Bill Text: IL HB3736 | 2009-2010 | 96th General Assembly | Introduced

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Bill Title: Amends the Environmental Protection Act. Provides that certain limitations on liability and cost recovery for site remediation do not apply to sites that (i) are subject to any remediation or remedial activity regulated under a State program authorized, approved, or delegated pursuant to any federal environmental statute or (ii) do not qualify to participate in the Site Remediation Program. Provides that sites that are subject to post-closure corrective action or remediation requirements under the federal or State solid hazardous waste laws do not qualify to participate in the Site Remediation Program. Specifies that the definition of "remedial action" applies only to the provisions concerning the Site Remediation Program. Provides that the Pollution Control Board may (now, "shall") adopt rules concerning the proportionate share of liability. Provides that the Environmental Protection Agency's issuance of a No Further Remediation Letter signifies a release from further responsibilities for those sites that are eligible for the Site Remediation Program. Makes other changes. Effective immediately.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-03-13 - Rule 19(a) / Re-referred to Rules Committee [HB3736 Detail]

Download: Illinois-2009-HB3736-Introduced.html

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96TH GENERAL ASSEMBLY State of Illinois 2009 and 2010 HB3736 Introduced 2/25/2009, by Rep. Thomas Holbrook SYNOPSIS AS INTRODUCED:
415 ILCS 5/58.1
415 ILCS 5/58.2
415 ILCS 5/58.9
415 ILCS 5/58.10
Amends the Environmental Protection Act concerning the Site Remediation Program. Provides that certain limitations on liability and cost recovery for site remediation do not apply to sites: (i) that are subject to any remediation or remedial activity regulated under a State program authorized, approved, or delegated pursuant to any federal environmental statute; or (ii) that do not qualify to participate in the Site Remediation Program. Provides that sites that are subject to post-closure, corrective action, or remediation requirements under the federal or State solid hazardous waste laws do not qualify to participate in the Site Remediation Program. Specifies that a definition of "remedial action" applies only to the provisions concerning the Site Remediation Program. Provides that the Pollution Control Board may (now, "shall") adopt rules concerning the proportionate share of liability. Provides that the Environmental Protection Agency's issuance of a No Further Remediation Letter signifies a release of further responsibilities for those sites that are eligible for the Site Remediation Program. Makes other changes. Effective immediately.
LRB096 01974 JDS 11984 b
FISCAL NOTE ACT MAY APPLY
A BILL FOR
HB3736 LRB096 01974 JDS 11984 b
AN ACT concerning safety.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Environmental Protection Act is amended by
changing Sections 58.1, 58.2, 58.9, and 58.10 as follows:
(415 ILCS 5/58.1)
Sec. 58.1. Applicability.
(a) (1) This Title establishes the procedures for the
investigative and remedial activities at sites where there is a
release, threatened release, or suspected release of hazardous
substances, pesticides, or petroleum and for the review and
approval of those activities.
(2) (A) Except as provided in subparagraph (B), any Any
person, including persons required to perform investigations
and remediations under this Act, may elect to proceed under the
Site Remediation Program.
(B) A site is prohibited from participating in the Site
Remediation Program if: this Title unless (i) the site is on
the National Priorities List (Appendix B of 40 CFR 300); , (ii)
the site is a treatment, storage, or disposal site for which a
permit has been issued, or that is subject to closure,
post-closure, corrective action, or remediation requirements
under federal or State solid or hazardous waste laws ; , (iii)

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the site is subject to federal or State underground storage
tank laws ; , or (iv) investigation or remedial action at the
site has been required by a federal court order or an order
issued by the United States Environmental Protection Agency. To
the extent allowed by federal law and regulations, the sites
listed under items (i), (ii), (iii), and (iv) may utilize the
provisions of the Site Remediation Program this Title,
including the procedures for establishing risk-based
remediation objectives under Section 58.5.
(b) Except for sites excluded under subdivision (a) (2) of
this Section, the Remediation Applicant (RA) for any site that
has not received an Agency letter under subsection (y) of
Section 4 of this Act may elect to proceed under the provisions
of this Title by submitting a written statement of the election
to the Agency. In the absence of such election, the RA shall
continue under the provisions of this Act as applicable prior
to the effective date of this amendatory Act of 1995.
(c) Except for sites excluded under subdivision (a) (2)
of this Section, agrichemical facilities may elect to undertake
corrective action in conformance with this Title and rules
promulgated by the Board thereunder and land application
programs administered by the Department of Agriculture as
provided under Section 19 of the Illinois Pesticide Act, and
shall be eligible for the relief provided under Section 58.10.
(d) Notwithstanding the provisions of subsections (a),
(b), and (c) of this Section, the provisions of Section 58.9 do

