SB1607 96TH GENERAL ASSEMBLY

LRB096 09569 JDS 19730 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB1607

Introduced 2/19/2009, by Sen. Don Harmon

SYNOPSIS AS INTRODUCED:

See Index

Amends the Environmental Protection Act. Provides that clean construction or demolition debris (CCDD), including general fill soil commingled with CCDD, is not waste if certain requirements are met. Provides that "general fill soil" is soil generated from construction or demolition activities and containing concentrations of chemicals at or below either certain Tiered Approach to Corrective Action Objective (TACO) Tier I exposure route values or, under certain circumstances, higher limits, such as acceptable detection limits or background concentrations. Provides that "restricted fill soil", including general fill soil commingled with restricted fill soil, is soil generated from construction or demolition activities that meets certain requirements. Makes changes to certain Sections of the Act concerning the use of CCDD. Requires the Illinois Environmental Protection Agency to issue permits for the use of CCDD and restricted fill soil as fill material. Provides that after January 1, 2010, a person may use CCDD and restricted fill soil as fill material, if certain requirements are met. Provides that the Agency may, without a permit, enter into intergovernmental agreements with units of State or local government to authorize the use of soil and CCDD. Provides for enforcement of certain CCDD-related violations by administrative citation. Provides civil penalties for certain violations. 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 Sections 3.160, 21, 22.51, 31.1, and 42 and by adding Sections 3.202, 3.442, 22.51a, and 22.54 as follows:

(415 ILCS 5/3.160) (was 415 ILCS 5/3.78 and 3.78a)

Sec. 3.160. Construction or demolition debris.

(a) "General construction or demolition debris" means non-hazardous, uncontaminated materials resulting from the construction, remodeling, repair, and demolition of utilities, structures, and roads, limited to the following: bricks, concrete, and other masonry materials; soil; rock; wood, including non-hazardous painted, treated, and coated wood and wood products; wall coverings; plaster; drywall; plumbing fixtures; non-asbestos insulation; roofing shingles and other roof coverings; reclaimed or other asphalt pavement; glass; plastics that are not sealed in a manner that conceals waste; electrical wiring and components containing no hazardous substances; and piping or metals incidental to any of those materials.

General construction or demolition debris does not include general fill uncontaminated soil generated during construction, remodeling, repair, and demolition of utilities, structures, and roads provided the general fill uncontaminated soil is not commingled with any general construction or demolition debris or other waste.

To the extent allowed by federal law, uncontaminated concrete with protruding rebar shall be considered clean construction or demolition debris and shall not be considered "waste" if it is separated or processed and returned to the economic mainstream in the form of raw materials or products within 4 years of its generation, if it is not speculatively accumulated and, if used as a fill material, it is used in accordance with item (i) in subsection (b) of this Section.

(b) "Clean construction or demolition debris" ("CCDD") means uncontaminated broken concrete without protruding metal bars, bricks, rock, stone, or reclaimed or other asphalt pavement (i) that is , or soil generated from construction or demolition activities, and (ii) except as provided in subsection (d) of Section 22.51 of this Act, does not contain paint; however, clean construction or demolition debris generated from the construction or demolition of a road may contain pavement markings that conform to Illinois Department of Transportation specifications.

CCDD also includes general fill soil generated from construction or demolition activities that is mixed with broken concrete without protruding metal bars, bricks, rock, stone, or reclaimed asphalt pavement that is CCDD. CCDD Clean construction or demolition debris does not include general fill uncontaminated soil generated during construction, remodeling, repair, and demolition of utilities, structures, and roads that provided the uncontaminated soil is not commingled with any CCDD clean construction or demolition debris or other waste.

To the extent allowed by federal law, CCDD clean construction or demolition debris shall not be considered "waste" if it is (i) used as fill material outside of a setback zone if (1) the fill is placed no higher than the highest point of elevation existing prior to the filling immediately adjacent to the fill area, and (2) it is if covered by sufficient general fill uncontaminated soil to support vegetation within 30 days of the completion of filling or if covered by a road or structure and, (3) if used as fill material in a current or former quarry, mine, or other excavation, it is used in accordance with the requirements of Sections 22.51 of this Act and rules adopted thereunder, or (ii) separated or processed and returned to the economic mainstream in the form of raw materials or products, if it is not speculatively accumulated and, if used as a fill material, it is used in accordance with item (i), or (iii) solely broken concrete without protruding metal bars used for erosion control, or (iv) generated from the construction or demolition of a building, road, or other structure and used to construct, on the site where the construction or demolition has taken place, a manmade functional structure not to exceed 20 feet above the highest point of elevation of the property immediately adjacent to the new manmade functional structure as that elevation existed prior to the creation of that new structure, provided that the structure shall be covered with sufficient soil materials to sustain vegetation or by a road or structure, and further provided that no such structure shall be constructed within a home rule municipality with a population over 500,000 without the consent of the municipality.

For purposes of this subsection (b), reclaimed or other asphalt pavement shall not be considered speculatively accumulated if: (i) it is not commingled with any other clean construction or demolition debris or any waste; (ii) it is returned to the economic mainstream in the form of raw materials or products within 4 years after its generation; (iii) at least 25% of the total amount present at a site during a calendar year is transported off of the site during the next calendar year; and (iv) if used as a fill material, it is used in accordance with item (i) of the second paragraph of this subsection (b).

(Source: P.A. 94-272, eff. 7-19-05; 95-121, eff. 8-13-07.)

(415 ILCS 5/3.202 new)

Sec. 3.202. General Fill Soil. For purposes of Sections 3.160, 21, and 22.51 of this Act, "General Fill Soil" means, to the extent allowed by federal law, soil generated from construction or demolition activities that (i) does not exceed the most stringent Tier 1 exposure route values adopted by the Board pursuant to Title XVII of this Act, as amended, (ii) based upon past and current land uses and reasonable inquiry, is not known or suspected to contain a regulated substance or pesticide for which a Tier 1 exposure route has not been determined, and (iii) does not contain waste, broken concrete, bricks, or asphalt. For purposes of this definition, the most stringent Tier 1 exposure route values adopted by the Board pursuant to Title XVII of this Act shall be determined as follows:

(a) Except as otherwise provided in subsections (b) through (d) of this Section, the most stringent Tier 1 exposure route values are the lowest of the following values for each chemical listed in 35 Ill. Adm. Code 742, Appendix B, as amended:

(1) The Ingestion Exposure Route-Specific Value for Soils listed in Table A of 35 Ill. Adm. Code 742, Appendix B;

(2) The Inhalation Exposure Route-Specific Value for Soils listed in Table A of 35 Ill. Adm. Code 742, Appendix B;

(3) The Class I Soil Component of the Groundwater Ingestion Exposure Route Value listed in Table A of 35 Ill. Adm. Code 742, Appendix B;

(4) The Construction Worker Ingestion Exposure Route-Specific Value for Soils listed in Table B of 35 Ill. Adm. Code 742, Appendix B;

(5) The Construction Worker Inhalation Exposure Route-Specific Value for Soils listed in Table B of 35 Ill. Adm. Code 742, Appendix B; and

(6) Indoor inhalation exposure route values established by the Board in 35 Ill. Adm. Code 742.

