Public Act 90-0502 of the 90th General Assembly
Public Act 90-0502
HB2164 Enrolled LRB9003592DPmgB
AN ACT to create the Drycleaner Environmental Response
Trust Fund Act, concerning environmental protection, and
amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Drycleaner Environmental Response Trust Fund Act.
Section 5. Definitions. As used in this Act:
(a) "Active drycleaning facility" means a drycleaning
facility actively engaged in drycleaning operations and
licensed under Section 60 of this Act.
(b) "Agency" means the Illinois Environmental Protection
Agency.
(c) "Claimant" means an owner or operator of a
drycleaning facility who has applied for reimbursement from
the remedial account or who has submitted a claim under the
insurance account with respect to a release.
(d) "Council" means the Drycleaner Environmental
Response Trust Fund Council.
(e) "Drycleaner Environmental Response Trust Fund" or
"Fund" means the fund created under Section 10 of this Act.
(f) "Drycleaning facility" means a facility located in
this State that is or has been engaged in drycleaning
operations for the general public, other than a:
(1) facility located on a United States military
base;
(2) industrial laundry, commercial laundry, or
linen supply facility;
(3) prison or other penal institution that engages
in drycleaning only as part of a Correctional Industries
program to provide drycleaning to persons who are
incarcerated in a prison or penal institution or to
resident patients of a State-operated mental health
facility;
(4) not-for-profit hospital or other health care
facility; or a
(5) facility located or formerly located on federal
or State property.
(g) "Drycleaning operations" means drycleaning of
apparel and household fabrics for the general public, as
described in Standard Industrial Classification Industry No.
7215 and No. 7216 in the Standard Industrial Classification
Manual (SIC) by the Technical Committee on Industrial
Classification.
(h) "Drycleaning solvent" means a chlorine-based or
hydrocarbon-based formulation or product that is used as a
primary cleaning agent in drycleaning operations.
(i) "Emergency" or "emergency action" means a situation
or an immediate response to a situation to protect public
health or safety. "Emergency" or "emergency action" does not
mean removal of contaminated soils, recovery of free
product, or financial hardship. An "emergency" or "emergency
action" would normally be expected to be directly related to
a sudden event or discovery and would last until the threat
to public health is mitigated.
(j) "Groundwater" means underground water that occurs
within the saturated zone and geologic materials where the
fluid pressure in the pore space is equal to or greater than
the atmospheric pressure.
(k) "Inactive drycleaning facility" means a drycleaning
facility that is not being used for drycleaning operations
and is not registered under this Act.
(l) "Maintaining a place of business in this State" or
any like term means (1) having or maintaining within this
State, directly or through a subsidiary, an office,
distribution facility, distribution house, sales house,
warehouse, or other place of business or (2) operating within
this State as an agent or representative for a person or a
person's subsidiary engaged in the business of selling to
persons within this State, irrespective of whether the place
of business or agent or other representative is located in
this State permanently or temporary, or whether the person or
the person's subsidiary engages in the business of selling in
this State.
(m) "No Further Remediation Letter" means a letter
provided by the Agency pursuant to Section 58.10 of Title
XVII of the Environmental Protection Act.
(n) "Operator" means a person or entity holding a
business license to operate a licensed drycleaning facility
or the business operation of which the drycleaning facility
is a part.
(o) "Owner" means (1) a person who owns or has
possession or control of a drycleaning facility at the time a
release is discovered, regardless of whether the facility
remains in operation or (2) a parent corporation of the
person under item (1) of this subdivision.
(p) "Parent corporation" means a business entity or
other business arrangement that has elements of common
ownership or control or that uses a long-term contractual
arrangement with a person to avoid direct responsibility for
conditions at a drycleaning facility.
(q) "Person" means an individual, trust, firm, joint
stock company, corporation, consortium, joint venture, or
other commercial entity.
(r) "Program year" means the period beginning on July 1
and ending on the following June 30, except that the initial
"program year" means the period beginning on July 1, 1997 or
on the effective date of this Act and ending on June 30,
1998.
(s) "Release" means any spilling, leaking, emitting,
discharging, escaping, leaching, or dispersing of drycleaning
solvents from a drycleaning facility to groundwater, surface
water, or subsurface soils.
(t) "Remedial action" means activities taken to comply
with Sections 58.6 and 58.7 of the Environmental Protection
Act and rules adopted by the Pollution Control Board under
those Sections.
(u) "Responsible party" means an owner, operator, or
other person financially responsible for costs of remediation
of a release of drycleaning solvents from a drycleaning
facility.
(v) "Service provider" means a consultant, testing
laboratory, monitoring well installer, soil boring
contractor, other contractor, lender, or any other person who
provides a product or service for which a claim for
reimbursement has been or will be filed against the remedial
account or insurance account, or a subcontractor of such a
person.
Section 10. Drycleaner Environmental Response Trust Fund.
(a) The Drycleaner Environmental Response Trust Fund is
created as a special fund in the State Treasury. Moneys
deposited into the Fund shall be used solely for the purposes
of the Council, for the retention by the Agency of a firm of
certified public accountants to annually examine and audit
the Council's activities as described in Section 80, and for
other purposes provided in this Act. The Fund shall include
moneys credited to the Fund under this Act and other moneys
that by law may be credited to the Fund. The State Treasurer
may invest Funds deposited into the Fund at the direction of
the Council. Interest, income from the investments, and other
income earned by the Fund shall be credited to and deposited
into the Fund.
Pursuant to appropriation, all moneys in the Drycleaner
Environmental Response Trust Fund shall be disbursed by the
Agency to the Council for the purpose of making
disbursements, if any, in accordance with this Act and for
the purpose of paying the ordinary and contingent expenses of
the Council. As soon as may be practicable after June 30,
1997, the Comptroller shall order transferred and the
Treasurer shall transfer from the General Revenue Fund to the
Drycleaner Environmental Response Trust Fund $375,000 for the
ordinary and contingent expenses of the Council. As soon as
may be practicable after December 31, 1997, the Comptroller
shall order transferred and the Treasurer shall transfer from
the Drycleaner Environmental Response Trust Fund to the
General Revenue Fund $375,000 plus interest at the rate of 6%
per annum.
The Fund may be divided into different accounts with
different depositories to fulfill the purposes of the Act as
determined by the Council.
Moneys in the Fund at the end of a State fiscal year
shall be carried forward to the next fiscal year and shall
not revert to the General Revenue Fund.
(b) The specific purposes of the Fund include but are
not limited to the following:
(1) To establish an account to fund remedial action
of drycleaning solvent releases from drycleaning
facilities as provided by Section 40.
(2) To establish an insurance account for insuring
environmental risks from releases from drycleaning
facilities within this State as provided by Section 45.
(c) The State, the General Revenue Fund, and any other
Fund of the State, other than the Drycleaner Environmental
Response Trust Fund, shall not be liable for a claim or cause
of action in connection with a drycleaning facility not owned
or operated by the State or an agency of the State. All
expenses incurred by the Fund shall be payable solely from
the Fund and no liability or obligation shall be imposed upon
the State. The State is not liable for a claim presented
against the Fund.
(d) The liability of the Fund is limited to the extent
of coverage provided by the account under which a claim is
submitted, subject to the terms and conditions of that
coverage. The liability of the Fund is further limited by
the moneys made available to the Fund, and no remedy shall be
ordered that would require the Fund to exceed its then
current funding limitations to satisfy an award or which
would restrict the availability of moneys for higher priority
sites.
(e) Nothing in this Act shall be construed to limit,
restrict, or affect the authority and powers of the Agency or
another State agency or statute unless the State agency or
statute is specifically referenced and the limitation is
clearly set forth in this Act.
Section 15. Creation of Council.
