SB0510 94TH GENERAL ASSEMBLY

LRB094 07709 RSP 37885 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB0510

Introduced 2/17/2005, by Sen. James F. Clayborne, Jr.

SYNOPSIS AS INTRODUCED:

415 ILCS 5/Title XVIII heading new
415 ILCS 5/59 new
415 ILCS 5/59.1 new
415 ILCS 5/59.2 new
415 ILCS 5/59.3 new
415 ILCS 5/59.5 new
415 ILCS 5/59.6 new
415 ILCS 5/59.7 new
415 ILCS 5/59.8 new
415 ILCS 5/59.9 new

Amends the Environmental Protection Act. Establishes a Beneficial Use Determination Program. Provides that a generator or proposed user of an item that would otherwise be considered waste may apply to the Agency for a determination that the item has a beneficial use. Sets forth requirements for applying for the Beneficial Use Determination. Provides that if the Agency determines that an item has a beneficial use, it is not considered waste under the Act. Creates the Beneficial Use Determination Advisory Committee to review, evaluate, and make recommendations regarding proposed rules to be adopted for the administration of this Title. Provides that the Beneficial Use Determination Advisory Committee shall terminate its functions not more than 24 months after the effective date of this amendatory Act of the 94th General Assembly. Makes other changes. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning environment protection.

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

Section 5. The Environmental Protection Act is amended by adding Title XVIII as follows:

(415 ILCS 5/Title XVIII heading new)

TITLE XVIII: BENEFICIAL USE DETERMINATION PROGRAM

(415 ILCS 5/59 new)

Sec. 59. Intent and purpose.

(a) It is the intent of this Title:

(1) To encourage the beneficial use, in an environmentally sound manner, of certain materials that would otherwise be managed or discarded as waste.

(2) To establish procedures for determining whether a material no longer used for its originally intended purpose:

(i) is being discarded and, therefore, should be considered a waste; or

(ii) is being beneficially used and therefore should not be considered a waste.

(3) To assure that a material no longer used for its originally intended purpose is managed or discarded in accordance with applicable State and federal laws and regulations.

(b) If any provision of this Title conflicts with any federal law, the federal law takes precedence over that provision.

(415 ILCS 5/59.1 new)

Sec. 59.1. Applicability. This Title applies to materials that, absent a beneficial use determination by the Agency under this Title, would be considered waste. Any generator or proposed user may use the procedures under this Title to request a beneficial use determination from the Agency for a specific material and process being conducted at a specifically identified facility. The procedures under this Title, however, do not apply to any of the following materials:

(1) clean construction or demolition debris, as defined in Section 3.160;

(2) coal combustion waste, as defined in Section 3.140;

(3) coal combustion by-products, as defined in Section 3.135;

(4) potentially infectious medical waste, as defined in Section 3.360;

(5) landscape waste, as defined in Section 3.270;

(6) used oil, as defined in Section 3.520;

(7) solid or dissolved material in domestic sewage;

(8) solid or dissolved materials in irrigation return flows;

(9) industrial discharges that are point sources subject to permits under Section 402 of the Clean Water Act;

(10) source, special nuclear, or by-products materials, as defined by the Atomic Energy Act;

(11) solid or dissolved material from any facility subject to the federal Surface Mining Control and Reclamations Act of 1977 or rules or regulations thereunder or any law or regulations adopted by the State of Illinois pursuant thereto;

(12) any hazardous waste, as defined in Section 3.220;

(13) any waste regulated under the federal Toxic Substances Control Act (P.L. 94-469), as amended; or

(14) any material to be burned or incinerated.

(415 ILCS 5/59.2 new)

Sec. 59.2. Program. The Agency must establish and maintain a Beneficial Use Determination Program to be administered under this Title XVIII and in accordance with rules adopted by the Illinois Pollution Control Board.

(415 ILCS 5/59.3 new)

Sec. 59.3. Review and approval.

(a) Application requirements. All requests for determinations that are submitted under this Title must be submitted in writing for review or approval in accordance with this Section and rules adopted under Section 59.8. The request must be on application forms prescribed and provided by the Agency.

(b) Content of application. At a minimum, the application must include the following:

(1) a demonstration that the material proposed for the program is not a hazardous waste;

(2) a description of the material and its proposed use;

(3) the physical and chemical characteristics and the organic and inorganic compounds that comprise the material or a representative sample of such material, and that will comprise each proposed product;

(4) a description of the expected physical and chemical characteristics, including volume, of any leachate or runoff from the proposed process if the material will be applied to the land;

(5) an application fee in accordance with Section 59.4 for each determination that is requested;

(6) a demonstration that there is a known or expected market for the intended use of the material under review and all of the proposed products by providing one or more of the following:

(A) a contract, letter of intent, or other written agreement to purchase the proposed product or to have the material under review used in the manner proposed;

(B) a description of how the proposed product will be used;

(C) a demonstration that the proposed product complies with industry standards and specifications for that product; or

(D) other documentation demonstrating that a market exists for the proposed product or use, which shall include submittal of documentation pursuant to subparagraph (A); and

(7) a demonstration that the management of the material under review will not adversely affect human health and safety or the environment by providing a control plan that includes, at a minimum, the following:

(A) the source of the material under review, including contractual arrangements with the supplier;

(B) procedures for periodic testing of the material under review and the proposed product to ensure that the proposed material and product's composition has not changed significantly;

(C) the disposition of any material that may result from the manufacture of the product into which the material under review is intended to be incorporated;

(D) a description of the type of storage and the maximum anticipated inventory of the material under review before being used;

(E) procedures for run-on and run-off control of the storage areas for the material under review; and

(F) a plan and implementation schedule of management methods designed to minimize uncontrolled dispersion of the material under review before and during all aspects of its storage as inventory and during beneficial use.

