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| [ Introduced ] | [ House Amendment 001 ] |
90_HB1271eng
New Act
30 ILCS 105/5.449 new
215 ILCS 5/2.5 new
Creates the Drycleaner Environmental Response Trust Fund
Act to support remediation of drycleaning solvent releases
at drycleaning facilities through a reimbursement program for
remediation of existing releases and an insurance program for
prospective releases. Creates the Drycleaner Environmental
Response Trust Fund Council to administer the Act. Sets
forth a continuing appropriation of moneys in the Fund to the
Council to make disbursements required under the Act.
Authorizes civil and criminal penalties. Establishes a
quantity-based drycleaning solvent fee to be imposed on a
person selling and transferring drycleaning solvent to a
person operating a drycleaning facility for use at the
facility. Imposes a one-time drycleaning solvent floor stock
fee to be assessed on January 1, 1998. Requires owners or
operators of dry cleaning facilities to obtain a license
under the Act in order to be eligible for reimbursement and
insurance benefits under the Act. Repeals the license fee
and sale and transfer fee provisions on July 1, 2007.
Provides for a transfer of $375,000 from the General Revenue
Fund to the Drycleaner Environmental Response Trust Fund,
which, after 6 months, shall be transferred back to the
General Revenue Fund. Amends the State Finance Act to add the
Drycleaner Environmental Response Trust Fund. Amends the
Illinois Insurance Code to exempt the Drycleaner
Environmental Response Trust Fund from the provisions of the
Code. Effective immediately.
LRB9003709DPccC
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1 AN ACT to create the Drycleaner Environmental Response
2 Trust Fund Act, amending named Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 1. Short title. This Act may be cited as the
6 Drycleaner Environmental Response Trust Fund Act.
7 Section 5. Definitions. As used in this Act:
8 (a) "Active drycleaning facility" means a drycleaning
9 facility actively engaged in drycleaning operations and
10 licensed under Section 60 of this Act.
11 (b) "Agency" means the Illinois Environmental Protection
12 Agency.
13 (c) "Claimant" means an owner or operator of a
14 drycleaning facility who has applied for reimbursement from
15 the remedial account or who has submitted a claim under the
16 insurance account with respect to a release.
17 (d) "Council" means the Drycleaner Environmental
18 Response Trust Fund Council.
19 (e) "Drycleaner Environmental Response Trust Fund" or
20 "Fund" means the fund created under Section 10 of this Act.
21 (f) "Drycleaning facility" means a facility located in
22 this State that is or has been engaged in drycleaning
23 operations for the general public, other than a:
24 (1) facility located on a United States military
25 base;
26 (2) industrial laundry, commercial laundry, or
27 linen supply facility;
28 (3) prison or other penal institution;
29 (4) not-for-profit hospital or other health care
30 facility; or a
31 (5) facility located or formerly located on federal
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1 or State property.
2 (g) "Drycleaning operations" means drycleaning of
3 apparel and household fabrics for the general public, as
4 described in Standard Industrial Classification Industry No.
5 7215 and No. 7216 in the Standard Industrial Classification
6 Manual (SIC) by the Technical Committee on Industrial
7 Classification.
8 (h) "Drycleaning solvent" means a chlorine-based or
9 hydrocarbon-based formulation or product that is used as a
10 primary cleaning agent in drycleaning operations.
11 (i) "Emergency" or "emergency action" means a situation
12 or an immediate response to a situation to protect public
13 health or safety. "Emergency" or "emergency action" does not
14 mean removal of contaminated soils, recovery of free
15 product, or financial hardship. An "emergency" or "emergency
16 action" would normally be expected to be directly related to
17 a sudden event or discovery and would last until the threat
18 to public health is mitigated.
19 (j) "Groundwater" means underground water that occurs
20 within the saturated zone and geologic materials where the
21 fluid pressure in the pore space is equal to or greater than
22 the atmospheric pressure.
23 (k) "Inactive drycleaning facility" means a drycleaning
24 facility that is not being used for drycleaning operations
25 and is not registered under this Act.
26 (l) "No Further Remediation Letter" means a letter
27 provided by the Agency pursuant to Section 58.10 of Title
28 XVII of the Environmental Protection Act.
29 (m) "Operator" means a person or entity holding a
30 business license to operate a licensed drycleaning facility
31 or the business operation of which the drycleaning facility
32 is a part.
33 (n) "Owner" means (1) a person who owns or has
34 possession or control of a drycleaning facility at the time a
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1 release is discovered, regardless of whether the facility
2 remains in operation or (2) a parent corporation of the
3 person under item (1) of this subdivision.
4 (o) "Parent corporation" means a business entity or
5 other business arrangement that has elements of common
6 ownership or control or that uses a long-term contractual
7 arrangement with a person to avoid direct responsibility for
8 conditions at a drycleaning facility.
9 (p) "Person" means an individual, trust, firm, joint
10 stock company, corporation, consortium, joint venture, or
11 other commercial entity.
