator and the Agency, as evidenced by return receipts.

(K) If nonpayment of premiums by the owner or operator of the CCR surface impoundment risks terminating, cancelling, or suspending the policy, and after notice has been provided under subparagraph (J), within 100 days of receiving that notice the owner or operator shall acquire an acceptable substitute form of financial assurance at least equal to the face value of the policy. If the owner or operator fails to acquire an acceptable substitute form of financial assurance within the 100-day period, the surety bond or irrevocable letter of credit specified under subdivision (i) of subparagraph (A) of this paragraph (4) shall be forfeited and the funds shall be directed without delay, and in any event not more than 10 days after the 100-day period, into the trust fund specified under subdivision (ii) of subparagraph (A) of this paragraph (4). Within 10 days of receipt of those funds in the trust fund, the trustee of the fund shall use the monies in the trust fund to pay any premiums that are due or past due. Using the funds in the trust fund, the trustee shall continue to pay the remaining premiums for the life of the policy.

(L) The Board's rules required under subsection (g) of this Section shall address, among other things, how to ensure continued payment of premiums if the trustee of the trust fund specified under subdivision (ii) of subparagraph (A) of this paragraph (4) fails to make timely payment of premiums.

(M) The insurer shall be licensed to conduct business in Illinois and have at least an "A-" rating, or its equivalent, from a recognized rating agency.

(N) In the event of a transfer of ownership of the CCR surface impoundment, the policy shall contain a provision requiring continued payment of premiums by the insured at least until any successor owner or operator of the CCR surface impoundment obtains, and the Agency approves, acceptable substitute financial assurance with a value of, at a minimum, the face value of the policy.

Failure to pay the premium, without substitution of alternative financial assurance at least equal to face value of the policy within the time period specified in subparagraph (K), shall constitute a violation of this Act.

(g) The Board shall adopt rules establishing construction permit requirements, operating permit requirements, design standards, reporting, financial assurance, and closure and post-closure care requirements for CCR surface impoundments. Not later than 8 months after July 30, 2019 (the effective date of Public Act 101-171) this amendatory Act of the 101st General Assembly the Agency shall propose, and not later than one year after receipt of the Agency's proposal the Board shall adopt, rules under this Section. The rules must, at a minimum:

(1) be at least as protective and comprehensive as the federal regulations or amendments thereto promulgated by the Administrator of the United States Environmental Protection Agency in Subpart D of 40 CFR 257 governing CCR surface impoundments;

(2) specify the minimum contents of CCR surface impoundment construction and operating permit applications, including the closure alternatives analysis required under subsection (d);

(3) specify which types of permits include requirements for closure, post-closure, remediation and all other requirements applicable to CCR surface impoundments;

(4) specify when permit applications for existing CCR surface impoundments must be submitted, taking into consideration whether the CCR surface impoundment must close under the RCRA;

(5) specify standards for review and approval by the Agency of CCR surface impoundment permit applications;

(6) specify meaningful public participation procedures for the issuance of CCR surface impoundment construction and operating permits, including, but not limited to, public notice of the submission of permit applications, an opportunity for the submission of public comments, an opportunity for a public hearing prior to permit issuance, and a summary and response of the comments prepared by the Agency;

(7) prescribe the type and amount of the performance bonds or other securities required under subsection (f), and the conditions under which the State is entitled to collect moneys from such performance bonds or other securities;

(8) specify a procedure to identify areas of environmental justice concern in relation to CCR surface impoundments;

(9) specify a method to prioritize CCR surface impoundments required to close under RCRA if not otherwise specified by the United States Environmental Protection Agency, so that the CCR surface impoundments with the highest risk to public health and the environment, and areas of environmental justice concern are given first priority;

(10) define when complete removal of CCR is achieved and specify the standards for responsible removal of CCR from CCR surface impoundments, including, but not limited to, dust controls and the protection of adjacent surface water and groundwater; and

(11) describe the process and standards for identifying a specific alternative source of groundwater pollution when the owner or operator of the CCR surface impoundment believes that groundwater contamination on the site is not from the CCR surface impoundment.

(12) Specify that an owner or operator of a CCR surface impoundment shall certify to the Agency that all contractors, subcontractors, and installers utilized to construct, install, modify, or close a CCR surface impoundment in accordance with a permit issued under this Act are participants in:

(i) a training program that is approved by and registered with the United States Department of Labor's Employment and Training Administration and that includes instruction in erosion control and environmental remediation, including, but not limited to, a 40-hour hazardous waste worker training course and a hazardous waste supervisor training course as prescribed under 29 C.F.R. 1926.65; and

(ii) a training program that is approved by and registered with the United States Department of Labor's Employment and Training Administration and that includes instruction in the operation of heavy equipment and excavation.

For purposes of this Section, "contractors, subcontractors, and installers" shall not apply to construction-related professional services. "Construction-related professional services" includes, but is not limited to, those services within the scope of: the practice of architecture as defined in Section 4 of the Illinois Architecture Practice Act of 1989; professional engineering as defined in Section 4 of the Professional Engineering Practice Act of 1989; the practice of a structural engineer under the Structural Engineering Practice Act of 1989; or land surveying under the Illinois Professional Land Surveyor Act of 1989.

(h) Any owner of a CCR surface impoundment that generates CCR and sells or otherwise provides coal combustion byproducts pursuant to Section 3.135 of this Act shall, every 12 months, post on its publicly available website a report specifying the volume or weight of CCR, in cubic yards or tons, that it sold or provided during the past 12 months.

(i) The owner of a CCR surface impoundment shall post all closure plans, permit applications, and supporting documentation, as well as any Agency approval of the plans or applications on its publicly available website.

(j) The owner or operator of a CCR surface impoundment shall pay the following fees:

(1) An initial fee to the Agency within 6 months after July 30, 2019 (the effective date of Public Act 101-171) this amendatory Act of the 101st General Assembly of:

$50,000 for each closed CCR surface impoundment; and

$75,000 for each CCR surface impoundment that have not completed closure.

(2) Annual fees to the Agency, beginning on July 1, 2020, of:

$25,000 for each CCR surface impoundment that has not completed closure; and

$15,000 for each CCR surface impoundment that has completed closure, but has not completed post-closure care.

(k) All fees collected by the Agency under subsection (j) shall be deposited into the Environmental Protection Permit and Inspection Fund.

(l) The Coal Combustion Residual Surface Impoundment Financial Assurance Fund is created as a special fund in the State treasury. Any moneys forfeited to the State of Illinois from any performance bond or other security required under this Section shall be placed in the Coal Combustion Residual Surface Impoundment Financial Assurance Fund and shall, upon approval by the Governor and the Director, be used by the Agency for the purposes for which such performance bond or other security was issued. The Coal Combustion Residual Surface Impoundment Financial Assurance Fund is not subject to the provisions of subsection (c) of Section 5 of the State Finance Act.

(m) The provisions of this Section shall apply, without limitation, to all existing CCR surface impoundments and any CCR surface impoundments constructed after July 30, 2019 (the effective date of Public Act 101-171) this amendatory Act of the 101st General Assembly, except to the extent prohibited by the Illinois or United States Constitutions.

(Source: P.A. 101-171, eff. 7-30-19; revised 10-22-19.)

Section 99. Effective date. This Act takes effect upon becoming law.".