Location and other designations, such as residential and industrial/commercial designations, shall be ignored when comparing the values identified in this subsection (a). The lowest values shall be used regardless of designation.

(b) For inorganic chemicals, either the leachable value or the total value set forth below can be used as the most stringent Tier 1 exposure route value.

(1) The leachable value for each inorganic chemical is the Class I Soil Component of the Groundwater Ingestion Exposure Route Value listed in Table A of 35 Ill. Adm. Code 742, Appendix B, as amended.

(2) The total value for each inorganic chemical is the lowest of the following values, as amended:

(A) The Ingestion Exposure Route-Specific Value for Soils listed in Table A of 35 Ill. Adm. Code 742, Appendix B;

(B) The Inhalation Exposure Route-Specific Value for Soils listed in Table A of 35 Ill. Adm. Code 742, Appendix B;

(C) The Construction Worker Ingestion Exposure Route-Specific Value for Soils listed in Table B of 35 Ill. Adm. Code 742, Appendix B;

(D) The Construction Worker Inhalation Exposure Route-Specific Value for Soils listed in Table B of 35 Ill. Adm. Code 742, Appendix B;

(E) The Class I pH Specific Soil Remediation Objective listed in the column labeled "pH of 6.25 to 6.64" in Table C of 35 Ill. Adm. Code 742, Appendix B, and;

(F) Indoor inhalation exposure route values established by the Board in 35 Ill. Adm. Code 742.

Location and other designations, such as residential or industrial/commercial designations, shall be ignored when comparing the values identified in this subdivision (b)(2) of this Section. The lowest values shall be used for all soil regardless of its designation.

(c) If a chemical's most stringent Tier 1 exposure route value determined under subsections (a) and (b) of this Section is less than the chemical's acceptable detection limit (ADL) listed in 35 Ill. Adm. Code 742, Appendix B, as amended, then the ADL shall serve as the most stringent Tier 1 exposure route value.

(d) The following applies for soil used as fill material or cover material in Chicago, a Metropolitan Area, or a Non-Metropolitan Area as defined in Table H of 35 Ill. Adm. Code 742, Appendix A:

(1) If a chemical's most stringent Tier 1 exposure route value determined under subsections (a) through (c) of this Section is less than the chemical's lowest background concentration listed in Table H of 35 Ill. Adm. Code 742, Appendix A, as amended, then the chemical's lowest background concentration listed in Table H shall serve as the most stringent Tier 1 exposure route value.

(2) For purposes of this subsection (d), the lowest background concentration listed in Table H shall be used, regardless of whether it is the background concentration listed for Chicago, a Metropolitan Area, or a Non-Metropolitan Area.

The most stringent Tier 1 exposure route values shall be determined solely from the values listed in 35 Ill. Adm. Code 742, Appendix A and Appendix B as provided above. Except as provided in subsection (d) of this Section, background concentrations cannot be used. Other provisions of the Board's rules, such as those pertaining to the use of engineered barriers or institutional controls, cannot be used to exclude or otherwise alter exposure routes or exposure route values for purposes of determining the most stringent Tier 1 exposure route.

The Agency shall maintain on its website a list of the most stringent Tier 1 exposure route values adopted by the Board pursuant to Title XVII of this Act, as amended.

To the extent allowed by federal law, general fill soil is not a waste.

(415 ILCS 5/3.442 new)

Sec. 3.442. Restricted Fill Soil. For purposes of Section 22.51 of this Act, "restricted fill soil" means soil generated from construction or demolition activities that (i) does not exceed the Class I Soil Component of the Groundwater Ingestion Exposure Route Values listed in Table A of 35 Ill. Adm. Code 742, Appendix B, as amended, (ii) based upon past and current land uses and reasonable inquiry, is not known or suspected to contain a regulated substance or pesticide that does not have a Class I Soil Component of the Groundwater Ingestion Exposure Route Value listed in Table A of 35 Ill. Adm. Code 742, Appendix B, as amended, and (iii) does not contain waste. General fill soil that is mixed with restricted fill soil shall be considered restricted fill soil.

(415 ILCS 5/21) (from Ch. 111 1/2, par. 1021)

Sec. 21. Prohibited acts. No person shall:

(a) Cause or allow the open dumping of any waste.

(b) Abandon, dump, or deposit any waste upon the public highways or other public property, except in a sanitary landfill approved by the Agency pursuant to regulations adopted by the Board.

(c) Abandon any vehicle in violation of the "Abandoned Vehicles Amendment to the Illinois Vehicle Code", as enacted by the 76th General Assembly.

(d) Conduct any waste-storage, waste-treatment, or waste-disposal operation:

(1) without a permit granted by the Agency or in violation of any conditions imposed by such permit, including periodic reports and full access to adequate records and the inspection of facilities, as may be necessary to assure compliance with this Act and with regulations and standards adopted thereunder; provided, however, that, except for municipal solid waste landfill units that receive waste on or after October 9, 1993, no permit shall be required for (i) any person conducting a waste-storage, waste-treatment, or waste-disposal operation for wastes generated by such person's own activities which are stored, treated, or disposed within the site where such wastes are generated, or (ii) a facility located in a county with a population over 700,000 as of January 1, 2000, operated and located in accordance with Section 22.38 of this Act, and used exclusively for the transfer, storage, or treatment of general construction or demolition debris;

(2) in violation of any regulations or standards adopted by the Board under this Act; or

(3) which receives waste after August 31, 1988, does not have a permit issued by the Agency, and is (i) a landfill used exclusively for the disposal of waste generated at the site, (ii) a surface impoundment receiving special waste not listed in an NPDES permit, (iii) a waste pile in which the total volume of waste is greater than 100 cubic yards or the waste is stored for over one year, or (iv) a land treatment facility receiving special waste generated at the site; without giving notice of the operation to the Agency by January 1, 1989, or 30 days after the date on which the operation commences, whichever is later, and every 3 years thereafter. The form for such notification shall be specified by the Agency, and shall be limited to information regarding: the name and address of the location of the operation; the type of operation; the types and amounts of waste stored, treated or disposed of on an annual basis; the remaining capacity of the operation; and the remaining expected life of the operation.

Item (3) of this subsection (d) shall not apply to any person engaged in agricultural activity who is disposing of a substance that constitutes solid waste, if the substance was acquired for use by that person on his own property, and the substance is disposed of on his own property in accordance with regulations or standards adopted by the Board.

This subsection (d) shall not apply to hazardous waste.

(e) Dispose, treat, store or abandon any waste, or transport any waste into this State for disposal, treatment, storage or abandonment, except at a site or facility which meets the requirements of this Act and of regulations and standards thereunder.

(f) Conduct any hazardous waste-storage, hazardous waste-treatment or hazardous waste-disposal operation:

(1) without a RCRA permit for the site issued by the Agency under subsection (d) of Section 39 of this Act, or in violation of any condition imposed by such permit, including periodic reports and full access to adequate records and the inspection of facilities, as may be necessary to assure compliance with this Act and with regulations and standards adopted thereunder; or

(2) in violation of any regulations or standards adopted by the Board under this Act; or

(3) in violation of any RCRA permit filing requirement established under standards adopted by the Board under this Act; or

(4) in violation of any order adopted by the Board under this Act.

