94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB0121

 

Introduced 2/1/2005, by Sen. John J. Cullerton

 

SYNOPSIS AS INTRODUCED:
 
30 ILCS 105/5.640 new
415 ILCS 5/Title XVIII heading new
415 ILCS 5/59.5 new
415 ILCS 5/59.10 new
415 ILCS 5/59.15 new
415 ILCS 5/59.20 new
415 ILCS 5/59.25 new
415 ILCS 5/59.30 new
415 ILCS 5/59.35 new
415 ILCS 5/59.40 new
415 ILCS 5/59.45 new
415 ILCS 5/59.50 new
415 ILCS 5/59.55 new
415 ILCS 5/59.60 new

    Amends the Environmental Protection Act. Provides that, beginning January 1, 2006, each person selling architectural coatings in the State must collect from the buyer a fee of $0.20 for each gallon of architectural coating sold. Provides that each person selling general use pesticides in the State must collect from the buyer a fee of $0.20 for each unit of general use pesticide sold. Requires the seller to pay the fee, less a collection allowance, to the Department of Revenue for deposit into the Household Hazardous Waste Management Programs Fund. Sets forth the purposes for which the moneys in the Household Hazardous Waste Management Fund may be used. Requires retailers to make a quarter-annual tax return to the Department of Revenue concerning the fees. Sets forth procedures for administrative proceedings and hearings by the Department of Revenue concerning the collection of the fees and for judicial review of those decisions. Effective immediately.


LRB094 04046 RSP 34064 b

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY
FISCAL NOTE ACT MAY APPLY

 

 

A BILL FOR

 

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1     AN ACT concerning safety.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 5. The State Finance Act is amended by adding
5 Section 5.640 as follows:
 
6     (30 ILCS 105/5.640 new)
7     Sec. 5.640. The Household Hazardous Waste Management
8 Programs Fund.
 
9     Section 10. The Environmental Protection Act is amended by
10 adding Title XVIII as follows:
 
11     (415 ILCS 5/Tit. XVIII heading new)
12
TITLE XVIII.
HOUSEHOLD HAZARDOUS WASTE MANAGEMENT FEES

 
13     (415 ILCS 5/59.5 new)
14     Sec. 59.5. Intent. It is the intent of this Title to
15 generate revenue for a portion of the costs incurred by the
16 State in the management of household hazardous waste.
17 Improperly disposed of household hazardous waste presents a
18 threat to the public health and causes a real and substantial
19 burden upon the environment that is unique from other types of
20 waste generated by Illinois citizens. In particular,
21 architectural coatings and pesticides constitute a substantial
22 share of the volume and cost associated with the management of
23 household hazardous waste. This Title seeks to place reasonable
24 fees on the voluntary users of these hazardous waste producing
25 products in order to fund programs that strengthen the State's
26 efforts to combat the threat these products pose to the
27 environment and the public health.
 
28     (415 ILCS 5/59.10 new)

 

 

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1     Sec. 59.10. Definitions. As used in this Title:
2     "Architectural coating" means a coating manufactured and
3 recommended for field application to stationary structures and
4 their appurtenances. The term includes all coatings formulated
5 for normal environmental conditions and sold at retail for
6 on-site application at ambient temperatures to the interior and
7 exterior surfaces of residential, commercial, institutional,
8 or industrial buildings and structures. Architectural coatings
9 include, but are not limited to, interior and exterior house
10 paints, stains, varnishes, lacquers, sealers, primers, and
11 undercoaters. The term does not include:
12         (i) production coatings recommended by the
13     manufacturer solely for shop application or solely for
14     application to non-stationary equipment or products such
15     as automobiles, airplanes, boats, appliances, and other
16     consumer goods.
17         (ii) industrial coatings, as defined under 30 Code of
18     Federal Regulations, Part 59, Section 401; or
19         (iii) special purpose coatings including, but not
20     limited to, coatings formulated and recommended for auto
21     refinishing, bridge maintenance, and traffic marking.
22     "Coating" means a liquid or mastic composition applied onto
23 or impregnated into a substrate for protective, decorative, or
24 functional purposes. Coatings include, but are not limited to,
25 interior and exterior house paints, stains, varnishes,
26 lacquers, sealers, primers, and undercoaters.
27     "Distributor" means a person who engages in the business of
28 distributing architectural coatings or pesticides to a
29 retailer for the purpose of resale.
30     "General use pesticide" means any pesticide that has been
31 registered by the United States Environmental Protection
32 Agency, as evidenced by a registration number on the label, and
33 that has not been designated for limited or restricted use by
34 the United States Environmental Protection Agency or Illinois
35 Department of Agriculture.
36     "Retailer" means a person who engages in the business of

 

 

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1 selling architectural coatings or pesticides to consumers.
2     "Shop application" means that a coating is applied to a
3 product or a component of a product in a factory or shop as
4 part of a manufacturing, product, or repairing process.
5     "Unit" means an individual container of pesticide of any
6 size distributed, or to be distributed, to retailers for
7 purchase by the consumer. Units may include, but are not
8 limited to such containers as bags, boxes, bottles, and cans.
 