(a) The Drycleaner Environmental Response Trust Fund
Council is established and shall consist of the following
voting members to be appointed by the Governor:
(1) Three members who own or operate a drycleaning
facility. Two of these members must be members of the
Illinois State Fabricare Association. These members shall
serve 3 year terms, except that of the initial members
appointed, one shall be appointed for a term of one year,
one for a term of 2 years, and one for a term of 3 years.
(2) One member who represents wholesale
distributors of drycleaning solvents. This member shall
serve for a term of 3 years.
(3) One member who represents the drycleaning
equipment manufacturers and vendor community. This
member shall serve for a term of 3 years.
(4) Two members with experience in financial
markets or the insurance industry. These members shall
serve 3-year terms, except that of the initial
appointments, one shall be appointed for a term of 2
years, and one for a term of 3 years.
Each member shall have experience, knowledge, and
expertise relating to the subject matter of this Act.
(b) The Governor may remove any member of the Council
for incompetency, neglect of duty, or malfeasance in office
after service on him or her of a copy of the written charges
against him or her and after an opportunity to be publicly
heard in person or by counsel in his or her own defense no
earlier than 10 days after the Governor has provided notice
of the opportunity to the Council member. Evidence of
incompetency, neglect of duty, or malfeasance in office may
be provided to the Governor by the Agency or the Auditor
General following the annual audit described in Section 80.
(c) Members of the Council are entitled to receive
reimbursement of actual expenses incurred in the discharge of
their duties within the limit of funds appropriated to the
Council or made available to the Fund. The Governor shall
appoint a chairperson of the Council from among the members
of the Council.
(d) The Attorney General's office or its designee shall
provide legal counsel to the Council.
Section 20. Council rules.
(a) The Council may adopt rules in accordance with the
emergency rulemaking provisions of Section 5-45 of the
Illinois Administrative Procedure Act for one year after the
effective date of this Act. Thereafter, the Council shall
conduct general rulemaking as provided under the Illinois
Administrative Procedure Act.
(b) The Council shall adopt rules regarding its practice
and procedures for investigating and settling claims made
against the Fund, determining reimbursement guidelines,
coordinating with the Agency, and otherwise implementing and
administering the Fund under this Act.
(c) The Council shall adopt rules regarding its practice
and procedures to develop underwriting standards, establish
insurance account coverage and risk factors, settle claims
made against the insurance account of the Fund, determine
appropriate deductibles or retentions in coverages or
benefits offered under the insurance account of the Fund,
determine reimbursement guidelines, and otherwise implement
and administer the insurance account under this Act.
(d) The Council shall adopt rules necessary for the
implementation and collection of insurance account premiums
prior to offering insurance to an owner or operator of a
drycleaning facility or other person.
(e) The Council shall adopt rules prescribing
requirements for the retention of records by an owner or
operator and the periods for which he or she must retain
those records.
(f) The Council shall adopt rules describing the manner
in which all disbursed moneys received from the Agency shall
be deposited with a bank or savings and loan association to
be approved by the Council. For purposes of this subsection,
the Council shall be considered a public agency and,
therefore, no bank or savings and loan association shall
receive public funds from the Council, and the Council shall
not make any investments, unless in accordance with the
Public Funds Investment Act.
(g) All final Council decisions regarding the Fund or
any reimbursement from the Fund and any decision concerning
the classification of drycleaning solvents pursuant to
subsection (a) of Section 65 of this Act shall be subject to
appeal by the affected parties. The Council shall determine
by rule persons who have standing to appeal final Council
decisions. All appeals of final Council decisions shall be
presented to and reviewed by the Council's administrative
hearing officer. An appeal of the administrative hearing
officer's decision will be subject to judicial review in
accordance with the Administrative Review Law.
The Council shall adopt rules relating to appeal
procedures that shall require the Council to deliver notice
of appeal to the affected parties within 30 days of receipt
of notice, require that the hearing be held within 180 days
of the filing of the petition unless good cause is shown for
the delay, and require that a final decision be issued no
later than 120 days following the close of the hearing. The
time restrictions in this subsection may be waived by mutual
agreement of the parties.
Section 25. Powers and duties of the Council.
(a) The Council shall have all of the general powers
reasonably necessary and convenient to carry out its purposes
and may perform the following functions, subject to any
express limitations contained in this Act:
(1) Take actions and enter into agreements
necessary to reimburse claimants for eligible remedial
action expenses, assist the Agency to protect the
environment from releases, reduce costs associated with
remedial actions, and establish and implement an
insurance program.
(2) Acquire and hold personal property to be used
for the purpose of remedial action.
(3) Purchase, construct, improve, furnish, equip,
lease, option, sell, exchange, or otherwise dispose of
one or more improvements under the terms it determines.
The Council may define "improvements" by rule for
purposes of this Act.
(4) Grant a lien, pledge, assignment, or other
encumbrance on one or more revenues, assets of right,
accounts, or funds established or received in connection
with the Fund, including revenues derived from fees or
taxes collected under this Act.
(5) Contract for the acquisition or construction of
one or more improvements or parts of one or more
improvements or for the leasing, subleasing, sale, or
other disposition of one or more improvements in a manner
the Council determines.
(6) Cooperate with the Agency in the implementation
and administration of this Act to minimize unnecessary
duplication of effort, reporting, or paperwork and to
maximize environmental protection within the funding
limits of this Act.
(7) Except as otherwise provided by law, inspect
any document in the possession of an owner, operator,
service provider, or any other person if the document is
relevant to a claim for reimbursement under this Section
or may inspect a drycleaning facility for which a claim
for benefits under this Act has been submitted.
(b) The Council shall pre-approve, and the contracting
parties shall seek pre-approval for, a contract entered into
under this Act if the cost of the contract exceeds $75,000.
The Council or its designee shall review and approve or
disapprove all contracts entered into under this Act.
However, review by the Council or its designee shall not be
required when an emergency situation exists. All contracts
entered into by the Council shall be awarded on a
competitive basis to the maximum extent practical. In those
situations where it is determined that bidding is not
practical, the basis for the determination of
impracticability shall be documented by the Council or its
designee.
(c) The Council may prioritize the expenditure of funds
from the remedial action account whenever it determines that
there are not sufficient funds to settle all current claims.
In prioritizing, the Council may consider the following:
(1) the degree to which human health is affected by
the exposure posed by the release;
(2) the reduction of risk to human health derived
from remedial action compared to the cost of the
remedial action;
(3) the present and planned uses of the impacted
property; and
(4) other factors as determined by the Council.
Section 30. Independent contractors retained by Council.
(a) A contract entered into to retain a person to act as
the administrator of the Fund shall be subject to public bid.
The Council may enter into a contract or an agreement
authorized under this Act with a person, the Agency, the
Department of Revenue, other departments, agencies, or
governmental subdivisions of this State, another state, or
the United States, in connection with its administration and
implementation of this Act.
(b) The Council may reimburse a public or private
contractor retained pursuant to this Section for expenses
incurred in the execution of a contract or agreement.
Reimbursable expenses include the costs of performing duties
or powers specifically delegated by the Council.
Section 35. Illinois Insurance Code exemptions. The Fund,
including but not limited to insurance coverage offered under
the insurance account, is not subject to the provisions of
the Illinois Insurance Code. Notwithstanding any other
provision of law, the Fund shall not be considered an
insurance company or an insurer under the laws of this State
and shall not be a member of nor be entitled to a claim
against the Illinois Insurance Guaranty Fund.
Section 40. Remedial action account.
(a) The remedial action account is established to
provide reimbursement to eligible claimants for drycleaning
solvent investigation, remedial action planning, and remedial
action activities for existing drycleaning solvent
contamination discovered at their drycleaning facilities.
(b) The following persons are eligible for reimbursement
from the remedial action account:
(1) In the case of claimant who is the owner or
operator of an active drycleaning facility licensed by
the Council under this Act at the time of application for
remedial action benefits afforded under the Fund, the
claimant is only eligible for reimbursement of remedial
action costs incurred in connection with a release from
that drycleaning facility, subject to any other
limitations under this Act.
