SB2982 94TH GENERAL ASSEMBLY

LRB094 19094 RSP 54604 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB2982

Introduced 1/20/2006, by Sen. James F. Clayborne, Jr.

SYNOPSIS AS INTRODUCED:

415 ILCS 5/39.2	from Ch. 111 1/2, par. 1039.2
415 ILCS 5/Tit. XVII-A heading new
415 ILCS 5/58a-1 new
415 ILCS 5/58a-2 new
415 ILCS 5/58a-3 new
415 ILCS 5/58a-4 new
415 ILCS 5/58a-5 new
415 ILCS 5/58a-6 new
415 ILCS 5/58a-7 new
415 ILCS 5/58a-8 new
415 ILCS 115/Act rep.

Amends the Environmental Protection Act. In a Section prescribing standards for granting local siting approval for a pollution control facility, requires those facilities which are not exempt through non-conforming use and other specified exemptions to be in compliance with the applicable land use restrictions in effect as of the date the application for siting approval is filed. Authorizes the Agency to impose a Response Action Land Use Control(RALUC) on real property for land use limitations or requirements related to environmental contamination. Provides that activities or uses that may be limited or required include, but are not limited to, prohibition of the use of groundwater for potable purposes, restriction to industrial or commercial uses, operation or maintenance of engineered barriers, and worker safety plans. Sets forth circumstances in which RALUCs may be used. Prohibits property for which a RALUC has been issued from being used in a manner inconsistent with any land use controls in the RALUC. Provides that a RALUC shall remain in effect in perpetuity unless modified or terminated by the Agency. Sets forth certain elements that must be contained in a RALUC. Requires the RALUC to be recorded in the Office of the Recorder or Registrar of Titles for the county in which the property that is the subject of the RALUC is located. Authorizes civil actions for injunctive or other equitable relief for violation of a RALUC to be maintained by the Agency, State, U.S. Environmental Protection Agency, a municipality or other unit of local government where the real property subject to the RALUC is located, any person to whom the RALUC expressly grants power to enforce, and any person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the RALUC. Repeals the Illinois Pollution Prevention Act. Makes other changes. Effective immediately.

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 Environmental Protection Act is amended by changing Section 39.2, and by adding the heading of Title XVII-A and Sections 58a-1, 58a-2, 58a-3, 58a-4, 58a-5, 58a-6, 58a-7, and 58a-8, as follows:

(415 ILCS 5/39.2) (from Ch. 111 1/2, par. 1039.2)

Sec. 39.2. Local siting review.

(a) The county board of the county or the governing body of the municipality, as determined by paragraph (c) of Section 39 of this Act, shall approve or disapprove the request for local siting approval for each pollution control facility which is subject to such review. An applicant for local siting approval shall submit sufficient details describing the proposed facility to demonstrate compliance, and local siting approval shall be granted only if the proposed facility meets the following criteria:

(i) the facility is necessary to accommodate the waste needs of the area it is intended to serve;

(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;

(iii) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;

(iv) (A) for a facility other than a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed; (B) for a facility that is a sanitary landfill or waste disposal site, the facility is located outside the boundary of the 100-year floodplain, or if the facility is a facility described in subsection (b)(3) of Section 22.19a, the site is flood-proofed;

(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;

(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows;

(vii) if the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release;

(viii) if the facility is to be located in a county where the county board has adopted a solid waste management plan consistent with the planning requirements of the Local Solid Waste Disposal Act or the Solid Waste Planning and Recycling Act, the facility is consistent with that plan; for purposes of this criterion (viii), the "solid waste management plan" means the plan that is in effect as of the date the application for siting approval is filed; and

(ix) if the facility will be located within a regulated recharge area, any applicable requirements specified by the Board for such areas have been met; and

(x) if the facility is subject to the location restrictions in Section 22.14 of this Act, the facility is in compliance with the applicable land use restrictions in effect for that facility as of the date the application for siting approval is filed.

The county board or the governing body of the municipality may also consider as evidence the previous operating experience and past record of convictions or admissions of violations of the applicant (and any subsidiary or parent corporation) in the field of solid waste management when considering criteria (ii) and (v) under this Section.

(b) No later than 14 days before the date on which the county board or governing body of the municipality receives a request for site approval, the applicant shall cause written notice of such request to be served either in person or by registered mail, return receipt requested, on the owners of all property within the subject area not solely owned by the applicant, and on the owners of all property within 250 feet in each direction of the lot line of the subject property, said owners being such persons or entities which appear from the authentic tax records of the County in which such facility is to be located; provided, that the number of all feet occupied by all public roads, streets, alleys and other public ways shall be excluded in computing the 250 feet requirement; provided further, that in no event shall this requirement exceed 400 feet, including public streets, alleys and other public ways.