Notwithstanding the above, no RCRA permit shall be required under this subsection or subsection (d) of Section 39 of this Act for any person engaged in agricultural activity who is disposing of a substance which has been identified as a hazardous waste, and which has been designated by Board regulations as being subject to this exception, if the substance was acquired for use by that person on his own property and the substance is disposed of on his own property in accordance with regulations or standards adopted by the Board.

(g) Conduct any hazardous waste-transportation operation:

(1) without registering with and obtaining a permit from the Agency in accordance with the Uniform Program implemented under subsection (l-5) of Section 22.2; or

(2) in violation of any regulations or standards adopted by the Board under this Act.

(h) Conduct any hazardous waste-recycling or hazardous waste-reclamation or hazardous waste-reuse operation in violation of any regulations, standards or permit requirements adopted by the Board under this Act.

(i) Conduct any process or engage in any act which produces hazardous waste in violation of any regulations or standards adopted by the Board under subsections (a) and (c) of Section 22.4 of this Act.

(j) Conduct any special waste transportation operation in violation of any regulations, standards or permit requirements adopted by the Board under this Act. However, sludge from a water or sewage treatment plant owned and operated by a unit of local government which (1) is subject to a sludge management plan approved by the Agency or a permit granted by the Agency, and (2) has been tested and determined not to be a hazardous waste as required by applicable State and federal laws and regulations, may be transported in this State without a special waste hauling permit, and the preparation and carrying of a manifest shall not be required for such sludge under the rules of the Pollution Control Board. The unit of local government which operates the treatment plant producing such sludge shall file a semiannual report with the Agency identifying the volume of such sludge transported during the reporting period, the hauler of the sludge, and the disposal sites to which it was transported. This subsection (j) shall not apply to hazardous waste.

(k) Fail or refuse to pay any fee imposed under this Act.

(l) Locate a hazardous waste disposal site above an active or inactive shaft or tunneled mine or within 2 miles of an active fault in the earth's crust. In counties of population less than 225,000 no hazardous waste disposal site shall be located (1) within 1 1/2 miles of the corporate limits as defined on June 30, 1978, of any municipality without the approval of the governing body of the municipality in an official action; or (2) within 1000 feet of an existing private well or the existing source of a public water supply measured from the boundary of the actual active permitted site and excluding existing private wells on the property of the permit applicant. The provisions of this subsection do not apply to publicly-owned sewage works or the disposal or utilization of sludge from publicly-owned sewage works.

(m) Transfer interest in any land which has been used as a hazardous waste disposal site without written notification to the Agency of the transfer and to the transferee of the conditions imposed by the Agency upon its use under subsection (g) of Section 39.

(n) Use any land which has been used as a hazardous waste disposal site except in compliance with conditions imposed by the Agency under subsection (g) of Section 39.

(o) Conduct a sanitary landfill operation which is required to have a permit under subsection (d) of this Section, in a manner which results in any of the following conditions:

(1) refuse in standing or flowing waters;

(2) leachate flows entering waters of the State;

(3) leachate flows exiting the landfill confines (as determined by the boundaries established for the landfill by a permit issued by the Agency);

(4) open burning of refuse in violation of Section 9 of this Act;

(5) uncovered refuse remaining from any previous operating day or at the conclusion of any operating day, unless authorized by permit;

(6) failure to provide final cover within time limits established by Board regulations;

(7) acceptance of wastes without necessary permits;

(8) scavenging as defined by Board regulations;

(9) deposition of refuse in any unpermitted portion of the landfill;

(10) acceptance of a special waste without a required manifest;

(11) failure to submit reports required by permits or Board regulations;

(12) failure to collect and contain litter from the site by the end of each operating day;

(13) failure to submit any cost estimate for the site or any performance bond or other security for the site as required by this Act or Board rules.

The prohibitions specified in this subsection (o) shall be enforceable by the Agency either by administrative citation under Section 31.1 of this Act or as otherwise provided by this Act. The specific prohibitions in this subsection do not limit the power of the Board to establish regulations or standards applicable to sanitary landfills.

(p) In violation of subdivision (a) of this Section, cause or allow the open dumping of any waste in a manner which results in any of the following occurrences at the dump site:

(1) litter;

(2) scavenging;

(3) open burning;

(4) deposition of waste in standing or flowing waters;

(5) proliferation of disease vectors;

(6) standing or flowing liquid discharge from the dump site;

(7) deposition of:

(i) general construction or demolition debris as defined in Section 3.160(a) of this Act; or

(ii) clean construction or demolition debris as defined in Section 3.160(b) of this Act.

The prohibitions specified in this subsection (p) shall be enforceable by the Agency either by administrative citation under Section 31.1 of this Act or as otherwise provided by this Act. The specific prohibitions in this subsection do not limit the power of the Board to establish regulations or standards applicable to open dumping.

(q) Conduct a landscape waste composting operation without an Agency permit, provided, however, that no permit shall be required for any person:

(1) conducting a landscape waste composting operation for landscape wastes generated by such person's own activities which are stored, treated or disposed of within the site where such wastes are generated; or

(2) applying landscape waste or composted landscape waste at agronomic rates; or

(3) operating a landscape waste composting facility on a farm, if the facility meets all of the following criteria:

(A) the composting facility is operated by the farmer on property on which the composting material is utilized, and the composting facility constitutes no more than 2% of the property's total acreage, except that the Agency may allow a higher percentage for individual sites where the owner or operator has demonstrated to the Agency that the site's soil characteristics or crop needs require a higher rate;

(B) the property on which the composting facility is located, and any associated property on which the compost is used, is principally and diligently devoted to the production of agricultural crops and is not owned, leased or otherwise controlled by any waste hauler or generator of nonagricultural compost materials, and the operator of the composting facility is not an employee, partner, shareholder, or in any way connected with or controlled by any such waste hauler or generator;

(C) all compost generated by the composting facility is applied at agronomic rates and used as mulch, fertilizer or soil conditioner on land actually farmed by the person operating the composting facility, and the finished compost is not stored at the composting site for a period longer than 18 months prior to its application as mulch, fertilizer, or soil conditioner;

(D) the owner or operator, by January 1, 1990 (or the January 1 following commencement of operation, whichever is later) and January 1 of each year thereafter, (i) registers the site with the Agency, (ii) reports to the Agency on the volume of composting material received and used at the site, (iii) certifies to the Agency that the site complies with the requirements set forth in subparagraphs (A), (B) and (C) of this paragraph (q)(3), and (iv) certifies to the Agency that all composting material was placed more than 200 feet from the nearest potable water supply well, was placed outside the boundary of the 10-year floodplain or on a part of the site that is floodproofed, was placed at least 1/4 mile from the nearest residence (other than a residence located on the same property as the facility) and there are not more than 10 occupied non-farm residences within 1/2 mile of the boundaries of the site on the date of application, and was placed more than 5 feet above the water table.

For the purposes of this subsection (q), "agronomic rates" means the application of not more than 20 tons per acre per year, except that the Agency may allow a higher rate for individual sites where the owner or operator has demonstrated to the Agency that the site's soil characteristics or crop needs require a higher rate.