9     (415 ILCS 5/59.15 new)
10     Sec. 59.15. Household Hazardous Waste Management Programs
11 Fund.
12     (a) There is hereby created in the State treasury a special
13 fund to be known as the Household Hazardous Waste Management
14 Programs Fund. All fees collected under this Title and all
15 penalties or punitive damages for violations of this Title
16 shall be deposited into the Household Hazardous Waste
17 Management Programs Fund. In addition, the Household Hazardous
18 Waste Management Programs Fund shall include other moneys made
19 available from any source for deposit into the Fund.
20     (b) Subject to appropriation, moneys up to an amount of
21 $200,000 per fiscal year from the Household Hazardous Waste
22 Management Programs Fund shall be available to the Department
23 of Revenue for its activities relating to this Title.
24     (c) Subject to appropriation, moneys in excess of $200,000
25 per fiscal year from the Household Hazardous Waste Management
26 Programs Fund shall be used as follows:
27         (1) 70% shall be available to the Agency for the
28     following:
29             (i) agency-sponsored household hazardous waste
30         collection events that include the collection of used
31         architectural coatings and general use pesticides;
32             (ii) preventive, corrective, or removal action at
33         sites contaminated by household hazardous waste and
34         the recovery costs of this action; and
35             (iii) to pay the costs of administration of its

 

 

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1         activities under this Title.
2         (2) 30% Shall be available to the Agency for the
3     following:
4             (i) for transfer into the Hazardous Waste Research
5         Fund to be used by the Department of Natural Resources
6         for the educational and research activities authorized
7         under subsection (e) of Section 22.2 of the
8         Environmental Protection Act; and
9             (ii) for Agency grants authorized under the
10         Household Hazardous Waste Collection Program Act.
11     (d) Any moneys appropriated from the Household Hazardous
12 Waste Management Programs Fund, but not obligated, shall revert
13 to the Fund.
 
14     (415 ILCS 5/59.20 new)
15     Sec. 59.20. Architectural coating fee.
16     (a) Beginning January 1, 2006, each retailer of
17 architectural coatings in this State shall collect from retail
18 customers a fee of $0.20 for each gallon of architectural
19 coating that is sold and delivered in this State. The seller
20 must pay the fee to the Department of Revenue for deposit into
21 the Household Hazardous Waste Management Programs Fund.
22     (b) Architectural coatings marketed in containers of less
23 than one-gallon capacity are exempt from this fee.
24     (c) The fee collected under subsection (a) of this Section
25 shall be stated as a distinct item separate and apart from the
26 selling price of the architectural coating. No retailer shall
27 advertise, state, or otherwise hold out to the public or any
28 consumer, directly or indirectly, that the architectural
29 coating fee imposed by this Section will be assumed or absorbed
30 by the retailer, that the fee will not be included in the
31 selling price of the coating, or that the full amount or any
32 part of the fee will be refunded upon sale to the consumer.
33     (d) Upon request by a retailer of architectural coatings
34 doing business in this State or the Department of Revenue, a
35 distributor shall provide a quarterly, semi-annual, or annual

 

 

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1 report identifying the number of gallons of architectural
2 coatings sold to the retailer in containers of one gallon or
3 more.
4     (e) The fee shall not be includable in the gross receipts
5 of the retailer subject to the Retailer's Occupation Tax Act,
6 the Use Tax Act, or any locally imposed retailer's occupation
7 tax. The fee, and any such fees collected by a retailer, shall
8 constitute a debt owed by the retailer to the State.
 
