SB0241sam003 94TH GENERAL ASSEMBLY

Sen. John J. Cullerton

Filed: 4/11/2005

09400SB0241sam003 LRB094 07834 RSP 44816 a

AMENDMENT TO SENATE BILL 241

AMENDMENT NO. ______. Amend Senate Bill 241, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 5. The Environmental Protection Act is amended by changing Section 58.8, and by adding Sections 22.2d, 22.50, and Title VI-D as follows:

(415 ILCS 5/22.2d new)

Sec. 22.2d. Authority of Director to issue orders.

(a) The purpose of this Section is to allow the Director to quickly and effectively respond to imminent and substantial endangerment to the public health or welfare or the environment as a result of a release or substantial threat of a release of a hazardous substance, pesticide, or petroleum by authorizing the Director to issue orders, unilaterally or on consent, requiring appropriate response actions and by delaying the review of those orders until after the response actions have been completed. This Section is also intended to allow persons subject to such orders to recover the costs of complying with the orders if they are not liable under this Act for the release or threat of a release or if the Director's decision in selecting the ordered response action was arbitrary and capricious or was otherwise not in accordance with law.

The intent of this Section is to provide the Director with order authority analogous to the order authority under Section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (P.L. 96-510), as amended ("CERCLA"), to allow reimbursement of response costs analogous to the reimbursement of response costs allowed under Section 106(b) of CERCLA, and to limit the review of orders issued under this Section to the same extent that the review of orders issued under Section 106 of CERCLA are limited by Section 113(h) of CERCLA.

(b) In addition to any other action taken by federal, State, or local government, when the Director determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment as a result of a release or substantial threat of a release of a hazardous substance, pesticide, or petroleum, the Director may issue to any person who is potentially liable under this Act for the release or substantial threat of a release any order that may be necessary to protect the public health and welfare and the environment. In determining the presence of an imminent and substantial endangerment, the Director shall consider: the quantities of hazardous substances, pesticides, or petroleum involved; the nature and degree of the hazard caused by the hazardous substances, pesticides, or petroleum; and the likelihood of human or environmental exposure.

(1) Any order issued under this Section shall require response actions consistent with the federal regulations and amendments thereto promulgated by the United States Environmental Protection Agency to implement Section 105 of CERCLA, as amended, except that the remediation objectives for response actions ordered under this Section shall be determined in accordance with the risk-based remediation objectives adopted by the Board under Title XVII of this Act.

(2) Before the Director issues any order under this Section, the Agency shall send a Special Notice Letter to all persons identified by the Agency as potentially liable under this Act for the release or threat of release. This Special Notice Letter to the recipients shall include at a minimum the following information:

(A) that the Agency believes the recipient may be liable under the Act for responding to the release or threat of a release;

(B) the reasons why the Agency believes the recipient may be liable under the Act for the release or threat of a release; and

(C) the period of time, not to exceed 30 days from the date of issuance of the Special Notice Letter, during which the Agency is ready to negotiate with the recipient regarding their response to the release or threat of a release.

In an effort to encourage the prompt negotiation of a settlement agreement or an order on consent, the Director shall not issue any unilateral order under this Section during the period of time specified by the Agency in the Special Notice Letter in accordance with item (2)(C) of this subsection.

(c) Any person who, without sufficient cause, willfully violates or fails or refuses to comply with any order issued under this Section is in violation of this Act.

(d) Any person who receives and complies with the terms of any order issued under this Section may, within 60 days after completion of the required action, petition the Director for reimbursement for the reasonable costs of that action, plus interest, subject to all of the following terms and conditions:

(1) The interest payable under this subsection accrues on the amounts expended from the date of expenditure to the date of payment of reimbursement at the rate set forth in Section 3-2 of the Uniform Penalty and Interest Act. Reimbursement for costs associated with a release or threat of a release of hazardous substance, pesticide, or petroleum must be made from the Hazardous Waste Fund.

(2) If the Director refuses to grant all or part of a petition made under this subsection, the petitioner may, within 35 days after receipt of the refusal, file a petition with the Board seeking reimbursement.