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not apply to:
(1) any site covered by the provisions of item (2)(B)
of subsection (a) of this Section; or
(2) any remediation or remedial activity that is
regulated under a state program authorized, approved, or
delegated pursuant to any federal environmental statute
including, but not limited to, the Clean Air Act, the Clean
Water Act, the Resource Conservation and Recovery Act, the
Safe Drinking Water Act, the Toxic Substances Control Act,
and the Federal Insecticide, Fungicide, and Rodenticide
Act.
(Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96.)
(415 ILCS 5/58.2)
Sec. 58.2. Definitions. The following words and phrases
when used in this Title shall have the meanings given to them
in this Section unless the context clearly indicates otherwise:
"Agrichemical facility" means a site on which agricultural
pesticides are stored or handled, or both, in preparation for
end use, or distributed. The term does not include basic
manufacturing facility sites.
"ASTM" means the American Society for Testing and
Materials.
"Area background" means concentrations of regulated
substances that are consistently present in the environment in
the vicinity of a site that are the result of natural

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conditions or human activities, and not the result solely of
releases at the site.
"Brownfields site" or "brownfields" means a parcel of real
property, or a portion of the parcel, that has actual or
perceived contamination and an active potential for
redevelopment.
"Class I groundwater" means groundwater that meets the
Class I Potable Resource groundwater criteria set forth in the
Board rules adopted under the Illinois Groundwater Protection
Act.
"Class III groundwater" means groundwater that meets the
Class III Special Resource Groundwater criteria set forth in
the Board rules adopted under the Illinois Groundwater
Protection Act.
"Carcinogen" means a contaminant that is classified as a
Category A1 or A2 Carcinogen by the American Conference of
Governmental Industrial Hygienists; or a Category 1 or 2A/2B
Carcinogen by the World Health Organizations International
Agency for Research on Cancer; or a "Human Carcinogen" or
"Anticipated Human Carcinogen" by the United States Department
of Health and Human Service National Toxicological Program; or
a Category A or B1/B2 Carcinogen by the United States
Environmental Protection Agency in Integrated Risk Information
System or a Final Rule issued in a Federal Register notice by
the USEPA as of the effective date of this amendatory Act of
1995.

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"Licensed Professional Engineer" (LPE) means a person,
corporation, or partnership licensed under the laws of this
State to practice professional engineering.
"Licensed Professional Geologist" means a person licensed
under the laws of the State of Illinois to practice as a
professional geologist.
"RELPEG" means a Licensed Professional Engineer or a
Licensed Professional Geologist engaged in review and
evaluation under this Title.
"Man-made pathway" means constructed routes that may allow
for the transport of regulated substances including, but not
limited to, sewers, utility lines, utility vaults, building
foundations, basements, crawl spaces, drainage ditches, or
previously excavated and filled areas.
"Municipality" means an incorporated city, village, or
town in this State. "Municipality" does not mean a township,
town when that term is used as the equivalent of a township,
incorporated town that has superseded a civil township, county,
or school district, park district, sanitary district, or
similar governmental district.
"Natural pathway" means natural routes for the transport of
regulated substances including, but not limited to, soil,
groundwater, sand seams and lenses, and gravel seams and
lenses.
"Person" means individual, trust, firm, joint stock
company, joint venture, consortium, commercial entity,

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corporation (including a government corporation), partnership,
association, State, municipality, commission, political
subdivision of a State, or any interstate body including the
United States Government and each department, agency, and
instrumentality of the United States.
"Regulated substance" means any hazardous substance as
defined under Section 101(14) of the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (P.L. 96-510) and petroleum products including crude oil
or any fraction thereof, natural gas, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or
mixtures of natural gas and such synthetic gas).
"Remedial action" means, for purposes of this Title,
activities associated with compliance with the provisions of
Sections 58.6 and 58.7.
"Remediation Applicant" (RA) means any person seeking to
perform or performing investigative or remedial activities
under this Title, including the owner or operator of the site
or persons authorized by law or consent to act on behalf of or
in lieu of the owner or operator of the site.
"Remediation costs" means reasonable costs paid for
investigating and remediating regulated substances of concern
consistent with the remedy selected for a site.
For purposes of Section 58.14, "remediation costs" shall
not include costs incurred prior to January 1, 1998, costs
incurred after the issuance of a No Further Remediation Letter