Such written notice shall also be served upon members of the General Assembly from the legislative district in which the proposed facility is located and shall be published in a newspaper of general circulation published in the county in which the site is located.

Such notice shall state the name and address of the applicant, the location of the proposed site, the nature and size of the development, the nature of the activity proposed, the probable life of the proposed activity, the date when the request for site approval will be submitted, and a description of the right of persons to comment on such request as hereafter provided.

(c) An applicant shall file a copy of its request with the county board of the county or the governing body of the municipality in which the proposed site is located. The request shall include (i) the substance of the applicant's proposal and (ii) all documents, if any, submitted as of that date to the Agency pertaining to the proposed facility, except trade secrets as determined under Section 7.1 of this Act. All such documents or other materials on file with the county board or governing body of the municipality shall be made available for public inspection at the office of the county board or the governing body of the municipality and may be copied upon payment of the actual cost of reproduction.

Any person may file written comment with the county board or governing body of the municipality concerning the appropriateness of the proposed site for its intended purpose. The county board or governing body of the municipality shall consider any comment received or postmarked not later than 30 days after the date of the last public hearing.

(d) At least one public hearing is to be held by the county board or governing body of the municipality no sooner than 90 days but no later than 120 days after the date on which it received the request for site approval. No later than 14 days prior to such hearing, notice shall be published in a newspaper of general circulation published in the county of the proposed site, and delivered by certified mail to all members of the General Assembly from the district in which the proposed site is located, to the governing authority of every municipality contiguous to the proposed site or contiguous to the municipality in which the proposed site is to be located, to the county board of the county where the proposed site is to be located, if the proposed site is located within the boundaries of a municipality, and to the Agency. Members or representatives of the governing authority of a municipality contiguous to the proposed site or contiguous to the municipality in which the proposed site is to be located and, if the proposed site is located in a municipality, members or representatives of the county board of a county in which the proposed site is to be located may appear at and participate in public hearings held pursuant to this Section. The public hearing shall develop a record sufficient to form the basis of appeal of the decision in accordance with Section 40.1 of this Act. The fact that a member of the county board or governing body of the municipality has publicly expressed an opinion on an issue related to a site review proceeding shall not preclude the member from taking part in the proceeding and voting on the issue.

(e) Decisions of the county board or governing body of the municipality are to be in writing, specifying the reasons for the decision, such reasons to be in conformance with subsection (a) of this Section. In granting approval for a site the county board or governing body of the municipality may impose such conditions as may be reasonable and necessary to accomplish the purposes of this Section and as are not inconsistent with regulations promulgated by the Board. Such decision shall be available for public inspection at the office of the county board or governing body of the municipality and may be copied upon payment of the actual cost of reproduction. If there is no final action by the county board or governing body of the municipality within 180 days after the date on which it received the request for site approval, the applicant may deem the request approved.

At any time prior to completion by the applicant of the presentation of the applicant's factual evidence and an opportunity for cross-questioning by the county board or governing body of the municipality and any participants, the applicant may file not more than one amended application upon payment of additional fees pursuant to subsection (k); in which case the time limitation for final action set forth in this subsection (e) shall be extended for an additional period of 90 days.

If, prior to making a final local siting decision, a county board or governing body of a municipality has negotiated and entered into a host agreement with the local siting applicant, the terms and conditions of the host agreement, whether written or oral, shall be disclosed and made a part of the hearing record for that local siting proceeding. In the case of an oral agreement, the disclosure shall be made in the form of a written summary jointly prepared and submitted by the county board or governing body of the municipality and the siting applicant and shall describe the terms and conditions of the oral agreement.

(e-5) Siting approval obtained pursuant to this Section is transferable and may be transferred to a subsequent owner or operator. In the event that siting approval has been transferred to a subsequent owner or operator, that subsequent owner or operator assumes and takes subject to any and all conditions imposed upon the prior owner or operator by the county board of the county or governing body of the municipality pursuant to subsection (e). However, any such conditions imposed pursuant to this Section may be modified by agreement between the subsequent owner or operator and the appropriate county board or governing body. Further, in the event that siting approval obtained pursuant to this Section has been transferred to a subsequent owner or operator, that subsequent owner or operator assumes all rights and obligations and takes the facility subject to any and all terms and conditions of any existing host agreement between the prior owner or operator and the appropriate county board or governing body.

