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| | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB1934 Introduced 2/9/2023, by Sen. Laura Ellman SYNOPSIS AS INTRODUCED:
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| 415 ILCS 5/58.2 | | 415 ILCS 5/58.7 | |
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Amends the Environmental Protection Act. Provides that the Environmental Protection Agency may require an RA for a site to make an advance partial payment of $2,500 (rather than an advance partial payment not exceeding $5,000 or one-half the total anticipated costs of
the Agency, whichever sum is less). Makes changes concerning the persons who must review and approve site remediation plans. Allows reviews undertaken by the Agency or a RELPEG to
be completed and
the decisions communicated to the RA within 90 days after the request for review or approval if 2 or more plans or reports are submitted concurrently. Provides that, notwithstanding any other provision, the Agency is not required to take action on any submission from or on behalf of an RA if the RA has failed to pay all fees due. Requires any deadline for Agency action on such a submission to be tolled until the fees are paid in full. Makes other changes.
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| | A BILL FOR |
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| 1 | | AN ACT concerning safety.
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| 2 | | Be it enacted by the People of the State of Illinois,
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| 3 | | represented in the General Assembly:
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| 4 | | Section 5. The Environmental Protection Act is amended by |
| 5 | | changing Sections 58.2 and 58.7 as follows:
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| 6 | | (415 ILCS 5/58.2)
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| 7 | | Sec. 58.2. Definitions. The following words and phrases |
| 8 | | when used in this
Title shall have the meanings given to them |
| 9 | | in this Section unless the context
clearly indicates |
| 10 | | otherwise:
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| 11 | | "Agrichemical facility" means a site on which agricultural |
| 12 | | pesticides are
stored or handled, or both, in preparation for |
| 13 | | end use, or distributed. The
term does not include basic |
| 14 | | manufacturing facility sites.
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| 15 | | "ASTM" means the American Society for Testing and |
| 16 | | Materials.
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| 17 | | "Area background" means concentrations of regulated |
| 18 | | substances that are
consistently present in the environment in |
| 19 | | the vicinity of a site that are the
result of natural |
| 20 | | conditions or human activities, and not the result solely of
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| 21 | | releases at the site.
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| 22 | | "Brownfields site" or "brownfields" means a parcel of real |
| 23 | | property, or a
portion of the parcel, that has actual or |
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| 1 | | perceived contamination and an
active potential for |
| 2 | | redevelopment.
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| 3 | | "Class I groundwater" means groundwater that meets the |
| 4 | | Class I Potable
Resource groundwater criteria set forth in the |
| 5 | | Board rules adopted under the
Illinois Groundwater Protection |
| 6 | | Act.
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| 7 | | "Class III groundwater" means groundwater that meets the |
| 8 | | Class III Special
Resource Groundwater criteria set forth in |
| 9 | | the Board rules adopted under the
Illinois Groundwater |
| 10 | | Protection Act.
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| 11 | | "Carcinogen" means a contaminant that is classified as a |
| 12 | | Category A1 or A2
Carcinogen by the American Conference of |
| 13 | | Governmental Industrial Hygienists; or
a Category 1 or 2A/2B |
| 14 | | Carcinogen by the World Health Organizations
International |
| 15 | | Agency for Research on Cancer; or a "Human Carcinogen" or
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| 16 | | "Anticipated Human Carcinogen" by the United States Department |
| 17 | | of Health and
Human Service National Toxicological Program; or |
| 18 | | a Category A or B1/B2
Carcinogen by the United States |
| 19 | | Environmental Protection Agency in Integrated
Risk Information |
| 20 | | System or a Final Rule issued in a Federal Register notice by
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| 21 | | the USEPA as of the effective date of this amendatory Act of |
| 22 | | 1995.
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| 23 | | "Licensed Professional Engineer" (LPE) means a person, |
| 24 | | corporation, or
partnership licensed under the laws of this |
| 25 | | State to practice professional
engineering.