(r) Cause or allow the storage or disposal of coal combustion waste unless:

(1) such waste is stored or disposed of at a site or facility for which a permit has been obtained or is not otherwise required under subsection (d) of this Section; or

(2) such waste is stored or disposed of as a part of the design and reclamation of a site or facility which is an abandoned mine site in accordance with the Abandoned Mined Lands and Water Reclamation Act; or

(3) such waste is stored or disposed of at a site or facility which is operating under NPDES and Subtitle D permits issued by the Agency pursuant to regulations adopted by the Board for mine-related water pollution and permits issued pursuant to the Federal Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87) or the rules and regulations thereunder or any law or rule or regulation adopted by the State of Illinois pursuant thereto, and the owner or operator of the facility agrees to accept the waste; and either

(i) such waste is stored or disposed of in accordance with requirements applicable to refuse disposal under regulations adopted by the Board for mine-related water pollution and pursuant to NPDES and Subtitle D permits issued by the Agency under such regulations; or

(ii) the owner or operator of the facility demonstrates all of the following to the Agency, and the facility is operated in accordance with the demonstration as approved by the Agency: (1) the disposal area will be covered in a manner that will support continuous vegetation, (2) the facility will be adequately protected from wind and water erosion, (3) the pH will be maintained so as to prevent excessive leaching of metal ions, and (4) adequate containment or other measures will be provided to protect surface water and groundwater from contamination at levels prohibited by this Act, the Illinois Groundwater Protection Act, or regulations adopted pursuant thereto.

Notwithstanding any other provision of this Title, the disposal of coal combustion waste pursuant to item (2) or (3) of this subdivision (r) shall be exempt from the other provisions of this Title V, and notwithstanding the provisions of Title X of this Act, the Agency is authorized to grant experimental permits which include provision for the disposal of wastes from the combustion of coal and other materials pursuant to items (2) and (3) of this subdivision (r).

(s) After April 1, 1989, offer for transportation, transport, deliver, receive or accept special waste for which a manifest is required, unless the manifest indicates that the fee required under Section 22.8 of this Act has been paid.

(t) Cause or allow a lateral expansion of a municipal solid waste landfill unit on or after October 9, 1993, without a permit modification, granted by the Agency, that authorizes the lateral expansion.

(u) Conduct any vegetable by-product treatment, storage, disposal or transportation operation in violation of any regulation, standards or permit requirements adopted by the Board under this Act. However, no permit shall be required under this Title V for the land application of vegetable by-products conducted pursuant to Agency permit issued under Title III of this Act to the generator of the vegetable by-products. In addition, vegetable by-products may be transported in this State without a special waste hauling permit, and without the preparation and carrying of a manifest.

(v) (Blank).

(w) Conduct any generation, transportation, or recycling of construction or demolition debris, clean or general, or general fill uncontaminated soil or restricted fill soil that is generated during construction, remodeling, repair, and demolition of utilities, structures, and roads that is not commingled with any waste, without the maintenance of documentation identifying the hauler, generator, place of origin of the debris or soil, the weight or volume of the debris or soil, and the location, owner, and operator of the facility where the debris or soil was transferred, disposed, recycled, or treated. This documentation must be maintained by the generator, transporter, or recycler for 3 years. This subsection (w) shall not apply to (1) a permitted pollution control facility that transfers or accepts construction or demolition debris, clean or general, or general fill or restricted fill uncontaminated soil for final disposal, recycling, or treatment, (2) a public utility (as that term is defined in the Public Utilities Act) or a municipal utility, (3) the Illinois Department of Transportation, or (4) a municipality or a county highway department, with the exception of any municipality or county highway department located within a county having a population of over 3,000,000 inhabitants or located in a county that is contiguous to a county having a population of over 3,000,000 inhabitants, or (5) the Illinois State Toll Highway Authority; but it shall apply to an entity that contracts with a public utility, a municipal utility, the Illinois Department of Transportation, the Illinois State Toll Highway Authority or a municipality or a county highway department. The terms "generation" and "recycling" as used in this subsection do not apply to clean construction or demolition debris when (i) used as fill material below grade outside of a setback zone if covered by sufficient general fill uncontaminated soil to support vegetation within 30 days of the completion of filling or if covered by a road or structure, (ii) solely broken concrete without protruding metal bars is used for erosion control, or (iii) milled asphalt or crushed concrete is used as aggregate in construction of the shoulder of a roadway. The terms "generation" and "recycling", as used in this subsection, do not apply to general fill uncontaminated soil that is not commingled with any waste when (i) used as fill material below grade or contoured to grade, or (ii) used at the site of generation.

(Source: P.A. 93-179, eff. 7-11-03; 94-94, eff. 7-1-05.)

(415 ILCS 5/22.51)

Sec. 22.51. Clean Construction or Demolition Debris Fill Operations.

This Section applies to persons using clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation. It also applies to persons authorized under this Section to use restricted fill soil or general fill soil as fill material in a current or former quarry, mine, or other excavation.

(a) No person shall conduct any CCDD clean construction or demolition debris fill operation in violation of this Act or any regulations or standards adopted by the Board.

(b)(1)(A) Beginning July 19, 2005 30 days after the effective date of this amendatory Act of the 94th General Assembly but prior to January 1, 2010 July 1, 2008, no person shall use CCDD clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation, unless they have applied for an interim authorization from the Agency for the CCDD clean construction or demolition debris fill operation.

(B) The Agency shall approve an interim authorization upon its receipt of a written application for the interim authorization that is signed by the site owner and the site operator, or their duly authorized agent, and that contains the following information: (i) the location of the site where the CCDD clean construction or demolition debris fill operation is taking place, (ii) the name and address of the site owner, (iii) the name and address of the site operator, and (iv) the types and amounts of CCDD clean construction or demolition debris being used as fill material at the site.

(C) The Agency may deny an interim authorization if the site owner or the site operator, or their duly authorized agent, fails to provide to the Agency the information listed in subsection (b)(1)(B) of this Section. Any denial of an interim authorization shall be subject to appeal to the Board in accordance with the procedures of Section 40 of this Act.

(D) No person shall use CCDD clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation for which the Agency has denied interim authorization under subsection (b)(1)(C) of this Section. The Board may stay the prohibition of this subsection (D) during the pendency of an appeal of the Agency's denial of the interim authorization brought under subsection (b)(1)(C) of this Section.

(2) Beginning September 1, 2006, owners and operators of CCDD clean construction or demolition debris fill operations shall, in accordance with a schedule prescribed by the Agency, submit to the Agency applications for the permits required under this Section. The Agency shall notify owners and operators in writing of the due date for their permit application. The due date shall be no less than 90 days after the date of the Agency's written notification. Owners and operators who do not receive a written notification from the Agency by October 1, 2007, shall submit a permit application to the Agency by January 1, 2008. The interim authorization of owners and operators who fail to submit a permit application to the Agency by the permit application's due date shall terminate on (i) the due date established by the Agency if the owner or operator received a written notification from the Agency prior to October 1, 2007, or (ii) or January 1, 2008, if the owner or operator did not receive a written notification from the Agency by October 1, 2007.