12 (q) "Program year" means the period beginning on July 1
13 and ending on the following June 30, except that the initial
14 "program year" means the period beginning on July 1, 1997 or
15 on the effective date of this Act and ending on June 30,
16 1998.
17 (r) "Release" means any spilling, leaking, emitting,
18 discharging, escaping, leaching, or dispersing of drycleaning
19 solvents from a drycleaning facility to groundwater, surface
20 water, or subsurface soils.
21 (s) "Remedial action" means activities taken to comply
22 with Sections 58.6 and 58.7 of the Environmental Protection
23 Act and rules adopted by the Pollution Control Board under
24 those Sections.
25 (t) "Responsible party" means an owner, operator, or
26 other person financially responsible for costs of remediation
27 of a release of drycleaning solvents from a drycleaning
28 facility.
29 (u) "Service provider" means a consultant, testing
30 laboratory, monitoring well installer, soil boring
31 contractor, other contractor, lender, or any other person who
32 provides a product or service for which a claim for
33 reimbursement has been or will be filed against the remedial
34 account or insurance account, or a subcontractor of such a
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1 person.
2 Section 10. Drycleaner Environmental Response Trust Fund.
3 (a) The Drycleaner Environmental Response Trust Fund is
4 created as a special fund in the State Treasury. Moneys
5 deposited into the Fund shall be used solely for the purposes
6 of the Council as provided in this Act. The Fund shall
7 include moneys credited to the Fund under this Act and other
8 moneys that by law may be credited to the Fund. The State
9 Treasurer may invest Funds deposited into the Fund at the
10 direction of the Council. Interest, income from the
11 investments, and other income earned by the Fund shall be
12 credited to and deposited into the Fund.
13 For the purpose of making disbursements, if any, in
14 accordance with this Act, and for the purpose of paying the
15 ordinary and contingent expenses of the Council, there are
16 hereby appropriated from the Drycleaner Environmental
17 Response Trust Fund to the Council on a continuing basis sums
18 equal to the then current value of all disbursements or
19 expenses to be made from time to time under this Act. As
20 soon as may be practicable after June 30, 1997, the
21 Comptroller shall order transferred and the Treasurer shall
22 transfer from the General Revenue Fund to the Drycleaner
23 Environmental Response Trust Fund $375,000 for the ordinary
24 and contingent expenses of the Council. As soon as may be
25 practicable after December 31, 1997, the Comptroller shall
26 order transferred and the Treasurer shall transfer from the
27 Drycleaner Environmental Response Trust Fund to the General
28 Revenue Fund $375,000 plus interest at the rate of 6% per
29 annum.
30 The Fund may be divided into different accounts with
31 different depositories to fulfill the purposes of the Act as
32 determined by the Council.
33 Moneys in the Fund at the end of a State fiscal year
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1 shall be carried forward to the next fiscal year and shall
2 not revert to the General Revenue Fund.
3 (b) The specific purposes of the Fund include but are
4 not limited to the following:
5 (1) To establish an account to Fund remedial action
6 of drycleaning solvent releases from drycleaning
7 facilities as provided by Section 40.
8 (2) To establish an insurance account for insuring
9 environmental risks from releases from drycleaning
10 facilities within this State as provided by Section 45.
11 (c) The State, the General Revenue Fund, and any other
12 Fund of the State, other than the Drycleaner Environmental
13 Response Trust Fund, shall not be liable for a claim or cause
14 of action in connection with a drycleaning facility not owned
15 or operated by the State or an agency of the State. All
16 expenses incurred by the Fund shall be payable solely from
17 the Fund and no liability or obligation shall be imposed upon
18 the State. The State is not liable for a claim presented
19 against the Fund.
20 (d) The liability of the Fund is limited to the extent
21 of coverage provided by the account under which a claim is
22 submitted, subject to the terms and conditions of that
23 coverage. The liability of the Fund is further limited by
24 the moneys made available to the Fund, and no remedy shall be
25 ordered that would require the Fund to exceed its then
26 current funding limitations to satisfy an award or which
27 would restrict the availability of moneys for higher priority
28 sites.
29 (e) Nothing in this Act shall be construed to limit,
30 restrict, or affect the authority and powers of the Agency or
31 another State agency or statute unless the State agency or
32 statute is specifically referenced and the limitation is
33 clearly set forth in this Act.
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1 Section 15. Creation of Council.
2 (a) The Drycleaner Environmental Response Trust Fund
3 Council is established and shall consist of the following
4 voting members to be appointed by the Governor:
5 (1) Three members who own or operate a drycleaning
6 facility. Two of these members must be members of the
7 Illinois State Fabricare Association. These members shall
8 serve 3 year terms, except that of the initial members
9 appointed, one shall be appointed for a term of one year,
10 one for a term of 2 years, and one for a term of 3 years.
11 (2) One member who represents wholesale
12 distributors of drycleaning solvents. This member shall
13 serve for a term of 3 years.
14 (3) One member who represents the drycleaning
15 equipment manufacturers and vendor community. This
16 member shall serve for a term of 3 years.
