SB0121 94TH GENERAL ASSEMBLY

LRB094 04046 RSP 34064 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB0121

Introduced 2/1/2005, by Sen. John J. Cullerton

SYNOPSIS AS INTRODUCED:

30 ILCS 105/5.640 new
415 ILCS 5/Title XVIII heading new
415 ILCS 5/59.5 new
415 ILCS 5/59.10 new
415 ILCS 5/59.15 new
415 ILCS 5/59.20 new
415 ILCS 5/59.25 new
415 ILCS 5/59.30 new
415 ILCS 5/59.35 new
415 ILCS 5/59.40 new
415 ILCS 5/59.45 new
415 ILCS 5/59.50 new
415 ILCS 5/59.55 new
415 ILCS 5/59.60 new

Amends the Environmental Protection Act. Provides that, beginning January 1, 2006, each person selling architectural coatings in the State must collect from the buyer a fee of $0.20 for each gallon of architectural coating sold. Provides that each person selling general use pesticides in the State must collect from the buyer a fee of $0.20 for each unit of general use pesticide sold. Requires the seller to pay the fee, less a collection allowance, to the Department of Revenue for deposit into the Household Hazardous Waste Management Programs Fund. Sets forth the purposes for which the moneys in the Household Hazardous Waste Management Fund may be used. Requires retailers to make a quarter-annual tax return to the Department of Revenue concerning the fees. Sets forth procedures for administrative proceedings and hearings by the Department of Revenue concerning the collection of the fees and for judicial review of those decisions. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning safety.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The State Finance Act is amended by adding Section 5.640 as follows:

(30 ILCS 105/5.640 new)

Sec. 5.640. The Household Hazardous Waste Management Programs Fund.

Section 10. The Environmental Protection Act is amended by adding Title XVIII as follows:

(415 ILCS 5/Tit. XVIII heading new)

TITLE XVIII. HOUSEHOLD HAZARDOUS WASTE MANAGEMENT FEES

(415 ILCS 5/59.5 new)

Sec. 59.5. Intent. It is the intent of this Title to generate revenue for a portion of the costs incurred by the State in the management of household hazardous waste. Improperly disposed of household hazardous waste presents a threat to the public health and causes a real and substantial burden upon the environment that is unique from other types of waste generated by Illinois citizens. In particular, architectural coatings and pesticides constitute a substantial share of the volume and cost associated with the management of household hazardous waste. This Title seeks to place reasonable fees on the voluntary users of these hazardous waste producing products in order to fund programs that strengthen the State's efforts to combat the threat these products pose to the environment and the public health.

(415 ILCS 5/59.10 new)

Sec. 59.10. Definitions. As used in this Title:

"Architectural coating" means a coating manufactured and recommended for field application to stationary structures and their appurtenances. The term includes all coatings formulated for normal environmental conditions and sold at retail for on-site application at ambient temperatures to the interior and exterior surfaces of residential, commercial, institutional, or industrial buildings and structures. Architectural coatings include, but are not limited to, interior and exterior house paints, stains, varnishes, lacquers, sealers, primers, and undercoaters. The term does not include:

(i) production coatings recommended by the manufacturer solely for shop application or solely for application to non-stationary equipment or products such as automobiles, airplanes, boats, appliances, and other consumer goods.

(ii) industrial coatings, as defined under 30 Code of Federal Regulations, Part 59, Section 401; or

(iii) special purpose coatings including, but not limited to, coatings formulated and recommended for auto refinishing, bridge maintenance, and traffic marking.

"Coating" means a liquid or mastic composition applied onto or impregnated into a substrate for protective, decorative, or functional purposes. Coatings include, but are not limited to, interior and exterior house paints, stains, varnishes, lacquers, sealers, primers, and undercoaters.

"Distributor" means a person who engages in the business of distributing architectural coatings or pesticides to a retailer for the purpose of resale.

