Bill Amendment: IL SB3073 | 2021-2022 | 102nd General Assembly

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: EPA-GREAT LAKES CCR PROTECTION

Status: 2022-04-11 - Rule 19(a) / Re-referred to Rules Committee [SB3073 Detail]

Download: Illinois-2021-SB3073-Senate_Amendment_001.html

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Sen. Adriane Johnson

Filed: 2/7/2022

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AMENDMENT TO SENATE BILL 3073
AMENDMENT NO. ______. Amend Senate Bill 3073 by replacing
everything after the enacting clause with the following:
"Section 5. The Environmental Protection Act is amended by
changing Section 22.59 and by adding Section 22.59a as
follows:
(415 ILCS 5/22.59)
Sec. 22.59. CCR surface impoundments.
(a) The General Assembly finds that:
(1) the State of Illinois has a long-standing policy
to restore, protect, and enhance the environment,
including the purity of the air, land, and waters,
including groundwaters, of this State;
(2) a clean environment is essential to the growth and
well-being of this State;
(3) CCR generated by the electric generating industry

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has caused groundwater contamination and other forms of
pollution at active and inactive plants throughout this
State;
(4) environmental laws should be supplemented to
ensure consistent, responsible regulation of all existing
CCR surface impoundments; and
(5) meaningful participation of State residents,
especially vulnerable populations who may be affected by
regulatory actions, is critical to ensure that
environmental justice considerations are incorporated in
the development of, decision-making related to, and
implementation of environmental laws and rulemaking that
protects and improves the well-being of communities in
this State that bear disproportionate burdens imposed by
environmental pollution; and .
(6) the State has a particular interest in preserving
the quality of Lake Michigan, which serves as a drinking
water source for millions of State residents and provides
irreplaceable recreational, ecological, and economic value
to Illinois.
Therefore, the purpose of this Section is to promote a
healthful environment, including clean water, air, and land,
meaningful public involvement, and the responsible disposal
and storage of coal combustion residuals, so as to protect
public health and to prevent pollution of the environment of
this State.

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The provisions of this Section shall be liberally
construed to carry out the purposes of this Section.
(b) No person shall:
(1) cause or allow the discharge of any contaminants
from a CCR surface impoundment into the environment so as
to cause, directly or indirectly, a violation of this
Section or any regulations or standards adopted by the
Board under this Section, either alone or in combination
with contaminants from other sources;
(2) construct, install, modify, operate, or close any
CCR surface impoundment without a permit granted by the
Agency, or so as to violate any conditions imposed by such
permit, any provision of this Section or any regulations
or standards adopted by the Board under this Section;
(3) cause or allow, directly or indirectly, the
discharge, deposit, injection, dumping, spilling, leaking,
or placing of any CCR upon the land in a place and manner
so as to cause or tend to cause a violation of this Section
or any regulations or standards adopted by the Board under
this Section; or
(4) construct, install, modify, or close a CCR surface
impoundment in accordance with a permit issued under this
Act without certifying to the Agency that all contractors,
subcontractors, and installers utilized to construct,
install, modify, or close a CCR surface impoundment are
participants in:

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(A) a training program that is approved by and
registered with the United States Department of
Labor's Employment and Training Administration and
that includes instruction in erosion control and
environmental remediation; and
(B) a training program that is approved by and
registered with the United States Department of
Labor's Employment and Training Administration and
that includes instruction in the operation of heavy
equipment and excavation.
Nothing in this paragraph (4) shall be construed to
require providers of construction-related professional
services to participate in a training program approved by
and registered with the United States Department of
Labor's Employment and Training Administration.
In this paragraph (4), "construction-related
professional services" includes, but is not limited to,
those services within the scope of: (i) the practice of
architecture as regulated under the Illinois Architecture
Practice Act of 1989; (ii) professional engineering as
defined in Section 4 of the Professional Engineering
Practice Act of 1989; (iii) the practice of a structural
engineer as defined in Section 4 of the Structural
Engineering Practice Act of 1989; or (iv) land surveying
under the Illinois Professional Land Surveyor Act of 1989.
(c) (Blank).