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| 26 | | "Licensed Professional Geologist" means a person licensed |
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| 1 | | under the laws of
the State of Illinois to practice as a |
| 2 | | professional geologist.
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| 3 | | "RELPEG" means a Licensed Professional Engineer or a |
| 4 | | Licensed Professional
Geologist engaged in review and |
| 5 | | evaluation under this Title.
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| 6 | | "Man-made pathway" means constructed routes that may allow |
| 7 | | for the
transport of regulated substances including, but not |
| 8 | | limited to, sewers,
utility lines, utility vaults, building |
| 9 | | foundations, basements, crawl spaces,
drainage ditches, or |
| 10 | | previously excavated and filled areas.
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| 11 | | "Municipality" means an incorporated city, village, or |
| 12 | | town in this State.
"Municipality" does not mean a township, |
| 13 | | town when that term is used as the
equivalent of a
township, |
| 14 | | incorporated town that has superseded a civil township, |
| 15 | | county,
or school district, park district, sanitary district, |
| 16 | | or similar governmental
district.
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| 17 | | "Natural pathway" means natural routes for the transport |
| 18 | | of regulated
substances including, but not limited to, soil, |
| 19 | | groundwater, sand seams and
lenses, and gravel seams and |
| 20 | | lenses.
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| 21 | | "Person" means individual, trust, firm, joint stock |
| 22 | | company, joint venture,
consortium, commercial entity, |
| 23 | | corporation (including a government
corporation), partnership, |
| 24 | | association, State, municipality, commission,
political |
| 25 | | subdivision of a State, or any interstate body including the |
| 26 | | United
States Government and each department, agency, and |
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| 1 | | instrumentality of the
United States.
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| 2 | | "Regulated substance" means any hazardous substance as |
| 3 | | defined under Section
101(14) of the Comprehensive |
| 4 | | Environmental Response, Compensation, and
Liability Act of |
| 5 | | 1980 (P.L. 96-510) and petroleum products including crude oil
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| 6 | | or any fraction thereof, natural gas, natural gas liquids, |
| 7 | | liquefied natural
gas, or synthetic gas usable for fuel (or |
| 8 | | mixtures of natural gas and such
synthetic gas).
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| 9 | | "Remedial action" means activities associated with |
| 10 | | compliance with the
provisions of Sections 58.6 and 58.7.
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| 11 | | "Remediation Applicant" (RA) means any person seeking to |
| 12 | | perform or
performing investigative or remedial activities |
| 13 | | under this Title, including an the
owner or operator of the |
| 14 | | site or a person persons authorized by law or consent to act
on |
| 15 | | behalf of or in lieu of an the owner or operator of the site.
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| 16 | | "Remediation costs" means reasonable costs paid for |
| 17 | | investigating
and remediating regulated substances of concern |
| 18 | | consistent with the remedy
selected for a site. |
| 19 | | For purposes
of Section 58.14, "remediation costs" shall |
| 20 | | not include costs incurred prior to
January 1, 1998, costs |
| 21 | | incurred after the issuance of a No Further
Remediation Letter |
| 22 | | under Section 58.10 of this Act, or costs incurred more than
12 |
| 23 | | months prior to acceptance into the Site Remediation Program. |
| 24 | | For the purpose of Section 58.14a, "remediation costs" do |
| 25 | | not include any costs incurred before January 1, 2007, any |
| 26 | | costs incurred after the issuance of a No Further Remediation |
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| 1 | | Letter under Section 58.10, or any costs incurred more than 12 |
| 2 | | months before acceptance into the Site Remediation Program.
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| 3 | | "Residential property" means any real property that is |
| 4 | | used for habitation by
individuals and other property uses |
| 5 | | defined by Board rules such as education,
health care, child |
| 6 | | care and related uses.