(3) Except as provided in item (4) of this subsection (d), to obtain reimbursement, the petitioner must establish, by a preponderance of the evidence, that:

(A) either: (i) the petitioner is not liable under this Act for the release or threat of a release to which the relevant order applies or (ii) the only costs for which the petitioner seeks reimbursement are costs incurred by the petitioner in remediating the share of a release or threat of a release for which a bankrupt or insolvent party is in whole or in part liable under this Act, the costs of the share are a fair and accurate apportionment among the persons potentially liable under this Act for the release or threat of a release, and the bankrupt or insolvent party failed to pay the costs of the share; and

(B) the petitioner's response actions were consistent with the federal regulations and amendments thereto promulgated by the Administrator of the United States Environmental Protection Agency to implement Section 105 of CERCLA, as amended, except that the remediation objectives for response actions shall be determined in accordance with the risk-based remediation objectives adopted by the Board under Title XVII of this Act; and

(C) the costs for which the petitioner seeks reimbursement are reasonable in light of the action required by the relevant order.

(4) A petitioner who is liable under this Act for the release or threat of a release to which the relevant order applies may recover its reasonable costs of response to the extent that it can demonstrate, on the administrative record, that the Director's decision in selecting the response action ordered was arbitrary and capricious or was otherwise not in accordance with law. Reimbursement awarded under this item (4) includes all reasonable response costs incurred by the petitioner under the portions of the order found to be arbitrary and capricious or otherwise not in accordance with law.

(5) Reimbursement awarded by the Board under item (3) or (4) of subsection (d) may include appropriate costs, fees, and other expenses incurred in petitioning the Director or Board for reimbursement under subsection (d), including, but not limited to, reasonable fees and expenses of attorneys.

(6) Costs paid to a petitioner under a policy of insurance, another written agreement, or a court order are not eligible for payment under this subsection (d). A petitioner who receives payment under a policy of insurance, another written agreement, or a court order shall reimburse the State to the extent that such payment covers costs for which payment was received under this subsection (d). Any monies received by the State under this item (6) shall be deposited into the Hazardous Waste Fund.

(e) No court nor the Board has jurisdiction to review any order issued under this Section, in any action except the following:

(1) An action to enforce an order or to recover a penalty for violation of the order; and

(2) An action for reimbursement under subsection (d) of this Section.

(f) Except as provided in subsection (g) of this Section, any person may seek contribution from any other person who is liable for the costs of response actions under this Section. In resolving contribution claims, the Board or court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.

(g) A person who has complied with an order under this Section and has resolved their liability under this Act with respect to the release or threat of a release shall not be liable for claims for contribution relating to the release or threat of a release.

(h) This Section does not apply to releases or threats of releases from underground storage tanks subject to Title XVI of this Act. Orders issued by the Agency in response to such releases or threats of releases shall be issued under Section 57.12(d) of this Act instead of this Section, and the costs of complying with said orders shall be reimbursed in accordance with Title XVI of this Act instead of this Section.

(i) The Agency may adopt rules as necessary for the implementation of this Section. The Agency shall consult with affected members of the public during the development of any such rules.

(415 ILCS 5/22.50 new)

Sec. 22.50. Compliance with land use limitations. No person shall use, or cause or allow the use of, any site for which a land use limitation has been imposed under this Act in a manner inconsistent with the land use limitation unless further investigation or remedial action has been conducted that documents the attainment of remedial objectives appropriate for the new land use and a new closure letter has been obtained from the Agency and recorded in the chain of title for the site. For the purpose of this Section, the term "land use limitation" shall include, but shall not be limited to, institutional controls and engineered barriers imposed under this Act and the regulations adopted under this Act. For the purposes of this Section, the term "closure letter" shall include, but shall not be limited to, No Further Remediation Letters issued under Titles XVI and XVII of this Act and the regulations adopted under those Titles.

(415 ILCS 5/Title VI-D heading new)

TITLE VI-D. RIGHT-TO-KNOW

(415 ILCS 5/25d-1 new)

Sec. 25d-1. Definitions. For the purposes of this Title, the terms "community water system", "non-community water system", "potable", "private water system", and "semi-private water system" have the meanings ascribed to them in the Illinois Groundwater Protection Act.

