State Government Administration Committee
Filed: 3/21/2007
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1 | AMENDMENT TO HOUSE BILL 1467
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2 | AMENDMENT NO. ______. Amend House Bill 1467 by replacing | ||||||
3 | the title with the following:
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4 | "AN ACT concerning safety."; and | ||||||
5 | by replacing everything after the enacting clause with the | ||||||
6 | following: | ||||||
7 | "Section 5. The Environmental Protection Act is amended by | ||||||
8 | changing Section 22.15a as follows: | ||||||
9 | (415 ILCS 5/22.15a)
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10 | Sec. 22.15a. Open dumping cleanup program.
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11 | (a) Upon making a finding that (i) open dumping , (ii) a | ||||||
12 | structure condemned by a unit of local government, or (iii) a | ||||||
13 | vacant piece of property condemned by a unit of local | ||||||
14 | government poses a threat to the public
health or to the | ||||||
15 | environment, the Agency may take whatever preventive or
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1 | corrective action is necessary or appropriate to end that | ||||||
2 | threat. The
This
preventive or corrective action may consist of | ||||||
3 | any or all of the following:
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4 | (1) Removing waste or structures from the site.
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5 | (2) Removing soil and water contamination that is | ||||||
6 | related to waste at the
site.
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7 | (3) Installing devices to monitor and control | ||||||
8 | groundwater and surface
water contamination that is | ||||||
9 | related to waste at the site.
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10 | (4) Taking any other actions that are authorized by | ||||||
11 | Board regulations.
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12 | (b) Subject to the availability of appropriated funds, the | ||||||
13 | Agency may
undertake a consensual removal action for the | ||||||
14 | removal of up to 20 cubic yards
of waste , or, in the case of a | ||||||
15 | condemned structure, the entire mass of structural material | ||||||
16 | comprising the condemned structure, at no cost to the owner of | ||||||
17 | the property where the open dumping has occurred or on which | ||||||
18 | the condemned structure is located in accordance with the | ||||||
19 | following
requirements:
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20 | (1) Actions under this subsection must be taken | ||||||
21 | pursuant to a written
agreement between the Agency and the | ||||||
22 | owner of the property unless the property is condemned by a | ||||||
23 | unit of local government .
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24 | (2) The written agreement must at a minimum specify:
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25 | (A) that the owner relinquishes any claim of an | ||||||
26 | ownership interest
in any waste that is removed and in |
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1 | any proceeds from its sale;
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2 | (B) that waste will no longer be allowed to | ||||||
3 | accumulate at the site
in a manner that constitutes | ||||||
4 | open dumping;
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5 | (C) that the owner will hold harmless the Agency | ||||||
6 | and any employee
or contractor used by the Agency to | ||||||
7 | effect the removal for any damage to
property incurred | ||||||
8 | during the course of action under this subsection, | ||||||
9 | except
for damage incurred by gross negligence or | ||||||
10 | intentional misconduct; and
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11 | (D) any conditions imposed upon or assistance | ||||||
12 | required from the owner to
assure that the waste is so | ||||||
13 | located or arranged as to facilitate its removal.
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14 | (3) The Agency may establish by rule the conditions and | ||||||
15 | priorities for the
removal of waste or structures under | ||||||
16 | this subsection (b).
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17 | (4) The Agency must prescribe the form of written | ||||||
18 | agreements under this
subsection (b).
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19 | (c) The Agency may provide notice to the owner of property | ||||||
20 | where open dumping or condemnation has occurred whenever the
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21 | Agency finds that the open dumping or condemned structure poses | ||||||
22 | a threat to public health or the
environment. The notice | ||||||
23 | provided by the Agency must include the identified
preventive | ||||||
24 | or corrective action
and must provide an opportunity for the | ||||||
25 | owner to perform the action.
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26 | (d) In accordance with constitutional limitations, the |
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1 | Agency may enter, at
all reasonable times, upon any private or | ||||||
2 | public property for the purpose of
taking any preventive or | ||||||
3 | corrective action that is necessary and appropriate
under this | ||||||
4 | Section whenever the Agency finds that the open dumping or the | ||||||
5 | condemned structure poses a threat
to the public health or to | ||||||
6 | the environment.
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7 | (e) Notwithstanding any other provision or rule of law and | ||||||
8 | subject only to
the defenses set forth in subsection (g) of | ||||||
9 | this Section, the following persons
shall be liable for all | ||||||
10 | costs of corrective or preventive action incurred by
the State | ||||||
11 | of Illinois as a result
of actions taken under this Section
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12 | open dumping , including the reasonable costs of collection:
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13 | (1) any person with an ownership interest in property | ||||||
14 | where open dumping has occurred;
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15 | (2) any person with an ownership or leasehold interest | ||||||
16 | in the property at
the time the open dumping occurred;
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17 | (3) any person who transported waste that was open | ||||||
18 | dumped at the property; and
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19 | (4) any person who open dumped at the property ; and
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20 | (5) any person who owns a condemned structure that is | ||||||
21 | treated under subsection (b) of this Section.
