HB1364 94TH GENERAL ASSEMBLY

LRB094 06406 RXD 36492 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB1364

Introduced 02/09/05, by Rep. Wyvetter H. Younge

SYNOPSIS AS INTRODUCED:

430 ILCS 15/1	from Ch. 127 1/2, par. 153
430 ILCS 15/2	from Ch. 127 1/2, par. 154
430 ILCS 15/4	from Ch. 127 1/2, par. 156
430 ILCS 15/4.5 new
430 ILCS 15/6	from Ch. 127 1/2, par. 158
430 ILCS 15/6.1	from Ch. 127 1/2, par. 158.1
430 ILCS 15/7	from Ch. 127 1/2, par. 159

Amends the Gasoline Storage Act. Provides that the owner of an aboveground storage tank storing petroleum or hazardous substances shall register the tank with the Office of the State Fire Marshal. Provides that the owner of an aboveground storage tank shall notify the Office of any changes in the contents of the aboveground storage tank under specified circumstances. Expands the rulemaking authority of the Office to regulate aboveground storage tanks. Defines "aboveground storage tank".

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 Gasoline Storage Act is amended by changing Sections 1, 2, 4, 6, 6.1, and 7 and by adding Section 4.5 as follows:

(430 ILCS 15/1) (from Ch. 127 1/2, par. 153)

Sec. 1. It shall be unlawful for any person, firm, association or corporation to keep, store, transport, sell or use any crude petroleum, benzine, benzol, gasoline, naphtha, ether or other like volatile combustibles, or other flammable or combustible liquids compounds, in such manner or under such circumstances as will jeopardize life or property.

(Source: Laws 1919, p. 692.)

(430 ILCS 15/2) (from Ch. 127 1/2, par. 154)

Sec. 2. Jurisdiction; regulation of tanks.

(1) (a) Except as otherwise provided in this Act, the jurisdiction of the Office of the State Fire Marshal under this Act shall be concurrent with that of municipalities and other political subdivisions. The Office of the State Fire Marshal has power to promulgate, pursuant to the Illinois Administrative Procedure Act, reasonable rules and regulations governing the keeping, storage, transportation, sale or use of gasoline, flammable and combustible liquids and other volatile oils. Nothing in this Act shall relieve any person, corporation, or other entity from complying with any zoning ordinance of a municipality or home rule unit enacted pursuant to Section 11-13-1 of the Illinois Municipal Code or any ordinance enacted pursuant to Section 11-8-4 of the Illinois Municipal Code.

(b) The rulemaking power shall include the power to promulgate rules providing for the issuance and revocation of permits allowing the self service dispensing of motor fuels as such term is defined in the Motor Fuel Tax Law in retail service stations or any other place of business where motor fuels are dispensed into the fuel tanks of motor vehicles, internal combustion engines or portable containers. Such rules shall specify the requirements that must be met both prior and subsequent to the issuance of such permits in order to insure the safety and welfare of the general public. The operation of such service stations without a permit shall be unlawful. The Office of the State Fire Marshal shall revoke such permit if the self service operation of such a service station is found to pose a significant risk to the safety and welfare of the general public.

(c) However, except in any county with a population of 1,000,000 or more, the Office of the State Fire Marshal shall not have the authority to prohibit the operation of a service station solely on the basis that it is an unattended self-service station which utilizes key or card operated self-service motor fuel dispensing devices. Nothing in this paragraph shall prohibit the Office of the State Fire Marshal from adopting reasonable rules and regulations governing the safety of self-service motor fuel dispensing devices.

(d) The State Fire Marshal shall not prohibit the dispensing or delivery of flammable or combustible motor vehicle fuels directly into the fuel tanks of vehicles from tank trucks, tank wagons, or other portable tanks. The State Fire Marshal shall adopt rules (i) for the issuance of permits for the dispensing of motor vehicle fuels in the manner described in this paragraph (d), (ii) that establish fees for permits and inspections, and provide for those fees to be deposited into the Fire Prevention Fund, (iii) that require the dispensing of motor fuel in the manner described in this paragraph (d) to meet conditions consistent with nationally recognized standards such as those of the National Fire Protection Association, and (iv) that restrict the dispensing of motor vehicle fuels in the manner described in this paragraph (d) to the following:

(A) agriculture sites for agricultural purposes,

(B) construction sites for refueling construction equipment used at the construction site,

(C) sites used for the parking, operation, or maintenance of a commercial vehicle fleet, but only if the site is located in a county with 3,000,000 or more inhabitants or a county contiguous to a county with 3,000,000 or more inhabitants and the site is not normally accessible to the public, and

(D) sites used for the refueling of police, fire, or emergency medical services vehicles or other vehicles that are owned, leased, or operated by (or operated under contract with) the State, a unit of local government, or a school district, or any agency of the State and that are not normally accessible to the public.

