Bill Text: IL SB2794 | 2019-2020 | 101st General Assembly | Introduced

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Bill Title: Amends the Environmental Protection Act. Provides that for an underground storage tank release reported on or after the effective date of the amendatory Act, an owner or operator may access the Underground Storage Tank Fund for costs associated with an Environmental Protection Agency approved plan, and the Agency shall approve the payment of costs associated with corrective action without the application of a deductible, except a $5,000 deductible shall apply to an owner or operator of an underground storage tank that is not registered under the Gasoline Storage Act. Makes changes, applicable to a release reported on or after the effective date, to provisions concerning payments from the Underground Storage Tank Fund for an application for payment from the Fund for an approved plan and budget for a tank that is registered under the Gasoline Storage Act. Provides that if a full payment is not made within specified periods for the applications for these registered tanks, then the Fund must pay the owner or operator 2% interest per month on any unpaid amount until the owner or operator is fully paid. Provides that if the balance in the Underground Storage Tank Fund falls below $10,000,000 for a period of 6 months, then the 2% percent monthly interest payments shall be suspended until the Fund balance is above $10,000,000. Makes other changes. Effective January 1, 2021.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2021-01-13 - Session Sine Die [SB2794 Detail]

Download: Illinois-2019-SB2794-Introduced.html

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101ST GENERAL ASSEMBLY State of Illinois 2019 and 2020 SB2794 Introduced 2/4/2020, by Sen. Robert F. Martwick SYNOPSIS AS INTRODUCED:
415 ILCS 5/57.5
415 ILCS 5/57.8
415 ILCS 5/57.9
Amends the Environmental Protection Act. Provides that for an underground storage tank release reported on or after the effective date of the amendatory Act, an owner or operator may access the Underground Storage Tank Fund for costs associated with an Environmental Protection Agency approved plan, and the Agency shall approve the payment of costs associated with corrective action without the application of a deductible, except a $5,000 deductible shall apply to an owner or operator of an underground storage tank that is not registered under the Gasoline Storage Act. Makes changes, applicable to a release reported on or after the effective date, to provisions concerning payments from the Underground Storage Tank Fund for an application for payment from the Fund for an approved plan and budget for a tank that is registered under the Gasoline Storage Act. Provides that if a full payment is not made within specified periods for the applications for these registered tanks, then the Fund must pay the owner or operator 2% interest per month on any unpaid amount until the owner or operator is fully paid. Provides that if the balance in the Underground Storage Tank Fund falls below $10,000,000 for a period of 6 months, then the 2% percent monthly interest payments shall be suspended until the Fund balance is above $10,000,000. Makes other changes. Effective January 1, 2021.
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FISCAL NOTE ACT MAY APPLY
A BILL FOR
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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 57.5, 57.8, and 57.9 as follows:
(415 ILCS 5/57.5)
Sec. 57.5. Underground Storage Tanks; removal; repair;
abandonment.
(a) Notwithstanding the eligibility or the level of
deductibility of an owner or operator under the Underground
Storage Tank Fund, any owner or operator of an Underground
Storage Tank may seek to remove or abandon such tank under the
provisions of this Title. In order to be reimbursed under
Section 57.8, the owner or operator must comply with the
provisions of this Title. Except for interest accrued under
paragraph (2.5) of subsection (a) of Section 57.8, in In no
event will an owner or operator be reimbursed for any costs
which exceed the minimum requirements necessary to comply with
this Title.
(b) Removal or abandonment of an Underground Storage Tank
must be carried out in accordance with regulations adopted by
the Office of State Fire Marshal.
(c) The Office of the State Fire Marshal or a designated