(2) In the case of a claimant who is the owner of
an inactive drycleaning facility and was the owner or
operator of the drycleaning facility when it was an
active drycleaning facility, the claimant is only
eligible for reimbursement of remedial action costs
incurred in connection with a release from the
drycleaning facility, subject to any other limitations
under this Act.
(c) An eligible claimant requesting reimbursement from
the remedial action account shall meet all of the following:
(1) The claimant demonstrates that the source of
the release is from the claimant's drycleaning facility.
(2) At the time the release was discovered by the
claimant, the claimant and the drycleaning facility were
in compliance with the Agency reporting and technical
operating requirements.
(3) The claimant reported the release in a timely
manner to the Agency in accordance with State law.
(4) The claimant applying for reimbursement has not
filed for bankruptcy on or after the date of his or her
discovery of the release.
(5) If the claimant is the owner or operator of an
active drycleaning facility, the claimant has provided to
the Council proof of implementation and maintenance of
the following pollution prevention measures:
(A) That all drycleaning solvent wastes
generated at a drycleaning facility be managed in
accordance with applicable State waste management
laws and rules.
(B) A prohibition on the discharge of
wastewater from drycleaning machines or of
drycleaning solvent from drycleaning operations to a
sanitary sewer or septic tank or to the surface or
in groundwater.
(C) That every drycleaning facility:
(I) install a containment dike or other
containment structure around each machine or
item of equipment or the entire drycleaning
area in which any drycleaning solvent is
utilized, which shall be capable of containing
any leak, spill, or release of drycleaning
solvent from that machine, item, or area; and
(II) seal or otherwise render impervious
those portions of diked floor surfaces on which
a drycleaning solvent may leak, spill, or
otherwise be released.
(D) A requirement that all drycleaning solvent
shall be delivered to drycleaning facilities by
means of closed, direct-coupled delivery systems.
(6) An active drycleaning facility has maintained
continuous financial assurance for environmental
liability coverage in the amount of at least $500,000 at
least since the date of award of benefits under this
Section or July 1, 1998, whichever is earlier.
(7) The release was discovered on or after July 1,
1997 and before July 1, 2002.
(d) A claimant shall submit a completed application form
provided by the Council. The application shall contain
documentation of activities, plans, and expenditures
associated with the eligible costs incurred in response to a
release of drycleaning solvent from a drycleaning facility.
Application for remedial action account benefits must be
submitted to the Council on or before June 30, 2002.
(e) Claimants shall be subject to the following
deductible requirements, unless modified pursuant to the
Council's authority under Section 75:
(1) An eligible claimant submitting a claim for an
active drycleaning facility is responsible for the first
$5,000 of eligible investigation costs and for the first
$10,000 of eligible remedial action costs incurred in
connection with the release from the drycleaning facility
and is only eligible for reimbursement for costs that
exceed those amounts, subject to any other limitations of
this Act.
(2) An eligible claimant submitting a claim for an
inactive drycleaning facility is responsible for the
first $10,000 of eligible investigation costs and for the
first $10,000 of eligible remedial action costs incurred
in connection with the release from that drycleaning
facility, and is only eligible for reimbursement for
costs that exceed those amounts, subject to any other
limitations of this Act.
(f) Claimants are subject to the following limitations
on reimbursement:
(1) Subsequent to meeting the deductible
requirements of subsection (e), and pursuant to the
requirements of Section 75, reimbursement shall not
exceed:
(A) $160,000 per active drycleaning facility
for which an eligible claim is submitted during the
initial program year;
(B) $150,000 per active drycleaning facility
for which an eligible claim is submitted during the
program year beginning July 1, 1998;
(C) $140,000 per active drycleaning facility
for which an eligible claim is submitted during the
program year beginning July 1, 1999;
(D) $130,000 per active drycleaning facility
for which an eligible claim is submitted during the
program year beginning July 1, 2000;
(E) $120,000 per active drycleaning facility
for which an eligible claim is submitted during the
program year beginning July 1, 2001; or
(F) $50,000 per inactive drycleaning facility.
(2) A contract in which one of the parties to the
contract is a claimant, for goods or services that may be
payable or reimbursable from the Council, is void and
unenforceable unless and until the Council has found that
the contract terms are within the range of usual and
customary rates for similar or equivalent goods or
services within this State and has found that the goods
or services are necessary for the claimant to comply with
Council standards or other applicable regulatory
standards.
(3) A claimant may appoint the Council as an agent
for the purposes of negotiating contracts with suppliers
of goods or services reimbursable by the Fund. The
Council may select another contractor for goods or
services other than the one offered by the claimant if
the scope of the proposed work or actual work of the
claimant's offered contractor does not reflect the
quality of workmanship required or if the costs are
determined to be excessive, as determined by the Council.
(4) The Council may require a claimant to obtain
and submit 3 bids and may require specific terms and
conditions in a contract subject to approval.
(5) The Council may enter into a contract or an
exclusive contract with the supplier of goods or services
required by a claimant or class of claimants, in
connection with an expense reimbursable from the Fund,
for a specified good or service at a gross maximum price
or fixed rate, and may limit reimbursement accordingly.
(6) Unless emergency conditions exist, a service
provider shall obtain the Council's approval of the
budget for the remediation work before commencing the
work. No expense incurred that is above the budgeted
amount shall be paid unless the Council approves the
expense prior to its being incurred. All invoices and
bills relating to the remediation work shall be submitted
with appropriate documentation, as deemed necessary by
the Council, not later than 30 days after the work has
been performed.
(7) Neither the Council nor an eligible claimant is
responsible for payment for costs incurred that have not
been previously approved by the Council, unless an
emergency exists.
(8) The Council may determine the usual and
customary costs of each item for which reimbursement may
be awarded under this Section. The Council may revise the
usual and customary costs from time to time as necessary,
but costs submitted for reimbursement shall be subject to
the rates in effect at the time the costs were incurred.
(9) If a claimant has pollution liability insurance
coverage other than coverage provided by the insurance
account under this Act, that coverage shall be primary.
Reimbursement from the remedial account shall be limited
to the deductible amounts under the primary coverage and
the amount that exceeds the policy limits of the primary
coverage, subject to the deductible amounts of this Act.
If there is a dispute between the claimant and the
primary insurance provider, reimbursement from the
remedial action account may be made to the claimant after
the claimant assigns all of his or her interests in the
insurance coverage to the Council.
(g) The source of funds for the remedial action account
shall be moneys allocated to the account by the Council
according to the Fund budget approved by the Council.
(h) A drycleaning facility will be classified as active
or inactive for purposes of determining benefits under this
Section based on the status of the facility on the date a
claim is filed.
(i) Eligible claimants shall conduct remedial action in
accordance with the Site Remediation Program under the
Environmental Protection Act and Part 740 of Title 35 of the
Illinois Administrative Code and the Tiered Approach to
Cleanup Objectives under Part 742 of Title 35 of the Illinois
Administrative Code.
Section 45. Insurance account.
(a) The insurance account shall offer financial
assurance for a qualified owner or operator of a drycleaning
facility under the terms and conditions provided for under
this Section. Coverage may be provided to either the owner or
the operator of a drycleaning facility. The Council is not
required to resolve whether the owner or operator, or both,
are responsible for a release under the terms of an agreement
between the owner and operator.
(b) The source of funds for the insurance account shall
be as follows:
(1) Moneys appropriated to the Council or moneys
allocated to the insurance account by the Council
according to the Fund budget approved by the Council.
(2) Moneys collected as an insurance premium,
including service fees, if any.
(3) Investment income attributed to the insurance
account by the Council.