(2) (a) The Office of the State Fire Marshal shall adopt rules and regulations regarding underground storage tanks and associated piping and no municipality or other political subdivision shall adopt or enforce any ordinances or regulations regarding such underground tanks and piping other than those which are identical to the rules and regulations of the Office of the State Fire Marshal. It is declared to be the law of this State, pursuant to paragraphs (h) and (i) of Section 6 of Article VII of the Illinois Constitution, that the establishment and enforcement of standards regarding underground storage tanks and associated piping within the jurisdiction of the Office of the State Fire Marshal is an exclusive State function which may not be exercised concurrently by a home rule unit except as expressly permitted in this Act.

(b) The Office of the State Fire Marshal may enter into written contracts with municipalities of over 500,000 in population to enforce the rules and regulations adopted under this subsection.

(3) (a) The Office of the State Fire Marshal shall have authority over underground storage tanks which contain, have contained, or are designed to contain petroleum, hazardous substances and regulated substances as those terms are used in Subtitle I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616), as amended by the Superfund Amendments and Reauthorization Act of 1986 (P.L. 99-499). The Office shall have the power with regard to underground storage tanks to require any person who tests, installs, repairs, replaces, relines, or removes any underground storage tank system containing, formerly containing, or which is designed to contain petroleum or other regulated substances, to obtain a permit to install, repair, replace, reline, or remove the particular tank system, and to pay a fee set by the Office for a permit to install, repair, replace, reline, upgrade, test, or remove any portion of an underground storage tank system. All persons who do repairs above grade level for themselves need not pay a fee or be certified. All fees received by the Office from certification and permits shall be deposited in the Fire Prevention Fund for the exclusive use of the Office in administering the Underground Storage Tank program.

(b) (i) Within 120 days after the promulgation of regulations or amendments thereto by the Administrator of the United States Environmental Protection Agency to implement Section 9003 of Subtitle I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580 95-580), as amended, the Office of the State Fire Marshal shall adopt regulations or amendments thereto which are identical in substance. The rulemaking provisions of Section 5-35 of the Illinois Administrative Procedure Act shall not apply to regulations or amendments thereto adopted pursuant to this subparagraph (i).

(ii) The Office of the State Fire Marshal may adopt additional regulations relating to an underground storage tank program that are not inconsistent with and at least as stringent as Section 9003 of Subtitle I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580), as amended, or regulations adopted thereunder. Except as provided otherwise in subparagraph (i) of this paragraph (b), the Office of the State Fire Marshal shall not adopt regulations relating to corrective action at underground storage tanks. Regulations adopted pursuant to this subsection shall be adopted in accordance with the procedures for rulemaking in Section 5-35 of the Illinois Administrative Procedure Act.

(c) The Office of the State Fire Marshal shall require any person, corporation or other entity who tests an underground tank or its piping or cathodic protection for another to report the results of such test to the Office.

(d) In accordance with constitutional limitations, the Office shall have authority to enter at all reasonable times upon any private or public property for the purpose of:

(i) Inspecting and investigating to ascertain possible violations of this Act, of regulations thereunder or of permits or terms or conditions thereof; or

(ii) In accordance with the provisions of this Act, taking whatever emergency action, that is necessary or appropriate, to assure that the public health or safety is not threatened whenever there is a release or a substantial threat of a release of petroleum or a regulated substance from an underground storage tank.

(e) The Office of the State Fire Marshal may issue an Administrative Order to any person who it reasonably believes has violated the rules and regulations governing underground storage tanks, including the installation, repair, leak detection, cathodic protection tank testing, removal or release notification. Such an order shall be served by registered or certified mail or in person. Any person served with such an order may appeal such order by submitting in writing any such appeal to the Office within 10 days of the date of receipt of such order. The Office shall conduct an administrative hearing governed by the Illinois Administrative Procedure Act and enter an order to sustain, modify or revoke such order. Any appeal from such order shall be to the circuit court of the county in which the violation took place and shall be governed by the Administrative Review Law.

(f) The Office of the State Fire Marshal shall not require the removal of an underground tank system taken out of operation before January 2, 1974, except in the case in which the office of the State Fire Marshal has determined that a release from the underground tank system poses a current or potential threat to human health and the environment. In that case, and upon receipt of an Order from the Office of the State Fire Marshal, the owner or operator of the nonoperational underground tank system shall assess the excavation zone and close the system in accordance with regulations promulgated by the Office of the State Fire Marshal.