(3) On and after January 1, 2010 July 1, 2008, no person shall use CCDD clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation (i) without a permit granted by the Agency for the clean construction or demolition debris fill operation or in violation of any conditions imposed by such permit, including periodic reports and full access to adequate records and the inspection of facilities, as may be necessary to assure compliance with this Act and with Board regulations and standards adopted under this Act; or (ii) in violation of any regulations or standards adopted by the Board under this Act.

(4) This subsection (b) does not apply to:

(A) the use of CCDD clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation located on the site where the clean construction or demolition debris was generated;

(B) the use of CCDD clean construction or demolition debris as fill material in an excavation other than a current or former quarry or mine if this use complies with Illinois Department of Transportation specifications; or

(C) current or former quarries, mines, and other excavations that do not use CCDD clean construction or demolition debris as fill material.

(c) In accordance with Title VII of this Act, the Board may adopt regulations to promote the purposes of this Section. The Agency shall consult with the mining and construction industries during the development of any regulations to promote the purposes of this Section.

(1) No later than December 15, 2005, the Agency shall propose to the Board, and no later than September 1, 2006, the Board shall adopt, regulations for the use of CCDD clean construction or demolition debris as fill material in current and former quarries, mines, and other excavations. Such regulations shall include, but shall not be limited to, standards for CCDD clean construction or demolition debris fill operations and the submission and review of permits required under this Section.

(2) Until the Board adopts rules under subsection (c)(1) of this Section, all persons using clean construction or demolition debris as fill material in a current or former quarry, mine, or other excavation shall:

(A) Assure that only CCDD clean construction or demolition debris is being used as fill material by screening each truckload of material received using a device approved by the Agency that detects volatile organic compounds. Such devices may include, but are not limited to, photo ionization detectors. All screening devices shall be operated and maintained in accordance with manufacturer's specifications. Unacceptable fill material shall be rejected from the site; and

(B) Retain for a minimum of 3 years the following information:

(i) The name of the hauler, the name of the generator, and place of origin of the debris or soil;

(ii) The approximate weight or volume of the debris or soil; and

(iii) The date the debris or soil was received.

(d) To the extent allowed by federal law, the Agency shall, in a permit or a permit modification granted under this Section, and in accordance with Sections 39 and 40 of this Act, authorize the use of restricted fill soil and clean construction or demolition debris as fill material at a clean construction or demolition debris fill operation if the requirements of this subsection (d) are met. To the extent allowed by federal law, restricted fill soil and painted clean construction or demolition debris used as fill material in accordance with the permit and this Section are not waste.

(1) Before restricted fill soil is used as fill material at the clean construction or demolition debris fill operation: (i) a land use restriction that restricts property use to industrial or commercial uses must be recorded in the chain of title for the property on which the clean construction or demolition debris fill operation is located and (ii) proof of the recording must be submitted to the Agency. Upon closure of the clean construction or demolition debris fill operation, the land use restriction may be removed if the site is entered into the Agency's Site Remediation Program and, pursuant to procedures adopted by the Board, the site is demonstrated to meet the Tier 1 residential remediation objectives adopted by the Board pursuant to Title XVII of this Act.

(2) The owner or operator of the clean construction or demolition debris fill operation must develop and implement a closure and post-closure care plan that includes, but is not limited to, covering all restricted fill soil, clean construction or demolition debris, and painted broken concrete without protruding metal bars, bricks, rock, stone, or reclaimed asphalt pavement that is generated from construction or demolition activities with a minimum of 10 feet of general fill soil, or an engineered barrier approved by the Agency in a permit granted under this Section, within 60 days after completion of filling. The closure and post-closure care plan shall also require that any occupied buildings constructed on site shall have appropriate indoor inhalation pathway barriers installed, as approved by the Agency in accordance with Board rules.

(3) Painted clean construction or demolition debris shall not be used as fill material unless chemical analysis demonstrates that the paint does not exceed the most stringent Tier 1 exposure route values adopted by the Board pursuant to Title XVII of this Act as determined under Section 3.508 of this Act. Chemical analysis is not required for pavement markings that conform to Illinois Department of Transportation specifications.

(4) The owner or operator of the CCDD fill operation must develop and implement a Testing and Sampling Plan which ensures that the restricted fill soil, when placed in the fill site, will meet the standards relevant to Class I Groundwater, found at 35 Ill. Adm. Code 741, Appendix B, Table A. The Testing and Sampling Plan shall meet the following requirements:

(i) Screening of placed soil with an X-ray Fluorescence Spectroscopy instrument, in accordance with procedures approved by the Agency in the permit. The frequency of analysis shall not be less than one X-ray Fluorescence Spectroscopy reading for every 500 cubic yards of fill placed on the site. Any area of fill where an X-ray Fluorescence Spectroscopy reading indicates that the fill may exceed restricted fill standards requires laboratory testing for the full list of TACO parameters. Soil that exceeds restricted fill standards based on laboratory testing must be removed and disposed of at a landfill.

(ii) Representative soil samples must also be collected for every 2,500 cubic yards of soil placed on site and tested for the full list of TACO parameters. For collection and testing purposes, random representative soil samples may be combined into a composite sample and statistically analyzed; however, no more than 5 aliquots may be combined into a composite sample. Soil which exceeds restricted fill standards must be removed and disposed of at a landfill.

(iii) Testing and sampling in accordance with the requirements of 35 Ill. Adm. Code 742 and "Test Methods for Evaluating Solid Waste Physical/Chemical Methods", USEPA Publication No. SW-846, as amended.

(5) The owner or operator of the CCDD fill operation must develop and implement a Receipt Control and Screening Plan which shall meet all of the following requirements:

(i) Chemical analysis of paint demonstrating that it does not exceed the most stringent Tier 1 exposure route values adopted by the Board under Title XVII of this Act. Chemical analysis is not required for pavement markings that conform to Illinois Department of Transportation specifications.

(ii) A visual inspection of the material to confirm that it does not contain material other than restricted fill soil or clean construction or demolition debris.

(iii) Screening of the soil with a photo ionization detector or a flame ionization detector to confirm that it is consistent with any chemical analysis demonstrating that the soil is restricted fill soil.

(iv) Confirmation that the soil was not removed from a site as a part of the cleanup or removal of contaminants, including but not limited to activities conducted under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended; RCRA Closure or Corrective Action; or an Agency remediation program, such as the Leaking Underground Storage Tank Program or Site Remediation Program, with the exception of sites subject to Section 58.16 of this Act.

(v) Documentation from the owner of the site from which the soil was removed that the site had never been developed for commercial or industrial use; or a certification from a licensed professional engineer that the soil meets restricted fill standards.

(vi) Documenting the activities conducted under the Receipt Control and Screening Plan. Documentation of any chemical analysis performed must include, but is not limited to, a copy of the lab analysis on letterhead of the laboratory conducting the analysis and signed by the person that conducted the analysis and signed by his or her supervisor.

(d) This Section applies only to clean construction or demolition debris that is not considered "waste" as provided in Section 3.160 of this Act.

(e) For purposes of this Section a clean construction or demolition debris fill operation:

(1) The term "operator" means a person responsible for the operation and maintenance of a CCDD clean construction or demolition debris fill operation.

