SB3161 93RD GENERAL ASSEMBLY

LRB093 13500 BDD 40197 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB3161

Introduced 2/6/2004, by Ira I. Silverstein

SYNOPSIS AS INTRODUCED:

415 ILCS 5/3.304 new
415 ILCS 5/21.3	from Ch. 111 1/2, par. 1021.3
415 ILCS 5/22.15	from Ch. 111 1/2, par. 1022.15
415 ILCS 5/22.15a new

Amends the Environmental Protection Act. Provides that, upon making a finding that an open dump poses a threat to the public health or to the environment, the Environmental Protection Agency may take whatever preventive or corrective action is necessary or appropriate to end that threat. Sets forth the preventive or corrective actions that may be taken. Sets forth the persons that are liable for all costs of corrective or preventive action incurred by the State as a result of open dumping, including the reasonable costs of collection. Provides that certain costs concerning open dumping, waste tires, and underground storage tanks constitute an environmental reclamation lien. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning environmental protection.

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 21.3 and 22.15 and by adding Sections 3.304 and 22.15a as follows:

(415 ILCS 5/3.304 new)

Sec. 3.304. Open Dump. "Open dump" means a disposal site that does not fulfill the requirements of a sanitary landfill.

(415 ILCS 5/21.3) (from Ch. 111 1/2, par. 1021.3)

Sec. 21.3. Environmental reclamation lien.

(a) All costs and damages for which a person is liable to the State of Illinois under Section 22.2, 22.15a, 55.3, or 57.12 and Section 22.18 shall constitute an environmental reclamation lien in favor of the State of Illinois upon all real property and rights to such property which:

(1) belong to such person; and

(2) are subject to or affected by a removal or remedial action under Section 22.2 or investigation, preventive action, corrective action, or enforcement action under Section 22.15a, 55.3, or 57.12 22.18.

(b) An environmental reclamation lien shall continue until the liability for the costs and damages, or a judgment against the person arising out of such liability, is satisfied.

(c) An environmental reclamation lien shall be effective upon the filing by the Agency of a Notice of Environmental Reclamation Lien with the recorder or the registrar of titles of the county in which the real property lies. The Agency shall not file an environmental reclamation lien, and no such lien shall be valid, unless the Agency has sent notice pursuant to subsection (q) of Section 4, subsection (c) of Section 22.15a, subsection (d) of Section 55.3, or subsection (c) of Section 57.12 of this Act to owners of the real property. Nothing in this Section shall be construed to give the Agency's lien a preference over the rights of any bona fide purchaser or mortgagee or other lienholder (not including the United States when holding an unfiled lien) arising prior to the filing of a notice of environmental reclamation lien in the office of the recorder or registrar of titles of the county in which the property subject to the lien is located. For purposes of this Section, the term "bona fide" shall not include any mortgage of real or personal property or any other credit transaction that results in the mortgagee or the holder of the security acting as trustee for unsecured creditors of the liable person mentioned in the notice of lien who executed such chattel or real property mortgage or the document evidencing such credit transaction. Such lien shall be inferior to the lien of general taxes, special assessments and special taxes heretofore or hereafter levied by any political subdivision of this State.

(d) The environmental reclamation lien shall not exceed the amount of expenditures as itemized on the Affidavit of Expenditures attached to and filed with the Notice of Environmental Reclamation Lien. The Affidavit of Expenditures may be amended if additional costs or damages are incurred.

(e) Upon filing of the Notice of Environmental Reclamation Lien a copy with attachments shall be served upon the owners of the real property. Notice of such service shall be served on all lienholders of record as of the date of filing.

(f) (Blank) Within 60 days after initiating response or remedial action at the site under Section 22.2 or 22.18, the Agency shall file a Notice of Response Action in Progress. The Notice shall be filed with the recorder or registrar of titles of the county in which the real property lies.

(g) In addition to any other remedy provided by the laws of this State, the Agency may foreclose in the circuit court an environmental reclamation lien on real property for any costs or damages imposed under Section 22.2, 22.15a, 55.3, or 57.12 or Section 22.18 to the same extent and in the same manner as in the enforcement of other liens. The process, practice and procedure for such foreclosure shall be the same as provided in Article XV of the Code of Civil Procedure. Nothing in this Section shall affect the right of the State of Illinois to bring an action against any person to recover all costs and damages for which such person is liable under Section 22.2, 22.15a, 55.3, or 57.12 or Section 22.18.

(h) Any liability to the State under Section 22.2, 22.15a, 55.3, or 57.12 or Section 22.18 shall constitute a debt to the State. Interest on such debt shall begin to accrue at a rate of 12% per annum from the date of the filing of the Notice of Environmental Reclamation Lien under paragraph (c). Accrued interest shall be included as a cost incurred by the State of Illinois under Section 22.2, 22.15A, 55.3, or 57.12 or Section 22.18.