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| 7 | | "River Edge Redevelopment Zone" has the meaning set forth |
| 8 | | under the River Edge Redevelopment Zone Act.
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| 9 | | "Site" means any single location, place, tract of land or |
| 10 | | parcel of property,
or portion thereof, including contiguous |
| 11 | | property separated by a public
right-of-way.
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| 12 | | "Regulated substance of concern" means any contaminant |
| 13 | | that is expected to be
present at the site based upon past and |
| 14 | | current land uses and associated
releases that are known to |
| 15 | | the Remediation Applicant based upon reasonable
inquiry.
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| 16 | | (Source: P.A. 95-454, eff. 8-27-07.)
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| 17 | | (415 ILCS 5/58.7)
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| 18 | | Sec. 58.7. Review and approvals.
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| 19 | | (a) Requirements. All plans and reports that are submitted |
| 20 | | pursuant
to this Title shall be submitted for review or |
| 21 | | approval in accordance with this
Section.
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| 22 | | (b) Review and evaluation by the Agency.
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| 23 | | (1) Except for sites excluded under subdivision (a) |
| 24 | | (2) of Section 58.1,
the Agency shall, subject to |
| 25 | | available resources, agree to provide review and
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| 1 | | evaluation services for activities carried out pursuant to |
| 2 | | this Title for which
the RA requested the services in |
| 3 | | writing. As a condition for providing such
services, the |
| 4 | | Agency may require that the RA for a site:
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| 5 | | (A) Conform with the procedures of this Title;
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| 6 | | (B) Allow for or otherwise arrange site visits or |
| 7 | | other site
evaluation by the Agency when so requested;
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| 8 | | (C) Agree to perform the Remedial Action Plan as |
| 9 | | approved under this
Title;
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| 10 | | (D) Agree to pay any reasonable costs incurred and |
| 11 | | documented by
the Agency in providing such services;
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| 12 | | (E) Make an advance partial payment to the Agency |
| 13 | | for such
anticipated services in the an amount of |
| 14 | | $2,500 , acceptable to the Agency, but
not to exceed |
| 15 | | $5,000 or one-half of the total anticipated costs of
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| 16 | | the Agency, whichever sum is less; and
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| 17 | | (F) Demonstrate, if necessary, authority to act on |
| 18 | | behalf of or in lieu
of the owner or operator.
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| 19 | | (2) Any moneys received by the State for costs |
| 20 | | incurred by the
Agency in performing review or evaluation |
| 21 | | services for actions conducted
pursuant to this Title |
| 22 | | shall be deposited in the Hazardous Waste Fund.
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| 23 | | (3) An RA requesting services under subdivision (b) |
| 24 | | (1) of this Section
may, at any time, notify the Agency, in |
| 25 | | writing, that Agency services
previously requested are no |
| 26 | | longer wanted. Within 180 days after receipt of
the |
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| 1 | | notice, the Agency shall provide the RA with a final |
| 2 | | invoice for services
provided until the date of such |
| 3 | | notifications.
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| 4 | | (4) The Agency may invoice or otherwise request or |
| 5 | | demand payment
from a RA for costs incurred by the Agency |
| 6 | | in performing review or evaluation
services for actions by |
| 7 | | the RA at sites only if:
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| 8 | | (A) The Agency has incurred costs in performing |
| 9 | | response actions,
other than review or evaluation |
| 10 | | services, due to the failure of the
RA to take response |
| 11 | | action in accordance with a notice issued
pursuant to |
| 12 | | this Act;
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| 13 | | (B) The RA has agreed in writing to the payment of |
| 14 | | such costs;
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| 15 | | (C) The RA has been ordered to pay such costs by |
| 16 | | the Board or a
court of competent jurisdiction |
| 17 | | pursuant to this Act; or
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| 18 | | (D) The RA has requested or has consented to |
| 19 | | Agency review or
evaluation services under subdivision |
| 20 | | (b) (1) of this Section.