(f) A local siting approval granted under this Section shall expire at the end of 2 calendar years from the date upon which it was granted, unless the local siting approval granted under this Section is for a sanitary landfill operation, in which case the approval shall expire at the end of 3 calendar years from the date upon which it was granted, and unless within that period the applicant has made application to the Agency for a permit to develop the site. In the event that the local siting decision has been appealed, such expiration period shall be deemed to begin on the date upon which the appeal process is concluded.

Except as otherwise provided in this subsection, upon the expiration of a development permit under subsection (k) of Section 39, any associated local siting approval granted for the facility under this Section shall also expire.

If a first development permit for a municipal waste incineration facility expires under subsection (k) of Section 39 after September 30, 1989 due to circumstances beyond the control of the applicant, any associated local siting approval granted for the facility under this Section may be used to fulfill the local siting approval requirement upon application for a second development permit for the same site, provided that the proposal in the new application is materially the same, with respect to the criteria in subsection (a) of this Section, as the proposal that received the original siting approval, and application for the second development permit is made before January 1, 1990.

(g) The siting approval procedures, criteria and appeal procedures provided for in this Act for new pollution control facilities shall be the exclusive siting procedures and rules and appeal procedures for facilities subject to such procedures. Local zoning or other local land use requirements shall not be applicable to such siting decisions.

(h) Nothing in this Section shall apply to any existing or new pollution control facility located within the corporate limits of a municipality with a population of over 1,000,000.

(i) (Blank.)

The Board shall adopt regulations establishing the geologic and hydrologic siting criteria necessary to protect usable groundwater resources which are to be followed by the Agency in its review of permit applications for new pollution control facilities. Such regulations, insofar as they apply to new pollution control facilities authorized to store, treat or dispose of any hazardous waste, shall be at least as stringent as the requirements of the Resource Conservation and Recovery Act and any State or federal regulations adopted pursuant thereto.

(j) Any new pollution control facility which has never obtained local siting approval under the provisions of this Section shall be required to obtain such approval after a final decision on an appeal of a permit denial.

(k) A county board or governing body of a municipality may charge applicants for siting review under this Section a reasonable fee to cover the reasonable and necessary costs incurred by such county or municipality in the siting review process.

(l) The governing Authority as determined by subsection (c) of Section 39 of this Act may request the Department of Transportation to perform traffic impact studies of proposed or potential locations for required pollution control facilities.

(m) An applicant may not file a request for local siting approval which is substantially the same as a request which was disapproved pursuant to a finding against the applicant under any of criteria (i) through (ix) of subsection (a) of this Section within the preceding 2 years.

(n) In any review proceeding of a decision of the county board or governing body of a municipality made pursuant to the local siting review process, the petitioner in the review proceeding shall pay to the county or municipality the cost of preparing and certifying the record of proceedings. Should the petitioner in the review proceeding fail to make payment, the provisions of Section 3-109 of the Code of Civil Procedure shall apply.

In the event the petitioner is a citizens' group that participated in the siting proceeding and is so located as to be affected by the proposed facility, such petitioner shall be exempt from paying the costs of preparing and certifying the record.

(o) Notwithstanding any other provision of this Section, a transfer station used exclusively for landscape waste, where landscape waste is held no longer than 24 hours from the time it was received, is not subject to the requirements of local siting approval under this Section, but is subject only to local zoning approval.

(Source: P.A. 94-591, eff. 8-15-05.)

(415 ILCS 5/Tit. XVII-A heading new)

TITLE XVII-A: RESPONSE ACTION LAND USE CONTROLS

(415 ILCS 5/58a-1 new)

Sec. 58a-1. Intent. It is the intent of this Title to establish a system for implementing environmental controls relative to the use of land in situations where Title XVII of this Act does not apply, and to assure that environmental controls necessary to protect human health and the environment relative to present and future uses of the site will remain in place as necessary to protect human health and the environment from contamination remaining on the site.

(415 ILCS 5/58a-2 new)

Sec. 58a-2. Applicability.

(a) A Response Action Land Use Control (RALUC) is an institutional control that may be used under this Title to impose land use limitations or requirements related to environmental contamination.

(b) RALUCs are effective only when approved by the Agency in accordance with this Title. Activities or uses that may be limited or required include, but are not limited to, prohibition of the use of groundwater for potable purposes, restriction to industrial or commercial uses, operation or maintenance of engineered barriers, and worker safety plans.