(c) Standard of review.

(1) The Agency shall determine in writing, on a case-by-case basis, whether a proposal constitutes a beneficial use based on adequate demonstration by the applicant that all of the following criteria are satisfied:

(A) that the proposed material management activity:

(i) will not cause a release or threat of release to the land, air, or water (surface or ground water) that would exceed standards promulgated by the Board; and

(ii) will otherwise provide adequate protection of human health or the environment;

(B) that a market exists for the material under review or the product into which the material under review is proposed to be incorporated;

(C) that the nature of the proposed use constitutes a legitimate reuse of the material as an ingredient or raw material rather than disposal;

(D) that the material under review is intended to function or serve as an effective substitute for an analogous raw material; and

(E) that a material that is proposed for incorporation into a manufacturing process does not need to be decontaminated or otherwise specially handled or processed before such incorporation in order to minimize loss of material or to provide adequate protection of human health or safety or the environment.

(2) Except as otherwise provided by Section 59.5, any beneficial use determination granted pursuant to the provisions of this Title shall be granted for a period not to exceed 5 years. If the applicant desires a continuation of the beneficial use determination beyond 5 years, the applicant must reapply for a new determination 90 days before the expiration of the 5-year period and must send the Agency the appropriate fee under Section 59.4.

(d) Certification. All applications submitted for review must include a certification by the applicant that all the information presented is true, accurate, and complete to the best knowledge of the applicant. Where applications for a beneficial use determination include technical information that would require the supervision of a Licensed Professional Engineer or Licensed Professional Geologist, as appropriate, there must also be a certification by the LPE or the LPG that the information compiled was prepared under his or her personal supervision and, to the best of his or her knowledge and belief, the information is true, accurate, and complete.

(e) Agency review.

(1) Within 90 days after receipt by the Agency of a request meeting the requirements of this Section, the Agency shall issue a letter to the applicant approving, disapproving, or approving with conditions the request submitted. The applicant may waive this deadline in writing. If a request is disapproved or approved with conditions, the Agency's letter shall set forth the reasons for the disapproval or conditions. Any letter disapproving a request or approving a request with conditions shall be sent by certified mail, return receipt requested.

(2) In approving beneficial use determinations, the Agency may impose such conditions as it may deem necessary to accomplish the purposes of this Act that are not inconsistent with the rules adopted by the Board under this Title.

(3) If the Agency disapproves a request or approves a request with conditions, the applicant may, within 35 days of receipt of the Agency's decision, petition for a hearing before the Board to contest the decision. If the Agency fails to act within 90 days after the receipt of a request, the request shall be deemed granted until such time as the Agency has taken final action to approve, disapprove, or approve with conditions the request. Appeals to the Board must be in the manner provided for the review of permits in Section 40.

(4) The Agency may adopt procedural rules, as may be necessary to carry out its duties under this Title, that are not inconsistent with the requirements of this Title.

(415 ILCS 5/59.5 new)

Sec. 59.5. Revocation. The Agency may seek revocation from the Board on a beneficial use determination in accordance with procedures adopted pursuant to Section 59.8. Either of the following may constitute grounds for revocation of a beneficial use determination:

(1) demonstration that a determination was made on the basis of fraud or misrepresentation; or

(2) demonstration that, due to a change in law, the determination no longer satisfies the intent or purpose for a beneficial use under this Title.

(415 ILCS 5/59.6 new)

Sec. 59.6. Effect of a beneficial use determination.

(a) As long as all applicable conditions of the beneficial use determination are complied with, the material or process is not a waste. If any applicable condition of the beneficial use determination is not complied with, the material or process is a waste.

(b) The effective date of a beneficial use determination is the date of issuance, is prospective only, and is for a period of 5 years, unless otherwise stated in the determination.

(415 ILCS 5/59.7 new)

Sec. 59.7. Beneficial Use Determination Advisory Committee.

(a) There is hereby established a 10-member Beneficial Use Determination Advisory Committee, which shall be appointed by the Governor within 6 months after the effective date of this amendatory Act of the 94th General Assembly. The Committee shall include one member recommended by the Illinois State Chamber of Commerce, one member recommended by the Illinois Manufacturers' Association, one member recommended by the Consulting Engineers Council, one member recommended by the National Solid Waste Management Association, one member recommended by the Illinois Recycling Association, one member from an environmental advocacy group, one member from a public interest community organization, one member from a community development corporation, one member from the Illinois Department of Natural Resources, and one member from the Illinois Department of Commerce and Economic Opportunity. Members shall serve without compensation.

(b) The Committee shall review, evaluate, and make recommendations regarding proposed rules to be adopted under Section 59.8. The Committee shall terminate its functions not more than 24 months after the effective date of this amendatory Act of the 94th General Assembly.

(415 ILCS 5/59.8 new)

Sec. 59.8. Board rules.

(a) Within 12 months after the effective date of this amendatory Act of the 94th General Assembly, the Agency, after consideration of the recommendations of the Committee, shall propose rules prescribing procedures and standards for administration of this Title. Within 12 months after receipt of the Agency's proposed rules, the Board shall adopt, pursuant to Sections 27 and 28, rules that are consistent with this Title.

(b) Prior to the effective date of the rules adopted under this Section, the Agency is authorized to conduct reviews of and make determinations relative to the applications under this Title. The Agency is authorized to prepare and distribute guidance documents relative to its administration of this Title. Guidance documents prepared under this Title shall not be considered rules for purposes of the Illinois Administrative Procedure Act.

(415 ILCS 5/59.9 new)

Sec. 59.9. Severability.

The provisions of this Title XVIII are severable under Section 1.31 of the Statute on Statutes.

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