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| 21 | | (5) The Agency may, subject to available resources, |
| 22 | | agree to provide
review and evaluation services for |
| 23 | | response actions if there is a
written agreement among |
| 24 | | parties to a legal action or if a notice to
perform a |
| 25 | | response action has been issued by the Agency.
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| 26 | | (c) Review and evaluation by a RELPEG Licensed |
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| 1 | | Professional Engineer or Licensed
Professional Geologist. A RA |
| 2 | | may elect to contract with a Licensed
Professional Engineer |
| 3 | | or, in the case of a site investigation report only,
a Licensed |
| 4 | | Professional Geologist, who will perform review and evaluation
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| 5 | | services on behalf of and under the direction of the Agency |
| 6 | | relative to the
site activities.
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| 7 | | (1) Prior to entering into the contract with the |
| 8 | | RELPEG, the RA shall notify the Agency of the
RELPEG to be |
| 9 | | selected. The Agency and the RA shall discuss the |
| 10 | | potential
terms
of the contract.
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| 11 | | (2) At a minimum, the contract with the RELPEG shall
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| 12 | | provide that the
RELPEG will submit any reports directly |
| 13 | | to the Agency, will take
his or her
directions
for work |
| 14 | | assignments from the Agency, and will perform the assigned |
| 15 | | work on
behalf of the Agency.
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| 16 | | (3) Reasonable costs incurred by the Agency shall be |
| 17 | | paid by the RA
directly to the Agency in accordance with |
| 18 | | the terms of the review and
evaluation services agreement |
| 19 | | entered into under subdivision (b) (1) of Section
58.7.
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| 20 | | (4) In no event shall the RELPEG acting on behalf of |
| 21 | | the
Agency be an
employee of the RA or the owner or |
| 22 | | operator of the site or be an employee of
any other person |
| 23 | | the RA has contracted to provide services relative to the
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| 24 | | site.
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| 25 | | (d) Review and approval. All reviews required under this |
| 26 | | Title shall
be carried out by the Agency or a RELPEG contracted |
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| 1 | | by the RA pursuant to subsection (c) , both under the
direction |
| 2 | | of a Licensed Professional Engineer or, in the case of the
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| 3 | | review of a site investigation only, a Licensed Professional |
| 4 | | Geologist.
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| 5 | | (1) All review activities conducted by the Agency or a |
| 6 | | RELPEG shall be carried out in conformance with this Title |
| 7 | | and rules
promulgated under Section 58.11.
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| 8 | | (2) Subject to the limitations in subsection (c) and |
| 9 | | this subsection
(d), the specific plans, reports, and |
| 10 | | activities that the
Agency or a RELPEG may review include:
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| 11 | | (A) Site Investigation Reports and related |
| 12 | | activities;
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| 13 | | (B) Remediation Objectives Reports;
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| 14 | | (C) Remedial Action Plans and related activities; |
| 15 | | and
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| 16 | | (D) Remedial Action Completion Reports and related |
| 17 | | activities.
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| 18 | | (3) Only the Agency shall have the authority to |
| 19 | | approve,
disapprove, or approve with conditions a plan or |
| 20 | | report as a result of the
review process including those |
| 21 | | plans and reports reviewed by a RELPEG. If the Agency |
| 22 | | disapproves a plan or report or approves a plan or
report |
| 23 | | with conditions, the written notification required by |
| 24 | | subdivision (d)
(4) of this Section shall contain the |
| 25 | | following information, as applicable:
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| 26 | | (A) An explanation of the Sections of this Title |
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| 1 | | that may be
violated if the plan or report was |
| 2 | | approved;
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| 3 | | (B) An explanation of the provisions of the rules
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| 4 | | promulgated under this Title that may be violated if |
| 5 | | the plan or report was
approved;
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| 6 | | (C) An explanation of the specific type of |
| 7 | | information, if any,
that the Agency deems the |
| 8 | | applicant did not provide the Agency;
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| 9 | | (D) A statement of specific reasons why the Title |
| 10 | | and regulations
might not be met if the plan or report |
| 11 | | were approved; and
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| 12 | | (E) An explanation of the reasons for conditions |
| 13 | | if conditions are
required.