17 (4) Two members with experience in financial
18 markets or the insurance industry. These members shall
19 serve 3-year terms, except that of the initial
20 appointments, one shall be appointed for a term of 2
21 years, and one for a term of 3 years.
22 Each member shall have experience, knowledge, and
23 expertise relating to the subject matter of this Act.
24 (b) Members of the Council are entitled to receive
25 reimbursement of actual expenses incurred in the discharge of
26 their duties within the limit of funds appropriated to the
27 Council or made available to the Fund. The governor shall
28 appoint a chairperson of the Council from among the members
29 of the Council.
30 (c) The attorney general's office or its designee shall
31 provide legal counsel to the Council.
32 Section 20. Council rules.
33 (a) The Council may adopt rules in accordance with the
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1 emergency rulemaking provisions of Section 5-45 of the
2 Illinois Administrative Procedure Act for one year after the
3 effective date of this Act. Thereafter, the Council shall
4 conduct general rulemaking as provided under the Illinois
5 Administrative Procedure Act.
6 (b) The Council shall adopt rules regarding its practice
7 and procedures for investigating and settling claims made
8 against the Fund, determining reimbursement guidelines,
9 coordinating with the Agency, and otherwise implementing and
10 administering the Fund under this Act.
11 (c) The Council shall adopt rules regarding its practice
12 and procedures to develop underwriting standards, establish
13 insurance account coverage and risk factors, settle claims
14 made against the insurance account of the Fund, determine
15 appropriate deductibles or retentions in coverages or
16 benefits offered under the insurance account of the Fund,
17 determine reimbursement guidelines, and otherwise implement
18 and administer the insurance account under this Act.
19 (d) The Council shall adopt rules necessary for the
20 implementation and collection of insurance account premiums
21 prior to offering insurance to an owner or operator of a
22 drycleaning facility or other person.
23 (e) The Council shall adopt rules prescribing
24 requirements for the retention of records by an owner or
25 operator and the periods for which he or she must retain
26 those records.
27 (f) All final Council decisions shall be subject to
28 appeal by the affected parties. The Council shall determine
29 by rule persons who have standing to appeal final Council
30 decisions. All appeals of final Council decisions shall be
31 presented to and reviewed by an administrative hearing
32 officer. An appeal of the administrative hearing officer's
33 decision will be subject to judicial review in accordance
34 with the Administrative Review Law.
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1 The Council shall adopt rules relating to appeal
2 procedures that shall require the Council to deliver notice
3 of appeal to the affected parties within 30 days of receipt
4 of notice, require that the hearing be held within 180 days
5 of the filing of the petition unless good cause is shown for
6 the delay, and require that a final decision be issued no
7 later than 120 days following the close of the hearing. The
8 time restrictions in this subsection may be waived by mutual
9 agreement of the parties.
10 Section 25. Council administration of Fund.
11 (a) In administering the Fund, the Council shall have
12 all of the general powers reasonably necessary and convenient
13 to carry out its purposes and may perform the following
14 functions, subject to any express limitations contained in
15 this Act:
16 (1) Take actions and enter into agreements
17 necessary to reimburse claimants for eligible remedial
18 action expenses, assist the Agency to protect the
19 environment from releases, reduce costs associated with
20 remedial actions, and establish and implement an
21 insurance program.
22 (2) Acquire and hold personal property to be used
23 for the purpose of remedial action.
24 (3) Purchase, construct, improve, furnish, equip,
25 lease, option, sell, exchange, or otherwise dispose of
26 one or more improvements under the terms it determines.
27 The Council may define "improvements" by rule for
28 purposes of this Act.
29 (4) Grant a lien, pledge, assignment, or other
30 encumbrance on one or more revenues, assets of right,
31 accounts, or funds established or received in connection
32 with the fund, including revenues derived from fees
33 collected under this Act.
HB1271 Engrossed -9- LRB9003709DPccC
1 (5) Contract for the acquisition or construction of
2 one or more improvements or parts of one or more
3 improvements or for the leasing, subleasing, sale, or
4 other disposition of one or more improvements in a manner
5 the Council determines.
6 (6) Cooperate with the Agency in the implementation
7 and administration of this Act to minimize unnecessary
8 duplication of effort, reporting, or paperwork and to
9 maximize environmental protection within the funding
10 limits of this Act.
11 (7) Except as otherwise provided by law, inspect
12 any document in the possession of an owner, operator,
13 service provider, or any other person if the document is
14 relevant to a claim for reimbursement under this Section
15 or may inspect a drycleaning facility for which a claim
16 for benefits under this Act has been submitted.
17 (b) The Council shall pre-approve, and the contracting
18 parties shall seek pre-approval for, a contract entered into
19 under this Act if the cost of the contract exceeds $75,000.
20 The Council or its designee shall review and approve or
21 disapprove all contracts entered into under this Act.
22 However, review by the Council or its designee shall not be
23 required when an emergency situation exists. All contracts
24 entered into by the Council shall be awarded on a
25 competitive basis to the maximum extent practical. In those
26 situations where it is determined that bidding is not
27 practical, the basis for the determination of
28 impracticability shall be documented by the Council or its
29 designee.