(2) The term "owner" means a person who has any direct or indirect interest in a CCDD clean construction or demolition debris fill operation or in land on which a person operates and maintains a CCDD clean construction or demolition debris fill operation. A "direct or indirect interest" does not include the ownership of publicly traded stock. The "owner" is the "operator" if there is no other person who is operating and maintaining a CCDD clean construction or demolition debris fill operation.

(3) The term "clean construction or demolition debris fill operation" means a current or former quarry, mine, or other excavation where clean construction or demolition debris is used as fill material.

(4) The term "other excavation" does not include holes, trenches, or similar earth removal created as part of normal construction, removal, or maintenance of a structure, utility, or transportation infrastructure.

(f) Except as provided in subdivision (d)(2) of this Section, owners and operators of clean construction or demolition debris fill operations must develop and implement:

(1) A Receipt Control Plan that contains the elements required for restricted fill operations under subdivision (d)(5) of Section 22.51 of this Act, as those requirements would pertain to general fill.

(2) A testing and sampling plan which ensures that the CCDD fill when placed in the fill site will meet the standards of general fill soil. At a minimum, representative soil samples must be collected for every 2,500 cubic yards of soil placed on site and tested for the full list of TACO parameters. For collection and testing purposes, random representative soil samples may be combined into a composite sample and statistically analyzed; however, no more than 5 aliquots may be combined into a composite sample. Soil that exceeds general fill standards must be removed to a restricted fill operation if it meets restricted fill standards, or it must be disposed of at a landfill.

(3) A closure and post-closure care plan that includes, but is not limited to, covering all clean construction or demolition debris with at least 3 feet of general fill soil or a road, pavement, or structure within 30 days after completion of the filling.

(g) Owners and operators of clean construction or demolition debris fill operations must maintain all documentation required under this Section until at least 3 years after the date of receipt of the clean construction or demolition debris or soil, except that documentation relating to an appeal, litigation, or other disputed claim must be maintained until at least 3 years after the date of the final disposition of the appeal, litigation, or other disputed claim. Copies of the documentation must be made available to the Agency for inspection and copying during normal business hours.

Chemical analysis conducted under this Section must be conducted in accordance with the requirements of 35 Ill. Adm. Code 742 and "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846, as amended.

(h) Except as provided in this Section for restricted fill soil, no person shall use soil other than general fill soil as fill material at a clean construction or demolition debris fill operation.

(i) No person shall use, or cause or allow the use of, any site on which a land use restriction has been recorded under subdivision (d)(1) of this Section in a manner that is inconsistent with the land use restriction unless the land use restriction has been removed in accordance with subdivision (d)(1) of this Section.

(j) No person shall perform an activity that disturbs the barrier required under subdivision (d)(2) of this Section unless the site is entered into the Agency's Site Remediation Program and the activity is approved by the Agency as consistent with the requirements of 35 Ill. Adm. Code 742.

(k) No person shall use restricted fill soil or clean construction or demolition debris as fill material at a clean construction or demolition debris fill operation unless authorized by the Agency in a permit granted under this Section. No person shall use restricted fill soil or clean construction or demolition debris as fill material at a clean construction or demolition debris fill operation except in accordance with a permit granted under this Section and Sections 39 and 40 of this Act.

(l) No person other than the State of Illinois, its agencies and institutions, or a unit of local government shall use restricted fill soil as fill material in a current or former quarry, mine, or other excavation unless that person has posted with the Agency a performance bond or other security for the purpose of insuring (i) closure of the site in accordance with this Section and its regulations and (ii) completion of any corrective action remedies required under this Act and its regulations. The bond amount shall be directly related to the design and volume of the site. The cost estimate shall be calculated using a period of time not to exceed 30 years beyond closure and may be a shorter period as may be approved or required by the Agency. Cost estimates shall be in current dollars. Any moneys forfeited to the State from any performance bond or other security required under this subsection shall be placed in the Landfill Closure and Post-Closure Fund and shall, upon approval by the Governor and the Director, be used by and under the direction of the Agency for the purposes for which such performance bond or other security was issued.

The Agency is authorized to enter into such contracts and agreements as it may deem necessary to carry out the purposes of this Section. Neither the State, nor the Director, nor any State employee is liable for any damages or injuries arising out of or resulting from any action taken under this Section. Nothing in this Section shall bar a cause of action by the State for any other penalty or relief provided by this Act or any other law.

The Agency has the authority to approve or disapprove any performance bond or other security posted under this subsection (l). Any person whose performance bond or other security is disapproved by the Agency may contest the disapproval as a permit denial appeal under Section 40 of this Act.

(m) The Agency may establish the procedures it deems necessary to implement and execute its responsibilities under this Section.

(Source: P.A. 94-272, eff. 7-19-05; 94-725, eff. 6-1-06.)

(415 ILCS 5/22.51a new)

Sec. 22.51a. General Fill Soil Fill Operations. This Section applies to all persons using soil as fill material in a current or former quarry, mine, or other excavation. Other excavation does not include holes, trenches, or similar earth removal created as part of normal construction, removal, or maintenance of a structure, utility, or transportation infrastructure.

(a) No person shall use general fill soil as fill material in a current or former quarry, mine, or other excavation unless the requirements of this Section are met.

(b) Persons using general fill soil as fill material in a current or former quarry, mine, or other excavation after January 1, 2010 shall notify the Agency of their intent to use general fill soil.

(c) Persons using general fill soil as fill material in a current or former quarry, mine, or other excavation must develop and implement:

(1) A Receipt Control Plan that contains the elements required for restricted fill soil under subdivision (d)(5) of Section 22.51 of this Act, as those requirements would pertain to general fill soil.

(2) A testing and sampling plan that ensures that the CCDD fill when placed in the fill site will meet the standards of general fill soil. At a minimum, representative soil samples must be collected for every 5,000 cubic yards of soil placed on site and tested for the full list of TACO parameters. For collection and testing purposes, random representative soil samples may be combined into a composite sample and statistically analyzed so long as no more than 5 aliquots may be combined into a composite sample. Soil that exceeds general fill standards must be removed and properly disposed of at either a restricted fill site or a landfill.

(3) Persons using general fill soil as fill material in a current or former quarry, mine, or other excavation must maintain all documentation required under this Section until at least 3 years after the date of receipt of the soil, except that documentation relating to an appeal, litigation, or other disputed claim must be maintained until at least 3 years after the date of the final disposition of the appeal, litigation, or other disputed claim. Copies of the documentation must be made available to the Agency for inspection and copying during normal business hours.

Chemical analysis conducted under this Section must be conducted in accordance with the requirements of 35 Ill. Adm. Code 742 and "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", USEPA Publication No. SW-846, as amended.

(415 ILCS 5/22.54 new)

Sec. 22.54. Intergovernmental agreements. Notwithstanding any other provisions of this Act, to the extent allowed by federal law the Agency may, through intergovernmental agreements, authorize reuse of soil and clean construction or demolition debris by State agencies, or by counties with a population of 3,000,000 or more, or by units of local government located in a county with a population of 3,000,000 or more, as long as the reuse is protective of human health and the environment.