(415 ILCS 5/25d-2 new)

Sec. 25d-2. Contaminant evaluation committee. Beginning January 1, 2006, the Agency shall establish, internally within the Agency, a contaminant evaluation committee to evaluate releases of contaminants. The committee shall perform this evaluation whenever the Agency determines that the extent of soil or groundwater contamination may extend beyond the boundary of the site where the release occurred. The committee shall recommend appropriate Agency actions in response to the release, which may include, but shall not be limited to, public notices, investigations, administrative orders under Sections 22.2d or 57.12(d) of this Act, and enforcement referrals.

(415 ILCS 5/25d-3 new)

Sec. 25d-3. Committee action.

(a) Beginning January 1, 2006, if the committee established under Section 25d-2 of this Title determines that:

(1) Soil contamination beyond the boundary of the site where the release occurred poses a threat of exposure to the public above the Tier 1 residential remediation objectives adopted by the Board under Title XVII of this Act, the Agency shall give notice of the threat to the owner of the contaminated property; or

(2) Groundwater contamination poses a threat of exposure to the public above the Class I groundwater quality standards adopted by the Board under this Act and the Groundwater Protection Act, the Agency shall give notice of the threat to the following:

(A) for any private, semi-private, or non-community water system, the owners of the properties served by the system; and

(B) for any community water system, the owners and operators of the system. The committee's determination must be based on the credible, scientific information available to it, and the Agency is not required to perform additional investigations or studies beyond those required by applicable federal or State laws.

(b) Beginning January 1, 2006, if any of the following actions occur: (i) the Agency refers a matter for enforcement under Section 43(a) of this Act; (ii) the Agency issues a seal order under Section 34(a) of this Act; or (iii) the Agency, the United States Environmental Protection Agency (USEPA), or a third party under Agency or USEPA oversight performs an immediate removal under the federal Comprehensive Environmental Response, Compensation, and Liability Act, as amended, then, within 60 days after the action, the Agency must give notice of the action to the owners of all property within 2,500 feet of the subject contamination. Within 30 days after a request by the Agency, the appropriate officials of the county in which the property is located must provide to the Agency the names and addresses of all property owners to whom the Agency is required to give notice under this subsection (b), these owners being the persons or entities that appear from the authentic tax records of the county.

(c) Notices required under this Section must be given in accordance with the methods recommended by the Right-to-Know Committee under Section 25d-5 of this Title. The notices must contain, at a minimum, the following information:

(1) the name and address of the site or facility where the release occurred or is suspected to have occurred;

(2) the identification of the contaminant released or suspected to have been released;

(3) information as to whether the contaminant was released or suspected to have been released into the air, land, or water;

(4) a brief description of the potential adverse health effects posed by the contaminant;

(5) a recommendation that water systems with wells impacted or potentially impacted by the contaminant be appropriately tested; and

(6) the name, business address, and phone number of persons at the Agency from whom additional information about the release or suspected release can be obtained.

(d) Any person who is a responsible party with respect to the release or substantial threat of release for which notice is given under this Section is liable for all reasonable costs incurred by the State in giving the notice. All moneys received by the State under this subsection (d) for costs related to releases and substantial threats of releases of hazardous substances, pesticides, and petroleum other than releases and substantial threats of releases of petroleum from underground storage tanks subject to Title XVI of this Act must be deposited in and used for purposes consistent with the Hazardous Waste Fund. All moneys received by the State under this subsection (d) for costs related to releases and substantial threats of releases of petroleum from underground storage tanks subject to Title XVI of this Act must be deposited in and used for purposes consistent with the Underground Storage Tank Fund.

(415 ILCS 5/25d-4 new)

Sec. 25d-4. Agency authority. Whenever the contamination evaluation committee determines that a public notice should be issued under this Title, the Agency has the authority to issue an information demand letter to the owner or operator of the site or facility where the release occurred or is suspected to have occurred that requires the owner or operator to provide the Agency with the information necessary, to the extent practicable, to give the notices required under Section 25d-3 of this Title. In the case of a release or suspected release from an underground storage tank subject to Title XVI of this Act, the Agency has the authority to issue such a letter to the owner or operator of the underground storage tank. Within 30 days after the issuance of a letter under this Section, or within a greater period specified by the Agency, the person who receives the letter shall provide the Agency with the required information. Any person who, without sufficient cause, willfully violates, or fails or refuses to comply with, any letter issued under this Section is in violation of this Act.