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under Section 58.10 of this Act, or costs incurred more than 12
months prior to acceptance into the Site Remediation Program.
For the purpose of Section 58.14a, "remediation costs" do
not include any costs incurred before January 1, 2007, any
costs incurred after the issuance of a No Further Remediation
Letter under Section 58.10, or any costs incurred more than 12
months before acceptance into the Site Remediation Program.
"Residential property" means any real property that is used
for habitation by individuals and other property uses defined
by Board rules such as education, health care, child care and
related uses.
"River Edge Redevelopment Zone" has the meaning set forth
under the River Edge Redevelopment Zone Act.
"Site" means any single location, place, tract of land or
parcel of property, or portion thereof, including contiguous
property separated by a public right-of-way.
"Regulated substance of concern" means any contaminant
that is expected to be present at the site based upon past and
current land uses and associated releases that are known to the
Remediation Applicant based upon reasonable inquiry.
(Source: P.A. 95-454, eff. 8-27-07.)
(415 ILCS 5/58.9)
Sec. 58.9. Liability.
(a) Cost assignment.
(1) Except as provided in subsection (d) of Section

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58.1 and notwithstanding subsection (f) of Section 22.2
Notwithstanding any other provisions of this Act to the
contrary, including subsection (f) of Section 22.2, in no
event may the Agency, the State of Illinois, or any person
bring an action pursuant to this Act or the Groundwater
Protection Act to require any person to conduct remedial
action or to seek recovery of costs for remedial activity
conducted by the State of Illinois or any person beyond the
remediation of releases of regulated substances that may be
attributed to being proximately caused by such person's act
or omission or beyond such person's proportionate degree of
responsibility for costs of the remedial action of releases
of regulated substances that were proximately caused or
contributed to by 2 or more persons.
(2) Except as provided in subsection (d) of Section
58.1 and notwithstanding subsection (f) of Section 22.2
Notwithstanding any provisions in this Act to the contrary,
including subsection (f) of Section 22.2, in no event may
the State of Illinois or any person require the performance
of remedial action pursuant to this Act against any of the
following:
(A) A person who neither caused nor contributed to
in any material respect a release of regulated
substances on, in, or under the site that was
identified and addressed by the remedial action taken
pursuant to this Title.

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(B) Notwithstanding a landlord's rights against a
tenant, a landlord, if the landlord did not know, and
could not have reasonably known, of the acts or
omissions of a tenant that caused or contributed to, or
were likely to have caused or contributed to, a release
of regulated substances that resulted in the
performance of remedial action at the site.
(C) The State of Illinois or any unit of local
government if it involuntarily acquires ownership or
control of the site by virtue of its function as a
sovereign through such means as escheat, bankruptcy,
tax delinquency, or abandonment, unless the State of
Illinois or unit of local government takes possession
of the site and exercises actual, direct, and continual
or recurrent managerial control in the operation of the
site that causes a release or substantial threat of a
release of a regulated substance resulting in removal
or remedial activity.
(D) The State of Illinois or any unit of local
government if it voluntarily acquires ownership or
control of the site through purchase, appropriation,
or other means, unless the State of Illinois or the
unit of local government takes possession of the site
and exercises actual, direct, and continual or
recurrent managerial control in the operation of the
site that causes a release or substantial threat of a

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release of a regulated substance resulting in removal
or remedial activity.
(E) A financial institution, as that term is
defined in Section 2 of the Illinois Banking Act and to
include the Illinois Housing Development Authority,
that has acquired the ownership, operation,
management, or control of a site through foreclosure, a
deed in lieu of foreclosure, receivership, by
exercising of an assignment of rents, as mortgagee in
possession or otherwise under the terms of a security
interest held by the financial institution, or under
the terms of an extension of credit made by the
financial institution, unless the financial
institution takes actual physical possession of the
site and, in so doing, directly causes a release of a
regulated substance that results in removal or
remedial activity.
(F) A corporate fiduciary that has acquired
ownership, operation, management, or control of a site
through acceptance of a fiduciary appointment unless
the corporate fiduciary directly causes a release of a
regulated substance resulting in a removal or remedial
activity.
(b) In the event that the State of Illinois seeks to
require a person who may be liable pursuant to this Act to
conduct remedial action at a Site covered by this Section

