HB4172ham001 95TH GENERAL ASSEMBLY

Environment & Energy Committee

Filed: 3/5/2008

09500HB4172ham001 LRB095 14143 BDD 47701 a

AMENDMENT TO HOUSE BILL 4172

AMENDMENT NO. ______. Amend House Bill 4172 by replacing everything after the enacting clause with the following:

"Section 5. The Environmental Protection Act is amended by changing Section 3.135 as follows:

(415 ILCS 5/3.135) (was 415 ILCS 5/3.94)

Sec. 3.135. Coal combustion by-product; CCB.

(a) "Coal combustion by-product" (CCB) means coal combustion waste when used beneficially in any of the following ways:

(1) The extraction or recovery of material compounds contained within CCB.

(2) The use of CCB as a raw ingredient or mineral filler in the manufacture of the following commercial products: cement; concrete and concrete mortars; cementious products including block, pipe and precast/prestressed components; asphalt or cementious roofing products; plastic products including pipes and fittings; paints and metal alloys; kiln fired products including bricks, blocks, and tiles; abrasive media; gypsum wallboard; asphaltic concrete, or asphalt based paving material.

(3) CCB used (A) in accordance with the Illinois Department of Transportation ("IDOT") standard specifications and subsection (a-5) of this Section or (B) under the approval of the Department of Transportation for IDOT projects.

(4) Bottom ash used as antiskid material, athletic tracks, or foot paths.

(5) Use in the stabilization or modification of soils providing the CCB meets the IDOT specifications for soil modifiers.

(6) CCB used as a functionally equivalent substitute for agricultural lime as a soil conditioner.

(7) Bottom ash used in non-IDOT pavement sub-base or base, pipe bedding, or foundation backfill.

(8) Structural fill, when used in an engineered application or combined with cement, sand, or water to produce a controlled strength fill material and covered with 12 inches of soil, within 30 days after the final placement and completion of the structural fill project or if the project becomes inactive for more than 90 days, unless infiltration is prevented by the material itself or other suitable cover material. CCB may be used under this item (8) only if the structural fill is located no less than 250 feet from any active or operating downgradient well being used as a residential or municipal potable water source.

Within 3 months after notification to the Agency under item (C) of subsection (a-5) of this Section, the Agency must inspect the structural fill project to ensure that the cover requirements of this item (8) are satisfied for each project involving the use of coal combustion waste as structural fill.

(9) Mine subsidence, mine fire control, mine sealing, and mine reclamation.

(a-5) Except to the extent that the uses are otherwise authorized by law without such restrictions, the uses specified in items (a)(3)(A) and (a)(7) through (9) shall be subject to the following conditions:

(A) CCB shall not have been mixed with hazardous waste prior to use.

(B) CCB shall not exceed Class I Groundwater Standards for metals when tested utilizing test method ASTM D3987-85. The sample or samples tested shall be representative of the CCB being considered for use.

(C) Unless otherwise exempted, users of CCB for the purposes described in items (a)(3)(A) and (a)(7) through (9) of this Section shall provide notification to the Agency for each project utilizing CCB documenting the quantity of CCB utilized and certification of compliance with conditions (A) and (B) of this subsection. Notification shall not be required for users of CCB for purposes described in items (a)(1), (a)(2), (a)(3)(B), (a)(4), (a)(5) and (a)(6) of this Section, or as required specifically under a beneficial use determination as provided under this Section, or pavement base, parking lot base, or building base projects utilizing less than 10,000 tons, flowable fill/grout projects utilizing less than 1,000 cubic yards or other applications utilizing less than 100 tons.

(D) Fly ash shall be managed in a manner that minimizes the generation of airborne particles and dust using techniques such as moisture conditioning, granulating, inground application, or other demonstrated method.

(E) CCB is not to be accumulated speculatively. CCB is not accumulated speculatively if during the calendar year, the CCB used is equal to 75% of the CCB by weight or volume accumulated at the beginning of the period.

(F) CCB shall include any prescribed mixture of fly ash, bottom ash, boiler slag, flue gas desulfurization scrubber sludge, fluidized bed combustion ash, and stoker boiler ash and shall be tested as intended for use.

(b) To encourage and promote the utilization of CCB in productive and beneficial applications, upon request by the applicant, the Agency shall make a written beneficial use determination that coal-combustion waste is CCB when used in a manner other than those uses specified in subsection (a) of this Section if the applicant demonstrates that use of the coal-combustion waste satisfies all of the following criteria: the use will not cause, threaten, or allow the discharge of any contaminant into the environment; the use will otherwise protect human health and safety and the environment; and the use constitutes a legitimate use of the coal-combustion waste as an ingredient or raw material that is an effective substitute for an analogous ingredient or raw material.