9     (415 ILCS 5/59.25 new)
10     Sec. 59.25. General use pesticide fee.
11     (a) Beginning January 1, 2006, each retailer of general use
12 pesticides in this State shall collect from retail customers a
13 fee of $0.20 on each unit of general use pesticide that is sold
14 and delivered in this State. The seller must pay the fee to the
15 Department of Revenue for deposit into the Household Hazardous
16 Waste Management Programs Fund.
17     (b) In addition to any product that the Agency may, by
18 rule, exempt, all of the following products are exempt from the
19 fee imposed under this Section:
20         (1) Household use pesticide products with no more than
21     3% active ingredients.
22         (2) Dichlorovos (DDVP) impregnated strips with
23     concentrations not more than 25% in resin strips and pet
24     collars.
25         (3) The following products with unlimited percentages
26     of active ingredients:
27             (i) pet supplies such as shampoos and tick and flea
28         collars and dusts;
29             (ii) disinfectants, germicides, bactericides, and
30         virucides;
31             (iii) insect repellents;
32             (iv) indoor and outdoor animal repellents;
33             (v) moth flakes, crystals, cakes, and nuggets;
34             (vi) indoor aquarium supplies;
35             (vii) swimming pool supplies;

 

 

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1             (viii) pediculocides and mange cure on man;
2             (ix) aerosol products; and
3             (x) general use paints, stains, and wood
4         preservatives and sealants.
5     (c) The fee collected under subsection (a) of this Section
6 shall be stated as a distinct item separate and apart from the
7 selling price of the general use pesticide. No retailer shall
8 advertise, state, or otherwise hold out to the public or any
9 consumer, directly or indirectly, that the general use
10 pesticide fee imposed by this Section will be assumed or
11 absorbed by the retailer, or that the fee will not be included
12 in the selling price of the pesticide, or that the full amount
13 or any part of the fee will be refunded upon sale to the
14 consumer.
15     (d) Upon request by a retailer of general use pesticides
16 doing business in this State or the Department of Revenue, a
17 distributor shall provide a quarterly, semi-annual, or annual
18 report identifying the number of units of general use pesticide
19 sold to the retailer.
20     (e) The fee shall not be includable in the gross receipts
21 of the retailer subject to the Retailer's Occupation Tax Act,
22 the Use Tax Act, or any locally imposed retailer's occupation
23 tax. The fee, and any such fees collected by a retailer, shall
24 constitute a debt owed by the retailer to the State.
 
25     (415 ILCS 5/59.30 new)
26     Sec. 59.30. Tax returns by retailer.
27     (a) Each retailer of architectural coatings or general use
28 pesticides subject to this Title and maintaining a place of
29 business in this State must make a return to the Department of
30 Revenue on a quarter-annual basis, with the return for January,
31 February, and March of a given year being due by April 30 of
32 that year; with the return for April, May, and June of a given
33 year being due by July 31 of that year; with the return for
34 July, August, and September of a given year being due by
35 October 31 of that year; and with the return for October,

 

 

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1 November, and December of a given year being due by January 31
2 of the following year. Each return made to the Department of
3 Revenue must state:
4         (1) the name of the retailer;
5         (2) the address of the retailer's principal place of
6     business and the address of the principal place of business
7     (if that is a different address) from which the retailer
8     engages in the business of making retail sales of
9     architectural coatings or general use pesticides;
10         (3) the total number of (i) gallons of architectural
11     coatings or (ii) units of general use pesticides, sold at
12     retail for the preceding calendar quarter;
13         (4) the amount of tax due; and
14         (5) any other reasonable information that the
15     Department of Revenue requires.
16     (b) Notwithstanding any other provision of this Act
17 concerning the time within which a retailer may file his or her
18 return, in the case of any retailer who ceases to engage in the
19 retail sale of architectural coatings or general use
20 pesticides, the retailer must file a final return under this
21 Act with the Department of Revenue not more than one month
22 after discontinuing that business.
 
23     (415 ILCS 5/59.35 new)
24     Sec. 59.35. Application of Retailers' Occupation Tax
25 provisions. All the provisions of Sections 4, 5, 5a, 5b, 5c,
26 5d, 5e, 5f, 5g, 5i, 5j, 6, 6a, 6b, 6c, 7, 8, 9, 10, and 11 of
27 the Retailers' Occupation Tax Act that are not inconsistent
28 with this Act apply, as far as practicable, to the fees imposed
29 by Sections 59.20 and 59.25 of this Act to the same extent as
30 if those provisions were included in this Act. References in
31 the incorporated Sections of the Retailers' Occupation Tax Act
32 to retailers, to sellers, or to persons engaged in the business
33 of selling tangible personal property mean retailers of
34 architectural coatings and retailers of general use
35 pesticides.
 