(415 ILCS 5/25d-5 new)

Sec. 25d-5. Right-to-Know Committee. Beginning January 1, 2006, the Agency shall establish a committee known as the Right-to-Know Committee. The Right-to-Know Committee shall be composed of the following persons and shall be chaired by the Director or the Director's designee: representatives of the Agency, representatives of the Illinois Department of Public Health, representatives of the Interagency Coordinating Committee on Groundwater established in the Groundwater Protection Act, representatives of the Groundwater Advisory Council established in the Groundwater Protection Act, representatives of priority groundwater protection regional planning committees established under Section 17.2 of this Act, and up to 3 individuals appointed by the Director who are owners of properties served by private, semi-private, or non-community drinking water systems that have been impacted by a release of a contaminant. The Right-to-Know Committee, in consultation with the Agency, shall evaluate and recommend appropriate and effective methods of providing the notices required under Section 25d-3 of this Title. The methods of notification evaluated by the Right-to-Know Committee shall include, but shall not be limited to, the following:

(a) personal notification;

(b) public meetings;

(c) signs;

(d) electronic notification; and

(e) print media.

(415 ILCS 5/25d-6 new)

Sec. 25d-6. Notification. Beginning July 1, 2006, the Agency shall make all of the following information available on the Internet:

(i) Copies of all notifications given under Section 25d-3 of this Section. The copies must be indexed and the index shall, at a minimum, be searchable by notification date, zip code, site or facility name, and geographic location.

(ii) Appropriate Agency databases containing information about releases or suspected releases of contaminants in the State. The databases must, at a minimum, be searchable by notification date, zip code, site or facility name, and geographic location.

(iii) Links to appropriate USEPA databases containing information about releases or suspected releases of contaminants in the State.

(415 ILCS 5/25d-7 new)

Sec. 25d-7. Agency coordination. Beginning January 1, 2006, the Agency shall coordinate with the Department of Public Health to provide training to regional and local health department staff on the use of the information posted on the Internet under Section 25d-6 of this Title. Also beginning January 1, 2006, the Agency shall coordinate with the Department of Public Health to provide training to licensed water well drillers on the use of the information posted on the Internet under Section 25d-6 of this Title in relation to the location and installation of new wells serving private, semi-private, and non-community water systems.

(415 ILCS 5/25d-8 new)

Sec. 25d-8. Amendment. Within 180 days after the effective date of this amendatory Act of the 94th General Assembly, the Agency shall evaluate the Board's rules and propose amendments to the rules as necessary to require potable water supply well surveys and community relations activities where such surveys and activities are appropriate in response to releases of contaminants that have impacted or that may impact offsite potable water supply wells. Within 240 days after receiving the Agency's proposal, the Board shall amend its rules as necessary to require potable water supply well surveys and community relations activities where such surveys and activities are appropriate in response to releases of contaminants that have impacted or that may impact offsite potable water supply wells. Community relations activities required by the Board shall include, but shall not be limited to, submitting a community relations plan for Agency approval, maintaining a public information repository that contains timely information about the actions being taken in response to a release, and maintaining dialogue with the community through means such as public meetings, fact sheets, and community advisory groups.

(415 ILCS 5/25d-9 new)

Sec. 25d-9. Liability. Except for willful and wanton misconduct, neither the State, the Director, nor any State employee shall be liable for any damages or injuries arising out of or resulting from any act or omission occurring under this amendatory Act of the 94th General Assembly.

(415 ILCS 5/25d-10 new)

Sec. 25d-10. Admissibility. The Agency's giving of notice or failure to give notice under Section 25d-3 of this Title shall not be admissible for any purpose in any administrative or judicial proceeding.

(415 ILCS 5/58.8)

Sec. 58.8. Duty to record.

(a) The RA receiving a No Further Remediation Letter from the Agency pursuant to Section 58.10, shall submit the letter to the Office of the Recorder or the Registrar of Titles of the county in which the site is located within 45 days of receipt of the letter. The Office of the Recorder or the Registrar of Titles shall accept and record that letter in accordance with Illinois law so that it forms a permanent part of the chain of title for the site.

(b) A No Further Remediation Letter shall not become effective until officially recorded in accordance with subsection (a) of this Section. The RA shall obtain and submit to the Agency a certified copy of the No Further Remediation Letter as recorded.

