Illinois General Assembly - Full Text of HB4172
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Full Text of HB4172  95th General Assembly


Environment & Energy Committee

Filed: 3/5/2008





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2     AMENDMENT NO. ______. Amend House Bill 4172 by replacing
3 everything after the enacting clause with the following:
4     "Section 5. The Environmental Protection Act is amended by
5 changing Section 3.135 as follows:
6     (415 ILCS 5/3.135)  (was 415 ILCS 5/3.94)
7     Sec. 3.135. Coal combustion by-product; CCB.
8     (a) "Coal combustion by-product" (CCB) means coal
9 combustion waste when used beneficially in any of the following
10 ways:
11         (1) The extraction or recovery of material compounds
12     contained within CCB.
13         (2) The use of CCB as a raw ingredient or mineral
14     filler in the manufacture of the following commercial
15     products: cement; concrete and concrete mortars;
16     cementious products including block, pipe and



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1     precast/prestressed components; asphalt or cementious
2     roofing products; plastic products including pipes and
3     fittings; paints and metal alloys; kiln fired products
4     including bricks, blocks, and tiles; abrasive media;
5     gypsum wallboard; asphaltic concrete, or asphalt based
6     paving material.
7         (3) CCB used (A) in accordance with the Illinois
8     Department of Transportation ("IDOT") standard
9     specifications and subsection (a-5) of this Section or (B)
10     under the approval of the Department of Transportation for
11     IDOT projects.
12         (4) Bottom ash used as antiskid material, athletic
13     tracks, or foot paths.
14         (5) Use in the stabilization or modification of soils
15     providing the CCB meets the IDOT specifications for soil
16     modifiers.
17         (6) CCB used as a functionally equivalent substitute
18     for agricultural lime as a soil conditioner.
19         (7) Bottom ash used in non-IDOT pavement sub-base or
20     base, pipe bedding, or foundation backfill.
21         (8) Structural fill, when used in an engineered
22     application or combined with cement, sand, or water to
23     produce a controlled strength fill material and covered
24     with 12 inches of soil, within 30 days after the final
25     placement and completion of the structural fill project or
26     if the project becomes inactive for more than 90 days,



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1     unless infiltration is prevented by the material itself or
2     other suitable cover material. CCB may be used under this
3     item (8) only if the structural fill is located no less
4     than 250 feet from any active or operating downgradient
5     well being used as a residential or municipal potable water
6     source.
7         Within 3 months after notification to the Agency under
8     item (C) of subsection (a-5) of this Section, the Agency
9     must inspect the structural fill project to ensure that the
10     cover requirements of this item (8) are satisfied for each
11     project involving the use of coal combustion waste as
12     structural fill.
13         (9) Mine subsidence, mine fire control, mine sealing,
14     and mine reclamation.
15     (a-5) Except to the extent that the uses are otherwise
16 authorized by law without such restrictions, the uses specified
17 in items (a)(3)(A) and (a)(7) through (9) shall be subject to
18 the following conditions:
19         (A) CCB shall not have been mixed with hazardous waste
20     prior to use.
21         (B) CCB shall not exceed Class I Groundwater Standards
22     for metals when tested utilizing test method ASTM D3987-85.
23     The sample or samples tested shall be representative of the
24     CCB being considered for use.
25         (C) Unless otherwise exempted, users of CCB for the
26     purposes described in items (a)(3)(A) and (a)(7) through



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1     (9) of this Section shall provide notification to the
2     Agency for each project utilizing CCB documenting the
3     quantity of CCB utilized and certification of compliance
4     with conditions (A) and (B) of this subsection.
5     Notification shall not be required for users of CCB for
6     purposes described in items (a)(1), (a)(2), (a)(3)(B),
7     (a)(4), (a)(5) and (a)(6) of this Section, or as required
8     specifically under a beneficial use determination as
9     provided under this Section, or pavement base, parking lot
10     base, or building base projects utilizing less than 10,000
11     tons, flowable fill/grout projects utilizing less than
12     1,000 cubic yards or other applications utilizing less than
13     100 tons.
14         (D) Fly ash shall be managed in a manner that minimizes
15     the generation of airborne particles and dust using
16     techniques such as moisture conditioning, granulating,
17     inground application, or other demonstrated method.
18         (E) CCB is not to be accumulated speculatively. CCB is
19     not accumulated speculatively if during the calendar year,
20     the CCB used is equal to 75% of the CCB by weight or volume
21     accumulated at the beginning of the period.
22         (F) CCB shall include any prescribed mixture of fly
23     ash, bottom ash, boiler slag, flue gas desulfurization
24     scrubber sludge, fluidized bed combustion ash, and stoker
25     boiler ash and shall be tested as intended for use.
26     (b) To encourage and promote the utilization of CCB in