30 (c) The Council may prioritize the expenditure of funds
31 from the remedial action account whenever it determines that
32 there are not sufficient funds to settle all current claims.
33 In prioritizing, the Council may consider the following:
34 (1) the degree to which human health is affected by
HB1271 Engrossed -10- LRB9003709DPccC
1 the exposure posed by the release;
2 (2) the reduction of risk to human health derived
3 from remedial action compared to the cost of the
4 remedial action;
5 (3) the present and planned uses of the impacted
6 property; and
7 (4) other factors as determined by the Council.
8 Section 30. Independent contractors retained by Council.
9 (a) A contract entered into to retain a person to act as
10 the administrator of the Fund shall be subject to public bid.
11 The Council may enter into a contract or an agreement
12 authorized under this Act with a person, the Agency, the
13 Department of Revenue, other departments, agencies, or
14 governmental subdivisions of this State, another state, or
15 the United States, in connection with its administration and
16 implementation of this Act.
17 (b) The Council may reimburse a public or private
18 contractor retained pursuant to this Section for expenses
19 incurred in the execution of a contract or agreement.
20 Reimbursable expenses include the costs of performing duties
21 or powers specifically delegated by the Council.
22 Section 35. Illinois Insurance Code exemptions. The Fund,
23 including but not limited to insurance coverage offered under
24 the insurance account, is not subject to the provisions of
25 the Illinois Insurance Code. Notwithstanding any other
26 provision of law, the Fund shall not be considered an
27 insurance company or an insurer under the laws of this State
28 and shall not be a member of nor be entitled to a claim
29 against the Illinois Insurance Guaranty Fund.
30 Section 40. Remedial action account.
31 (a) The remedial action account is established to
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1 provide reimbursement to eligible claimants for drycleaning
2 solvent investigation, remedial action planning, and remedial
3 action activities for existing drycleaning solvent
4 contamination discovered at their drycleaning facilities.
5 (b) The following persons are eligible for reimbursement
6 from the remedial action account:
7 (1) In the case of claimant who is the owner or
8 operator of an active drycleaning facility licensed by
9 the Council under this Act at the time of application for
10 remedial action benefits afforded under the Fund, the
11 claimant is only eligible for reimbursement of remedial
12 action costs incurred in connection with a release from
13 that drycleaning facility, subject to any other
14 limitations under this Act.
15 (2) In the case of a claimant who is the owner of
16 an inactive drycleaning facility and was the owner or
17 operator of the drycleaning facility when it was an
18 active drycleaning facility, the claimant is only
19 eligible for reimbursement of remedial action costs
20 incurred in connection with a release from the
21 drycleaning facility, subject to any other limitations
22 under this Act.
23 (c) An eligible claimant requesting reimbursement from
24 the remedial action account shall meet all of the following:
25 (1) The claimant demonstrates that the source of
26 the release is from the claimant's drycleaning facility.
27 (2) At the time the release was discovered by the
28 claimant, the claimant and the drycleaning facility were
29 in compliance with the Agency reporting and technical
30 operating requirements.
31 (3) The claimant reported the release in a timely
32 manner to the Agency in accordance with State law.
33 (4) The claimant applying for reimbursement has not
34 filed for bankruptcy on or after the date of his or her
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1 discovery of the release.
2 (5) If the claimant is the owner or operator of an
3 active drycleaning facility, the claimant has provided to
4 the Council proof of implementation and maintenance of
5 the following pollution prevention measures:
6 (A) That all drycleaning solvent wastes
7 generated at a drycleaning facility be managed in
8 accordance with applicable State waste management
9 laws and rules.
10 (B) A prohibition on the discharge of
11 wastewater from drycleaning machines or of
12 drycleaning solvent from drycleaning operations to a
13 sanitary sewer or septic tank or to the surface or
14 in groundwater.
15 (C) That every drycleaning facility:
16 (I) install a containment dike or other
17 containment structure around each machine or
18 item of equipment or the entire drycleaning
19 area in which any drycleaning solvent is
20 utilized, which shall be capable of containing
21 any leak, spill, or release of drycleaning
22 solvent from that machine, item, or area; and
23 (II) seal or otherwise render impervious
24 those portions of diked floor surfaces on which
25 a drycleaning solvent may leak, spill, or
26 otherwise be released.
27 (D) A requirement that all drycleaning solvent
28 shall be delivered to drycleaning facilities by
29 means of closed, direct-coupled delivery systems.
30 (6) An active drycleaning facility has maintained
31 continuous financial assurance for environmental
32 liability coverage in the amount of at least $500,000 at
33 least since the date of award of benefits under this
34 Section or July 1, 1998, whichever is earlier.
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1 (7) The release was discovered on or after July 1,
2 1997 and before July 1, 2002.