(i) "Environmental reclamation lien" means a lien established under this Section.

(Source: P.A. 92-574, eff. 6-26-02.)

(415 ILCS 5/22.15) (from Ch. 111 1/2, par. 1022.15)

Sec. 22.15. Solid Waste Management Fund; fees.

(a) There is hereby created within the State Treasury a special fund to be known as the "Solid Waste Management Fund", to be constituted from the fees collected by the State pursuant to this Section and from repayments of loans made from the Fund for solid waste projects. Moneys received by the Department of Commerce and Community Affairs in repayment of loans made pursuant to the Illinois Solid Waste Management Act shall be deposited into the Solid Waste Management Revolving Loan Fund.

(b) The Agency shall assess and collect a fee in the amount set forth herein from the owner or operator of each sanitary landfill permitted or required to be permitted by the Agency to dispose of solid waste if the sanitary landfill is located off the site where such waste was produced and if such sanitary landfill is owned, controlled, and operated by a person other than the generator of such waste. The Agency shall deposit all fees collected into the Solid Waste Management Fund. If a site is contiguous to one or more landfills owned or operated by the same person, the volumes permanently disposed of by each landfill shall be combined for purposes of determining the fee under this subsection.

(1) If more than 150,000 cubic yards of non-hazardous solid waste is permanently disposed of at a site in a calendar year, the owner or operator shall either pay a fee of 95 cents per cubic yard or, alternatively, the owner or operator may weigh the quantity of the solid waste permanently disposed of with a device for which certification has been obtained under the Weights and Measures Act and pay a fee of $2.00 per ton of solid waste permanently disposed of. In no case shall the fee collected or paid by the owner or operator under this paragraph exceed $1.55 per cubic yard or $3.27 per ton.

(2) If more than 100,000 cubic yards but not more than 150,000 cubic yards of non-hazardous waste is permanently disposed of at a site in a calendar year, the owner or operator shall pay a fee of $52,630.

(3) If more than 50,000 cubic yards but not more than 100,000 cubic yards of non-hazardous solid waste is permanently disposed of at a site in a calendar year, the owner or operator shall pay a fee of $23,790.

(4) If more than 10,000 cubic yards but not more than 50,000 cubic yards of non-hazardous solid waste is permanently disposed of at a site in a calendar year, the owner or operator shall pay a fee of $7,260.

(5) If not more than 10,000 cubic yards of non-hazardous solid waste is permanently disposed of at a site in a calendar year, the owner or operator shall pay a fee of $1050.

(c) (Blank.)

(d) The Agency shall establish rules relating to the collection of the fees authorized by this Section. Such rules shall include, but not be limited to:

(1) necessary records identifying the quantities of solid waste received or disposed;

(2) the form and submission of reports to accompany the payment of fees to the Agency;

(3) the time and manner of payment of fees to the Agency, which payments shall not be more often than quarterly; and

(4) procedures setting forth criteria establishing when an owner or operator may measure by weight or volume during any given quarter or other fee payment period.

(e) Pursuant to appropriation, all monies in the Solid Waste Management Fund shall be used by the Agency and the Department of Commerce and Community Affairs for the purposes set forth in this Section and in the Illinois Solid Waste Management Act, including for the costs of fee collection and administration, and may be used by the Agency for activities conducted under Section 22.2 or 22.15a of this Act.

(f) The Agency is authorized to enter into such agreements and to promulgate such rules as are necessary to carry out its duties under this Section and the Illinois Solid Waste Management Act.

(g) On the first day of January, April, July, and October of each year, beginning on July 1, 1996, the State Comptroller and Treasurer shall transfer $500,000 from the Solid Waste Management Fund to the Hazardous Waste Fund. Moneys transferred under this subsection (g) shall be used only for the purposes set forth in item (1) of subsection (d) of Section 22.2.

(h) The Agency is authorized to provide financial assistance to units of local government for the performance of inspecting, investigating and enforcement activities pursuant to Section 4(r) at nonhazardous solid waste disposal sites.

(i) The Agency is authorized to support the operations of an industrial materials exchange service, and to conduct household waste collection and disposal programs.

