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Public Act 92-0715
SB1803 Enrolled LRB9212754LBpr
AN ACT concerning environmental protection.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
(30 ILCS 105/5.545 rep.)
Section 5. The State Finance Act is amended by repealing
Section 5.545, as added by P.A. 92-486.
Section 10. The Environmental Protection Act is amended
by changing Sections 58.3, 58.13, and 58.15 as follows:
(415 ILCS 5/58.3)
Sec. 58.3. Site Investigation and Remedial Activities
Program; Brownfields Redevelopment Fund.
(a) The General Assembly hereby establishes by this
Title a Site Investigation and Remedial Activities Program
for sites subject to this Title. This program shall be
administered by the Illinois Environmental Protection Agency
under this Title XVII and rules adopted by the Illinois
Pollution Control Board.
(b) (1) The General Assembly hereby creates within the
State Treasury a special fund to be known as the
Brownfields Redevelopment Fund, consisting of 2 programs
to be known as the "Municipal Brownfields Redevelopment
Grant Program" and the "Brownfields Redevelopment Loan
Program", which shall be used and administered by the
Agency as provided in Sections 58.13 and 58.15 of this
Act and the rules adopted under those Sections. The
Brownfields Redevelopment Fund ("Fund") shall contain
moneys transferred from the Response Contractors
Indemnification Fund and other moneys made available for
deposit into the Fund.
(2) The State Treasurer, ex officio, shall be the
custodian of the Fund, and the Comptroller shall direct
payments from the Fund upon vouchers properly certified
by the Agency. The Treasurer shall credit to the Fund
interest earned on moneys contained in the Fund. The
Agency shall have the authority to accept, receive, and
administer on behalf of the State any grants, gifts,
loans, reimbursements or payments for services, or other
moneys made available to the State from any source for
purposes of the Fund. Those moneys shall be deposited
into the Fund, unless otherwise required by the
Environmental Protection Act or by federal law.
(3) Pursuant to appropriation, all moneys in the
Fund shall be used by the Agency for the purposes set
forth in subdivision (b)(4) of this Section and Sections
58.13 and 58.15 of this Act and to cover the Agency's
costs of program development and administration under
those Sections.
(4) The Agency shall have the power to enter into
intergovernmental agreements with the federal government
or the State, or any instrumentality thereof, for
purposes of capitalizing the Brownfields Redevelopment
Fund. Moneys on deposit in the Brownfields Redevelopment
Fund may be used for the creation of reserve funds or
pledged funds that secure the obligations of repayment of
loans made pursuant to Section 58.15 of this Act. For
the purpose of obtaining capital for deposit into the
Brownfields Redevelopment Fund, the Agency may also enter
into agreements with financial institutions and other
persons for the purpose of selling loans and developing a
secondary market for such loans. The Agency shall have
the power to create and establish such reserve funds and
accounts as may be necessary or desirable to accomplish
its purposes under this subsection and to allocate its
available moneys into such funds and accounts.
Investment earnings on moneys held in the Brownfields
Redevelopment Fund, including any reserve fund or pledged
fund, shall be deposited into the Brownfields
Redevelopment Fund.
(5) The Agency is authorized to administer funds
made available to the Agency under federal law, including
but not limited to the Small Business Liability and
Brownfields Revitilization Act of 2002, related to
brownfields cleanup and reuse in accordance with that law
and this Title.
(Source: P.A. 91-36, eff. 6-15-99; 92-486, eff. 1-1-02.)
(415 ILCS 5/58.13)
Sec. 58.13. Municipal Brownfields Redevelopment Grant
Program.
(a)(1) The Agency shall establish and administer a
program of grants, to be known as the Municipal
Brownfields Redevelopment Grant Program, to provide
municipalities in Illinois with financial assistance to
be used for coordination of activities related to
brownfields redevelopment, including but not limited to
identification of brownfields sites, site investigation
and determination of remediation objectives and related
plans and reports, and development of remedial action
plans, and but not including the implementation of
remedial action plans and remedial action completion
reports. The plans and reports shall be developed in
accordance with Title XVII of this Act.