"General use pesticide" means any pesticide that has been registered by the United States Environmental Protection Agency, as evidenced by a registration number on the label, and that has not been designated for limited or restricted use by the United States Environmental Protection Agency or Illinois Department of Agriculture.

"Retailer" means a person who engages in the business of selling architectural coatings or pesticides to consumers.

"Shop application" means that a coating is applied to a product or a component of a product in a factory or shop as part of a manufacturing, product, or repairing process.

"Unit" means an individual container of pesticide of any size distributed, or to be distributed, to retailers for purchase by the consumer. Units may include, but are not limited to such containers as bags, boxes, bottles, and cans.

(415 ILCS 5/59.15 new)

Sec. 59.15. Household Hazardous Waste Management Programs Fund.

(a) There is hereby created in the State treasury a special fund to be known as the Household Hazardous Waste Management Programs Fund. All fees collected under this Title and all penalties or punitive damages for violations of this Title shall be deposited into the Household Hazardous Waste Management Programs Fund. In addition, the Household Hazardous Waste Management Programs Fund shall include other moneys made available from any source for deposit into the Fund.

(b) Subject to appropriation, moneys up to an amount of $200,000 per fiscal year from the Household Hazardous Waste Management Programs Fund shall be available to the Department of Revenue for its activities relating to this Title.

(c) Subject to appropriation, moneys in excess of $200,000 per fiscal year from the Household Hazardous Waste Management Programs Fund shall be used as follows:

(1) 70% shall be available to the Agency for the following:

(i) agency-sponsored household hazardous waste collection events that include the collection of used architectural coatings and general use pesticides;

(ii) preventive, corrective, or removal action at sites contaminated by household hazardous waste and the recovery costs of this action; and

(iii) to pay the costs of administration of its activities under this Title.

(2) 30% Shall be available to the Agency for the following:

(i) for transfer into the Hazardous Waste Research Fund to be used by the Department of Natural Resources for the educational and research activities authorized under subsection (e) of Section 22.2 of the Environmental Protection Act; and

(ii) for Agency grants authorized under the Household Hazardous Waste Collection Program Act.

(d) Any moneys appropriated from the Household Hazardous Waste Management Programs Fund, but not obligated, shall revert to the Fund.

(415 ILCS 5/59.20 new)

Sec. 59.20. Architectural coating fee.

(a) Beginning January 1, 2006, each retailer of architectural coatings in this State shall collect from retail customers a fee of $0.20 for each gallon of architectural coating that is sold and delivered in this State. The seller must pay the fee to the Department of Revenue for deposit into the Household Hazardous Waste Management Programs Fund.

(b) Architectural coatings marketed in containers of less than one-gallon capacity are exempt from this fee.

(c) The fee collected under subsection (a) of this Section shall be stated as a distinct item separate and apart from the selling price of the architectural coating. No retailer shall advertise, state, or otherwise hold out to the public or any consumer, directly or indirectly, that the architectural coating fee imposed by this Section will be assumed or absorbed by the retailer, that the fee will not be included in the selling price of the coating, or that the full amount or any part of the fee will be refunded upon sale to the consumer.

(d) Upon request by a retailer of architectural coatings doing business in this State or the Department of Revenue, a distributor shall provide a quarterly, semi-annual, or annual report identifying the number of gallons of architectural coatings sold to the retailer in containers of one gallon or more.

(e) The fee shall not be includable in the gross receipts of the retailer subject to the Retailer's Occupation Tax Act, the Use Tax Act, or any locally imposed retailer's occupation tax. The fee, and any such fees collected by a retailer, shall constitute a debt owed by the retailer to the State.

(415 ILCS 5/59.25 new)

Sec. 59.25. General use pesticide fee.

(a) Beginning January 1, 2006, each retailer of general use pesticides in this State shall collect from retail customers a fee of $0.20 on each unit of general use pesticide that is sold and delivered in this State. The seller must pay the fee to the Department of Revenue for deposit into the Household Hazardous Waste Management Programs Fund.