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(d) Before commencing closure of a CCR surface
impoundment, in accordance with Board rules, the owner of a
CCR surface impoundment must submit to the Agency for approval
a closure alternatives analysis that analyzes all closure
methods being considered and that otherwise satisfies all
closure requirements adopted by the Board under this Act.
Complete removal of CCR, as specified by the Board's rules,
from the CCR surface impoundment must be considered and
analyzed. Section 3.405 does not apply to the Board's rules
specifying complete removal of CCR. The selected closure
method must ensure compliance with regulations adopted by the
Board pursuant to this Section.
(e) Owners or operators of CCR surface impoundments who
have submitted a closure plan to the Agency before May 1, 2019,
and who have completed closure prior to 24 months after July
30, 2019 (the effective date of Public Act 101-171) shall not
be required to obtain a construction permit for the surface
impoundment closure under this Section.
(f) Except for the State, its agencies and institutions, a
unit of local government, or not-for-profit electric
cooperative as defined in Section 3.4 of the Electric Supplier
Act, any person who owns or operates a CCR surface impoundment
in this State shall post with the Agency a performance bond or
other security for the purpose of: (i) ensuring closure of the
CCR surface impoundment and post-closure care in accordance
with this Act and its rules; and (ii) ensuring remediation of

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releases from the CCR surface impoundment. The only acceptable
forms of financial assurance are: a trust fund, a surety bond
guaranteeing payment, a surety bond guaranteeing performance,
or an irrevocable letter of credit.
(1) The cost estimate for the post-closure care of a
CCR surface impoundment shall be calculated using a
30-year post-closure care period or such longer period as
may be approved by the Agency under Board or federal
rules.
(2) The Agency is authorized to enter into such
contracts and agreements as it may deem necessary to carry
out the purposes of this Section. Neither the State, nor
the Director, nor any State employee shall be liable for
any damages or injuries arising out of or resulting from
any action taken under this Section.
(3) The Agency shall have the authority to approve or
disapprove any performance bond or other security posted
under this subsection. Any person whose performance bond
or other security is disapproved by the Agency may contest
the disapproval as a permit denial appeal pursuant to
Section 40.
(g) The Board shall adopt rules establishing construction
permit requirements, operating permit requirements, design
standards, reporting, financial assurance, and closure and
post-closure care requirements for CCR surface impoundments.
Not later than 8 months after July 30, 2019 (the effective date

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of Public Act 101-171) the Agency shall propose, and not later
than one year after receipt of the Agency's proposal the Board
shall adopt, rules under this Section. The Board shall not be
deemed in noncompliance with the rulemaking deadline due to
delays in adopting rules as a result of the Joint Commission on
Administrative Rules oversight process. The rules must, at a
minimum:
(1) be at least as protective and comprehensive as the
federal regulations or amendments thereto promulgated by
the Administrator of the United States Environmental
Protection Agency in Subpart D of 40 CFR 257 governing CCR
surface impoundments;
(2) specify the minimum contents of CCR surface
impoundment construction and operating permit
applications, including the closure alternatives analysis
required under subsection (d);
(3) specify which types of permits include
requirements for closure, post-closure, remediation and
all other requirements applicable to CCR surface
impoundments;
(4) specify when permit applications for existing CCR
surface impoundments must be submitted, taking into
consideration whether the CCR surface impoundment must
close under the RCRA;
(5) specify standards for review and approval by the
Agency of CCR surface impoundment permit applications;

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(6) specify meaningful public participation procedures
for the issuance of CCR surface impoundment construction
and operating permits, including, but not limited to,
public notice of the submission of permit applications, an
opportunity for the submission of public comments, an
opportunity for a public hearing prior to permit issuance,
and a summary and response of the comments prepared by the
Agency;
(7) prescribe the type and amount of the performance
bonds or other securities required under subsection (f),
and the conditions under which the State is entitled to
collect moneys from such performance bonds or other
securities;
(8) specify a procedure to identify areas of
environmental justice concern in relation to CCR surface
impoundments;
(9) specify a method to prioritize CCR surface
impoundments required to close under RCRA if not otherwise
specified by the United States Environmental Protection
Agency, so that the CCR surface impoundments with the
highest risk to public health and the environment, and
areas of environmental justice concern are given first
priority;
(10) define when complete removal of CCR is achieved
and specify the standards for responsible removal of CCR
from CCR surface impoundments, including, but not limited