3 (d) A claimant shall submit a completed application form
4 provided by the Council. The application shall contain
5 documentation of activities, plans, and expenditures
6 associated with the eligible costs incurred in response to a
7 release of drycleaning solvent from a drycleaning facility.
8 Application for remedial action account benefits must be
9 submitted to the Council on or before June 30, 2002.
10 (e) Claimants shall be subject to the following
11 deductible requirements, unless modified pursuant to the
12 Council's authority under Section 75:
13 (1) An eligible claimant submitting a claim for an
14 active drycleaning facility is responsible for the first
15 $5,000 of eligible investigation costs and for the first
16 $10,000 of eligible remedial action costs incurred in
17 connection with the release from the drycleaning facility
18 and is only eligible for reimbursement for costs that
19 exceed those amounts, subject to any other limitations of
20 this Act.
21 (2) An eligible claimant submitting a claim for an
22 inactive drycleaning facility is responsible for the
23 first $10,000 of eligible investigation costs and for the
24 first $10,000 of eligible remedial action costs incurred
25 in connection with the release from that drycleaning
26 facility, and is only eligible for reimbursement for
27 costs that exceed those amounts, subject to any other
28 limitations of this Act.
29 (f) Claimants are subject to the following limitations
30 on reimbursement:
31 (1) Subsequent to meeting the deductible
32 requirements of subsection (e), and pursuant to the
33 requirements of Section 75, reimbursement shall not
34 exceed:
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1 (A) $160,000 per active drycleaning facility
2 for which an eligible claim is submitted during the
3 initial program year;
4 (B) $150,000 per active drycleaning facility
5 for which an eligible claim is submitted during the
6 program year beginning July 1, 1998;
7 (C) $140,000 per active drycleaning facility
8 for which an eligible claim is submitted during the
9 program year beginning July 1, 1999;
10 (D) $130,000 per active drycleaning facility
11 for which an eligible claim is submitted during the
12 program year beginning July 1, 2000;
13 (E) $120,000 per active drycleaning facility
14 for which an eligible claim is submitted during the
15 program year beginning July 1, 2001; or
16 (F) $50,000 per inactive drycleaning facility.
17 (2) A contract in which one of the parties to the
18 contract is a claimant, for goods or services that may be
19 payable or reimbursable from the Council, is void and
20 unenforcable unless and until the Council has found that
21 the contract terms are within the range of usual and
22 customary rates for similar or equivalent goods or
23 services within this State and has found that the goods
24 or services are necessary for the claimant to comply with
25 Council standards or other applicable regulatory
26 standards.
27 (3) A claimant may appoint the Council as an agent
28 for the purposes of negotiating contracts with suppliers
29 of goods or services reimbursable by the Fund. The
30 Council may select another contractor for goods or
31 services other than the one offered by the claimant if
32 the scope of the proposed work or actual work of the
33 claimant's offered contractor does not reflect the
34 quality of workmanship required or if the costs are
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1 determined to be excessive, as determined by the Council.
2 (4) The Council may require a claimant to obtain
3 and submit 3 bids and may require specific terms and
4 conditions in a contract subject to approval.
5 (5) The Council may enter into a contract or an
6 exclusive contract with the supplier of goods or services
7 required by a claimant or class of claimants, in
8 connection with an expense reimbursable from the Fund,
9 for a specified good or service at a gross maximum price
10 or fixed rate, and may limit reimbursement accordingly.
11 (6) Unless emergency conditions exist, a service
12 provider shall obtain the Council's approval of the
13 budget for the remediation work before commencing the
14 work. No expense incurred that is above the budgeted
15 amount shall be paid unless the Council approves the
16 expense prior to its being incurred. All invoices and
17 bills relating to the remediation work shall be submitted
18 with appropriate documentation, as deemed necessary by
19 the Council, not later than 30 days after the work has
20 been performed.
21 (7) Neither the Council nor an eligible claimant is
22 responsible for payment for costs incurred that have not
23 been previously approved by the Council, unless an
24 emergency exists.
25 (8) The Council may determine the usual and
26 customary costs of each item for which reimbursement may
27 be awarded under this Section. The Council may revise the
28 usual and customary costs from time to time as necessary,
29 but costs submitted for reimbursement shall be subject to
30 the rates in effect at the time the costs were incurred.
31 (9) If a claimant has pollution liability insurance
32 coverage other than coverage provided by the insurance
33 account under this Act, that coverage shall be primary.
34 Reimbursement from the remedial account shall be limited
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1 to the deductible amounts under the primary coverage and
2 the amount that exceeds the policy limits of the primary
3 coverage, subject to the deductible amounts of this Act.
4 If there is a dispute between the claimant and the
5 primary insurance provider, reimbursement from the
6 remedial action account may be made to the claimant after
7 the claimant assigns all of his or her interests in the
8 insurance coverage to the Council.
9 (g) The source of funds for the remedial action account
10 shall be moneys allocated to the account by the Council
11 according to the Fund budget approved by the Council.
12 (h) A drycleaning facility will be classified as active
13 or inactive for purposes of determining benefits under this
14 Section based on the status of the facility on the date a
15 claim is filed.