(2) Grants shall be awarded on a competitive basis
subject to availability of funding. Criteria for
awarding grants shall include, but shall not be limited
to the following:
(A) problem statement and needs assessment;
(B) community-based planning and involvement;
(C) implementation planning; and
(D) long-term benefits and sustainability.
(3) The Agency may give weight to geographic
location to enhance geographic distribution of grants
across this State.
(4) Grants shall be limited to a maximum of
$240,000, and no municipality shall receive more than
this amount one grant under this Section.
(5) Grant amounts shall not exceed 70% of the
project amount, with the remainder to be provided by the
municipality as local matching funds.
(b) The Agency shall have the authority to enter into
any contracts or agreements that may be necessary to carry
out its duties or responsibilities under this Section. The
Agency shall have the authority to adopt rules setting forth
procedures and criteria for administering the Municipal
Brownfields Redevelopment Grant Program. The rules adopted
by the Agency may include but shall not be limited to the
following:
(1) purposes for which grants are available;
(2) application periods and content of
applications;
(3) procedures and criteria for Agency review of
grant applications, grant approvals and denials, and
grantee acceptance;
(4) grant payment schedules;
(5) grantee responsibilities for work schedules,
work plans, reports, and record keeping;
(6) evaluation of grantee performance, including
but not limited to auditing and access to sites and
records;
(7) requirements applicable to contracting and
subcontracting by the grantee;
(8) penalties for noncompliance with grant
requirements and conditions, including stop-work orders,
termination of grants, and recovery of grant funds;
(9) indemnification of this State and the Agency by
the grantee; and
(10) manner of compliance with the Local Government
Professional Services Selection Act.
(Source: P.A. 92-486, eff. 1-1-02.)
(415 ILCS 5/58.15)
Sec. 58.15. Brownfields Programs.
(A) Brownfields Redevelopment Loan Program.
(a) The Agency shall establish and administer a
revolving loan program to be known as the "Brownfields
Redevelopment Loan Program" for the purpose of providing
loans to be used for site investigation, site remediation, or
both, at brownfields sites. All principal, interest, and
penalty payments from loans made under this subsection (A)
Section shall be deposited into the Brownfields Redevelopment
Fund and reused in accordance with this Section.
(b) General requirements for loans:
(1) Loans shall be at or below market interest
rates in accordance with a formula set forth in
regulations promulgated under subdivision (A)(c)
subsection (c) of this subsection (A) Section.
(2) Loans shall be awarded subject to availability
of funding based on the order of receipt of applications
satisfying all requirements as set forth in the
regulations promulgated under subdivision (A)(c)
subsection (c) of this subsection (A) Section.
(3) The maximum loan amount under this subsection
(A) Section for any one project is $1,000,000.
(4) In addition to any requirements or conditions
placed on loans by regulation, loan agreements under the
Brownfields Redevelopment Loan Program shall include the
following requirements:
(A) the loan recipient shall secure the loan
repayment obligation;
(B) completion of the loan repayment shall not
exceed 15 5 years or as otherwise prescribed by
Agency rule; and
(C) loan agreements shall provide for a
confession of judgment by the loan recipient upon
default.
(5) Loans shall not be used to cover expenses
incurred prior to the approval of the loan application.
(6) If the loan recipient fails to make timely
payments or otherwise fails to meet its obligations as
provided in this subsection (A) Section or implementing
regulations, the Agency is authorized to pursue the
collection of the amounts past due, the outstanding loan
balance, and the costs thereby incurred, either pursuant
to the Illinois State Collection Act of 1986 or by any
other means provided by law, including the taking of
title, by foreclosure or otherwise, to any project or
other property pledged, mortgaged, encumbered, or
otherwise available as security or collateral.
(c) The Agency shall have the authority to enter into
any contracts or agreements that may be necessary to carry
out its duties or responsibilities under this subsection (A)
Section. The Agency shall have the authority to promulgate
regulations setting forth procedures and criteria for
administering the Brownfields Redevelopment Loan Program.