(4) (a) The Office of the State Fire Marshal shall adopt rules and regulations regarding aboveground storage tanks and associated piping and no municipality or other political subdivision shall adopt or enforce any ordinances or regulations regarding such aboveground tanks and piping other than those which are identical to the rules and regulations of the Office of the State Fire Marshal unless, in the interest of fire safety, the Office of the State Fire Marshal delegates such authority to municipalities, political subdivisions or home rule units. It is declared to be the law of this State, pursuant to paragraphs (h) and (i) of Section 6 of Article VII of the Illinois Constitution, that the establishment of standards regarding aboveground storage tanks and associated piping within the jurisdiction of the Office of the State Fire Marshal is an exclusive State function which may not be exercised concurrently by a home rule unit except as expressly permitted in this Act.

(b) The Office of the State Fire Marshal shall enforce its rules and regulations concerning aboveground storage tanks and associated piping; however, municipalities may enforce any of their zoning ordinances or zoning regulations regarding aboveground tanks. The Office of the State Fire Marshal may issue an administrative order to any owner of an aboveground storage tank and associated piping it reasonably believes to be in violation of such rules and regulations to remedy or remove any such violation. Such an order shall be served by registered or certified mail or in person. Any person served with such an order may appeal such order by submitting in writing any such appeal to the Office within 10 days of the date of receipt of such order. The Office shall conduct an administrative hearing governed by the Illinois Administrative Procedure Act and enter an order to sustain, modify or revoke such order. Any appeal from such order shall be to the circuit court of the county in which the violation took place and shall be governed by the Administrative Review Law.

(Source: P.A. 91-851, eff. 1-1-01; 92-618, eff. 7-11-02; revised 10-9-03.)

(430 ILCS 15/4) (from Ch. 127 1/2, par. 156)

Sec. 4. Underground Storage Tank Program; administration.

(a) In cooperation with the Illinois Environmental Protection Agency, the Office of the State Fire Marshal shall administer the Illinois Underground Storage Tank Program in accordance with this Section and Section 22.12 of the Environmental Protection Act.

(b) (1)(A) The owner of an underground storage tank that was not taken out of operation before January 2, 1974, and that at any time between January 1, 1974, and September 24, 1987, contained petroleum or petroleum products or hazardous substances, with the exception of hazardous wastes, shall register the tank with the Office of the State Fire Marshal. No underground storage tank taken out of operation before January 2, 1974, may be registered under this Act. No underground storage tank otherwise required to be registered under this subparagraph (A) may be registered under this Act if that tank was removed before September 24, 1987.

(B) The owner of a heating oil underground storage tank having a capacity of greater than 1100 gallons that was not taken out of operation before January 2, 1974, and that at any time between January 1, 1974, and July 11, 1990, contained heating oil shall register the tank with the Office of the State Fire Marshal. No heating oil underground storage tank taken out of operation before January 2, 1974, may be registered under this Act. No heating oil underground storage tank otherwise required to be registered under this subparagraph (B) may be registered under this Act if that tank was removed before July 11, 1990.

(C) The owner of a heating oil underground storage tank having a capacity of 1,100 gallons or less that was not taken out of operation before January 2, 1974, and that any time between January 1, 1974, and September 6, 1991, contained heating oil shall register the tank with the Office of State Fire Marshal. No heating oil underground storage tank taken out of operation before January 2, 1974, may be registered under this Act. No heating oil underground storage tank otherwise required to be registered under this subparagraph (C) may be registered under this Act if that tank was removed before September 6, 1991.

(D) "Operation", as used in this subsection (b), means that the tank must have had input or output of petroleum, petroleum products, or hazardous substances, with the exception of hazardous wastes, during the regular course of its usage. "Operation" does not include (i) compliance with leak detection requirements as prescribed by rules and regulations of the Office of State Fire Marshal or (ii) the mere containment or storage of petroleum, petroleum products, or hazardous substances, with the exception of hazardous wastes.

(2) The owner of an underground storage tank who registered the tank with the Office of the State Fire Marshal under Section 4 of the State Fire Marshal Act prior to September 24, 1987 shall be deemed to have registered the tank under paragraph (1).

(3)(A) Each person required to register an underground storage tank, other than a heating oil underground storage tank, under paragraph (1) shall pay the Office of the State Fire Marshal a registration fee of $500 for each tank registered, to be deposited in the Underground Storage Tank Fund.

(B) Each person required to register a heating oil underground storage tank shall pay to the Office of the State Fire Marshal a registration fee of $100 for each tank registered before July 2, 1992, and $500 for each tank registered after July 1, 1992, to be deposited into the Underground Storage Tank Fund.