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1 productive and beneficial applications, upon request by the
2 applicant, the Agency shall make a written beneficial use
3 determination that coal-combustion waste is CCB when used in a
4 manner other than those uses specified in subsection (a) of
5 this Section if the applicant demonstrates that use of the
6 coal-combustion waste satisfies all of the following criteria:
7 the use will not cause, threaten, or allow the discharge of any
8 contaminant into the environment; the use will otherwise
9 protect human health and safety and the environment; and the
10 use constitutes a legitimate use of the coal-combustion waste
11 as an ingredient or raw material that is an effective
12 substitute for an analogous ingredient or raw material.
13     Notwithstanding the criteria set forth in this subsection
14 (b), the The Agency's beneficial use determinations may allow
15 the uses set forth in items (a)(3)(A) and (a)(7) through (9) of
16 this Section without the CCB being subject to the restrictions
17 set forth in subdivisions (a-5)(B) and (a-5)(E) of this
18 Section.
19     Within 90 days after the receipt of an application for a
20 beneficial use determination under this subsection (b), the
21 Agency shall, in writing, approve, disapprove, or approve with
22 conditions the beneficial use. Any disapproval or approval with
23 conditions shall include the Agency's reasons for the
24 disapproval or conditions. Failure of the Agency to issue a
25 decision within 90 days shall constitute disapproval of the
26 beneficial use request. These beneficial use determinations



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1 are subject to review under Section 40 of this Act.
2     Any approval of a beneficial use under this subsection (b)
3 shall become effective upon the date of the Agency's written
4 decision and remain in effect for a period of 5 years. If an
5 applicant desires to continue a beneficial use after the
6 expiration of the 5-year period, the applicant must submit an
7 application for renewal no later than 90 days prior to the
8 expiration. The beneficial use approval shall be automatically
9 extended unless denied by the Agency in writing with the
10 Agency's reasons for disapproval, or unless the Agency has
11 requested an extension for review, in which case the use will
12 continue to be allowed until an Agency determination is made.
13     Coal-combustion waste for which a beneficial use is
14 approved pursuant to this subsection (b) shall be considered
15 CCB during the effective period of the approval, and the
16 continued approval upon renewal may not be denied by the Agency
17 as long as it is used in accordance with the approval and any
18 conditions. Any determination under this subsection (b) is
19 subject to review under Section 40 of this Act.
20     Notwithstanding the other provisions of this subsection
21 (b), written beneficial use determination applications for the
22 use of CCB at sites governed by the federal Surface Mining
23 Control and Reclamation Act of 1977 (P.L. 95-87) or the rules
24 and regulations thereunder, or by any law or rule or regulation
25 adopted by the State of Illinois pursuant thereto, shall be
26 reviewed and approved by the Office of Mines and Minerals



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1 within the Department of Natural Resources pursuant to 62 Ill.
2 Adm. Code §§ 1700-1850. Further, appeals of those
3 determinations shall be made pursuant to the Illinois
4 Administrative Review Law.
5     The Board shall adopt rules establishing standards and
6 procedures for the Agency's issuance of beneficial use
7 determinations under this subsection (b). The Board rules may
8 also, but are not required to, include standards and procedures
9 for the revocation of the beneficial use determinations. Prior
10 to the effective date of Board rules adopted under this
11 subsection (b), the Agency is authorized to make beneficial use
12 determinations in accordance with this subsection (b). No later
13 than January 31, 2009, the Governor, in coordination with the
14 Agency and the Board, must propose rules concerning the use of
15 CCB under item (8) of subsection (a). These proposed rules must
16 include specific guidelines for the use of CCB as structural
17 fill and a site-approval process. Agency approval, however, is
18 not required for structural fill projects if that project uses
19 less than 10,000 tons of CCB material or if the fill material
20 meets the ASTM D3987-85 standards for Class 1 Groundwater. The
21 proposed rules for a site-approval process must include, along
22 with other permits that may be required, (i) specific
23 timeframes for Agency approval and (ii) informal consultation
24 with the Department of Natural Resources on whether the
25 structural fill project will harm any endangered species.
26 Notwithstanding any other rulemaking authority that may exist,



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1 neither the Governor nor any agency or agency head under the
2 jurisdiction of the Governor has any authority to make or
3 promulgate rules to implement or enforce the provisions of this
4 amendatory Act of the 95th General Assembly. The Governor shall
5 propose rules to the General Assembly by filing them with the
6 Clerk of the House and the Secretary of the Senate and by
7 requesting that the General Assembly authorize such rulemaking
8 by law, enact those proposed rules into law, or take any other
9 appropriate action in the General Assembly's discretion.
10 Nothing contained in this amendatory Act of the 95th General
11 Assembly shall be interpreted to grant rulemaking authority
12 under any other Illinois statute where such authority is not
13 otherwise explicitly given. For the purposes of this paragraph,
14 "rules" is given the meaning contained in Section 1-70 of the
15 Illinois Administrative Procedure Act, and "agency" and
16 "agency head" are given the meanings contained in Sections 1-20
17 and 1-25 of the Illinois Administrative Procedure Act to the
18 extent that such definitions apply to agencies or agency heads
19 under the jurisdiction of the Governor.
20     The Agency is authorized to prepare and distribute guidance
21 documents relating to its administration of this Section.
22 Guidance documents prepared under this subsection are not rules
23 for the purposes of the Illinois Administrative Procedure Act.
24     (c) In addition to the other penalties and remedies
25 provided in this Act, any person harmed by a violation of item
26 (8) of subsection (a) of this Section may bring a civil action



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1 in the circuit court of the county of that person's residence
2 for damages or other appropriate legal or equitable remedies
3 against the violator.
4 (Source: P.A. 94-66, eff. 1-1-06.)".