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| 14 | | (4) Upon approving, disapproving, or approving with |
| 15 | | conditions a
plan or report, the Agency shall notify the |
| 16 | | RA in writing of its decision. In
the case of approval or |
| 17 | | approval with conditions of a Remedial Action
Completion |
| 18 | | Report, the Agency shall prepare a No Further Remediation
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| 19 | | Letter that meets the requirements of Section 58.10 and |
| 20 | | send a copy of
the letter to the RA.
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| 21 | | (5) All reviews undertaken by the Agency or a RELPEG |
| 22 | | shall
be completed and
the decisions communicated to the |
| 23 | | RA within 60 days of the request for review
or approval of |
| 24 | | a single plan or report and within 90 days after the |
| 25 | | request for review or approval of 2 or more plans or |
| 26 | | reports submitted concurrently. The RA may waive the |
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| 1 | | deadline upon a request from the Agency. If
the Agency |
| 2 | | disapproves or approves with conditions a plan or report |
| 3 | | or fails to
issue a final decision within the applicable |
| 4 | | 60-day or 90-day 60 day period and the RA has not agreed to |
| 5 | | a
waiver of the deadline, the RA may, within 35 days, file |
| 6 | | an appeal to the
Board. Appeals to the Board shall be in |
| 7 | | the manner
provided for the review of permit decisions in |
| 8 | | Section 40 of this Act.
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| 9 | | (e) Standard of review. In making determinations, the |
| 10 | | following
factors, and additional factors as may be adopted by |
| 11 | | the Board in accordance
with Section 58.11, shall be |
| 12 | | considered by the Agency when reviewing or
approving plans, |
| 13 | | reports, and related activities, or the RELPEG,
when reviewing |
| 14 | | plans, reports, and related activities:
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| 15 | | (1) Site Investigation Reports and related activities: |
| 16 | | Whether
investigations have been conducted and the results |
| 17 | | compiled in accordance with
the appropriate procedures and |
| 18 | | whether the interpretations and conclusions
reached are |
| 19 | | supported by the information gathered. In making the
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| 20 | | determination, the following factors shall be considered:
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| 21 | | (A) The adequacy of the description of the site |
| 22 | | and site
characteristics that were used to evaluate |
| 23 | | the site;
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| 24 | | (B) The adequacy of the investigation of potential |
| 25 | | pathways and risks to
receptors identified at the |
| 26 | | site; and
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| 1 | | (C) The appropriateness of the sampling and |
| 2 | | analysis used.
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| 3 | | (2) Remediation Objectives Reports: Whether the |
| 4 | | remediation objectives
are
consistent with the |
| 5 | | requirements of the applicable method for selecting or
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| 6 | | determining remediation objectives under Section 58.5. In |
| 7 | | making the
determination, the following factors shall be |
| 8 | | considered:
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| 9 | | (A) If the objectives were based on the |
| 10 | | determination of area
background levels under |
| 11 | | subsection (b) of Section 58.5, whether the review of
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| 12 | | current and historic conditions at or in the immediate |
| 13 | | vicinity of
the site has been thorough and whether the |
| 14 | | site sampling and
analysis has been performed in a |
| 15 | | manner resulting in accurate
determinations;
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| 16 | | (B) If the objectives were calculated on the basis |
| 17 | | of predetermined
equations using site specific data, |
| 18 | | whether the calculations were
accurately performed and |
| 19 | | whether the site specific data reflect
actual site |
| 20 | | conditions; and
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| 21 | | (C) If the objectives were determined using a site |
| 22 | | specific risk
assessment procedure, whether the |
| 23 | | procedure used is nationally
recognized and accepted, |
| 24 | | whether the calculations were
accurately performed, |
| 25 | | and whether the site specific data reflect
actual site |
| 26 | | conditions.