(c) RALUCs may be used in the following circumstances:

(1) when No Further Remediation Letters and Environmental Land Use Controls are not available under the program for which a person is undergoing remediation;

(2) when No Further Remediation Letters and Environmental Land Use Controls cannot be issued by the program for which a person is undergoing remediation, such as when remediation efforts have not or will not reach remediation objectives specified in 35 Ill. Adm. Code 742;

(3) by the Agency on any abandoned property in the course of conducting preventative, corrective, or remedial response action whenever necessary or appropriate to manage risk to human health or the environment arising from contamination remaining at the property;

(4) when an order is issued by the Agency, the Board, or a court of competent jurisdiction under the Environmental Protection Act with respect to real property that is the subject of a response action or a corrective action; or

(5) when an order is issued by the U.S. Environmental Protection Agency or a court of competent jurisdiction under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or the Resource Conservation and Recovery Act of 1976, as amended, with respect to real property that is the subject of a response action or a corrective action.

(415 ILCS 5/58a-3 new)

Sec. 58a-3. Prohibition. No person shall use any real property for which a RALUC has been issued under this Title in a manner inconsistent with any land use controls in the RALUC.

(415 ILCS 5/58a-4 new)

Sec. 58a-4. Effect and duration.

(a) Except as provided in this Section, a RALUC shall remain in effect in perpetuity.

(b) A RALUC may be modified or terminated, but only if the Agency has approved the modification or termination or the order under which the RALUC was issued has been amended to provide for the modification or termination of the RALUC. The modification or termination of the RALUC shall not be effective until recorded in accordance with Section 58a-6 of this Act.

(c) Except as provided in subsection (b) of this Section, a RALUC may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.

(415 ILCS 5/58a-5 new)

Sec. 58a-5. Contents. A RALUC submitted to the Agency must contain the following elements:

(1) the name of the property owners and a declaration of property ownership;

(2) identification of the property to which the RALUC applies by common address, legal description, and the Real Estate Tax Property Index Number;

(3) a reference to the Agency identification numbers under which the remediation was conducted;

(4) a statement of the reason for the land use limitation or requirement relative to protecting human health and the surrounding environment from soil, groundwater, or other environmental contamination;

(5) the language instituting the land use limitations or requirements;

(6) a statement that the limitations or requirements apply to the current owners, occupants, and all heirs, successors, assigns, and lessees;

(7) a statement that the limitations or requirements apply in perpetuity, subject to the modification or termination provisions of Section 58a-4 of this Act;

(8) scaled site maps showing:

(i) the legal boundary of the property to which the RALUC applies;

(ii) the horizontal and vertical extent of contaminants of concern above applicable remediation objectives for soil and groundwater to which the RALUC applies;

(iii) any physical features to which a RALUC applies, such as engineered barriers, or monitoring wells; and

(iv) the nature, location of the source, and direction of movement of the contaminants of concern;

(9) a statement that any information regarding the remediation performed on the property for which the RALUC is necessary may be obtained from the Agency through a request under the Freedom of Information Act and rules promulgated thereunder; and

(10) the dated, notarized signatures of the property owners or authorized agent of the property subject to the RALUC, except when the Agency is conducting preventative, corrective, or remedial response action in accordance with Section 58a-2(c)(3) of this Title.

(415 ILCS 5/58a-6 new)

Sec. 58a-6. Recordation. A RALUC approved by the Agency under this Title must be recorded in the Office of the Recorder or Registrar of Titles for the county in which the property that is the subject of the RALUC is located. A copy of the RALUC demonstrating that it has been recorded must be submitted to the Agency within 30 days after recordation. A RALUC approved under this Title shall not become effective until officially recorded in the chain of title for the real property that is the subject of the RALUC.

(415 ILCS 5/58a-7 new)

Sec. 58a-7. Enforcement. A civil action for injunctive or other equitable relief, including penalties under the order under which the RALUC was issued, for violation of a RALUC may be maintained by:

(1) the Agency or the State of Illinois;

(2) the U.S. Environmental Protection Agency;

(3) a municipality or other unit of local government where the real property subject to the RALUC is located;

(4) any person to whom the RALUC expressly grants power to enforce; or

(5) any person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the RALUC.

(415 ILCS 5/58a-8 new)

Sec. 58a-8. Validity and effect on other instruments.

(a) A RALUC that complies with this Title runs with the land.

(b) A RALUC that is otherwise effective is valid and enforceable even if:

(1) it is not appurtenant to an interest in real property;

(2) it can be or has been assigned to a person other than the original holder (grantee of the RALUC);

(3) it is not of a character that has been recognized traditionally at common law;

(4) it imposes a negative burden;

(5) it imposes an affirmative obligation on a person having an interest in the real property or on the holder;

(6) the benefit or burden does not touch or concern the real property;

(7) there is no privity of estate or contract;

(8) the holder dies, ceases to exist, resigns, or is replaced; or

(9) the owner of an interest subject to the RALUC and the holder are the same person.

(415 ILCS 115/Act rep.)

Section 10. The Illinois Pollution Prevention Act is repealed.

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