16 (i) Eligible claimants shall conduct remedial action in
17 accordance with the Site Remediation Program under the
18 Environmental Protection Act and Part 740 of Title 35 of the
19 Illinois Administrative Code and the Tiered Approach to
20 Cleanup Objectives under Part 742 of Title 35 of the Illinois
21 Administrative Code.
22 Section 45. Insurance account.
23 (a) The insurance account shall offer financial
24 assurance for a qualified owner or operator of a drycleaning
25 facility under the terms and conditions provided for under
26 this Section. Coverage may be provided to either the owner or
27 the operator of a drycleaning facility. The Council is not
28 required to resolve whether the owner or operator, or both,
29 are responsible for a release under the terms of an agreement
30 between the owner and operator.
31 (b) The source of funds for the insurance account shall
32 be as follows:
33 (1) Moneys appropriated to the Council or moneys
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1 allocated to the insurance account by the Council
2 according to the Fund budget approved by the Council.
3 (2) Moneys collected as an insurance premium,
4 including service fees, if any.
5 (3) Investment income attributed to the insurance
6 account by the Council.
7 (c) An owner or operator may purchase coverage of up to
8 $500,000 per drycleaning facility subject to the terms and
9 conditions under this Section and those adopted by the
10 Council. Coverage shall be limited to remedial action costs
11 associated with soil and groundwater contamination resulting
12 from a release of drycleaning solvent at an insured
13 drycleaning facility, including third-party liability for
14 soil and groundwater contamination. Coverage is not provided
15 for a release that occurred before the date of coverage.
16 (d) An owner or operator, subject to underwriting
17 requirements and terms and conditions deemed necessary and
18 convenient by the Council, may purchase insurance coverage
19 from the insurance account provided that the drycleaning
20 facility to be insured meets the following conditions:
21 (1) a site investigation designed to identify soil
22 and groundwater contamination resulting from the release
23 of a drycleaning solvent has been completed. The Council
24 shall determine if the site investigation is adequate.
25 This investigation must be completed by June 30, 2002.
26 For drycleaning facilities that become active after June
27 30, 2002, the site investigation must be completed prior
28 to issuance of insurance coverage; and
29 (2) the drycleaning facility is participating in
30 and meets all requirements of a drycleaning compliance
31 program approved by the Council.
32 (e) The annual premium for insurance coverage shall be:
33 (1) For the initial program year, $250 per
34 drycleaning facility.
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1 (2) For the year July 1, 1998 through June 30,
2 1999, $375 per drycleaning facility.
3 (3) For the year July 1, 1999 through June 30,
4 2000, $500 per drycleaning facility.
5 (4) For the year July 1, 2000 through June 30,
6 2001, $625 per drycleaning facility.
7 (5) For subsequent years, an owner or operator
8 applying for coverage shall pay an annual
9 actuarially-sound insurance premium for coverage by the
10 insurance account. The Council may approve Fund coverage
11 through the payment of a premium established on an
12 actuarially-sound basis, taking into consideration the
13 risk to the insurance account presented by the insured.
14 Risk factor adjustments utilized to determine
15 actuarially-sound insurance premiums should reflect the
16 range of risk presented by the variety of drycleaning
17 systems, monitoring systems, drycleaning volume, risk
18 management practices, and other factors as determined by
19 the Council. As used in this item, "actuarially sound" is
20 not limited to Fund premium revenue equaling or exceeding
21 Fund expenditures for the general drycleaning facility
22 population. Actuarially-determined premiums shall be
23 published at least 180 days prior to the premiums
24 becoming effective.
25 (f) If coverage is purchased for any part of a year, the
26 purchaser shall pay the full annual premium. The insurance
27 premium is fully earned upon issuance of the insurance
28 policy.
29 (g) The insurance coverage shall be provided with a
30 $10,000 deductible policy.
31 (h) A future repeal of this Section shall not terminate
32 the obligations under this Section or authority necessary to
33 administer the obligations until the obligations are
34 satisfied, including but not limited to the payment of claims
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1 filed prior to the effective date of any future repeal
2 against the insurance account until moneys in the account are
3 exhausted. Upon exhaustion of the moneys in the account, any
4 remaining claims shall be invalid. If moneys remain in the
5 account following satisfaction of the obligations under this
6 Section, the remaining moneys and moneys due the account
7 shall be used to assist current insureds to obtain a viable
8 insuring mechanism as determined by the Council after public
9 notice and opportunity for comment.
10 Section 50. Cost recovery; enforcement.
11 (a) The Council may seek recovery from a potentially
12 responsible party liable for a release that is the subject of
13 a remedial action and for which the Fund has expended moneys
14 for remedial action. The amount of recovery sought by the
15 Council shall be equal to all moneys expended by the Fund for
16 and in connection with the remediation, including but not
17 limited to reasonable attorneys fees and costs of litigation
18 expended by the Fund in connection with the release.