The regulations promulgated by the Agency for loans under
this subsection (A) Section shall include, but need not be
limited to, the following elements:
(1) loan application requirements;
(2) determination of credit worthiness of the loan
applicant;
(3) types of security required for the loan;
(4) types of collateral, as necessary, that can be
pledged for the loan;
(5) special loan terms, as necessary, for securing
the repayment of the loan;
(6) maximum loan amounts;
(7) purposes for which loans are available;
(8) application periods and content of
applications;
(9) procedures for Agency review of loan
applications, loan approvals or denials, and loan
acceptance by the loan recipient;
(10) procedures for establishing interest rates;
(11) requirements applicable to disbursement of
loans to loan recipients;
(12) requirements for securing loan repayment
obligations;
(13) conditions or circumstances constituting
default;
(14) procedures for repayment of loans and
delinquent loans including, but not limited to, the
initiation of principal and interest payments following
loan acceptance;
(15) loan recipient responsibilities for work
schedules, work plans, reports, and record keeping;
(16) evaluation of loan recipient performance,
including auditing and access to sites and records;
(17) requirements applicable to contracting and
subcontracting by the loan recipient, including
procurement requirements;
(18) penalties for noncompliance with loan
requirements and conditions, including stop-work orders,
termination, and recovery of loan funds; and
(19) indemnification of the State of Illinois and
the Agency by the loan recipient.
(d) Moneys in the Brownfields Redevelopment Fund may be
used as a source of revenue or security for the principal and
interest on revenue or general obligation bonds issued by the
State or any political subdivision or instrumentality
thereof, if the proceeds of those bonds will be deposited
into the Fund.
(B) Brownfields Site Restoration Program.
(a) (1) The Agency, with the assistance of the
Department of Commerce and Community Affairs, must
establish and administer a program for the payment of
remediation costs to be known as the Brownfields Site
Restoration Program. The Agency, through the Program,
shall provide Remediation Applicants with financial
assistance for the investigation and remediation of
abandoned or underutilized properties. The investigation
and remediation shall be performed in accordance with
this Title XVII of this Act.
(2) For each State fiscal year in which funds are
made available to the Agency for payment under this
subsection (B), the Agency must, subject to the
availability of funds, allocate 20% of the funds to be
available to Remediation Applicants within counties with
populations over 2,000,000. The remaining funds must be
made available to all other Remediation Applicants in the
State.
(3) The Agency must not approve payment in excess
of $750,000 to a Remediation Applicant for remediation
costs incurred at a remediation site. Eligibility must be
determined based on a minimum capital investment in the
redevelopment of the site, and payment amounts must not
exceed the net economic benefit to the State of the
remediation project. In addition to these limitations,
the total payment to be made to an applicant must not
exceed an amount equal to 20% of the capital investment
at the site.
(4) Only those remediation projects for which a No
Further Remediation Letter is issued by the Agency after
December 31, 2001 are eligible to participate in the
Brownfields Site Restoration Program. The program does
not apply to any sites that have received a No Further
Remediation Letter prior to December 31, 2001 or for
costs incurred prior to the Department of Commerce and
Community Affairs approving a site eligible for the
Brownfields Site Restoration Program.
(5) Brownfields Site Restoration Program funds
shall be subject to availability of funding and
distributed based on the order of receipt of applications
satisfying all requirements as set forth in this Section.
(b) Prior to applying to the Agency for payment, a
Remediation Applicant shall first submit to the Agency its
proposed remediation costs. The Agency shall make a
pre-application assessment, which is not to be binding upon
the Department of Commerce and Community Affairs or upon
future review of the project, relating only to whether the
Agency has adequate funding to reimburse the applicant for
the remediation costs if the applicant is found to be
eligible for reimbursement of remediation costs. If the
Agency determines that it is likely to have adequate funding
to reimburse the applicant for remediation costs, the
Remediation Applicant may then submit to the Department of
Commerce and Community Affairs an application for review of
eligibility. The Department must review the eligibility
application to determine whether the Remediation Applicant is
eligible for the payment. The application must be on forms
prescribed and provided by the Department of Commerce and
Community Affairs. At a minimum, the application must
include the following:
(1) Information identifying the Remediation
Applicant and the site for which the payment is being
sought and the date of acceptance into the Site
Remediation Program.