(c) An owner or operator may purchase coverage of up to
$500,000 per drycleaning facility subject to the terms and
conditions under this Section and those adopted by the
Council. Coverage shall be limited to remedial action costs
associated with soil and groundwater contamination resulting
from a release of drycleaning solvent at an insured
drycleaning facility, including third-party liability for
soil and groundwater contamination. Coverage is not provided
for a release that occurred before the date of coverage.
(d) An owner or operator, subject to underwriting
requirements and terms and conditions deemed necessary and
convenient by the Council, may purchase insurance coverage
from the insurance account provided that the drycleaning
facility to be insured meets the following conditions:
(1) a site investigation designed to identify soil
and groundwater contamination resulting from the release
of a drycleaning solvent has been completed. The Council
shall determine if the site investigation is adequate.
This investigation must be completed by June 30, 2002.
For drycleaning facilities that become active after June
30, 2002, the site investigation must be completed prior
to issuance of insurance coverage; and
(2) the drycleaning facility is participating in
and meets all requirements of a drycleaning compliance
program approved by the Council.
(e) The annual premium for insurance coverage shall be:
(1) For the initial program year, $250 per
drycleaning facility.
(2) For the year July 1, 1998 through June 30,
1999, $375 per drycleaning facility.
(3) For the year July 1, 1999 through June 30,
2000, $500 per drycleaning facility.
(4) For the year July 1, 2000 through June 30,
2001, $625 per drycleaning facility.
(5) For subsequent years, an owner or operator
applying for coverage shall pay an annual
actuarially-sound insurance premium for coverage by the
insurance account. The Council may approve Fund coverage
through the payment of a premium established on an
actuarially-sound basis, taking into consideration the
risk to the insurance account presented by the insured.
Risk factor adjustments utilized to determine
actuarially-sound insurance premiums should reflect the
range of risk presented by the variety of drycleaning
systems, monitoring systems, drycleaning volume, risk
management practices, and other factors as determined by
the Council. As used in this item, "actuarially sound" is
not limited to Fund premium revenue equaling or exceeding
Fund expenditures for the general drycleaning facility
population. Actuarially-determined premiums shall be
published at least 180 days prior to the premiums
becoming effective.
(f) If coverage is purchased for any part of a year, the
purchaser shall pay the full annual premium. The insurance
premium is fully earned upon issuance of the insurance
policy.
(g) The insurance coverage shall be provided with a
$10,000 deductible policy.
(h) A future repeal of this Section shall not terminate
the obligations under this Section or authority necessary to
administer the obligations until the obligations are
satisfied, including but not limited to the payment of claims
filed prior to the effective date of any future repeal
against the insurance account until moneys in the account are
exhausted. Upon exhaustion of the moneys in the account, any
remaining claims shall be invalid. If moneys remain in the
account following satisfaction of the obligations under this
Section, the remaining moneys and moneys due the account
shall be used to assist current insureds to obtain a viable
insuring mechanism as determined by the Council after public
notice and opportunity for comment.
Section 50. Cost recovery; enforcement.
(a) The Council may seek recovery from a potentially
responsible party liable for a release that is the subject of
a remedial action and for which the Fund has expended moneys
for remedial action. The amount of recovery sought by the
Council shall be equal to all moneys expended by the Fund for
and in connection with the remediation, including but not
limited to reasonable attorneys fees and costs of litigation
expended by the Fund in connection with the release.
(b) Except as provided in subsections (c) and (d):
(1) The Council shall not seek recovery for
expenses in connection with remedial action for a release
from a claimant eligible for reimbursement except for any
unpaid portion of the deductible.
(2) A claimant's liability for a release for which
coverage is admitted under the insurance account shall
not exceed the amount of the deductible, subject to the
limits of insurance coverage.
(c) Notwithstanding subsection (b), the liability of a
claimant to the Fund shall be the total costs of remedial
action incurred by the Fund, as specified in subsection (a),
if the claimant has not complied with the Environmental
Protection Act and its rules or with this Act and its rules.
(d) Notwithstanding subsection (b), the liability of a
claimant to the Fund shall be the total costs of remedial
action incurred by the Fund, as specified in subsection (a),
if the claimant received reimbursement from the Fund through
misrepresentation or fraud, and the claimant shall be liable
for the amount of the reimbursement.
(e) Upon reimbursement by the Fund for remedial action
under this Act, the rights of the claimant to recover payment
from a potentially responsible party are assumed by the
Council to the extent the remedial action was paid by the
Fund. A claimant is precluded from receiving double
compensation for the same injury. A claimant may elect to
permit the Council to pursue the claimant's cause of action
for an injury not compensated by the Fund against a
potentially responsible party, provided the Attorney General
or his or her designee determines the representation would
not be a conflict of interest.
(f) This Section does not preclude, limit, or in any way
affect any of the provisions of or causes of action pursuant
to Section 22.2 of the Environmental Protection Act.
Section 55. Limitation on actions; admissions.
(a) An award or reimbursement made by the Council under
this Act shall be the claimant's exclusive method for the
recovery of the costs of drycleaning facility remediation.
(b) If a person conducts a remedial action activity for
a release at a drycleaning facility site, whether or not the
person files a claim under this Act, the claim and remedial
action activity conducted are not evidence of liability or
an admission of liability for any potential or actual
environmental pollution or damage.
Section 60. Drycleaning facility license.
(a) On and after January 1, 1998, no person shall
operate a drycleaning facility in this State without a
license issued by the Council.
(b) The Council shall issue an initial or renewal
license to a drycleaning facility on submission by an
applicant of a completed form prescribed by the Council and
proof of payment of the required fee to the Department of
Revenue.
(c) The annual fees for licensure are as follows:
(1) $500 for a facility that purchases 140 gallons
or less of chlorine-based drycleaning solvents annually
or 1400 gallons or less of hydrocarbon-based drycleaning
solvents annually.
(2) $1,000 for a facility that purchases more than
140 gallons but less than 360 gallons of chlorine-based
drycleaning solvents annually or more than 1400 gallons
but less than 3600 gallons of hydrocarbon-based
drycleaning solvents annually.
(3) $1,500 for a facility that purchases 360
gallons or more of chlorine-based drycleaning solvents
annually or 3600 gallons or more of hydrocarbon-based
drycleaning solvents annually.
For purpose of this subsection, the quantity of
drycleaning solvents purchased annually shall be determined
as follows:
(1) in the case of an initial applicant, the
quantity of drycleaning solvents that the applicant
estimates will be used during his or her initial license
year. A fee assessed under this subdivision is subject to
audited adjustment for that year; or
(2) in the case of a renewal applicant, the
quantity of drycleaning solvents actually used in the
preceding license year.
The Council may adjust licensing fees annually based on
the published Consumer Price Index - All Urban Consumers
("CPI-U") or as otherwise determined by the Council.
(d) A license issued under this Section shall expire one
year after the date of issuance and may be renewed on
reapplication to the Council and submission of proof of
payment of the appropriate fee to the Department of Revenue
in accordance with subsections (c) and (e). At least 30 days
before payment of a renewal licensing fee is due, the Council
shall attempt to:
(1) notify the operator of each licensed
drycleaning facility concerning the requirements of this
Section; and
(2) submit a license fee payment form to the
licensed operator of each drycleaning facility.
(e) An operator of a drycleaning facility shall submit
the appropriate application form provided by the Council with
the license fee in the form of cash or guaranteed remittance
to the Department of Revenue. The license fee payment form
and the actual license fee payment shall be administered by
the Department of Revenue under rules adopted by that
Department.
(f) The Department of Revenue shall issue a proof of
payment receipt to each operator of a drycleaning facility
who has paid the appropriate fee in cash or by guaranteed
remittance. However, the Department of Revenue shall not
issue a proof of payment receipt to a drycleaning facility
that is liable to the Department of Revenue for a tax imposed
under this Act. The original receipt shall be presented to
the Council by the operator of a drycleaning facility.