To the extent allowed by federal law, no permit is required for the reuse of clean construction or demolition debris or soil under agreements entered into under this Section. To the extent allowed by federal law, clean construction or demolition debris and soil reused under agreements entered into under this Section are not waste. Intergovernmental Agreements are not required for the purpose of reuse of general fill soil or for the purpose of reuse of soil or clean construction demolition debris on the site from which it was removed.

(415 ILCS 5/31.1) (from Ch. 111 1/2, par. 1031.1)

Sec. 31.1. Administrative citation.

(a) The prohibitions specified in subsections (o) and (p) of Section 21 and in Section 22.51 of this Act shall be enforceable either by administrative citation under this Section or as otherwise provided by this Act.

(b) Whenever Agency personnel or personnel of a unit of local government to which the Agency has delegated its functions pursuant to subsection (r) of Section 4 of this Act, on the basis of direct observation, determine that any person has violated any provision of subsection (o) or (p) of Section 21 or any provision of Section 22.51 of this Act, the Agency or such unit of local government may issue and serve an administrative citation upon such person within not more than 60 days after the date of the observed violation. Each such citation issued shall be served upon the person named therein or such person's authorized agent for service of process, and shall include the following information:

(1) a statement specifying the provisions of subsection (o) or (p) of Section 21 or the provisions of Section 22.51 of which the person was observed to be in violation;

(2) a copy of the inspection report in which the Agency or local government recorded the violation, which report shall include the date and time of inspection, and weather conditions prevailing during the inspection;

(3) the penalty imposed by subdivision (b)(4), or (b)(4-5), or (b)(6) of Section 42 for such violation;

(4) instructions for contesting the administrative citation findings pursuant to this Section, including notification that the person has 35 days within which to file a petition for review before the Board to contest the administrative citation; and

(5) an affidavit by the personnel observing the violation, attesting to their material actions and observations.

(c) The Agency or unit of local government shall file a copy of each administrative citation served under subsection (b) of this Section with the Board no later than 10 days after the date of service.

(d) (1) If the person named in the administrative citation fails to petition the Board for review within 35 days from the date of service, the Board shall adopt a final order, which shall include the administrative citation and findings of violation as alleged in the citation, and shall impose the penalty specified in subdivision (b)(4), or (b)(4-5), or (b)(6) of Section 42.

(2) If a petition for review is filed before the Board to contest an administrative citation issued under subsection (b) of this Section, the Agency or unit of local government shall appear as a complainant at a hearing before the Board to be conducted pursuant to Section 32 of this Act at a time not less than 21 days after notice of such hearing has been sent by the Board to the Agency or unit of local government and the person named in the citation. In such hearings, the burden of proof shall be on the Agency or unit of local government. If, based on the record, the Board finds that the alleged violation occurred, it shall adopt a final order which shall include the administrative citation and findings of violation as alleged in the citation, and shall impose the penalty specified in subdivision (b)(4), or (b)(4-5), or (b)(6) of Section 42. However, if the Board finds that the person appealing the citation has shown that the violation resulted from uncontrollable circumstances, the Board shall adopt a final order which makes no finding of violation and which imposes no penalty.

(e) Sections 10-25 through 10-60 of the Illinois Administrative Procedure Act shall not apply to any administrative citation issued under subsection (b) of this Section.

(f) The other provisions of this Section shall not apply to a sanitary landfill operated by a unit of local government solely for the purpose of disposing of water and sewage treatment plant sludges, including necessary stabilizing materials.

(g) All final orders issued and entered by the Board pursuant to this Section shall be enforceable by injunction, mandamus or other appropriate remedy, in accordance with Section 42 of this Act.

(Source: P.A. 92-16, eff. 6-28-01.)

(415 ILCS 5/42) (from Ch. 111 1/2, par. 1042)

Sec. 42. Civil penalties.

(a) Except as provided in this Section, any person that violates any provision of this Act or any regulation adopted by the Board, or any permit or term or condition thereof, or that violates any order of the Board pursuant to this Act, shall be liable for a civil penalty of not to exceed $50,000 for the violation and an additional civil penalty of not to exceed $10,000 for each day during which the violation continues; such penalties may, upon order of the Board or a court of competent jurisdiction, be made payable to the Environmental Protection Trust Fund, to be used in accordance with the provisions of the Environmental Protection Trust Fund Act.

(b) Notwithstanding the provisions of subsection (a) of this Section:

(1) Any person that violates Section 12(f) of this Act or any NPDES permit or term or condition thereof, or any filing requirement, regulation or order relating to the NPDES permit program, shall be liable to a civil penalty of not to exceed $10,000 per day of violation.

(2) Any person that violates Section 12(g) of this Act or any UIC permit or term or condition thereof, or any filing requirement, regulation or order relating to the State UIC program for all wells, except Class II wells as defined by the Board under this Act, shall be liable to a civil penalty not to exceed $2,500 per day of violation; provided, however, that any person who commits such violations relating to the State UIC program for Class II wells, as defined by the Board under this Act, shall be liable to a civil penalty of not to exceed $10,000 for the violation and an additional civil penalty of not to exceed $1,000 for each day during which the violation continues.

(3) Any person that violates Sections 21(f), 21(g), 21(h) or 21(i) of this Act, or any RCRA permit or term or condition thereof, or any filing requirement, regulation or order relating to the State RCRA program, shall be liable to a civil penalty of not to exceed $25,000 per day of violation.

(4) In an administrative citation action under Section 31.1 of this Act, any person found to have violated any provision of subsection (o) of Section 21 of this Act shall pay a civil penalty of $500 for each violation of each such provision, plus any hearing costs incurred by the Board and the Agency. Such penalties shall be made payable to the Environmental Protection Trust Fund, to be used in accordance with the provisions of the Environmental Protection Trust Fund Act; except that if a unit of local government issued the administrative citation, 50% of the civil penalty shall be payable to the unit of local government.

(4-5) In an administrative citation action under Section 31.1 of this Act, any person found to have violated any provision of subsection (p) of Section 21 of this Act shall pay a civil penalty of $1,500 for each violation of each such provision, plus any hearing costs incurred by the Board and the Agency, except that the civil penalty amount shall be $3,000 for each violation of any provision of subsection (p) of Section 21 that is the person's second or subsequent adjudication violation of that provision. The penalties shall be deposited into the Environmental Protection Trust Fund, to be used in accordance with the provisions of the Environmental Protection Trust Fund Act; except that if a unit of local government issued the administrative citation, 50% of the civil penalty shall be payable to the unit of local government.

(5) Any person who violates subsection 6 of Section 39.5 of this Act or any CAAPP permit, or term or condition thereof, or any fee or filing requirement, or any duty to allow or carry out inspection, entry or monitoring activities, or any regulation or order relating to the CAAPP shall be liable for a civil penalty not to exceed $10,000 per day of violation.