(2) Information demonstrating that the site for
which the payment is being sought is abandoned or
underutilized property. "Abandoned property" means real
property previously used for, or that has the potential
to be used for, commercial or industrial purposes that
reverted to the ownership of the State, a county or
municipal government, or an agency thereof, through
donation, purchase, tax delinquency, foreclosure,
default, or settlement, including conveyance by deed in
lieu of foreclosure; or privately owned property that has
been vacant for a period of not less than 3 years from
the time an application is made to the Department of
Commerce and Community Affairs. "Underutilized property"
means real property of which less than 35% of the
commercially usable space of the property and
improvements thereon are used for their most commercially
profitable and economically productive uses.
(3) Information demonstrating that remediation of
the site for which the payment is being sought will
result in a net economic benefit to the State of
Illinois. The "net economic benefit" must be determined
based on factors including, but not limited to, the
capital investment, the number of jobs created, the
number of jobs retained if it is demonstrated the jobs
would otherwise be lost, capital improvements, the number
of construction-related jobs, increased sales, material
purchases, other increases in service and operational
expenditures, and other factors established by the
Department of Commerce and Community Affairs. Priority
must be given to sites located in areas with high levels
of poverty, where the unemployment rate exceeds the State
average, where an enterprise zone exists, or where the
area is otherwise economically depressed as determined by
the Department of Commerce and Community Affairs.
(4) An application fee in the amount set forth in
subdivision (B)(c) for each site for which review of an
application is being sought.
(c) The fee for eligibility reviews conducted by the
Department of Commerce and Community Affairs under this
subsection (B) is $1,000 for each site reviewed. The
application fee must be made payable to the Department of
Commerce and Community Affairs for deposit into the
Workforce, Technology, and Economic Development Fund. These
application fees shall be used by the Department for
administrative expenses incurred under this subsection (B).
(d) Within 60 days after receipt by the Department of
Commerce and Community Affairs of an application meeting the
requirements of subdivision (B)(b), the Department of
Commerce and Community Affairs must issue a letter to the
applicant approving the application, approving the
application with modifications, or disapproving the
application. If the application is approved or approved with
modifications, the Department of Commerce and Community
Affairs' letter must also include its determination of the
"net economic benefit" of the remediation project and the
maximum amount of the payment to be made available to the
applicant for remediation costs. The payment by the Agency
under this subsection (B) must not exceed the "net economic
benefit" of the remediation project, as determined by the
Department of Commerce and Community Affairs.
(e) An application for a review of remediation costs
must not be submitted to the Agency unless the Department of
Commerce and Community Affairs has determined the Remediation
Applicant is eligible under subdivision (B)(d). If the
Department of Commerce and Community Affairs has determined
that a Remediation Applicant is eligible under subdivision
(B)(d), the Remediation Applicant may submit an application
for payment to the Agency under this subsection (B). Except
as provided in subdivision (B)(f), an application for review
of remediation costs must not be submitted until a No Further
Remediation Letter has been issued by the Agency and recorded
in the chain of title for the site in accordance with Section
58.10. The Agency must review the application to determine
whether the costs submitted are remediation costs and whether
the costs incurred are reasonable. The application must be
on forms prescribed and provided by the Agency. At a
minimum, the application must include the following:
(1) Information identifying the Remediation
Applicant and the site for which the payment is being
sought and the date of acceptance of the site into the
Site Remediation Program.
(2) A copy of the No Further Remediation Letter
with official verification that the letter has been
recorded in the chain of title for the site and a
demonstration that the site for which the application is
submitted is the same site as the one for which the No
Further Remediation Letter is issued.