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to, dust controls and the protection of adjacent surface
water and groundwater; and
(11) describe the process and standards for
identifying a specific alternative source of groundwater
pollution when the owner or operator of the CCR surface
impoundment believes that groundwater contamination on the
site is not from the CCR surface impoundment.
(h) Any owner of a CCR surface impoundment that generates
CCR and sells or otherwise provides coal combustion byproducts
pursuant to Section 3.135 shall, every 12 months, post on its
publicly available website a report specifying the volume or
weight of CCR, in cubic yards or tons, that it sold or provided
during the past 12 months.
(i) The owner of a CCR surface impoundment shall post all
closure plans, permit applications, and supporting
documentation, as well as any Agency approval of the plans or
applications on its publicly available website.
(j) The owner or operator of a CCR surface impoundment
shall pay the following fees:
(1) An initial fee to the Agency within 6 months after
July 30, 2019 (the effective date of Public Act 101-171)
of:
$50,000 for each closed CCR surface impoundment;
and
$75,000 for each CCR surface impoundment that have
not completed closure.

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(2) Annual fees to the Agency, beginning on July 1,
2020, of:
$25,000 for each CCR surface impoundment that has
not completed closure; and
$15,000 for each CCR surface impoundment that has
completed closure, but has not completed post-closure
care.
(k) All fees collected by the Agency under subsection (j)
shall be deposited into the Environmental Protection Permit
and Inspection Fund.
(l) The Coal Combustion Residual Surface Impoundment
Financial Assurance Fund is created as a special fund in the
State treasury. Any moneys forfeited to the State of Illinois
from any performance bond or other security required under
this Section shall be placed in the Coal Combustion Residual
Surface Impoundment Financial Assurance Fund and shall, upon
approval by the Governor and the Director, be used by the
Agency for the purposes for which such performance bond or
other security was issued. The Coal Combustion Residual
Surface Impoundment Financial Assurance Fund is not subject to
the provisions of subsection (c) of Section 5 of the State
Finance Act.
(m) The provisions of this Section shall apply, without
limitation, to all existing CCR surface impoundments and any
CCR surface impoundments constructed after July 30, 2019 (the
effective date of Public Act 101-171), except to the extent

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prohibited by the Illinois or United States Constitutions.
(n) This subsection applies to owners and operators of CCR
surface impoundments at electric generating plants that are
bordering Lake Michigan.
CCR in all CCR surface impoundments subject to this
subsection, including those for which an adjusted standard has
been sought pursuant to Section 28.1, shall be closed by
removal by off-site disposal, pursuant to this Section,
applicable Illinois Pollution Control Board regulations, and
the following provisions:
(1) CCR surface impoundments under this subsection are
not subject to the closure alternative analysis required
under subsection (d).
(2) Notwithstanding any other requirements of this
Section or Board rules or regulations, applications for
closure construction subject to this subsection shall be
submitted to the Agency within one year after the
effective date of this amendatory Act of the 102nd General
Assembly. Application requirements and permit issuance
procedures shall follow those adopted by the Illinois
Pollution Control Board under this Section.
(3) If the owner or operator of any CCR surface
impoundment subject to this subsection has submitted a
construction permit application to the Agency to close a
subject CCR surface impoundment by any method other than
removal under Part 845 of Title 35 of the Illinois