(b) In addition to any product that the Agency may, by rule, exempt, all of the following products are exempt from the fee imposed under this Section:

(1) Household use pesticide products with no more than 3% active ingredients.

(2) Dichlorovos (DDVP) impregnated strips with concentrations not more than 25% in resin strips and pet collars.

(3) The following products with unlimited percentages of active ingredients:

(i) pet supplies such as shampoos and tick and flea collars and dusts;

(ii) disinfectants, germicides, bactericides, and virucides;

(iii) insect repellents;

(iv) indoor and outdoor animal repellents;

(v) moth flakes, crystals, cakes, and nuggets;

(vi) indoor aquarium supplies;

(vii) swimming pool supplies;

(viii) pediculocides and mange cure on man;

(ix) aerosol products; and

(x) general use paints, stains, and wood preservatives and sealants.

(c) The fee collected under subsection (a) of this Section shall be stated as a distinct item separate and apart from the selling price of the general use pesticide. No retailer shall advertise, state, or otherwise hold out to the public or any consumer, directly or indirectly, that the general use pesticide fee imposed by this Section will be assumed or absorbed by the retailer, or that the fee will not be included in the selling price of the pesticide, or that the full amount or any part of the fee will be refunded upon sale to the consumer.

(d) Upon request by a retailer of general use pesticides doing business in this State or the Department of Revenue, a distributor shall provide a quarterly, semi-annual, or annual report identifying the number of units of general use pesticide sold to the retailer.

(e) The fee shall not be includable in the gross receipts of the retailer subject to the Retailer's Occupation Tax Act, the Use Tax Act, or any locally imposed retailer's occupation tax. The fee, and any such fees collected by a retailer, shall constitute a debt owed by the retailer to the State.

(415 ILCS 5/59.30 new)

Sec. 59.30. Tax returns by retailer.

(a) Each retailer of architectural coatings or general use pesticides subject to this Title and maintaining a place of business in this State must make a return to the Department of Revenue on a quarter-annual basis, with the return for January, February, and March of a given year being due by April 30 of that year; with the return for April, May, and June of a given year being due by July 31 of that year; with the return for July, August, and September of a given year being due by October 31 of that year; and with the return for October, November, and December of a given year being due by January 31 of the following year. Each return made to the Department of Revenue must state:

(1) the name of the retailer;

(2) the address of the retailer's principal place of business and the address of the principal place of business (if that is a different address) from which the retailer engages in the business of making retail sales of architectural coatings or general use pesticides;

(3) the total number of (i) gallons of architectural coatings or (ii) units of general use pesticides, sold at retail for the preceding calendar quarter;

(4) the amount of tax due; and

(5) any other reasonable information that the Department of Revenue requires.

(b) Notwithstanding any other provision of this Act concerning the time within which a retailer may file his or her return, in the case of any retailer who ceases to engage in the retail sale of architectural coatings or general use pesticides, the retailer must file a final return under this Act with the Department of Revenue not more than one month after discontinuing that business.

(415 ILCS 5/59.35 new)

Sec. 59.35. Application of Retailers' Occupation Tax provisions. All the provisions of Sections 4, 5, 5a, 5b, 5c, 5d, 5e, 5f, 5g, 5i, 5j, 6, 6a, 6b, 6c, 7, 8, 9, 10, and 11 of the Retailers' Occupation Tax Act that are not inconsistent with this Act apply, as far as practicable, to the fees imposed by Sections 59.20 and 59.25 of this Act to the same extent as if those provisions were included in this Act. References in the incorporated Sections of the Retailers' Occupation Tax Act to retailers, to sellers, or to persons engaged in the business of selling tangible personal property mean retailers of architectural coatings and retailers of general use pesticides.

(415 ILCS 5/59.40 new)

Sec. 59.40. Hearing; notice. The Department of Revenue may adopt and enforce any reasonable rules and regulations relating to the Administration and enforcement of the fees imposed by Sections 59.20 and 59.25 of this Act that are expedient.