(3) A demonstration that the release of the
regulated substances of concern for which the No Further
Remediation Letter was issued was not caused or
contributed to in any material respect by the Remediation
Applicant. The Agency must make determinations as to
reimbursement availability consistent with rules adopted
by the Pollution Control Board for the administration and
enforcement of Section 58.9 of this Act.
(4) A copy of the Department of Commerce and
Community Affairs' letter approving eligibility,
including the net economic benefit of the remediation
project.
(5) An itemization and documentation, including
receipts, of the remediation costs incurred.
(6) A demonstration that the costs incurred are
remediation costs as defined in this Act and rules
adopted under this Act.
(7) A demonstration that the costs submitted for
review were incurred by the Remediation Applicant who
received the No Further Remediation Letter.
(8) An application fee in the amount set forth in
subdivision (B)(j) for each site for which review of
remediation costs is requested.
(9) Any other information deemed appropriate by the
Agency.
(f) An application for review of remediation costs may
be submitted to the Agency prior to the issuance of a No
Further Remediation Letter if the Remediation Applicant has
a Remedial Action Plan approved by the Agency under the terms
of which the Remediation Applicant will remediate groundwater
for more than one year. The Agency must review the
application to determine whether the costs submitted are
remediation costs and whether the costs incurred are
reasonable. The application must be on forms prescribed and
provided by the Agency. At a minimum, the application must
include the following:
(1) Information identifying the Remediation
Applicant and the site for which the payment is being
sought and the date of acceptance of the site into the
Site Remediation Program.
(2) A copy of the Agency letter approving the
Remedial Action Plan.
(3) A demonstration that the release of the
regulated substances of concern for which the Remedial
Action Plan was approved was not caused or contributed to
in any material respect by the Remediation Applicant.
The Agency must make determinations as to reimbursement
availability consistent with rules adopted by the
Pollution Control Board for the administration and
enforcement of Section 58.9 of this Act.
(4) A copy of the Department of Commerce and
Community Affairs' letter approving eligibility,
including the net economic benefit of the remediation
project.
(5) An itemization and documentation, including
receipts, of the remediation costs incurred.
(6) A demonstration that the costs incurred are
remediation costs as defined in this Act and rules
adopted under this Act.
(7) A demonstration that the costs submitted for
review were incurred by the Remediation Applicant who
received approval of the Remediation Action Plan.
(8) An application fee in the amount set forth in
subdivision (B)(j) for each site for which review of
remediation costs is requested.
(9) Any other information deemed appropriate by the
Agency.
(g) For a Remediation Applicant seeking a payment under
subdivision (B)(f), until the Agency issues a No Further
Remediation Letter for the site, no more than 75% of the
allowed payment may be claimed by the Remediation Applicant.
The remaining 25% may be claimed following the issuance by
the Agency of a No Further Remediation Letter for the site.
For a Remediation Applicant seeking a payment under
subdivision (B)(e), until the Agency issues a No Further
Remediation Letter for the site, no payment may be claimed by
the Remediation Applicant.
(h) (1) Within 60 days after receipt by the Agency of an
application meeting the requirements of subdivision
(B)(e) or (B)(f), the Agency must issue a letter to the
applicant approving, disapproving, or modifying the
remediation costs submitted in the application. If an
application is disapproved or approved with modification
of remediation costs, then the Agency's letter must set
forth the reasons for the disapproval or modification.
(2) If a preliminary review of a budget plan has
been obtained under subdivision (B)(i), the Remediation
Applicant may submit, with the application and supporting
documentation under subdivision (B)(e) or (B)(f), a copy
of the Agency's final determination accompanied by a
certification that the actual remediation costs incurred
for the development and implementation of the Remedial
Action Plan are equal to or less than the costs approved
in the Agency's final determination on the budget plan.
The certification must be signed by the Remediation
Applicant and notarized. Based on that submission, the
Agency is not required to conduct further review of the
costs incurred for development and implementation of the
Remedial Action Plan and may approve costs as submitted.