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Administrative Code, the owner or operator shall submit an
amended construction permit application that complies with
the requirements of this Section within one year after the
effective date of this amendatory Act of 102nd General
Assembly.
(4) Any permit issued by the Agency allowing a CCR
surface impoundment subject to this subsection to close in
place shall be declared void. The Agency shall not issue
any operating permit or construction permit allowing
closure in place to the owner or operator of any CCR
surface impoundment subject to this subsection.
(Source: P.A. 101-171, eff. 7-30-19; 102-16, eff. 6-17-21;
102-137, eff. 7-23-21; 102-309, eff. 8-6-21; 102-558, eff.
8-20-21; 102-662, eff. 9-15-21; revised 10-14-21.)
(415 ILCS 5/22.59a new)
Sec. 22.59a. Great Lakes CCR protection.
(a) The General Assembly finds that:
(1) The State has a long-standing policy to restore,
protect, and enhance the environment, and has a particular
interest in preserving the quality of Lake Michigan, which
serves as a drinking water source for millions of State
residents and provides irreplaceable recreational,
ecological, and economic value to Illinois.
(2) CCR generated by the electric generating industry
has contaminated, and continues to contaminate, Lake

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Michigan, and CCR placed in unlined deposits, including
deposits outside of CCR surface impoundments as well as in
CCR surface impoundments, continues to threaten the
quality of Lake Michigan's water.
(3) The purpose of this Section is to protect Lake
Michigan against further contamination from CCR.
(b) This Section applies to owners and operators of CCR
surface impoundments at electric generating plants that are
bordering Lake Michigan. This section shall not apply to CCR
surface impoundments subject to Section 22.59, except for
subsection (n) of that Section.
(c) An owner or operator shall remove from their site, for
off-site disposal, all CCR generated by the facility and
remediate all soil and groundwater impacted by the CCR, in
accordance with the following:
(1) Within one year after the effective date of this
amendatory Act of the 102nd General Assembly, the owner or
operator shall conduct a site investigation and submit to
the Agency a site investigation report that identifies the
full extent of CCR at the site. The investigation and
report shall also identify the full extent of soil and
groundwater that, as a result of the CCR, exceeds the most
stringent remediation objectives adopted under Title XVII
of this Act.
(A) Within 5 days after submitting the report to
the Agency, the owner or operator shall post public

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notice of the report's submission (i) on the owner or
operator's website, along with a copy of the report
for public viewing, and (ii) in a newspaper of general
distribution in the municipality. The notice shall be
provided in English and Spanish and shall inform the
public of their right to submit comments on the report
to the Agency within 30 days after the date the notice
is published in the newspaper. The owner or operator
shall also maintain a copy of the report in a public
repository in the municipality for public viewing,
which shall be identified in the public notice.
(B) Within 90 days after receipt of the site
investigation report, the Agency shall determine
whether the investigation and report complies with
this paragraph (1). In making its determination, the
Agency shall consider all public comments submitted
within 30 days after the date of the newspaper notice
required under subparagraph (A).
(C) If the Agency determines the investigation and
report complies with this paragraph (1) it shall
notify the owner or operator in writing of its
determination. The owner or operator shall then submit
a CCR removal and remediation plan in accordance with
paragraph (2).
(D) If the Agency determines the investigation or
report does not comply with this paragraph (1) it

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shall notify the owner or operator in writing of its
determination and the reasons for the determination.
The owner or operator shall then have 6 months to (i)
perform additional investigation or correct any
deficiencies and (ii) submit an amended site
investigation report to the Agency, which shall be
subject to the same submission and review procedures
set forth in this paragraph (1).
(2) Within 6 months after the Agency's approval of the
site investigation report, the owner or operator shall
submit to the Agency a CCR removal and remediation plan
that will achieve the removal of all CCR at the site and
the remediation of all soil and groundwater that, as a
result of the CCR, exceeds the most stringent remediation
objectives adopted under Title XVII of this Act. The plan
shall include a schedule for completion of its major
milestones, along with the following:
(A) An analysis of the modes for transporting the
removed CCR off-site, including by rail, barge,
low-polluting trucks, or a combination of these
transportation modes.
(B) Removal of CCR consistent with 35 Ill. Adm.
Code 845.740 and 845.760.
(C) Within 5 days after submitting the plan to the
Agency, the owner or operator shall post public notice
of the plan's submission (i) on the owner or