(g) An operator of a dry cleaning facility who is
required to pay a license fee under this Act and fails to pay
the license fee when the fee is due shall be assessed a
penalty of $5 for each day after the license fee is due and
until the license fee is paid.
(h) The Council and the Department of Revenue may adopt
rules as necessary to administer the licensing requirements
of this Act.
Section 65. Drycleaning solvent tax.
(a) On and after January 1, 1998, a tax is imposed upon
the use of drycleaning solvent by a person engaged in the
business of operating a drycleaning facility in this State at
the rate of $3.50 per gallon of perchloroethylene or other
chlorinated drycleaning solvents used in drycleaning
operations and $0.35 per gallon of petroleum-based
drycleaning solvent. The Council shall determine by rule
which products are chlorine-based solvents and which
products are petroleum-based solvents. All drycleaning
solvents shall be considered chlorinated solvents unless the
Council determines that the solvents are petroleum-based
drycleaning solvents subject to the lower tax.
(b) The tax imposed by this Act shall be collected from
the purchaser at the time of sale by a seller of drycleaning
solvents maintaining a place of business in this State and
shall be remitted to the Department of Revenue under the
provisions of this Act.
(c) The tax imposed by this Act that is not collected by
a seller of drycleaning solvents shall be paid directly to
the Department of Revenue by the purchaser or end user who is
subject to the tax imposed by this Act.
(d) No tax shall be imposed upon the use of drycleaning
solvent if the drycleaning solvent will not be used in a
drycleaning facility or if a floor stock tax has been imposed
and paid on the drycleaning solvent. Prior to the purchase
of the solvent, the purchaser shall provide a written and
signed certificate to the drycleaning solvent seller stating:
(1) the name and address of the purchaser;
(2) the purchaser's signature and date of signing;
and
(3) one of the following:
(A) that the drycleaning solvent will not be
used in a drycleaning facility; or
(B) that a floor stock tax has been imposed
and paid on the drycleaning solvent.
A person who provides a false certification under this
subsection shall be liable for a civil penalty not to exceed
$500 for a first violation and a civil penalty not to exceed
$5,000 for a second or subsequent violation.
(e) On January 1, 1998, there is imposed on each
operator of a drycleaning facility a tax on drycleaning
solvent held by the operator on that date for use in a
drycleaning facility. The tax imposed shall be the tax that
would have been imposed under subsection (a) if the
drycleaning solvent held by the operator on that date had
been purchased by the operator during the first year of this
Act.
(f) On or before the 25th day of the 1st month following
the end of the calendar quarter, a seller of drycleaning
solvents who has collected a tax pursuant to this Section
during the previous calendar quarter, or a purchaser or end
user of drycleaning solvents required under subsection (c) to
submit the tax directly to the Department, shall file a
return with the Department of Revenue. The return shall be
filed on a form prescribed by the Department of Revenue and
shall contain information that the Department of Revenue
reasonably requires. Each seller of drycleaning solvent
maintaining a place of business in this State who is required
or authorized to collect the tax imposed by this Act shall
pay to the Department the amount of the tax at the time when
he or she is required to file his or her return for the
period during which the tax was collected. Purchasers or end
users remitting the tax directly to the Department under
subsection (c) shall file a return with the Department of
Revenue and pay the tax so incurred by the purchaser or end
user during the preceding calendar quarter.
(g) The tax on drycleaning solvents used in drycleaning
facilities and the floor stock tax shall be administered by
Department of Revenue under rules adopted by that Department.
(h) On and after January 1, 1998, no person shall
knowingly sell or transfer drycleaning solvent to an operator
of a drycleaning facility that is not licensed by the Council
under Section 60. A person who violates this subsection is
liable for a civil penalty not to exceed $500 for a first
violation and a civil penalty not to exceed $5,000 for a
second or subsequent violation.
(i) The Department of Revenue may adopt rules as
necessary to implement this Section.
Section 67. Certification of registration. On and after
January 1, 1998, no person shall engage in the business of
selling drycleaning solvents in this State without a
certificate of registration issued by the Department of
Revenue. A person, officer or director of a corporation,
partner or member of a partnership, or manager or member of a
limited liability company who engages in the business of
selling drycleaning solvents in this State without a
certificate of registration issued by the Department of
Revenue is guilty of a Class A misdemeanor. A person,
manager or member of a limited liability company, officer or
director of a corporation, or partner or member of a
partnership who engages in the business of selling
drycleaning solvents in this State after the certificate of
registration has been revoked is guilty of a Class A
misdemeanor. Each day that the person, officer or director
of the corporation, manager or member of the limited
liability company, or partner or member of the partnership is
engaged in business without a certificate of registration, or
after the certification of registration has been revoked,
constitutes a separate offense.
A purchaser who obtains a registration number or resale
number from the Department of Revenue through
misrepresentation, who represents to a seller that the
purchaser has a registration number or a resale number from
the Department of Revenue when he or she knows that he or she
does not have the number, or who knowingly uses his or her
registration number or resale number to make a seller believe
that he or she is buying drycleaning solvents for resale when
the purchaser in fact knows that is not the purpose of the
purchase, is guilty of a Class 4 felony.
Section 68. Incorporation by reference. All of the
provisions of Sections 2a and 2b of the Retailers' Occupation
Tax Act shall apply to persons in the business of selling
drycleaning solvents in this State to the same extent as if
those Sections were included in this Act. All of the
provisions of Section 4 (except that the time limitation
provision shall run from the date when the tax is due rather
than from the date when gross receipts are received), Section
5 (except that the time limitation provisions on the issuance
of notices of tax liability shall run from the date when the
tax is due rather than from the date when gross receipts are
received), 5a, 5b, 5c, 5e, 5f, 5g, 5i, 5j, 6, 6a, 6b, 6c, 7,
8, 9, 10, 11, 11a, and 12 of the Retailers' Occupation Tax
Act, Sections 3-45, 9, and 10 of the Use Tax Act, and all
applicable provisions of the Uniform Penalty and Interest Act
that are not inconsistent with the Act, shall apply to
sellers of drycleaning solvents and operators of drycleaning
facilities to the same extent as if those provisions were
included in this Act. Reference in the incorporated Sections
of the Retailers' Occupation Tax Act to retailers, sellers,
or persons engaged in the business of selling tangible
personal property shall mean sellers of drycleaning solvents
when used in this Act. Reference in the incorporated
Sections to sales of tangible personal property shall mean
sales of drycleaning solvents when used in this Act.
Section 70. Deposit of fees and taxes. All license fees
and taxes collected by the Department of Revenue under this
Act shall be deposited into the Fund, less 4% of the moneys
collected which shall be deposited by the State Treasurer
into the Tax Compliance and Administration Fund and shall be
used, subject to appropriation, by the Department of Revenue
to cover the costs of the Department in collecting the
license fees and taxes under this Act, and less an amount
sufficient to provide refunds under this Act.
Section 75. Adjustment of fees and taxes. Beginning
January 1, 1999, and annually after that date, the Council
shall adjust the copayment obligation of subsection (e) of
Section 40, the drycleaning solvent taxes of Section 65, the
license fees of Section 60, or any combination of adjustment
of each, after notice and opportunity for public comment, in
a manner determined necessary and appropriate to ensure
viability of the Fund. Viability of the Fund shall consider
the settlement of all current claims subject to
prioritization of benefits under subsection (c) of Section
25, consistent with the purposes of this Act.
Section 80. Audits and reports.
(a) The accounts, books, and other financial records of
the Council, including but not limited to its receipts,
disbursements, contracts, and other matters relating to its
finance, operation, and affairs, shall be examined and
audited annually by the Auditor General in accordance with
the audit standards under the Illinois State Auditing Act.