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agent shall have an inspector on site at the time of removal,
abandonment, or such other times the Office of State Fire
Marshal deems appropriate. At such time, the inspector shall,
upon preliminary excavation of the tank site, render an opinion
as to whether a release of petroleum has occurred and, if so,
the owner or operator shall report the known or suspected
release to the Illinois Emergency Management Agency. The owner
or operator shall determine whether or not a release has
occurred in conformance with the regulations adopted by the
Board and the Office of the State Fire Marshal. Except that if
the opinion of the Office of the State Fire Marshal inspector
is that a release of petroleum has occurred and the owner or
operator has reported the release to the Illinois Emergency
Management Agency within 24 hours of removal of the tank, no
such determination is required under this subsection. In the
event the owner or operator confirms the presence of a release
of petroleum, the owner or operator shall comply with Section
57.6. The inspector shall provide the owner or operator, or a
designated agent, with an "Eligibility and Deductibility
Determination" form. The Office of the State Fire Marshal shall
provide on-site assistance to the owner or operator or a
designated agent with regard to the eligibility and
deductibility procedures as provided in Section 57.9. If the
Office of the State Fire Marshal is not on site, the Office of
the State Fire Marshal shall provide the owner or operator with
an "Eligibility and Deductibility Determination" form within

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15 days after receiving notice that the confirmed release was
reported by the owner or operator.
(d) In the event that a release of petroleum is confirmed
under subsection (c) of this Section, the owner or operator may
elect to backfill the preliminary excavation and proceed under
Section 57.6.
(e) In the event that an Underground Storage Tank is found
to be ineligible for payment from the Underground Storage Tank
Fund, the owner or operator shall proceed under Sections 57.6
and 57.7.
(f) In the event that no release of petroleum is confirmed,
the owner or operator shall proceed to complete the removal of
the underground storage tank, and when appropriate, dispose of
the tank and backfill the excavation or, in the alternate,
abandon the underground storage tank in place. Either option
shall be in accordance with regulations adopted by the Office
of the State Fire Marshal. The owner or operator shall certify
to the Office of the State Fire Marshal that the tank removal
or abandonment was conducted in accordance with all applicable
rules and regulations, and the Office of the State Fire Marshal
shall then issue a certificate of removal or abandonment to the
owner or operator. If the Office of the State Fire Marshal
fails to issue a certificate of removal or abandonment within
30 days of receipt of the certification, the certification
shall be considered rejected by operation of law and a final
action appealable to the Board. Nothing in this Title shall

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prohibit the Office of the State Fire Marshal from making an
independent inspection of the site and challenging the veracity
of the owner or operator certification.
(g) The owner or operator of an underground storage tank
taken out of operation before January 2, 1974, or an
underground storage tank used exclusively to store heating oil
for consumptive use on the premises where stored and which
serves other than a farm or residential unit shall not be
required to remove or abandon in place such underground storage
tank except in the case in which the Office of the State Fire
Marshal has determined that a release from the underground
storage tank poses a current or potential threat to human
health and the environment. In that case, and upon receipt of
an order from the Office of the State Fire Marshal, the owner
or operator of such underground storage tank shall conduct
removal and, if necessary, site investigation and corrective
action in accordance with this Title and regulations
promulgated by the Office of State Fire Marshal and the Board.
(h) In the event that a release of petroleum occurred
between September 13, 1993, and August 1, 1994, for which the
Office of the State Fire Marshal issued a certificate of
removal or abandonment based on its determination of "no
release" or "minor release," and the Office of the State Fire
Marshal subsequently has rescinded that determination and
required a report of a confirmed release to the Illinois
Emergency Management Agency, the owner or operator may be

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eligible for reimbursement for the costs of site investigation
and corrective action incurred on or after the date of the
release but prior to the notification of the Illinois Emergency
Management Agency. The date of the release shall be the date of
the initial inspection by the Office of the State Fire Marshal
as recorded in its inspection log. Eligibility and
deductibility shall be determined in accordance with this
Title, the owner or operator must comply with the provisions of
this Act and its rules, and in no case shall the owner or
operator be reimbursed for costs exceeding the minimum
requirements of this Act and its rules.
(Source: P.A. 92-554, eff. 6-24-02.)
(415 ILCS 5/57.8)
Sec. 57.8. Underground Storage Tank Fund; payment; options
for State payment; deferred correction election to commence
corrective action upon availability of funds. If an owner or
operator is eligible to access the Underground Storage Tank
Fund pursuant to an Office of State Fire Marshal
eligibility/deductible final determination letter issued in
accordance with Section 57.9, the owner or operator may submit
a complete application for final or partial payment to the
Agency for activities taken in response to a confirmed release.
An owner or operator may submit a request for partial or final
payment regarding a site no more frequently than once every 90
days.