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22 | Any moneys received by the Agency under this subsection (e) | ||||||
23 | must be deposited
into the Subtitle D Management Fund.
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24 | (f) Any person liable to the Agency for costs incurred | ||||||
25 | under subsection (e)
of this Section may be liable to the State | ||||||
26 | of Illinois for punitive damages in
an amount at least equal to |
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1 | and not more than 3 times the costs incurred by the
State if | ||||||
2 | that person failed, without sufficient cause, to take | ||||||
3 | preventive or
corrective action under the notice issued under | ||||||
4 | subsection (c) of this Section.
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5 | (g) There shall be no liability under subsection (e) of | ||||||
6 | this Section for a
person otherwise liable who can establish by | ||||||
7 | a preponderance of the evidence
that the hazard created by the | ||||||
8 | open dumping or condemned structure was caused solely by:
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9 | (1) an act of God;
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10 | (2) an act of war; or
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11 | (3) an act or omission of a third party other than an | ||||||
12 | employee or agent
and
other than a person whose act or | ||||||
13 | omission occurs in connection with a
contractual | ||||||
14 | relationship with the person otherwise liable. For the | ||||||
15 | purposes of
this paragraph, "contractual relationship" | ||||||
16 | includes, but is not limited to,
land contracts, deeds, and | ||||||
17 | other instruments transferring title or possession,
unless | ||||||
18 | the real property upon which the open dumping occurred was | ||||||
19 | acquired by
the defendant after the open dumping or | ||||||
20 | condemnation occurred and one or more of the following | ||||||
21 | circumstances is also established by
a preponderance of the | ||||||
22 | evidence:
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23 | (A) at the time the defendant acquired the | ||||||
24 | property, the defendant
did not know and had no reason | ||||||
25 | to know that any open dumping or condemnation had | ||||||
26 | occurred and the defendant undertook, at the
time of |
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1 | acquisition, all appropriate inquiries into the | ||||||
2 | previous ownership
and uses of the property consistent | ||||||
3 | with good commercial or customary
practice in an effort | ||||||
4 | to minimize liability;
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5 | (B) the defendant is a government entity that | ||||||
6 | acquired the property
by escheat or through any other | ||||||
7 | involuntary transfer or acquisition, or
through the | ||||||
8 | exercise of eminent domain authority by purchase or
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9 | condemnation; or
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10 | (C) the defendant acquired the property by | ||||||
11 | inheritance or bequest.
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12 | (h) Nothing in this Section shall affect or modify the | ||||||
13 | obligations or
liability of any person under any other | ||||||
14 | provision of this Act, federal law, or
State law, including the | ||||||
15 | common law, for injuries, damages, or losses resulting
from the | ||||||
16 | circumstances leading to Agency action under this Section.
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17 | (i) The costs and damages provided for in this Section may | ||||||
18 | be imposed by the
Board in an action brought before the Board | ||||||
19 | in accordance with Title VIII of
this Act, except that | ||||||
20 | subsection (c) of Section 33 of this Act shall not apply
to any | ||||||
21 | such action.
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22 | (j) Except for willful and wanton misconduct, neither the | ||||||
23 | State, the Director, nor any State employee shall be liable for | ||||||
24 | any damages or injuries arising out of or resulting from any | ||||||
25 | act or omission occurring under the provisions of Public Act | ||||||
26 | 94-272 or this amendatory Act of the 95th
94th General |
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1 | Assembly.
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2 | (k) Before taking preventive or corrective action under | ||||||
3 | this Section, the Agency shall consider whether the open | ||||||
4 | dumping or conditions giving rise to the condemnation : | ||||||
5 | (1) occurred on public land; | ||||||
6 | (2) occurred on a public right-of-way; | ||||||
7 | (3) occurred in a park or natural area; | ||||||
8 | (4) occurred in an environmental justice area; | ||||||
9 | (5) was caused or allowed by persons other than the | ||||||
10 | owner of the site; | ||||||
11 | (6) creates the potential for groundwater | ||||||
12 | contamination; | ||||||
13 | (7) creates the potential for surface water | ||||||
14 | contamination; | ||||||
15 | (8) creates the potential for disease vectors; | ||||||
16 | (9) creates a fire hazard; or | ||||||
17 | (10) preventive or corrective action by the Agency has | ||||||
18 | been requested by a unit of local government. | ||||||
19 | In taking preventive or corrective action under this | ||||||
20 | Section, the Agency shall not expend more than $50,000 at any | ||||||
21 | single site in response to open dumping or a condemned | ||||||
22 | structure unless: (i) the Director determines that the open | ||||||
23 | dumping or condemned structure poses an imminent and | ||||||
24 | substantial endangerment to the public health or welfare or the | ||||||
25 | environment; or (ii) the General Assembly appropriates more | ||||||
26 | than $50,000 for preventive or corrective action in response to |
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1 | the open dumping or condemned structure , in which case the | ||||||
2 | Agency may spend the appropriated amount.
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3 | (Source: P.A. 94-272, eff. 7-19-05.)
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4 | Section 99. Effective date. This Act takes effect upon | ||||||
5 | becoming law.".
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