This audit shall be provided to the Agency for review.
(b) Upon request by the Auditor General, the Agency
shall retain a firm of certified public accountants to
examine and audit the Council as described in subsection (a)
on behalf of the Auditor General.
(c) The accounts, books, and other financial records of
the Council shall be maintained in accordance with the State
Records Act and accepted accounting practices established by
the State.
Section 85. Repeal of fee and tax provisions. Sections 60
and 65 of this Act are repealed on July 1, 2007.
Section 150. The State Finance Act is amended by adding
Section 5.449 as follows:
(30 ILCS 105/5.449 new)
Sec. 5.449. The Drycleaner Environmental Response Trust
Fund.
Section 200. The Illinois Insurance Code is amended by
adding Section 2.5 as follows:
(215 ILCS 5/2.5 new)
Sec. 2.5. Exemption. This Code shall not be construed to
apply to the administration of the Drycleaner Environmental
Response Trust Fund under the Drycleaner Environmental
Response Trust Fund Act.
Section 250. The Environmental Protection Act is amended
by changing Sections 3.45, 22.23a, and 44 and adding Section
22.48 as follows:
(415 ILCS 5/3.45) (from Ch. 111 1/2, par. 1003.45)
Sec. 3.45. Special waste. "Special waste" means any of
the following:
(a) potentially infectious medical waste;
(b) hazardous waste, as determined in conformance with
RCRA hazardous waste determination requirements set forth in
Section 722.111 of Title 35 of the Illinois Administrative
Code, including a residue from burning or processing
hazardous waste in a boiler or industrial furnace unless the
residue has been tested in accordance with Section 726.212 of
Title 35 of the Illinois Administrative Code and proven to be
nonhazardous;
(c) industrial process waste or pollution control waste,
except:
(1) any such waste certified by its generator,
pursuant to Section 22.48 of this Act, not to be any of
the following:
(A) a liquid, as determined using the paint
filter test set forth in subdivision (3)(A) of
subsection (m) of Section 811.107 of Title 35 of the
Illinois Administrative Code;
(B) regulated asbestos-containing waste
materials, as defined under the National Emission
Standards for Hazardous Air Pollutants in 40 CFR
Section 61.141;
(C) polychlorinated biphenyls (PCB's)
regulated pursuant to 40 CFR Part 761;
(D) an industrial process waste or pollution
control waste subject to the waste analysis and
recordkeeping requirements of Section 728.107 of
Title 35 of the Illinois Administrative Code under
the land disposal restrictions of Part 728 of Title
35 of the Illinois Administrative Code; and
(E) a waste material generated by processing
recyclable metals by shredding and required to be
managed as a special waste under Section 22.29 of
this Act;
(2) any empty portable device or container,
including but not limited to a drum, in which a special
waste has been stored, transported, treated, disposed of,
or otherwise handled, provided that the generator has
certified that the device or container is empty and does
not contain a liquid, as determined pursuant to item (A)
of subdivision (1) of this subsection. For purposes of
this subdivision, "empty portable device or container"
means a device or container in which removal of special
waste, except for a residue that shall not exceed one
inch in thickness, has been accomplished by a practice
commonly employed to remove materials of that type. An
inner liner used to prevent contact between the special
waste and the container shall be removed and managed as a
special waste; or
(3) as may otherwise be determined under Section
22.9 of this Act. industrial process waste, pollution
control waste or hazardous waste, except as may be
determined pursuant to Section 22.9 of this Act.
"Special waste" also means any potentially infectious
medical waste.
"Special waste" does not mean fluorescent and high
intensity discharge lamps as defined in subsection (a) of
Section 22.23a 22.23a(a) of this Act, waste that is managed
in accordance with the universal waste requirements set forth
in Title 35 of the Illinois Administrative Code, Subtitle G,
Chapter I, Subchapter c, Part 733, or waste that is subject
to rules adopted pursuant to subsection (c)(2) of Section
22.23a of this Act.
(Source: P.A. 89-619, eff. 1-1-97.)
(415 ILCS 5/22.23a)
Sec. 22.23a. Fluorescent and high intensity discharge
lamps.
(a) As used in this Section, "fluorescent or high
intensity discharge lamp" means a lighting device that
contains mercury and generates light through the discharge of
electricity either directly or indirectly through a
fluorescent coating, including a mercury vapor, high pressure
sodium, or metal halide lamp containing mercury, lead, or
cadmium.
(b) No person may knowingly cause or allow the disposal
of any fluorescent or high intensity discharge lamp in any
municipal waste incinerator beginning July 1, 1997. This
Section does not apply to lamps generated by households.
(c) (1) Hazardous fluorescent and high intensity
discharge lamps are hereby designated as a category of
universal waste subject to the streamlined hazardous
waste rules set forth in Title 35 of the Illinois
Administrative Code, Subtitle G, Chapter I, Subchapter c,
Part 733 ("Part 733"). Within 60 days of the effective
date of this amendatory Act of 1997 the Agency shall
propose, and within 180 days of receipt of the Agency's
proposal the Board shall adopt, rules that reflect this
designation and that prescribe procedures and standards
for the management of hazardous fluorescent and high
intensity discharge lamps as universal waste. By December
31, 1997, the Board shall seek authorization from the
United States Environmental Protection Agency to include
hazardous fluorescent and high intensity discharge lamps
as a category of universal waste subject to the
streamlined hazardous waste regulations set forth in
Title 35 of the Illinois Administrative Code, Subtitle G,
Chapter I, Subchapter c, Part 733. If the United States
Environmental Protection Agency authorizes the addition,
within 180 days of that authorization, the Agency shall
propose and the Board shall amend its rules to designate
hazardous fluorescent and high intensity discharge lamps
as universal waste subject to the streamlined
regulations.
(2) If the United States Environmental Protection
Agency adopts streamlined hazardous waste regulations
pertaining to the management of fluorescent and high
intensity discharge lamps, or otherwise exempts those
lamps from regulation as hazardous waste before
authorization is provided under subsection (c)(1), as an
alternative to adopting a rule as provided for under
subsection (c)(1), the Board shall adopt an equivalent
rule in accordance with Section 7.2 of this Act within
180 days of adoption of the federal regulation. The
equivalent Board rule may serve as an alternative to the
rules adopted under subdivision (1) of this subsection.
(d) Until the Board adopts rules pursuant to subsection
(c), fluorescent and high intensity discharge lamps shall be
managed in accordance with existing laws and regulations or
under the following conditions:
(1) after being removed from service, the generator
stores the lamps in a safe manner that minimizes the
chance of breakage;
(2) no lamps are stored longer than 6 months from
the time they are removed from service;
(3) the generator delivers the lamps to a licensed
hauler that will deliver the lamps to a recycler; and
(4) the lamps are transported in a safe manner that
minimizes the chance of breakage.
(e) The Agency shall study the problem associated with
used fluorescent and high intensity discharge lamps that are
processed or disposed of as part of mixed solid waste, and
shall identify possible collection and recycling systems for
used fluorescent and high intensity discharge lamps. The
Agency shall report its findings to the General Assembly and
the Governor by January 1, 1998.
(Source: P.A. 89-619, eff. 1-1-97.)
(415 ILCS 5/22.48 new)
Sec. 22.48. Non-special waste certification; effect on
permit.
(a) An industrial process waste or pollution control
waste not within the exception set forth in subdivision (2)
of subsection (c) of Section 3.45 of this Act must be managed
as special waste unless the generator first certifies in a
signed, dated, written statement that the waste is outside
the scope of the categories listed in subdivision (1) of
subsection (c) of Section 3.45 of this Act.
(b) All information used to determine that the waste is
not a special waste shall be attached to the certification.