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activities for a release or threatened release of a regulated
substance, the Agency shall provide notice to such person. Such
notice shall include the necessity to conduct remedial action
pursuant to this Title and an opportunity for the person to
perform the remedial action.
(c) In any instance in which the Agency has issued notice
pursuant to subsection (b) of this Section, the Agency and the
person to whom such notice was issued may attempt to determine
the costs of conducting the remedial action that are
attributable to the releases to which such person or any other
person caused or contributed. Determinations pursuant to this
Section may be made in accordance with rules promulgated by the
Board.
(d) The Board may shall adopt, not later than January 1,
1999, pursuant to Sections 27 and 28 of this Act, rules and
procedures for determining proportionate share. Such rules
shall, at a minimum, provide for criteria for the determination
of apportioned responsibility based upon the degree to which a
person directly caused or contributed to a release of regulated
substances on, in, or under the site identified and addressed
in the remedial action; procedures to establish how and when
such persons may file a petition for determination of such
apportionment; and any other standards or procedures which the
Board may adopt pursuant to this Section. In developing such
rules, the Board shall take into consideration any
recommendations and proposals of the Agency and the Site

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Remediation Advisory Committee established in Section 58.11 of
this Act and other interested participants.
(e) Nothing in this Section shall limit the authority of
the Agency to provide notice under subsection (q) of Section 4
or to undertake investigative, preventive, or corrective
action under any other applicable provisions of this Act. The
Director of the Agency is authorized to enter into such
contracts and agreements as may be necessary to carry out the
Agency's duties and responsibilities under this Section as
expeditiously as possible.
(f) This Section does not apply to any cost recovery action
brought by the State under Section 22.2 to recover costs
incurred by the State prior to July 1, 1996.
(Source: P.A. 89-443, eff. 7-1-96; 90-484, eff. 8-17-97.)
(415 ILCS 5/58.10)
Sec. 58.10. Effect of completed remediation; liability
releases.
(a) The Agency's issuance of the No Further Remediation
Letter to a site eligible for the Site Remediation Program
under Section 58.1 signifies a release from further
responsibilities under this Act in performing the approved
remedial action and shall be considered prima facie evidence
that the site does not constitute a threat to human health and
the environment and does not require further remediation under
this Act, so long as the site is utilized in accordance with

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the terms of the No Further Remediation Letter.
(b) Within 30 days of the Agency's approval of a Remedial
Action Completion Report, the Agency shall issue a No Further
Remediation Letter applicable to the site. In the event that
the Agency fails to issue the No Further Remediation Letter
within 30 days after approval of the Remedial Action Completion
Report, the No Further Remediation Letter shall issue by
operation of law. A No Further Remediation Letter issued
pursuant to this Section shall be limited to and shall include
all of the following:
(1) An acknowledgment that the requirements of the
Remedial Action Plan and the Remedial Action Completion
Report were satisfied;
(2) A description of the location of the affected
property by adequate legal description or by reference to a
plat showing its boundaries;
(3) The level of the remediation objectives,
specifying, as appropriate, any land use limitation
imposed as a result of such remediation efforts;
(4) A statement that the Agency's issuance of the No
Further Remediation Letter signifies a release from
further responsibilities under this Act in performing the
approved remedial action and shall be considered prima
facie evidence that the site does not constitute a threat
to human health and the environment and does not require
further remediation under the Act, so long as the site is

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utilized in accordance with the terms of the No Further
Remediation Letter;
(5) The prohibition against the use of any site in a
manner inconsistent with any land use limitation imposed as
a result of such remediation efforts without additional
appropriate remedial activities;
(6) A description of any preventive, engineering, and
institutional controls required in the approved Remedial
Action Plan and notification that failure to manage the
controls in full compliance with the terms of the Remedial
Action Plan may result in voidance of the No Further
Remediation Letter;
(7) The recording obligations pursuant to Section
58.8;
(8) The opportunity to request a change in the recorded
land use pursuant to Section 58.8;
(9) Notification that further information regarding
the site can be obtained from the Agency through a request
under the Freedom of Information Act (5 ILCS 140); and
(10) If only a portion of the site or only selected
regulated substances at a site were the subject of
corrective action, any other provisions agreed to by the
Agency and the RA.
(c) The Agency may deny a No Further Remediation Letter if
fees applicable under the review and evaluation services
agreement have not been paid in full.