(j) A unit of local government, as defined in the Local Solid Waste Disposal Act, in which a solid waste disposal facility is located may establish a fee, tax, or surcharge with regard to the permanent disposal of solid waste. All fees, taxes, and surcharges collected under this subsection shall be utilized for solid waste management purposes, including long-term monitoring and maintenance of landfills, planning, implementation, inspection, enforcement and other activities consistent with the Solid Waste Management Act and the Local Solid Waste Disposal Act, or for any other environment-related purpose, including but not limited to an environment-related public works project, but not for the construction of a new pollution control facility other than a household hazardous waste facility. However, the total fee, tax or surcharge imposed by all units of local government under this subsection (j) upon the solid waste disposal facility shall not exceed:

(1) 60¢ per cubic yard if more than 150,000 cubic yards of non-hazardous solid waste is permanently disposed of at the site in a calendar year, unless the owner or operator weighs the quantity of the solid waste received with a device for which certification has been obtained under the Weights and Measures Act, in which case the fee shall not exceed $1.27 per ton of solid waste permanently disposed of.

(2) $33,350 if more than 100,000 cubic yards, but not more than 150,000 cubic yards, of non-hazardous waste is permanently disposed of at the site in a calendar year.

(3) $15,500 if more than 50,000 cubic yards, but not more than 100,000 cubic yards, of non-hazardous solid waste is permanently disposed of at the site in a calendar year.

(4) $4,650 if more than 10,000 cubic yards, but not more than 50,000 cubic yards, of non-hazardous solid waste is permanently disposed of at the site in a calendar year.

(5) $$650 if not more than 10,000 cubic yards of non-hazardous solid waste is permanently disposed of at the site in a calendar year.

The corporate authorities of the unit of local government may use proceeds from the fee, tax, or surcharge to reimburse a highway commissioner whose road district lies wholly or partially within the corporate limits of the unit of local government for expenses incurred in the removal of nonhazardous, nonfluid municipal waste that has been dumped on public property in violation of a State law or local ordinance.

A county or Municipal Joint Action Agency that imposes a fee, tax, or surcharge under this subsection may use the proceeds thereof to reimburse a municipality that lies wholly or partially within its boundaries for expenses incurred in the removal of nonhazardous, nonfluid municipal waste that has been dumped on public property in violation of a State law or local ordinance.

If the fees are to be used to conduct a local sanitary landfill inspection or enforcement program, the unit of local government must enter into a written delegation agreement with the Agency pursuant to subsection (r) of Section 4. The unit of local government and the Agency shall enter into such a written delegation agreement within 60 days after the establishment of such fees. At least annually, the Agency shall conduct an audit of the expenditures made by units of local government from the funds granted by the Agency to the units of local government for purposes of local sanitary landfill inspection and enforcement programs, to ensure that the funds have been expended for the prescribed purposes under the grant.

The fees, taxes or surcharges collected under this subsection (j) shall be placed by the unit of local government in a separate fund, and the interest received on the moneys in the fund shall be credited to the fund. The monies in the fund may be accumulated over a period of years to be expended in accordance with this subsection.

A unit of local government, as defined in the Local Solid Waste Disposal Act, shall prepare and distribute to the Agency, in April of each year, a report that details spending plans for monies collected in accordance with this subsection. The report will at a minimum include the following:

(1) The total monies collected pursuant to this subsection.

(2) The most current balance of monies collected pursuant to this subsection.

(3) An itemized accounting of all monies expended for the previous year pursuant to this subsection.

(4) An estimation of monies to be collected for the following 3 years pursuant to this subsection.

(5) A narrative detailing the general direction and scope of future expenditures for one, 2 and 3 years.

The exemptions granted under Sections 22.16 and 22.16a, and under subsections (c) and (k) of this Section, shall be applicable to any fee, tax or surcharge imposed under this subsection (j); except that the fee, tax or surcharge authorized to be imposed under this subsection (j) may be made applicable by a unit of local government to the permanent disposal of solid waste after December 31, 1986, under any contract lawfully executed before June 1, 1986 under which more than 150,000 cubic yards (or 50,000 tons) of solid waste is to be permanently disposed of, even though the waste is exempt from the fee imposed by the State under subsection (b) of this Section pursuant to an exemption granted under Section 22.16.

(k) In accordance with the findings and purposes of the Illinois Solid Waste Management Act, beginning January 1, 1989 the fee under subsection (b) and the fee, tax or surcharge under subsection (j) shall not apply to:

(1) Waste which is hazardous waste; or

(2) Waste which is pollution control waste; or

(3) Waste from recycling, reclamation or reuse processes which have been approved by the Agency as being designed to remove any contaminant from wastes so as to render such wastes reusable, provided that the process renders at least 50% of the waste reusable; or

(4) Non-hazardous solid waste that is received at a sanitary landfill and composted or recycled through a process permitted by the Agency; or

(5) Any landfill which is permitted by the Agency to receive only demolition or construction debris or landscape waste.

(Source: P.A. 92-574, eff. 6-26-02; 93-32, eff. 7-1-03.)