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operator's website, along with a copy of the plan for
public viewing, and (ii) in a newspaper of general
distribution in the municipality. The notice shall be
provided in English and Spanish and shall inform the
public of their right to submit comments on the plan to
the Agency within 30 days after the date the notice is
published in the newspaper. The owner or operator
shall also maintain a copy of the report in a public
repository in the municipality for public viewing,
which shall be identified in the public notice.
(D) Within 90 days after receipt of the plan, the
Agency shall determine whether the plan complies with
this paragraph (2). In making its determination, the
Agency shall consider all public comments submitted
within 30 days after the date of the newspaper notice
required under subparagraph (C).
(E) If the Agency determines the plan, with or
without Agency modifications, complies with paragraph
(2), it shall notify the owner or operator in writing
of its determination. The owner or operator shall then
proceed with implementation of the plan, including any
modifications by the Agency, and submission of a
removal and remediation report in accordance with
paragraph (3).
(F) If the Agency determines the investigation or
report does not comply with paragraph (2), it shall

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notify the owner or operator in writing of its
determination and the reasons for the determination.
The owner or operator shall then have 60 days to submit
an amended plan to the Agency, which shall be subject
to the same submission and review procedures set forth
in subparagraphs (C) and (D).
(3) In accordance with a schedule approved by the
Agency, the owner or operator shall implement the
remediation plan and provide the Agency with updates on
the plan's implementation. Upon completion of the plan,
the owner or operator shall submit a completion report to
the Agency.
(A) Within 5 days after submitting an update or
the completion report to the Agency on plan
implementation, the owner or operator shall post
public notice of the report's submission (i) on the
owner or operator's website, along with a copy of the
report for public viewing, and (ii) in a newspaper of
general distribution in the municipality. The notice
shall be provided in English and Spanish and shall
inform the public of their right to submit comments on
the report to the Agency within 30 days after the date
the notice is published in the newspaper. The owner or
operator shall also maintain a copy of the report in a
public repository in the municipality for public
viewing, which shall be identified in the public

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notice.
(B) Within 90 days after receipt of the completion
report, the Agency shall determine whether the removal
and remediation has resulted in (i) the removal of all
CCR at the site and (ii) the remediation of all soil
and groundwater that, as a result of the CCR, exceeds
the most stringent remediation objectives adopted
under Title XVII of this Act. In making its
determination, the Agency shall consider all public
comments submitted within 30 days after the date of
the newspaper notice required under subparagraph (A).
(C) If the Agency determines that the required
removal and remediation is complete, it shall notify
the owner or operator in writing of its determination.
(D) If the Agency determines that the required
removal and remediation is not complete, it shall
notify the owner or operator in writing of its
determination and the reasons for the determination.
The owner or operator shall then continue removal or
remediation, and submit reports to the Agency, in
accordance with a schedule established by the Agency.
Reports shall be subject to the same submission and
review procedures set forth in subparagraphs (A) and
(B). If necessary, the owner or operator may amend the
plan and submit it for review and approval in
accordance with paragraph (2).

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(d) Except for the State, its agencies and institutions, a
unit of local government, or not-for-profit electric
cooperative as defined in Section 3.4 of the Electric Supplier
Act, an owner or operator shall post with the Agency a
performance bond or other security for the purpose of ensuring
removal and remediation in accordance with this Section. The
only acceptable forms of financial assurance are the forms of
financial assurance that are acceptable for CCR surface
impoundments under Section 22.59.
(e) The Agency may enter into such contracts and
agreements as it deems necessary to carry out the purposes of
this Section. Neither the State, nor the Director of the
Agency, nor any State employee shall be liable for any damages
or injuries arising out of or resulting from any action taken
under this Section.
(f) The Agency may approve or disapprove any performance
bond or other security posted under this Section. Any person
whose performance bond or other security is disapproved by the
Agency may contest the disapproval as a permit denial appeal
pursuant to Section 40.
Section 97. Severability. The provisions of this Act are
severable under Section 1.31 of the Statute on Statutes.
Section 99. Effective date. This Act takes effect upon
becoming law.".