(C) No registration fee shall be due under this paragraph (3) for underground storage tanks deemed registered pursuant to paragraph (2).

(4) The Office of the State Fire Marshal shall establish procedures relating to the collection of the fees authorized by this subsection. Such procedures shall include, but need not be limited to, the time and manner of payment to the Office of the State Fire Marshal.

(5) The State Fire Marshal is authorized to enter into such contracts and agreements as may be necessary, and as expeditiously as necessary, to carry out the Office of the State Fire Marshal's duties under this subsection.

(6)(A) The owner of an underground storage tank, other than a heating oil underground storage tank, which is installed or replaced after September 24, 1987, and which contained, contains or may contain petroleum or petroleum products or hazardous substances, with the exception of hazardous wastes, shall register the tank with the Office of the State Fire Marshal prior to the installation or replacement.

(B) The owner of a heating oil underground storage tank installed or replaced after July 11, 1990, and which contained or may contain heating oil shall register the tank with the Office of the State Fire Marshal before the installation or replacement.

(7) Any person required to register an underground storage tank under paragraph (1) or paragraph (6) of this subsection shall register the tank on forms provided by the Office of the State Fire Marshal.

(c) Except as otherwise provided in subsection (d), a person who is the owner of an underground storage tank containing petroleum or petroleum products or hazardous substances, except hazardous waste, registered under subsection (b) shall notify the Office of the State Fire Marshal of any change in the information required under this Section or of the removal of an underground storage tank from service.

(d) A person who is the owner of an underground storage tank containing petroleum or petroleum products or hazardous substances, except hazardous waste, the contents of which are changed routinely, shall indicate all the materials which are stored in the tank on the registration form. A person providing the information described in this subsection is not required to notify the Office of the State Fire Marshal of changes in the contents of the tank unless the material to be stored in the tank differs from the information provided on the registration form.

(e) For purposes of this Act:

The terms "petroleum" and "underground storage tank" shall have the meanings ascribed to them in Subtitle I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580), except that "underground storage tank" shall include heating oil underground storage tanks; however no release detection shall be required of heating oil tanks, in existence as of July 11, 1990, prior to December 22, 1998. The Office of the State Fire Marshal shall have the authority to determine the criteria for classification of an underground storage tank as being either a petroleum underground storage tank or a hazardous substance underground storage tank.

When used in connection with, or when otherwise relating to underground storage tanks, the terms "operator", "owner", and "facility" shall have the meanings ascribed to them in Subtitle I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616) of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580).

"Bodily injury" means bodily injury, sickness, or disease sustained by a person, including death at any time, resulting from a release of petroleum from an underground storage tank.

"Property damage" means physical injury to, destruction of, or contamination of tangible property, including all resulting loss of use of that property; or loss of use of tangible property that is not physically injured, destroyed, or contaminated, but has been evacuated, withdrawn from use, or rendered inaccessible because of an occurrence.

"Occurrence" means an accident, including continuous or repeated exposure to conditions, which results in a release of petroleum into the environment from an underground storage tank.

"Heating oil" means petroleum that is No. 1, No. 2, No. 4 light, No. 4 heavy, No. 5 light, No. 5 heavy, or No. 6 technical grades of fuel oil; or other residual fuel oils including Navy Special Fuel Oil and Bunker C.

"Heating oil underground storage tank" means an underground storage tank serving other than farms or residential units that is used exclusively to store heating oil for consumptive use on the premises where stored.

"Aboveground storage tank" means any one or combination of tanks (including aboveground pipes connected thereto) which contain an accumulation of regulated substances, and the volume of which (including the volume of the aboveground pipes connected thereto) is 90% or more above the surface of the ground.

(Source: P.A. 87-323; 87-1088; 88-496.)

(430 ILCS 15/4.5 new)

Sec. 4.5. Aboveground storage tanks; administration. The owner of an aboveground storage tank having a capacity of greater than 1,000 gallons, shall register the aboveground storage tank with the Office of the State Fire Marshal. The State Fire Marshal shall adopt such reasonable rules (i) for the registration of aboveground storage tanks, (ii) that establish fees for the registration, and provide for those fees to be deposited into the Fire Prevention Fund, and (iii) that aboveground storage tanks are installed and maintained in a safe manner. The State Fire Marshal is authorized to enter into such contracts and agreements as may be necessary, and as expeditiously necessary, to carry out the Office of the State Fire Marshal's duties under this subsection. Any person required to register an aboveground storage tank shall register the tank on forms provided by the Office of the State Fire Marshal.