19 (b) Except as provided in subsections (c) and (d):
20 (1) The Council shall not seek recovery for
21 expenses in connection with remedial action for a release
22 from a claimant eligible for reimbursement except for any
23 unpaid portion of the deductible.
24 (2) A claimant's liability for a release for which
25 coverage is admitted under the insurance account shall
26 not exceed the amount of the deductible, subject to the
27 limits of insurance coverage.
28 (c) Notwithstanding subsection (b), the liability of a
29 claimant to the Fund shall be the total costs of remedial
30 action incurred by the Fund, as specified in subsection (a),
31 if the claimant has not complied with the Environmental
32 Protection Act and its rules or with this Act and its rules.
33 (d) Notwithstanding subsection (b), the liability of a
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1 claimant to the Fund shall be the total costs of remedial
2 action incurred by the Fund, as specified in subsection (a),
3 if the claimant received reimbursement from the Fund through
4 misrepresentation or fraud, and the claimant shall be liable
5 for the amount of the reimbursement.
6 (e) Upon reimbursement by the Fund for remedial action
7 under this Act, the rights of the claimant to recover payment
8 from a potentially responsible party are assumed by the
9 Council to the extent the remedial action was paid by the
10 Fund. A claimant is precluded from receiving double
11 compensation for the same injury. A claimant may elect to
12 permit the Council to pursue the claimant's cause of action
13 for an injury not compensated by the Fund against a
14 potentially responsible party, provided the Attorney General
15 or his or her designee determines the representation would
16 not be a conflict of interest.
17 (f) This Section does not preclude, limit, or in any way
18 affect any of the provisions of or causes of action pursuant
19 to Section 22.2 of the Environmental Protection Act.
20 Section 55. Limitation on actions; admissions.
21 (a) An award or reimbursement made by the Council under
22 this Act shall be the claimant's exclusive method for the
23 recovery of the costs of drycleaning facility remediation.
24 (b) If a person conducts a remedial action activity for
25 a release at a drycleaning facility site, whether or not the
26 person files a claim under this Act, the claim and remedial
27 action activity conducted are not evidence of liability or
28 an admission of liability for any potential or actual
29 environmental pollution or damage.
30 Section 60. Drycleaning facility license.
31 (a) On and after January 1, 1998, no person shall
32 operate a drycleaning facility in this State without a
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1 license issued by the Council.
2 (b) The Council shall issue a license to a drycleaning
3 facility on submission by an applicant of a completed form
4 prescribed by the Council and payment of the required fee.
5 (c) The annual fees for licensure are as follows:
6 (1) $500 for a facility that purchases 140 gallons
7 or less of chlorine-based drycleaning solvents annually
8 or 1400 gallons or less of hydrocarbon-based drycleaning
9 solvents annually.
10 (2) $1,000 for a facility that purchases more than
11 140 gallons but less than 360 gallons of chlorine-based
12 drycleaning solvents annually or more than 1400 gallons
13 but less than 3600 gallons of hydrocarbon-based
14 drycleaning solvents annually.
15 (3) $1,500 for a facility that purchases 360
16 gallons or more of chlorine-based drycleaning solvents
17 annually or 3600 gallons or more of hydrocarbon-based
18 drycleaning solvents annually.
19 For purpose of this subsection, the quantity of
20 drycleaning solvents purchased annually shall be determined
21 as follows:
22 (1) in the case of an initial applicant, the
23 quantity of drycleaning solvents that the applicant
24 estimates will be used during his or her initial license
25 year. A fee assessed under this subdivision is subject to
26 audited adjustment for that year; or
27 (2) in the case of a renewal applicant, the
28 quantity of drycleaning solvents actually used in the
29 preceding license year.
30 The Council may adjust licensing fees annually based on
31 the published Consumer Price Index - All Urban Consumers
32 ("CPI-U") or as otherwise determined by the Council.
33 (d) A license issued under this Section shall expire one
34 year after the date of issuance and may be renewed on
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1 reapplication to the Council and payment of the appropriate
2 fee in accordance with subsection (c). At least 30 days
3 before payment of a renewal licensing fee is due, the Council
4 shall attempt to:
5 (1) notify the operator of each licensed
6 drycleaning facility concerning the requirements of this
7 Section; and
8 (2) submit a license fee payment form to the
9 licensed operator of each drycleaning facility.
10 (e) An applicant for a license under this Section shall
11 complete an application form prescribed by the Council and
12 shall pay the required fee, as determined under subsection
13 (c).
14 (f) The Council shall provide a receipt to each operator
15 who pays a license fee. The receipt or a copy of the receipt
16 must be produced for inspection at the request of an
17 authorized representative of the Council.
18 (g) An operator of a dry cleaning facility who is
19 required to pay a license fee under this Act and fails to pay
20 the license fee when the fee is due shall be assessed a
21 penalty of $5 for each day after the license fee is due and
22 until the license fee is paid.
23 (h) The Council may adopt rules as necessary to
24 administer the licensing requirements of this Act.