(415 ILCS 5/22.15a new)

Sec. 22.15a. Open dumps.

(a) Upon making a finding that an open dump poses a threat to the public health or to the environment, the Agency may take whatever preventive or corrective action is necessary or appropriate to end that threat. This preventive or corrective action may consist of any or all of the following:

(1) Removing waste from the site.

(2) Removing soil and water contamination that is related to waste at the site.

(3) Installing devices to monitor and control groundwater and surface water contamination that is related to waste at the site.

(4) Taking any other actions that are authorized by Board regulations.

(b) Subject to the availability of appropriated funds, the Agency may undertake a consensual removal action for the removal of up to 20 cubic yards of waste at no cost to the owner of an open dump in accordance to the following requirements:

(1) Actions under this subsection must be taken pursuant to a written agreement between the Agency and the owner of the open dump.

(2) The written agreement must at a minimum specify:

(A) that the owner relinquishes any claim of an ownership interest in any waste that is removed or in any proceeds from its sale;

(B) that waste will no longer be allowed to accumulate at the site in a manner that constitutes open dumping;

(C) that the owner will hold harmless the Agency or any employee or contractor used by the Agency to effect the removal for any damage to property incurred during the course of action under this subsection, except for damage incurred by gross negligence or intentional misconduct; and

(D) any conditions upon or assistance required from the owner to assure that the waste is so located or arranged as to facilitate its removal.

(3) The Agency may establish by rule the conditions and priorities for the removal of waste under this subsection (b).

(4) The Agency must prescribe the form of written agreements under this subsection (b).

(c) The Agency may provide notice to the owner of an open dump whenever the Agency finds that the open dump poses a threat to public health or the environment. The notice provided by the Agency must include the identified preventive or corrective action and must provide an opportunity for the owner to perform the action.

(d) In accordance with constitutional limitations, the Agency may enter, at all reasonable times, upon any private or public property for the purpose of taking any preventive or corrective action that is necessary and appropriate under this Section whenever the Agency finds that an open dump poses a threat to the public health or to the environment.

(e) Notwithstanding any other provision or rule of law and subject only to the defenses set forth in subsection (g) of this Section, the following persons shall be liable for all costs of corrective or preventive action incurred by the State of Illinois as a result of open dumping, including the reasonable costs of collection:

(1) any person with an ownership interest in the open dump;

(2) any person with an ownership or leasehold interest in the open dump at the time waste was disposed of at the site;

(3) any person who transported waste that was disposed of at the open dump; and

(4) any person who disposed of waste at the open dump.

Any moneys received by the Agency under this subsection (e) must be deposited into the Hazardous Waste Fund.

(f) Any person liable to the Agency for costs incurred under subsection (e) of this Section may be liable to the State of Illinois for punitive damages in an amount at least equal to and not more than 3 times the costs incurred by the State if that person failed, without sufficient cause, to take preventive or corrective action under the notice issued under subsection (c) of this Section.

(g) There shall be no liability under subsection (e) of this Section for a person otherwise liable who can establish by a preponderance of the evidence that the hazard created by the open dump was caused solely by:

(1) an act of God;

(2) an act of war; or

(3) an act or omission of a third party other than an employee or agent and other than a person whose act or omission occurs in connection with a contractual relationship with the person otherwise liable. For the purposes of this paragraph, "contractual relationship" includes, but is not limited to, land contracts, deeds and other instruments transferring title or possession, unless the real property upon which the open dump is located was acquired by the defendant after the disposal or placement of waste on, in, or at the property and one or more of the following circumstances is also established by a preponderance of the evidence:

(A) at the time the defendant acquired the property, the defendant did not know and had no reason to know that any waste had been disposed of or placed on, in, or at the property, and the defendant undertook, at the time of acquisition, all appropriate inquiries into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability;

(B) the defendant is a government entity that acquired the property by escheat or through any other involuntary transfer or acquisition, or through the exercise of eminent domain authority by purchase or condemnation; or

(C) the defendant acquired the property by inheritance or bequest.

(h) Nothing in this Section shall affect or modify the obligations or liability of any person under any other provision of this Act, federal law, or State law, including the common law, for injuries, damages, or losses resulting from the circumstances leading to Agency action under this Section.

(i) The costs and damages provided for in this Section may be imposed by the Board in an action brought before the Board in accordance with Title VIII of this Act, except that subsection (c) of Section 33 of this Act shall not apply to any such action.

(j) Neither the State, the Agency, the Board, the Director, nor any State employee is liable for any damage or injury arising out of or resulting from any action taken under this Section.

Section 99. Effective date. This Act takes effect upon becoming law.