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(d) The No Further Remediation Letter shall apply in favor
of the following persons:
(1) The RA or other person to whom the letter was
issued.
(2) The owner and operator of the site.
(3) Any parent corporation or subsidiary of the owner
of the site.
(4) Any co-owner, either by joint-tenancy, right of
survivorship, or any other party sharing a legal
relationship with the owner of the site.
(5) Any holder of a beneficial interest of a land trust
or inter vivos trust, whether revocable or irrevocable,
involving the site.
(6) Any mortgagee or trustee of a deed of trust of the
owner of the site or any assignee, transferee, or any
successor-in-interest thereto.
(7) Any successor-in-interest of the owner of the site.
(8) Any transferee of the owner of the site whether the
transfer was by sale, bankruptcy proceeding, partition,
dissolution of marriage, settlement or adjudication of any
civil action, charitable gift, or bequest.
(9) Any heir or devisee of the owner of the site.
(10) Any financial institution, as that term is defined
in Section 2 of the Illinois Banking Act and to include the
Illinois Housing Development Authority, that has acquired
the ownership, operation, management, or control of a site

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through foreclosure or under the terms of a security
interest held by the financial institution, under the terms
of an extension of credit made by the financial
institution, or any successor in interest thereto.
(11) In the case of a fiduciary (other than a land
trustee), the estate, trust estate, or other interest in
property held in a fiduciary capacity, and a trustee,
executor, administrator, guardian, receiver, conservator,
or other person who holds the remediated site in a
fiduciary capacity, or a transferee of such party.
(e) The No Further Remediation Letter shall be voidable if
the site activities are not managed in full compliance with the
provisions of this Title, any rules adopted under it, or the
approved Remedial Action Plan or remediation objectives upon
which the issuance of the No Further Remediation Letter was
based. Specific acts or omissions that may result in voidance
of the No Further Remediation Letter include, but shall not be
limited to:
(1) Any violation of institutional controls or land use
restrictions, if applicable;
(2) The failure of the owner, operator, RA, or any
subsequent transferee to operate and maintain preventive
or engineering controls or comply with a groundwater
monitoring plan, if applicable;
(3) The disturbance or removal of contamination that
has been left in place in accordance with the Remedial

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Action Plan;
(4) The failure to comply with the recording
requirements of Section 58.8;
(5) Obtaining the No Further Remediation Letter by
fraud or misrepresentation;
(6) Subsequent discovery of contaminants, not
identified as part of the investigative or remedial
activities upon which the issuance of the No Further
Remediation Letter was based, that pose a threat to human
health or the environment; or
(7) The failure to pay the No Further Remediation
Assessment required under subsection (g) of this Section.
(f) If the Agency seeks to void a No Further Remediation
Letter, it shall provide notice by certified letter to the
current title holder of the site and to the RA at his or her
last known address. The notice shall specify the cause for the
voidance and describe facts in support of that cause.
(1) Within 35 days of the receipt of the notice of
voidance, the RA or current title holder may appeal the
Agency's decision to the Board in the manner provided for
the review of permits in Section 40 of this Act. If the
Board fails to take final action on the petition within 120
days, unless such time period is waived by the petitioner,
the petition shall be deemed denied and the petitioner
shall be entitled to an Appellate Court order pursuant to
subsection (d) of Section 41 of this Act. The Agency shall

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have the burden of proof in any such action.
(2) If the Agency's action is not appealed, the Agency
shall submit the notice of voidance to the Office of the
Recorder or the Registrar of Titles for the county in which
the site is located. The notice shall be filed in
accordance with Illinois law so that it forms a permanent
part of the chain of title for the site.
(3) If the Agency's action is appealed, the action
shall not become effective until the appeal process has
been exhausted and a final decision reached by the Board or
courts.
(4) Upon receiving notice of appeal, the Agency shall
file a notice of lis pendens with the Office of the
Recorder or the Registrar of Titles for the county in which
the site is located. The notice shall be filed in
accordance with Illinois law so that it becomes a part of
the chain of title for the site. However, if the Agency's
action is not upheld on appeal, the notice of lis pendens
shall be removed in accordance with Illinois law within 45
days of receipt of the final decision of the Board or the
courts.
(g) Within 30 days after the receipt of a No Further
Remediation Letter issued by the Agency or by operation of law
pursuant to this Section, the recipient of the letter shall
forward to the Agency a No Further Remediation Assessment in
the amount of the lesser of $2,500 or an amount equal to the

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costs incurred for the site by the Agency under Section 58.7.
The assessment shall be made payable to the State of Illinois,
for deposit in the Hazardous Waste Fund. The No Further
Remediation Assessment is in addition to any other costs that
may be incurred by the Agency pursuant to Section 58.7.
(Source: P.A. 89-431, eff. 12-15-95; 89-443, eff. 7-1-96;
89-626, eff. 8-9-96.)
Section 99. Effective date. This Act takes effect upon
becoming law.