25 Section 65. Drycleaning solvent fee.
26 (a) On and after January 1, 1998, there is imposed upon
27 a seller or transferor of drycleaning solvent to a person
28 operating a drycleaning facility a fee on the sale or
29 transfer of the drycleaning solvent that is acquired for use
30 in a drycleaning facility. The fee imposed on the drycleaning
31 solvent shall be $3.50 per gallon of perchloroethylene or
32 other chlorinated drycleaning solvents used in drycleaning
33 operations and $.35 per gallon of petroleum-based
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1 drycleaning solvent. The Council shall have authority to
2 determine what products are chlorine-based solvents and
3 petroleum-based solvents. All drycleaning solvents shall be
4 considered chlorinated solvents unless the Council determines
5 that the solvents are petroleum-based drycleaning solvents
6 subject to the lower fee. The Council shall define
7 "transferor" and "transfer" for purposes of this Section.
8 (b) Drycleaning solvent that is not acquired for use in
9 a drycleaning facility but which is used in a drycleaning
10 facility shall be treated as acquired for use, and the fee
11 shall be due, when it is first used.
12 (c) If, in connection with the acquisition of the
13 drycleaning solvent, the operator did not receive a bill or
14 invoice showing the amount of the fee imposed on the sale or
15 transfer to the operator, the fee must be paid to the
16 Department of Revenue by the processor of the drycleaning
17 solvent.
18 (d) No fee shall be imposed under this Section on the
19 sale or transfer of drycleaning solvent if, prior to the sale
20 or transfer, the purchaser or transferee and the seller or
21 transferor certify that:
22 (1) the drycleaning solvent will not be used in a
23 drycleaning facility;
24 (2) the purchaser or transferee does not operate a
25 drycleaning facility; or
26 (3) a floor stock fee has been imposed on the
27 drycleaning solvent.
28 A person who provides a false certification under this
29 subsection shall be liable for a civil penalty not to exceed
30 $500 for a first violation and a civil penalty not to exceed
31 $5,000 for a second or subsequent violation.
32 (e) On January 1, 1998, there is imposed on each
33 operator of a drycleaning facility a fee on drycleaning
34 solvent held by the operator on that date for use in a
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1 drycleaning facility. The fee imposed shall be the fee that
2 would have been imposed under subsection (a) if the
3 drycleaning solvent held by the operator on that date had
4 been sold or transferred to the operator during the first
5 year of this Act.
6 (f) The fees imposed by this Section in any calendar
7 quarter shall be due and payable on the 25th day of the 1st
8 month following the end of the calendar quarter. The fee on
9 drycleaning solvents used in drycleaning facilities and the
10 floor stock fee shall be reported on forms provided by the
11 Department of Revenue.
12 (g) The fee on drycleaning solvents used in drycleaning
13 facilities and the floor stock fee shall be administered by
14 the Department of Revenue under rules developed by that
15 Department.
16 (h) A person who violates a provision of this Section is
17 subject to appropriate penalty provisions of the Uniform
18 Penalty and Interest Act.
19 (i) On and after January 1, 1998, no person shall
20 knowingly sell or transfer drycleaning solvent to an operator
21 of a drycleaning facility that is not licensed by the Council
22 under Section 60. A person who violates this subsection is
23 liable for a civil penalty not to exceed $500 for a first
24 violation and a civil penalty not to exceed $5,000 for a
25 second or subsequent violation.
26 (j) The Department of Revenue may adopt rules as
27 necessary to implement this Section.
28 Section 70. Deposit of fees. Licensing fees collected by
29 the Council under Section 60 shall be deposited into the
30 Fund. Fees on drycleaning solvents used in drycleaning
31 facilities and the floor stocks fees collected by the
32 Department of Revenue under Section 65 shall be deposited
33 into the Fund.
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1 Section 75. Adjustment of fees. Beginning January 1,
2 1999, and annually after that date, the Council shall adjust
3 the copayment obligation of subsection (e) of Section 40, the
4 drycleaning solvent fees of Section 65, the license fees of
5 Section 60, or any combination of adjustment of each, after
6 notice and opportunity for public comment, in a manner
7 determined necessary and appropriate to ensure viability of
8 the Fund. Viability of the Fund shall consider the
9 settlement of all current claims subject to prioritization of
10 benefits under subsection (c) of Section 25, consistent with
11 the purposes of this Act.
12 Section 80. Repeal of fee provisions. Sections 60 and 65
13 of this Act are repealed on July 1, 2007.
14 Section 150. The State Finance Act is amended by adding
15 Section 5.449 as follows:
16 (30 ILCS 105/5.449 new)
17 Sec. 5.449. The Drycleaner Environmental Response Trust
18 Fund.
19 Section 200. The Illinois Insurance Code is amended by
20 adding Section 2.5 as follows:
21 (215 ILCS 5/2.5 new)
22 Sec. 2.5. Exemption. This Code shall not be construed to
23 apply to the administration of the Drycleaner Environmental
24 Response Trust Fund under the Drycleaner Environmental
25 Response Trust Fund Act.
26 Section 999. Effective date. This Act takes effect upon
27 becoming law.