(6) In an administrative citation action under Section 31.1 of this Act, any person without a permit issued under Section 22.51 of this Act that is found to have violated any provision of Section 22.51 of this Act shall pay a civil penalty of $1,500 for each violation of each provision, plus any hearing costs incurred by the Board and the Agency, except that the civil penalty amount shall be $3,000 for each violation of any provision of Section 22.51 that is the person's second or subsequent adjudicated violation of that provision. Any person with a permit issued under Section 22.51 of this Act who is found to have violated that permit or any person who is found to have violated Section 22.51a of this Act shall pay a civil penalty of $500 for each violation of each such provision, plus any hearing costs incurred by the Board and the Agency, except that the civil penalty amount shall be $1,000 for each violation of any provision of Section 22.51 that is the person's second or subsequent adjudicated violation of that provision. The penalties shall be deposited into the Environmental Protection Trust Fund, to be used in accordance with the provisions of the Environmental Protection Trust Fund Act; except that if a delegated unit of local government issued the administrative citation, 50% of the civil penalty shall be payable to the unit of local government.

(b.5) In lieu of the penalties set forth in subsections (a) and (b) of this Section, any person who fails to file, in a timely manner, toxic chemical release forms with the Agency pursuant to Section 25b-2 of this Act shall be liable for a civil penalty of $100 per day for each day the forms are late, not to exceed a maximum total penalty of $6,000. This daily penalty shall begin accruing on the thirty-first day after the date that the person receives the warning notice issued by the Agency pursuant to Section 25b-6 of this Act; and the penalty shall be paid to the Agency. The daily accrual of penalties shall cease as of January 1 of the following year. All penalties collected by the Agency pursuant to this subsection shall be deposited into the Environmental Protection Permit and Inspection Fund.

(c) Any person that violates this Act, any rule or regulation adopted under this Act, any permit or term or condition of a permit, or any Board order and causes the death of fish or aquatic life shall, in addition to the other penalties provided by this Act, be liable to pay to the State an additional sum for the reasonable value of the fish or aquatic life destroyed. Any money so recovered shall be placed in the Wildlife and Fish Fund in the State Treasury.

(d) The penalties provided for in this Section may be recovered in a civil action.

(e) The State's Attorney of the county in which the violation occurred, or the Attorney General, may, at the request of the Agency or on his own motion, institute a civil action for an injunction, prohibitory or mandatory, to restrain violations of this Act, any rule or regulation adopted under this Act, any permit or term or condition of a permit, or any Board order, or to require such other actions as may be necessary to address violations of this Act, any rule or regulation adopted under this Act, any permit or term or condition of a permit, or any Board order.

(f) The State's Attorney of the county in which the violation occurred, or the Attorney General, shall bring such actions in the name of the people of the State of Illinois. Without limiting any other authority which may exist for the awarding of attorney's fees and costs, the Board or a court of competent jurisdiction may award costs and reasonable attorney's fees, including the reasonable costs of expert witnesses and consultants, to the State's Attorney or the Attorney General in a case where he has prevailed against a person who has committed a wilful, knowing or repeated violation of this Act, any rule or regulation adopted under this Act, any permit or term or condition of a permit, or any Board order.

Any funds collected under this subsection (f) in which the Attorney General has prevailed shall be deposited in the Hazardous Waste Fund created in Section 22.2 of this Act. Any funds collected under this subsection (f) in which a State's Attorney has prevailed shall be retained by the county in which he serves.

(g) All final orders imposing civil penalties pursuant to this Section shall prescribe the time for payment of such penalties. If any such penalty is not paid within the time prescribed, interest on such penalty at the rate set forth in subsection (a) of Section 1003 of the Illinois Income Tax Act, shall be paid for the period from the date payment is due until the date payment is received. However, if the time for payment is stayed during the pendency of an appeal, interest shall not accrue during such stay.

(h) In determining the appropriate civil penalty to be imposed under subdivisions (a), (b)(1), (b)(2), (b)(3), or (b)(5) of this Section, the Board is authorized to consider any matters of record in mitigation or aggravation of penalty, including but not limited to the following factors:

(1) the duration and gravity of the violation;

(2) the presence or absence of due diligence on the part of the respondent in attempting to comply with requirements of this Act and regulations thereunder or to secure relief therefrom as provided by this Act;

(3) any economic benefits accrued by the respondent because of delay in compliance with requirements, in which case the economic benefits shall be determined by the lowest cost alternative for achieving compliance;

(4) the amount of monetary penalty which will serve to deter further violations by the respondent and to otherwise aid in enhancing voluntary compliance with this Act by the respondent and other persons similarly subject to the Act;

(5) the number, proximity in time, and gravity of previously adjudicated violations of this Act by the respondent;

(6) whether the respondent voluntarily self-disclosed, in accordance with subsection (i) of this Section, the non-compliance to the Agency; and

(7) whether the respondent has agreed to undertake a "supplemental environmental project," which means an environmentally beneficial project that a respondent agrees to undertake in settlement of an enforcement action brought under this Act, but which the respondent is not otherwise legally required to perform.

In determining the appropriate civil penalty to be imposed under subsection (a) or paragraph (1), (2), (3), or (5) of subsection (b) of this Section, the Board shall ensure, in all cases, that the penalty is at least as great as the economic benefits, if any, accrued by the respondent as a result of the violation, unless the Board finds that imposition of such penalty would result in an arbitrary or unreasonable financial hardship. However, such civil penalty may be off-set in whole or in part pursuant to a supplemental environmental project agreed to by the complainant and the respondent.

(i) A person who voluntarily self-discloses non-compliance to the Agency, of which the Agency had been unaware, is entitled to a 100% reduction in the portion of the penalty that is not based on the economic benefit of non-compliance if the person can establish the following:

(1) that the non-compliance was discovered through an environmental audit or a compliance management system documented by the regulated entity as reflecting the regulated entity's due diligence in preventing, detecting, and correcting violations;

(2) that the non-compliance was disclosed in writing within 30 days of the date on which the person discovered it;

(3) that the non-compliance was discovered and disclosed prior to:

(i) the commencement of an Agency inspection, investigation, or request for information;

(ii) notice of a citizen suit;

(iii) the filing of a complaint by a citizen, the Illinois Attorney General, or the State's Attorney of the county in which the violation occurred;

(iv) the reporting of the non-compliance by an employee of the person without that person's knowledge; or

(v) imminent discovery of the non-compliance by the Agency;

(4) that the non-compliance is being corrected and any environmental harm is being remediated in a timely fashion;

(5) that the person agrees to prevent a recurrence of the non-compliance;

(6) that no related non-compliance events have occurred in the past 3 years at the same facility or in the past 5 years as part of a pattern at multiple facilities owned or operated by the person;

(7) that the non-compliance did not result in serious actual harm or present an imminent and substantial endangerment to human health or the environment or violate the specific terms of any judicial or administrative order or consent agreement;

(8) that the person cooperates as reasonably requested by the Agency after the disclosure; and

(9) that the non-compliance was identified voluntarily and not through a monitoring, sampling, or auditing procedure that is required by statute, rule, permit, judicial or administrative order, or consent agreement.

If a person can establish all of the elements under this subsection except the element set forth in paragraph (1) of this subsection, the person is entitled to a 75% reduction in the portion of the penalty that is not based upon the economic benefit of non-compliance.

(j) In addition to an other remedy or penalty that may apply, whether civil or criminal, any person who violates Section 22.52 of this Act shall be liable for an additional civil penalty of up to 3 times the gross amount of any pecuniary gain resulting from the violation.

(Source: P.A. 94-272, eff. 7-19-05; 94-580, eff. 8-12-05; 95-331, eff. 8-21-07.)".

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