The information shall include but not be limited to:
(1) the means by which the generator has determined
that the waste is not a hazardous waste;
(2) the means by which the generator has determined
that the waste is not a liquid;
(3) if the waste undergoes testing, the analytic
results obtained from testing, signed and dated by the
person responsible for completing the analysis;
(4) if the waste does not undergo testing, an
explanation as to why no testing is needed;
(5) a description of the process generating the
waste; and
(6) relevant Material Data Safety Sheets.
(c) Certification made pursuant to this Section shall be
effective from the date signed until there is a change in the
generator, in the raw materials used, or in the process
generating the waste.
(d) Certification made pursuant to this Section, with
the requisite attachments, shall be maintained by the
certifying generator while effective and for at least 3 years
following a change in the generator, a change in the raw
materials used, or a change in or termination of the process
generating the waste. The generator shall provide a copy of
the certification, upon request by the Agency, the waste
hauler, or the operator of the facility receiving the waste
for storage, treatment, or disposal, to the party requesting
the copy. If the Agency believes that the waste that is the
subject of the certification has been inaccurately certified
to, the Agency may require the generator to analytically test
the waste for the constituent believed to be present and
provide the Agency with a copy of the analytic results.
(e) A person who knowingly and falsely certifies that a
waste is not special waste is subject to the penalties set
forth in subdivision (6) of subsection (h) of Section 44 of
this Act.
(f) To the extent that a term or condition of an
existing permit requires the permittee to manage as special
waste a material that is made a non-special waste under this
amendatory Act of 1997, that term or condition is hereby
superseded, and the permittee may manage that material as a
non-special waste, even if the material is identified in the
permit as part of a particular waste stream rather than
identified specifically as a special waste.
(415 ILCS 5/44) (from Ch. 111 1/2, par. 1044)
Sec. 44. Crimes; penalties.
(a) Except as otherwise provided in this Section, it
shall be a Class A misdemeanor to violate this Act or
regulations thereunder, or any permit or term or condition
thereof, or knowingly to submit any false information under
this Act or regulations adopted thereunder, or under any
permit or term or condition thereof. A court may, in addition
to any other penalty herein imposed, order a person convicted
of open dumping of construction debris under this Act to
perform community service for not less than 50 hours and not
more than 300 hours if community service is available in the
jurisdiction. It shall be the duty of all State and local
law-enforcement officers to enforce such Act and regulations,
and all such officers shall have authority to issue citations
for such violations.
(b) Calculated Criminal Disposal of Hazardous Waste.
(1) A person commits the offense of Calculated
Criminal Disposal of Hazardous Waste when, without lawful
justification, he knowingly disposes of hazardous waste
while knowing that he thereby places another person in
danger of great bodily harm or creates an immediate or
long-term danger to the public health or the environment.
(2) Calculated Criminal Disposal of Hazardous Waste
is a Class 2 felony. In addition to any other penalties
prescribed by law, a person convicted of the offense of
Calculated Criminal Disposal of Hazardous Waste is
subject to a fine not to exceed $500,000 for each day of
such offense.
(c) Criminal Disposal of Hazardous Waste.
(1) A person commits the offense of Criminal
Disposal of Hazardous Waste when, without lawful
justification, he knowingly disposes of hazardous waste.
(2) Criminal Disposal of Hazardous Waste is a Class
3 felony. In addition to any other penalties prescribed
by law, a person convicted of the offense of Criminal
Disposal of Hazardous Waste is subject to a fine not to
exceed $250,000 for each day of such offense.
(d) Unauthorized Use of Hazardous Waste.
(1) A person commits the offense of Unauthorized
Use of Hazardous Waste when he, being required to have a
permit or license under this Act or any other law
regulating the treatment, transportation, or storage of
hazardous waste, knowingly:
(A) treats, transports, or stores any
hazardous waste without such permit or license;
(B) treats, transports, or stores any
hazardous waste in violation of the terms and
conditions of such permit or license;
(C) transports any hazardous waste to a
facility which does not have a permit or license
required under this Act; or
(D) transports any hazardous waste without
having on his person such permit or license.
(2) A person who is convicted of a violation of
subdivision (1)(A), (1)(B) or (1)(C) of this subsection
is guilty of a Class 4 felony. A person who is convicted
of a violation of subdivision (1)(D) is guilty of a Class
A misdemeanor. In addition to any other penalties
prescribed by law, a person convicted of violating
subdivision (1)(A), (1)(B) or (1)(C) is subject to a fine
not to exceed $100,000 for each day of such violation,
and a person who is convicted of violating subdivision
(1)(D) is subject to a fine not to exceed $1,000.
(e) Unlawful Delivery of Hazardous Waste.
(1) Except as authorized by this Act or the federal
Resource Conservation and Recovery Act, and the
regulations promulgated thereunder, it is unlawful for
any person to knowingly deliver hazardous waste.
(2) Unlawful Delivery of Hazardous Waste is a Class
3 felony. In addition to any other penalties prescribed
by law, a person convicted of the offense of Unlawful
Delivery of Hazardous Waste is subject to a fine not to
exceed $250,000 for each such violation.
(3) For purposes of this Section, "deliver" or
"delivery" means the actual, constructive, or attempted
transfer of possession of hazardous waste, with or
without consideration, whether or not there is an agency
relationship.
(f) Reckless Disposal of Hazardous Waste.
(1) A person commits Reckless Disposal of Hazardous
Waste if he disposes of hazardous waste, and his acts
which cause the hazardous waste to be disposed of,
whether or not those acts are undertaken pursuant to or
under color of any permit or license, are performed with
a conscious disregard of a substantial and unjustifiable
risk that such disposing of hazardous waste is a gross
deviation from the standard of care which a reasonable
person would exercise in the situation.
(2) Reckless Disposal of Hazardous Waste is a Class
4 felony. In addition to any other penalties prescribed
by law, a person convicted of the offense of Reckless
Disposal of Hazardous Waste is subject to a fine not to
exceed $50,000 for each day of such offense.
(g) Concealment of Criminal Disposal of Hazardous Waste.
(1) A person commits the offense of Concealment of
Criminal Disposal of Hazardous Waste when he conceals,
without lawful justification, the disposal of hazardous
waste with the knowledge that such hazardous waste has
been disposed of in violation of this Act.
(2) Concealment of Criminal Disposal of a Hazardous
Waste is a Class 4 felony. In addition to any other
penalties prescribed by law, a person convicted of the
offense of Concealment of Criminal Disposal of Hazardous
Waste is subject to a fine not to exceed $50,000 for each
day of such offense.
(h) Violations; False Statements.
(1) Any person who knowingly makes a false material
statement in an application for a permit or license
required by this Act to treat, transport, store, or
dispose of hazardous waste commits the offense of perjury
and shall be subject to the penalties set forth in
Section 32-2 of the Criminal Code of 1961.
(2) Any person who knowingly makes a false material
statement or representation in any label, manifest,
record, report, permit or license, or other document
filed, maintained or used for the purpose of compliance
with this Act in connection with the generation,
disposal, treatment, storage, or transportation of
hazardous waste commits a Class 4 felony. A second or
any subsequent offense after conviction hereunder is a
Class 3 felony.
(3) Any person who knowingly destroys, alters or
conceals any record required to be made by this Act in
connection with the disposal, treatment, storage, or
transportation of hazardous waste, commits a Class 4
felony. A second or any subsequent offense after a
conviction hereunder is a Class 3 felony.
(4) Any person who knowingly makes a false material
statement or representation in any application, bill,
invoice, or other document filed, maintained, or used for
the purpose of receiving money from the Underground
Storage Tank Fund commits a Class 4 felony. A second or
any subsequent offense after conviction hereunder is a
Class 3 felony.
(5) Any person who knowingly destroys, alters, or
conceals any record required to be made or maintained by
this Act or required to be made or maintained by Board or
Agency rules for the purpose of receiving money from the
Underground Storage Tank Fund commits a Class 4 felony. A
second or any subsequent offense after a conviction
hereunder is a Class 3 felony.
