SB0863sam001 97TH GENERAL ASSEMBLY

Sen. Terry Link

Filed: 4/11/2011

09700SB0863sam001 LRB097 04635 KMW 54348 a

AMENDMENT TO SENATE BILL 863

AMENDMENT NO. ______. Amend Senate Bill 863 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Waukegan Harbor Remedy Facilitation Act.

Section 5. Findings. The General Assembly finds:

(a) The Waukegan Port District is a political subdivision, body politic, and municipal corporation created pursuant to the Waukegan Port District Act.

(b) The United States Environmental Protection Agency has made a decision to further remediate the Waukegan Harbor under the provisions of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C.A. §§9601-9675 (CERCLA). The remediation plan is to hydraulically dredge sediment from the harbor. The dredged material is to be placed into a cell for permanent containment. The sediments to be dredged would include low-level poly-chlorinated biphenyl contamination.

(c) The cost of on land transport and permanent on land disposal is significantly higher than originally anticipated by the United States, even though the materials are not regarded as toxic or RCRA hazardous wastes.

(d) The Waukegan Port District, in cooperation with the United States Environmental Protection Agency, the United States Secretary of Defense, acting through the U.S. Army Corps of Engineers, the State of Illinois Department of Natural Resources, the Illinois Environmental Protection Agency, the City of Waukegan, and other agencies and persons has developed a plan that would benefit the public and the environment by allowing the further remediation of the Waukegan Harbor, while providing an additional recreational facility for boating, fishing, and other recreation.

(e) The construction of a permanent confined disposal facility (CDF) on approximately 14 acres more or less adjacent to the current South Harbor mooring areas of the Waukegan Harbor is a potential alternative for PCB sediment disposal that would be cost-effective in allowing the dredgings from Waukegan Harbor to be permanently enclosed and sealed from exposure to people, marine life, and the environment.

(f) The further enhancement of Waukegan Harbor by the construction of a permanent CDF in the identified area is in the public interest. Enabling the further remediation of Waukegan Harbor to include the provision and use of a confined disposal facility as authorized under this Act would be of great and direct public benefit.

(g) There would be a net benefit to the public by keeping the contaminated soils and sediments that are already in Lake Michigan from further contamination of open waters and also from threatening any on shore release or exposure. Recreational use to be made of the top of the confined and filled area would be of significant public benefit, as well.

(h) No substantial benefit is conferred upon a private interest or firm by reason of the approval of the CDF construction, because the Waukegan Port District is a public body whose activity is for the public benefit and because the contamination in soils and sediments to be disposed of was caused by Outboard Marine Corporation, a bankrupt and defunct concern. Most of the cost of construction of the remedy, including the CDF, will be borne by the United States.

(i) The use of CDFs has already successfully occurred elsewhere on the Great Lakes, including at Calumet Harbor in Illinois, Milwaukee Harbor in Wisconsin, and in Canadian waters. There is a successful confinement in former slip number 3 at Waukegan Harbor, and others are planned.

(j) The CDF will further benefit the public by providing new habitat for natural marine, bird, and other life along its edges, and its top would become a functional space supporting additional mooring, fishing, and other recreation.

(k) The use of the designated area as a CDF will provide financial savings to the State of Illinois of an estimated several million dollars through credit for the in-kind provision of the CDF land for the Harbor's further remedy. CDF disposal will also significantly reduce the cost for the United States.

(l) Irrespective of whether the CDF is used to contain the low level PCB dredging, a CDF and associated breakwater construction will allow the Waukegan Port District to economically provide additional recreational boating and fishing opportunity to the general public by dredging and filling the CDF with uncontaminated sediments for an expanded marina area.

(m) Final decisions on the components of the Waukegan Harbor further remediation are the responsibility of the United States Environmental Protection Agency (USEPA) pursuant to CERCLA.

(n) Provision of the lakebed land for construction of the CDF authorized by this Act is in the public interests and consistent with the public trust.

Section 10. Authorization and use of a confined disposal facility.

(a) The CDF may be constructed by the United States if the United States determines that use of the CDF for permanent disposal of low-level PCB sediments is to be part of the further remediation of Waukegan Harbor.

(b) If the USEPA decides to employ a CDF at Waukegan Harbor for its further remediation pursuant to CERCLA, the Department of Natural Resources is directed to review and to determine, in cooperation with USEPA and the Waukegan Port District, the location of the approximately 14-acre area upon which a CDF shall be best placed.

(c) The Department of Natural Resources shall also receive and act appropriately to grant permission to the Waukegan Port District or the United States to construct a breakwater wall that will be designed to protect moored vessels and the CDF from heavy wave action or seiche action on Lake Michigan.

(d) Under Section 18 of the Rivers, Lakes, and Streams Act, the building of a harbor or mooring facility shall not commence without a permit from the Department of Natural Resources, and the facilities shall be confined to those areas recommended by the Department of Natural Resources, authorized by the General Assembly, and approved by the Governor and shall be in aid of and not an interference with the public interest or navigation.

(e) The Department of Natural Resources is also authorized to allow the establishment of moorings, boat slips, dockage, and other improvements by the Waukegan Port District in the area generally to be within the partly sheltered waters formed by the new breakwater and the CDF, east of the existing South Harbor and south of the entrance channel, provided acceptable permit applications are submitted by the Waukegan Port District.

(f) The jurisdiction and control of the Department of Natural Resources over the bed of Lake Michigan under the Rivers, Lakes, and Streams Act shall not be diminished or limited by the authorization and approval granted under this Act, title to the bed of Lake Michigan in both the harbor and mooring area shall remain in the State of Illinois, and no improvements, other than those authorized and approved pursuant to this Act, shall be made without the further authorization and approval of the Department.

Section 15. Power and Duties.

(a) Subject to the Waukegan Port District obtaining all required permissions, the Waukegan Port District is authorized to expand its existing South Harbor boating and recreational facilities to the east, south of the existing channel breakwater, to include new boat slips, a new breakwater, suitable public recreational space, ancillary boating service, and other suitable improvements atop of the enclosed surface area of a CDF.

(b) The Waukegan Port District shall continue to cooperate with the United States as it deems reasonable and appropriate respecting the Waukegan Harbor further remediation. The Waukegan Port District may contract with the United States for operation and maintenance obligations respecting the CDF, provided that the United States assumes any and all liability for the construction, maintenance, and operation of the CDF or, alternatively, provided the United States extends to the State of Illinois and Waukegan Port District contribution protection under CERCLA and other protection acceptable to the Waukegan Port District and the State from all claims arising from the construction, maintenance, and operation of the CDF.

(c) The expanded South Harbor facilities shall otherwise be managed and maintained in accordance with the Waukegan Port District Act.

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