 

 

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1     (415 ILCS 5/59.40 new)
2     Sec. 59.40. Hearing; notice. The Department of Revenue may
3 adopt and enforce any reasonable rules and regulations relating
4 to the Administration and enforcement of the fees imposed by
5 Sections 59.20 and 59.25 of this Act that are expedient.
6      Whenever the Department of Revenue is required to provide
7 notice to a retailer under this Title, the notice may be
8 personally served or given by United States certified or
9 registered mail, addressed to the retailer or taxpayer
10 concerned at his or her last known address, and proof of this
11 mailing is sufficient for the purposes of this Title. In the
12 case of a notice of hearing, the notice must be mailed not less
13 than 7 days prior to the date fixed for the hearing.
14     All hearings provided by the Department of Revenue under
15 this Act with respect to or concerning a taxpayer having his or
16 her principal place of business in this State other than in
17 Cook County shall be held at the Department's office nearest to
18 the location of the taxpayer's principal place of business. If
19 the taxpayer has his or her principal place of business in Cook
20 County, the hearing shall be held in Cook County. If the
21 taxpayer does not have his or her principal place of business
22 in this State, the hearing shall be held in Sangamon County.
23     Whenever any proceeding provided by this Title has been
24 begun by the Department of Revenue or by a person subject
25 thereto and that person subsequently dies or becomes a person
26 under legal disability before the proceeding has been
27 concluded, the legal representative of the deceased person or
28 person under legal disability shall notify the Department of
29 Revenue of the death or legal disability. The legal
30 representative, as such, shall then be substituted by the
31 Department of Revenue in place of and for the person. Within 20
32 days after notice to the legal representative of the time fixed
33 for that purpose, the proceeding may proceed in all respects
34 and with like effect as though the person had not died or
35 become a person under legal disability.
 

 

 

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1     (415 ILCS 5/59.45 new)
2     Sec. 59.45. Administrative procedures. The Illinois
3 Administrative Procedure Act is hereby expressly adopted and
4 applies to all administrative rules and procedures of the
5 Department of Revenue under this Title, except that: (1)
6 paragraph (b) of Section 4 of the Illinois Administrative
7 Procedure Act does not apply to final orders, decisions, and
8 opinions of the Department of Revenue; (2) subparagraph (a)(2)
9 of Section 4 of the Illinois Administrative Procedure Act does
10 not apply to forms established by the Department of Revenue for
11 use under this Act; and (3) the provisions of Section 13 of the
12 Illinois Administrative Procedure Act regarding proposals for
13 decision are excluded and not applicable to the Department of
14 Revenue under this Act.
 
15     (415 ILCS 5/59.50 new)
16     Sec. 59.50. Review under Administrative Review Law.
17     (a) The circuit court of any county in which a hearing is
18 held has the power to review all final administrative decisions
19 of the Department of Revenue in administering the fees imposed
20 under Sections 59.20 and 59.25 of this Act. If, however, the
21 administrative proceeding that is to be reviewed judicially is
22 a claim for refund proceeding commenced under this Act and
23 Section 2a of the State Officers and Employees Money
24 Disposition Act, the circuit court having jurisdiction over the
25 action for judicial review under this Section and under the
26 Administrative Review Law shall be the same court that entered
27 the temporary restraining order or preliminary injunction that
28 is provided for in that Section 2a, and that enables the claim
29 proceeding to be processed and disposed of as a claim for
30 refund proceeding other than as a claim for credit proceeding.
31     (b) The provisions of the Administrative Review Law, and
32 the rules adopted pursuant thereto, apply to and govern all
33 proceedings for the judicial review of final administrative
34 decisions of the Department of Revenue under this Act. The term

 

 

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1 "administrative decision" is defined as in Section 3-101 of the
2 Code of Civil Procedure.
3     (c) Service of summons issued in any action to review a
4 final administrative decision upon the Director or Assistant
5 Director of Revenue shall be service upon the Department of
6 Revenue. The Department of Revenue shall certify the record of
7 its proceedings if the taxpayer pays to it the sum of $0.75 per
8 page of testimony taken before the Department of Revenue and
9 $0.25 per page of all other matters contained in the record,
10 except that these charges may be waived if the Department of
11 Revenue is satisfied that the aggrieved party cannot afford to
12 pay these charges.
 
13     (415 ILCS 5/59.55 new)
14     Sec. 59.55. Penalty. Any retailer who fails to make a
15 return or who makes a fraudulent return, or who willfully
16 violates any rule or regulation of the Department of Revenue
17 for the administration and enforcement of the fees imposed by
18 Sections 59.20 and 59.25 of this Act, is guilty of a Class 4
19 felony.
 
20     (415 ILCS 5/59.60 new)
21     Sec. 59.60. Severability. The provisions of this Title are
22 severable under Section 1.31 of the Statute on Statutes.
 
23     Section 99. Effective date. This Act takes effect upon
24 becoming law.