(6) A person who knowingly and falsely certifies
under Section 22.48 that an industrial process waste or
pollution control waste is not special waste commits a
Class 4 felony for a first offense and commits a Class 3
felony for a second or subsequent offense.
(7) In addition to any other penalties prescribed
by law, a person convicted of violating this subsection
(h) is subject to a fine not to exceed $50,000 for each
day of such violation.
(i) Verification.
(1) Each application for a permit or license to
dispose of, transport, treat, store or generate hazardous
waste under this Act shall contain an affirmation that
the facts are true and are made under penalty of perjury
as defined in Section 32-2 of the Criminal Code of 1961.
It is perjury for a person to sign any such application
for a permit or license which contains a false material
statement, which he does not believe to be true.
(2) Each request for money from the Underground
Storage Tank Fund shall contain an affirmation that the
facts are true and are made under penalty of perjury as
defined in Section 32-2 of the Criminal Code of 1961. It
is perjury for a person to sign any request that contains
a false material statement that he does not believe to be
true.
(j) Violations of Other Provisions.
(1) It is unlawful for a person knowingly to
violate:
(A) subsection (f) of Section 12 of this Act;
(B) subsection (g) of Section 12 of this Act;
(C) any term or condition of any Underground
Injection Control (UIC) permit;
(D) any filing requirement, regulation, or
order relating to the State Underground Injection
Control (UIC) program;
(E) any provision of any regulation, standard,
or filing requirement under subsection (b) of
Section 13 of this Act;
(F) any provision of any regulation, standard,
or filing requirement under subsection (b) of
Section 39 of this Act;
(G) any National Pollutant Discharge
Elimination System (NPDES) permit issued under this
Act or any term or condition of such permit;
(H) subsection (h) of Section 12 of this Act;
(I) subsection 6 of Section 39.5 of this Act;
or
(J) any provision of any regulation, standard
or filing requirement under Section 39.5 of this
Act; or.
(K) a provision of the Procedures for Asbestos
Emission Control in subsection (c) of Section 61.145
of Title 40 of the Code of Federal Regulations.
(2) A person convicted of a violation of
subdivision (1) of this subsection commits a Class 4
felony, and in addition to any other penalty prescribed
by law is subject to a fine not to exceed $25,000 for
each day of such violation.
(3) A person who negligently violates the following
shall be subject to a fine not to exceed $10,000 for each
day of such violation:
(A) subsection (f) of Section 12 of this Act;
(B) subsection (g) of Section 12 of this Act;
(C) any provision of any regulation, standard,
or filing requirement under subsection (b) of
Section 13 of this Act;
(D) any provision of any regulation, standard,
or filing requirement under subsection (b) of
Section 39 of this Act;
(E) any National Pollutant Discharge
Elimination System (NPDES) permit issued under this
Act;
(F) subsection 6 of Section 39.5 of this Act;
or
(G) any provision of any regulation, standard,
or filing requirement under Section 39.5 of this
Act.
(4) It is unlawful for a person knowingly to:
(A) make any false statement, representation,
or certification in an application form, or form
pertaining to, a National Pollutant Discharge
Elimination System (NPDES) permit;
(B) render inaccurate any monitoring device or
record required by the Agency or Board in connection
with any such permit or with any discharge which is
subject to the provisions of subsection (f) of
Section 12 of this Act;
(C) make any false statement, representation,
or certification in any form, notice or report
pertaining to a CAAPP permit under Section 39.5 of
this Act;
(D) render inaccurate any monitoring device or
record required by the Agency or Board in connection
with any CAAPP permit or with any emission which is
subject to the provisions of Section 39.5 of this
Act; or
(E) violate subsection 6 of Section 39.5 of
this Act or any CAAPP permit, or term or condition
thereof, or any fee or filing requirement.
(5) A person convicted of a violation of
subdivision (4) of this subsection commits a Class A
misdemeanor, and in addition to any other penalties
provided by law is subject to a fine not to exceed
$10,000 for each day of violation.
(k) Criminal operation of a hazardous waste or PCB
incinerator.
(1) A person commits the offense of criminal
operation of a hazardous waste or PCB incinerator when,
in the course of operating a hazardous waste or PCB
incinerator, he knowingly and without justification
operates the incinerator (i) without an Agency permit, or
in knowing violation of the terms of an Agency permit,
and (ii) as a result of such violation, knowingly places
any person in danger of great bodily harm or knowingly
creates an immediate or long term material danger to the
public health or the environment.
(2) Any person who commits the offense of criminal
operation of a hazardous waste or PCB incinerator for the
first time commits a Class 4 felony and, in addition to
any other penalties prescribed by law, shall be subject
to a fine not to exceed $100,000 for each day of the
offense.
Any person who commits the offense of criminal
operation of a hazardous waste or PCB incinerator for a
second or subsequent time commits a Class 3 felony and,
in addition to any other penalties prescribed by law,
shall be subject to a fine not to exceed $250,000 for
each day of the offense.
(3) For the purpose of this subsection (k), the
term "hazardous waste or PCB incinerator" means a
pollution control facility at which either hazardous
waste or PCBs, or both, are incinerated. "PCBs" means any
substance or mixture of substances that contains one or
more polychlorinated biphenyls in detectable amounts.
(l) It shall be the duty of all State and local law
enforcement officers to enforce this Act and the regulations
adopted hereunder, and all such officers shall have authority
to issue citations for such violations.
(m) Any action brought under this Section shall be
brought by the State's Attorney of the county in which the
violation occurred, or by the Attorney General, and shall be
conducted in accordance with the applicable provisions of the
Code of Criminal Procedure of 1963.
(n) For an offense described in this Section, the period
for commencing prosecution prescribed by the statute of
limitations shall not begin to run until the offense is
discovered by or reported to a State or local agency having
the authority to investigate violations of this Act.
(o) In addition to any other penalties provided under
this Act, if a person is convicted of (or agrees to a
settlement in an enforcement action over) illegal dumping of
waste on the person's own property, the Attorney General, the
Agency or local prosecuting authority shall file notice of
the conviction, finding or agreement in the office of the
Recorder in the county in which the landowner lives.
(p) Criminal Disposal of Waste.
(1) A person commits the offense of Criminal
Disposal of Waste when he or she:
(A) if required to have a permit under
subsection (d) of Section 21 of this Act, knowingly
conducts a waste-storage, waste-treatment, or
waste-disposal operation in a quantity that exceeds
250 cubic feet of waste without a permit; or
(B) knowingly conducts open dumping of waste
in violation of subsection (a) of Section 21 of this
Act.
(2) (A) A person who is convicted of a violation of
item (A) of subdivision (1) of this subsection is
guilty of a Class 4 felony for a first offense and,
in addition to any other penalties provided by law,
is subject to a fine not to exceed $25,000 for each
day of violation. A person who is convicted of a
violation of item (A) of subdivision (1) of this
subsection is guilty of a Class 3 felony for a
second or subsequent offense and, in addition to any
other penalties provided by law, is subject to a
fine not to exceed $50,000 for each day of
violation.
(B) A person who is convicted of a violation
of item (B) of subdivision (1) of this subsection is
guilty of a Class A misdemeanor. However, a person
who is convicted of a second or subsequent violation
of item (B) of subdivision (1) of this subsection
for the open dumping of waste in a quantity that
exceeds 250 cubic feet is guilty of a Class 4 felony
and, in addition to any other penalties provided by
law, is subject to a fine not to exceed $5,000 for
each day of violation.
(Source: P.A. 88-45; 88-668, eff. 9-16-94; 88-681, eff.
12-22-94; 88-690, eff. 1-24-95; 89-235, eff. 8-4-95.)
Section 999. Effective date. This Act takes effect upon
becoming law.