(3) Within 35 days after receipt of an Agency
letter disapproving or modifying an application for
approval of remediation costs, the Remediation Applicant
may appeal the Agency's decision to the Board in the
manner provided for the review of permits in Section 40
of this Act.
(i) (1) A Remediation Applicant may obtain a preliminary
review of estimated remediation costs for the development
and implementation of the Remedial Action Plan by
submitting a budget plan along with the Remedial Action
Plan. The budget plan must be set forth on forms
prescribed and provided by the Agency and must include,
but is not limited to, line item estimates of the costs
associated with each line item (such as personnel,
equipment, and materials) that the Remediation Applicant
anticipates will be incurred for the development and
implementation of the Remedial Action Plan. The Agency
must review the budget plan along with the Remedial
Action Plan to determine whether the estimated costs
submitted are remediation costs and whether the costs
estimated for the activities are reasonable.
(2) If the Remedial Action Plan is amended by the
Remediation Applicant or as a result of Agency action,
the corresponding budget plan must be revised accordingly
and resubmitted for Agency review.
(3) The budget plan must be accompanied by the
applicable fee as set forth in subdivision (B)(j).
(4) Submittal of a budget plan must be deemed an
automatic 60-day waiver of the Remedial Action Plan
review deadlines set forth in this subsection (B) and
rules adopted under this subsection (B).
(5) Within the applicable period of review, the
Agency must issue a letter to the Remediation Applicant
approving, disapproving, or modifying the estimated
remediation costs submitted in the budget plan. If a
budget plan is disapproved or approved with modification
of estimated remediation costs, the Agency's letter must
set forth the reasons for the disapproval or
modification.
(6) Within 35 days after receipt of an Agency
letter disapproving or modifying a budget plan, the
Remediation Applicant may appeal the Agency's decision to
the Board in the manner provided for the review of
permits in Section 40 of this Act.
(j) The fees for reviews conducted by the Agency under
this subsection (B) are in addition to any other fees or
payments for Agency services rendered pursuant to the Site
Remediation Program and are as follows:
(1) The fee for an application for review of
remediation costs is $1,000 for each site reviewed.
(2) The fee for the review of the budget plan
submitted under subdivision (B)(i) is $500 for each site
reviewed.
The application fee and the fee for the review of the
budget plan must be made payable to the State of Illinois,
for deposit into the Brownfields Redevelopment Fund.
(k) Moneys in the Brownfields Redevelopment Fund may be
used for the purposes of this Section, including payment for
the costs of administering this subsection (B). Any moneys
remaining in the Brownfields Site Restoration Program Fund on
the effective date of this amendatory Act of the 92nd General
Assembly shall be transferred to the Brownfields
Redevelopment Fund. Total payments made to all Remediation
Applicants by the Agency for purposes of this subsection (B)
must not exceed $1,000,000 in State fiscal year 2002.
(l) The Department and the Agency are authorized to
enter into any contracts or agreements that may be necessary
to carry out their duties and responsibilities under this
subsection (B).
(m) Within 6 months after the effective date of this
amendatory Act of 2002, the Department of Commerce and
Community Affairs and the Agency must propose rules
prescribing procedures and standards for the administration
of this subsection (B). Within 9 months after receipt of the
proposed rules, the Board shall adopt on second notice,
pursuant to Sections 27 and 28 of this Act and the Illinois
Administrative Procedures Act, rules that are consistent with
this subsection (B). Prior to the effective date of rules
adopted under this subsection (B), the Department of Commerce
and Community Affairs and the Agency may conduct reviews of
applications under this subsection (B) and the Agency is
further authorized to distribute guidance documents on costs
that are eligible or ineligible as remediation costs.
(Source: P.A. 91-36, eff. 6-15-99; 92-16, eff. 6-28-01.)
(415 ILCS 5/58.18 rep.)
Section 20. The Environmental Protection Act is amended
by repealing Section 58.18.
Section 99. Effective date. This Act takes effect upon
becoming law.
Passed in the General Assembly May 15, 2002.
Approved July 23, 2002.
Effective July 23, 2002.
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