(c) (Blank). At no time shall any site for which a land use limitation has been imposed as a result of remediation activities under this Title be used in a manner inconsistent with the land use limitation unless further investigation or remedial action has been conducted that documents the attainment of objectives appropriate for the new land use and a new No Further Remediation Letter obtained and recorded in accordance with this Title.

(d) In the event that a No Further Remediation Letter issues by operation of law pursuant to Section 58.10, the RA may, for purposes of this Section, file an affidavit stating that the letter issued by operation of law. Upon receipt of the No Further Remediation Letter from the Agency, the RA shall comply with the requirements of subsections (a) and (b) of this Section.

(Source: P.A. 92-574, eff. 6-26-02.)

Section 10. The Illinois Groundwater Protection Act is amended by changing Section 4 as follows:

(415 ILCS 55/4) (from Ch. 111 1/2, par. 7454)

Sec. 4. (a) There shall be established within State government an interagency committee which shall be known as the Interagency Coordinating Committee on Groundwater. The Committee shall be composed of the Director, or his designee, of the following agencies:

(1) The Illinois Environmental Protection Agency, who shall chair the Committee.

(2) The Illinois Department of Natural Resources.

(3) The Illinois Department of Public Health.

(4) The Office of Mines and Minerals within the Department of Natural Resources.

(5) The Office of the State Fire Marshal.

(6) The Division of Water Resources of the Department of Natural Resources.

(7) The Illinois Department of Agriculture.

(8) The Illinois Emergency Management Agency.

(9) The Illinois Department of Nuclear Safety.

(10) The Illinois Department of Commerce and Economic Opportunity Community Affairs.

(b) The Committee shall meet not less than twice each calendar year and shall:

(1) Review and coordinate the State's policy on groundwater protection.

(2) Review and evaluate State laws, regulations and procedures that relate to groundwater protection.

(3) Review and evaluate the status of the State's efforts to improve the quality of the groundwater and of the State enforcement efforts for protection of the groundwater and make recommendations on improving the State efforts to protect the groundwater.

(4) Recommend procedures for better coordination among State groundwater programs and with local programs related to groundwater protection.

(5) Review and recommend procedures to coordinate the State's response to specific incidents of groundwater pollution and coordinate dissemination of information between agencies responsible for the State's response.

(6) Make recommendations for and prioritize the State's groundwater research needs.

(7) Review, coordinate and evaluate groundwater data collection and analysis.

(8) Beginning on January 1, 1990, report biennially to the Governor and the General Assembly on groundwater quality, quantity, and the State's enforcement efforts. Beginning January 1, 2006, the Committee's biennial report shall also include, with input from the Groundwater Advisory Council established under Section 5 of this Act, the priority groundwater protection regional planning committees established pursuant to Section 17.2 of the Environmental Protection Act, and the Right-to-Know Committee established pursuant to Section 25d-5 of the Environmental Protection Act, information on the implementation of this amendatory Act of the 94th General Assembly.

(c) The Chairman of the Committee shall propose a groundwater protection regulatory agenda for consideration by the Committee and the Council. The principal purpose of the agenda shall be to systematically consider the groundwater protection aspects of relevant federal and State regulatory programs and to identify any areas where improvements may be warranted. To the extent feasible, the agenda may also serve to facilitate a more uniform and coordinated approach toward protection of groundwaters in Illinois. Upon adoption of the final agenda by the Committee, the Chairman of the Committee shall assign a lead agency and any support agencies to prepare a regulatory assessment report for each item on the agenda. Each regulatory assessment report shall specify the nature of the groundwater protection provisions being implemented and shall evaluate the results achieved therefrom. Special attention shall be given to any preventive measures being utilized for protection of groundwaters. The reports shall be completed in a timely manner. After review and consideration by the Committee, the reports shall become the basis for recommending further legislative or regulatory action.

(d) No later than January 1, 1992, the Interagency Coordinating Committee on Groundwater shall provide a comprehensive status report to the Governor and the General Assembly concerning implementation of this Act.

(e) The Committee shall consider findings and recommendations that are provided by the Council, and respond in writing regarding such matters. The Chairman of the Committee shall designate a liaison person to serve as a facilitator of communications with the Council.

(Source: P.A. 89-445, eff. 2-7-96; revised 12-6-03.)

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