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Public Act 91-0453
HB2631 Enrolled LRB9104051ACtmA
AN ACT to amend the Drycleaner Environmental Response
Trust Fund Act.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Drycleaner Environmental Response Trust
Fund Act is amended by changing Sections 5, 10, 40, 45, 60,
75, 80, and 85 as follows:
(415 ILCS 135/5)
Sec. 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.
(Source: P.A. 90-502, eff. 8-19-97.)
(415 ILCS 135/10)
Sec. 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 as 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. After June 30, 1999, pursuant to appropriation,
all moneys in the Drycleaner Environmental Response Trust
Fund may be used by 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.
(Source: P.A. 90-502, eff. 8-19-97.)
(415 ILCS 135/40)
Sec. 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, 2000 1998, whichever is earlier.
(7) The release was discovered on or after July 1,
1997 and before July 1, 2004 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, 2004 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 beginning July 1, 1999;
(B) $150,000 per active drycleaning facility
for which an eligible claim is submitted during the
program year beginning July 1, 2000 1998;
(C) $140,000 per active drycleaning facility
for which an eligible claim is submitted during the
program year beginning July 1, 2001 1999;
(D) $130,000 per active drycleaning facility
for which an eligible claim is submitted during the
program year beginning July 1, 2002 2000;
(E) $120,000 per active drycleaning facility
for which an eligible claim is submitted during the
program year beginning July 1, 2003 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.
(Source: P.A. 90-502, eff. 8-19-97.)
(415 ILCS 135/45)
Sec. 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, 2004
2002. For drycleaning facilities that become active
after June 30, 2004 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 year July 1, 1999 through June 30, 2000
initial program year, $250 per drycleaning facility.
(2) For the year July 1, 2000 1998 through June 30,
2001 1999, $375 per drycleaning facility.
(3) For the year July 1, 2001 1999 through June 30,
2002 2000, $500 per drycleaning facility.
(4) For the year July 1, 2002 2000 through June 30,
2003 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.
(Source: P.A. 90-502, eff. 8-19-97.)
(415 ILCS 135/60)
(Section scheduled to be repealed on July 1, 2007)
Sec. 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. The penalty shall be effective
for license fees due on or after July 1, 1999.
(h) The Council and the Department of Revenue may adopt
rules as necessary to administer the licensing requirements
of this Act.
(Source: P.A. 90-502, eff. 8-19-97.)
(415 ILCS 135/75)
Sec. 75. Adjustment of fees and taxes. Beginning January
1, 2000 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.
(Source: P.A. 90-502, eff. 8-19-97.)
(415 ILCS 135/80)
Sec. 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 Council
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.
(Source: P.A. 90-502, eff. 8-19-97.)
(415 ILCS 135/85)
Sec. 85. Repeal of fee and tax provisions. Sections 60
and 65 of this Act are repealed on January 1, 2010 July1,
2007.
(Source: P.A. 90-502, eff. 8-19-97.)
Section 99. Effective date. This Act takes effect upon
becoming law.
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