Notwithstanding the criteria set forth in this subsection (b), the The Agency's beneficial use determinations may allow the uses set forth in items (a)(3)(A) and (a)(7) through (9) of this Section without the CCB being subject to the restrictions set forth in subdivisions (a-5)(B) and (a-5)(E) of this Section.

Within 90 days after the receipt of an application for a beneficial use determination under this subsection (b), the Agency shall, in writing, approve, disapprove, or approve with conditions the beneficial use. Any disapproval or approval with conditions shall include the Agency's reasons for the disapproval or conditions. Failure of the Agency to issue a decision within 90 days shall constitute disapproval of the beneficial use request. These beneficial use determinations are subject to review under Section 40 of this Act.

Any approval of a beneficial use under this subsection (b) shall become effective upon the date of the Agency's written decision and remain in effect for a period of 5 years. If an applicant desires to continue a beneficial use after the expiration of the 5-year period, the applicant must submit an application for renewal no later than 90 days prior to the expiration. The beneficial use approval shall be automatically extended unless denied by the Agency in writing with the Agency's reasons for disapproval, or unless the Agency has requested an extension for review, in which case the use will continue to be allowed until an Agency determination is made.

Coal-combustion waste for which a beneficial use is approved pursuant to this subsection (b) shall be considered CCB during the effective period of the approval, and the continued approval upon renewal may not be denied by the Agency as long as it is used in accordance with the approval and any conditions. Any determination under this subsection (b) is subject to review under Section 40 of this Act.

Notwithstanding the other provisions of this subsection (b), written beneficial use determination applications for the use of CCB at sites governed by the federal Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87) or the rules and regulations thereunder, or by any law or rule or regulation adopted by the State of Illinois pursuant thereto, shall be reviewed and approved by the Office of Mines and Minerals within the Department of Natural Resources pursuant to 62 Ill. Adm. Code §§ 1700-1850. Further, appeals of those determinations shall be made pursuant to the Illinois Administrative Review Law.

The Board shall adopt rules establishing standards and procedures for the Agency's issuance of beneficial use determinations under this subsection (b). The Board rules may also, but are not required to, include standards and procedures for the revocation of the beneficial use determinations. Prior to the effective date of Board rules adopted under this subsection (b), the Agency is authorized to make beneficial use determinations in accordance with this subsection (b). No later than January 31, 2009, the Governor, in coordination with the Agency and the Board, must propose rules concerning the use of CCB under item (8) of subsection (a). These proposed rules must include specific guidelines for the use of CCB as structural fill and a site-approval process. Agency approval, however, is not required for structural fill projects if that project uses less than 10,000 tons of CCB material or if the fill material meets the ASTM D3987-85 standards for Class 1 Groundwater. The proposed rules for a site-approval process must include, along with other permits that may be required, (i) specific timeframes for Agency approval and (ii) informal consultation with the Department of Natural Resources on whether the structural fill project will harm any endangered species. Notwithstanding any other rulemaking authority that may exist, neither the Governor nor any agency or agency head under the jurisdiction of the Governor has any authority to make or promulgate rules to implement or enforce the provisions of this amendatory Act of the 95th General Assembly. The Governor shall propose rules to the General Assembly by filing them with the Clerk of the House and the Secretary of the Senate and by requesting that the General Assembly authorize such rulemaking by law, enact those proposed rules into law, or take any other appropriate action in the General Assembly's discretion. Nothing contained in this amendatory Act of the 95th General Assembly shall be interpreted to grant rulemaking authority under any other Illinois statute where such authority is not otherwise explicitly given. For the purposes of this paragraph, "rules" is given the meaning contained in Section 1-70 of the Illinois Administrative Procedure Act, and "agency" and "agency head" are given the meanings contained in Sections 1-20 and 1-25 of the Illinois Administrative Procedure Act to the extent that such definitions apply to agencies or agency heads under the jurisdiction of the Governor.

The Agency is authorized to prepare and distribute guidance documents relating to its administration of this Section. Guidance documents prepared under this subsection are not rules for the purposes of the Illinois Administrative Procedure Act.

(c) In addition to the other penalties and remedies provided in this Act, any person harmed by a violation of item (8) of subsection (a) of this Section may bring a civil action in the circuit court of the county of that person's residence for damages or other appropriate legal or equitable remedies against the violator.

(Source: P.A. 94-66, eff. 1-1-06.)".