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| 1 | | (3) Remedial Action Plans and related activities: |
| 2 | | Whether the plan will
result in compliance with this |
| 3 | | Title, and rules adopted under it and
attainment of the |
| 4 | | applicable remediation objectives. In making the
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| 5 | | determination, the following factors shall be considered:
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| 6 | | (A) The likelihood that the plan will result in |
| 7 | | the attainment of
the applicable remediation |
| 8 | | objectives;
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| 9 | | (B) Whether the activities proposed are consistent |
| 10 | | with generally
accepted engineering practices; and
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| 11 | | (C) The management of risk relative to any |
| 12 | | remaining contamination,
including but not limited to, |
| 13 | | provisions for the long-term enforcement,
operation, |
| 14 | | and maintenance of institutional and engineering |
| 15 | | controls, if
relied on.
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| 16 | | (4) Remedial Action Completion Reports and related |
| 17 | | activities: Whether
the remedial activities have been |
| 18 | | completed in accordance with the approved
Remedial Action |
| 19 | | Plan and whether the applicable remediation objectives |
| 20 | | have
been attained.
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| 21 | | (f) All plans and reports submitted for review shall |
| 22 | | include a Licensed
Professional Engineer's certification that |
| 23 | | all investigations and remedial
activities were carried out |
| 24 | | under his or her direction and, to the best of
his or her |
| 25 | | knowledge and belief, the work described in the plan or report |
| 26 | | has
been completed in accordance with generally accepted |
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| 1 | | engineering practices,
and the information presented is |
| 2 | | accurate and complete.
In the case of
a site investigation |
| 3 | | report prepared or supervised by a Licensed Professional
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| 4 | | Geologist, the required certification may be made by the |
| 5 | | Licensed Professional
Geologist (rather than a Licensed |
| 6 | | Professional Engineer) and based upon
generally accepted |
| 7 | | principles of professional geology.
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| 8 | | (g) In accordance with Section 58.11, the Agency shall |
| 9 | | propose and the
Board shall adopt rules to carry out the |
| 10 | | purposes of this Section. At a
minimum, the rules shall detail |
| 11 | | the types of services the Agency may provide
in response to |
| 12 | | requests under subdivision (b) (1) of this Section and the
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| 13 | | recordkeeping it will utilize in documenting to the RA the |
| 14 | | costs incurred by
the Agency in providing such services.
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| 15 | | (h) Public participation.
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| 16 | | (1) The Agency shall develop guidance to assist RA's |
| 17 | | in the
implementation of a community relations plan to |
| 18 | | address activity at sites
undergoing remedial action |
| 19 | | pursuant to this Title.
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| 20 | | (2) The RA may elect to enter into a services |
| 21 | | agreement with the Agency
for Agency assistance in |
| 22 | | community outreach efforts.
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| 23 | | (3) The Agency shall maintain a registry listing those |
| 24 | | sites
undergoing remedial action pursuant to this Title.
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| 25 | | (4) Notwithstanding any provisions of this Section, |
| 26 | | the RA of a site
undergoing remedial activity pursuant to |
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| 1 | | this Title may elect to initiate a
community outreach |
| 2 | | effort for the site.
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| 3 | | (i) Notwithstanding any other provision of this Title, the |
| 4 | | Agency is not required to take action on any submission under |
| 5 | | this Title from or on behalf of an RA if the RA has failed to |
| 6 | | pay all fees due pursuant to an invoice or other request or |
| 7 | | demand for payment under this Title. Any deadline for Agency |
| 8 | | action on such a submission shall be tolled until the fees due |
| 9 | | are paid in full. |
| 10 | | (Source: P.A. 95-331, eff. 8-21-07.)
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