(430 ILCS 15/6) (from Ch. 127 1/2, par. 158)

Sec. 6. (a) If necessary or appropriate to assure that the public health or safety is not threatened, the Office of State Fire Marshal shall have authority to:

(1)(A) provide notice to the owner or operator, or both, of an underground storage tank or aboveground storage tank whenever there is a release or substantial threat of a release of petroleum or regulated substances from such tank. Such notice shall include the identified emergency action and an opportunity for the owner or operator, or both, to perform the emergency action; or

(B) undertake emergency action whenever there is a release or substantial threat of a release of petroleum or regulated substances from an underground storage tank or aboveground storage tank.

(2) If notice has been provided under clause (A) of paragraph (1) of this subsection, the Office shall have the authority to require the owner or operator, or both, of an underground storage tank or aboveground storage tank to undertake emergency action whenever there is a release or substantial threat of a release of petroleum or regulated substances from such tank.

(3) The emergency action undertaken or required under this Section shall be such as may be necessary or appropriate to assure that the public health or safety is not threatened.

(b) In accordance with constitutional limitations, the Office shall have authority to enter at all reasonable times upon any private or public property for the purpose of taking emergency action whenever there is a release or substantial threat of a release of petroleum or regulated substances from an underground storage tank or aboveground storage tank.

(c) The Office shall require emergency action under paragraph (2) of subsection (a) through issuance of an Administrative Order. Such an order shall be served by registered or certified mail or in person and may order emergency action. Any person served with such an order may appeal such order by submitting in writing any such appeal to the Office within 10 days of the date of receipt of such order. The Office shall conduct an administrative hearing governed by The Illinois Administrative Procedure Act and enter an order to sustain, modify or revoke such order. Any appeal from such order shall be to the circuit court of the county in which the violation took place and shall be governed by the Administrative Review Law.

(d) Neither the State, the State Fire Marshal, nor any State employee shall be liable for any damages or injury arising out of or resulting from any action taken under Section 6.

(Source: P.A. 85-1325.)

(430 ILCS 15/6.1) (from Ch. 127 1/2, par. 158.1)

Sec. 6.1. Financial responsibility.

(a) Each owner or operator shall establish and maintain evidence of financial responsibility, as provided in this Section, for taking corrective action and compensating third parties for bodily injury and property damage.

(b) Each owner or operator shall maintain financial responsibility at the following minimum amounts:

(1) $10,000 per occurrence for corrective action;

(2) $10,000 per occurrence for bodily injury and property damage to third parties.

(c) Each owner or operator shall establish and maintain evidence of financial responsibility by any combination of the following:

(1) commercial or private insurance, including risk retention groups;

(2) qualification as a self insurer; or

(3) guarantee, surety bond, letter of credit, certificate of deposit, or designated savings account.

To qualify as a self insurer under this Section, the owner or operator must demonstrate net worth equal to or in excess of 10 times the amount specified in subsection (b) of this Section.

(d) The establishment and enforcement of standards for the financial responsibility of the owners and operators of underground storage tanks and aboveground storage tanks, and associated piping are exclusive powers and functions of the State. A home rule unit may not regulate or establish standards for the financial responsibility of the owners and operators of underground storage tanks or aboveground storage tanks. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

(Source: P.A. 87-323.)

(430 ILCS 15/7) (from Ch. 127 1/2, par. 159)

Sec. 7. (a) A violation of:

(1) paragraph (a) or (b) of subsection (3) of Section 2 of this Act is a business offense punishable by a fine of not more than $10,000 per day;

(2) (blank);

(2.5) Section 4.5 of this Act is a business offense punishable by a fine of not more than $10,000 per day;

(3) Section 4 of this Act is a business offense punishable by a fine of not more than $10,000 per day;

(3.5) Section 3.5 of this Act is a business offense punishable by fine of not more than $10,000 per offense;

(4) an administrative order as described in paragraph (e) of subsection (3) of Section 2, paragraph (b) of subsection (4) of Section 2 or subsection (c) of Section 6 after it has become final is a business offense punishable by a fine of not less than $1,000 nor more than $25,000 per day;

(5) any other rule promulgated by the Office of the State Fire Marshal is a business offense punishable by a fine of not less than $100 nor more than $1,000 for each offense or each day of continued violation.

(b) (Blank).

(c) A civil action to recover such fines may be brought by the Attorney General or the State's Attorney of the county in which the violation occurred.

(d) Any monies received by the State under this Section shall be deposited into the Underground Storage Tank Fund.

(Source: P.A. 92-618, eff. 7-11-02.)