Whenever the Department of Revenue is required to provide notice to a retailer under this Title, the notice may be personally served or given by United States certified or registered mail, addressed to the retailer or taxpayer concerned at his or her last known address, and proof of this mailing is sufficient for the purposes of this Title. In the case of a notice of hearing, the notice must be mailed not less than 7 days prior to the date fixed for the hearing.

All hearings provided by the Department of Revenue under this Act with respect to or concerning a taxpayer having his or her principal place of business in this State other than in Cook County shall be held at the Department's office nearest to the location of the taxpayer's principal place of business. If the taxpayer has his or her principal place of business in Cook County, the hearing shall be held in Cook County. If the taxpayer does not have his or her principal place of business in this State, the hearing shall be held in Sangamon County.

Whenever any proceeding provided by this Title has been begun by the Department of Revenue or by a person subject thereto and that person subsequently dies or becomes a person under legal disability before the proceeding has been concluded, the legal representative of the deceased person or person under legal disability shall notify the Department of Revenue of the death or legal disability. The legal representative, as such, shall then be substituted by the Department of Revenue in place of and for the person. Within 20 days after notice to the legal representative of the time fixed for that purpose, the proceeding may proceed in all respects and with like effect as though the person had not died or become a person under legal disability.

(415 ILCS 5/59.45 new)

Sec. 59.45. Administrative procedures. The Illinois Administrative Procedure Act is hereby expressly adopted and applies to all administrative rules and procedures of the Department of Revenue under this Title, except that: (1) paragraph (b) of Section 4 of the Illinois Administrative Procedure Act does not apply to final orders, decisions, and opinions of the Department of Revenue; (2) subparagraph (a)(2) of Section 4 of the Illinois Administrative Procedure Act does not apply to forms established by the Department of Revenue for use under this Act; and (3) the provisions of Section 13 of the Illinois Administrative Procedure Act regarding proposals for decision are excluded and not applicable to the Department of Revenue under this Act.

(415 ILCS 5/59.50 new)

Sec. 59.50. Review under Administrative Review Law.

(a) The circuit court of any county in which a hearing is held has the power to review all final administrative decisions of the Department of Revenue in administering the fees imposed under Sections 59.20 and 59.25 of this Act. If, however, the administrative proceeding that is to be reviewed judicially is a claim for refund proceeding commenced under this Act and Section 2a of the State Officers and Employees Money Disposition Act, the circuit court having jurisdiction over the action for judicial review under this Section and under the Administrative Review Law shall be the same court that entered the temporary restraining order or preliminary injunction that is provided for in that Section 2a, and that enables the claim proceeding to be processed and disposed of as a claim for refund proceeding other than as a claim for credit proceeding.

(b) The provisions of the Administrative Review Law, and the rules adopted pursuant thereto, apply to and govern all proceedings for the judicial review of final administrative decisions of the Department of Revenue under this Act. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

(c) Service of summons issued in any action to review a final administrative decision upon the Director or Assistant Director of Revenue shall be service upon the Department of Revenue. The Department of Revenue shall certify the record of its proceedings if the taxpayer pays to it the sum of $0.75 per page of testimony taken before the Department of Revenue and $0.25 per page of all other matters contained in the record, except that these charges may be waived if the Department of Revenue is satisfied that the aggrieved party cannot afford to pay these charges.

(415 ILCS 5/59.55 new)

Sec. 59.55. Penalty. Any retailer who fails to make a return or who makes a fraudulent return, or who willfully violates any rule or regulation of the Department of Revenue for the administration and enforcement of the fees imposed by Sections 59.20 and 59.25 of this Act, is guilty of a Class 4 felony.

(415 ILCS 5/59.60 new)

Sec. 59.60. Severability. The provisions of this Title are severable under Section 1.31 of the Statute on Statutes.

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