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(a) Payment after completion of corrective action
measures. The owner or operator may submit an application for
payment for activities performed at a site after completion of
the requirements of Sections 57.6 and 57.7, or after completion
of any other required activities at the underground storage
tank site.
(1) This paragraph applies to a release reported under
Section 57.5 before the effective date of this amendatory
Act of the 101st General Assembly.
In the case of any approved plan and budget for which
payment is being sought, the Agency shall make a payment
determination within 120 days of receipt of the
application. Such determination shall be considered a
final decision. The Agency's review shall be limited to
generally accepted auditing and accounting practices. In
no case shall the Agency conduct additional review of any
plan which was completed within the budget, beyond auditing
for adherence to the corrective action measures in the
proposal. If the Agency fails to approve the payment
application within 120 days, such application shall be
deemed approved by operation of law and the Agency shall
proceed to reimburse the owner or operator the amount
requested in the payment application. However, in no event
shall the Agency reimburse the owner or operator an amount
greater than the amount approved in the plan.
(2) This paragraph applies to a release reported under

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Section 57.5 before the effective date of this amendatory
Act of the 101st General Assembly. If sufficient funds are
available in the Underground Storage Tank Fund, the Agency
shall, within 60 days, forward to the Office of the State
Comptroller a voucher in the amount approved under the
payment application.
(2.5) This paragraph applies to a release reported
under Section 57.5 on or after the effective date of this
amendatory Act of the 101st General Assembly.
In the case of an application for an approved plan that
is at or under a budget approved by the Agency for a tank
registered under the Gasoline Storage Act, the Agency shall
have 30 days from receipt of the application to make a
payment determination and, if sufficient funds are
available in the Underground Storage Tank Fund, to forward
to the Office of the State Comptroller a voucher in the
amount approved under the payment application. The
determination shall be considered a final decision. The
Agency's review shall be limited to generally accepted
auditing and accounting practices. In no case shall the
Agency conduct additional review of any plan which was
completed within the budget, beyond auditing for adherence
to the corrective action measures in the proposal. If the
Agency fails to approve the payment application within 30
days, then the application shall be deemed approved by
operation of law and the Agency shall proceed to reimburse

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the owner or operator the amount requested in the payment
application. If a full payment is not made within 30 days
of receipt of the application, then the Fund must pay the
owner or operator 2% interest per month on any unpaid
amount until the owner or operator is fully paid.
In the case of an application for an approved plan that
is over a budget approved by the Agency for a tank that is
registered under the Gasoline Storage Act, the Agency shall
have 60 days from receipt of the application to make a
payment determination and, if sufficient funds are
available in the Underground Storage Tank Fund, 30 days
from the date of the payment determination to forward to
the Office of the State Comptroller a voucher in the amount
approved under the payment application. The determination
shall be considered a final decision. The Agency's review
shall be limited to generally accepted auditing and
accounting practices. In no case shall the Agency conduct
additional review of any plan which was completed within
the budget, beyond auditing for adherence to the corrective
action measures in the proposal. If the Agency fails to
approve the payment application within 60 days, then the
application shall be deemed approved by operation of law
and the Agency shall proceed to reimburse the owner or
operator the amount requested in the payment application.
If a full payment is not made within 30 days of the date
that the voucher is forwarded to the Comptroller, then the

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Fund must pay the owner or operator 2% interest per month
on any unpaid amount until the owner or operator is fully
paid.
Except for interest accrued under this paragraph, in no
event shall the Agency reimburse the owner or operator an
amount greater than the amount approved in the plan.
If the balance in the Underground Storage Tank Fund
falls below $10,000,000 for a period of 6 months, then the
2% percent monthly interest payments under this paragraph
shall be suspended until the Fund balance is above
$10,000,000.
(3) In the case of insufficient funds, the Agency shall
form a priority list for payment and shall notify persons
in such priority list monthly of the availability of funds
and when payment shall be made. Payment shall be made to
the owner or operator at such time as sufficient funds
become available for the costs associated with site
investigation and corrective action and costs expended for
activities performed where no proposal is required, if
applicable. Such priority list shall be available to any
owner or operator upon request. Priority for payment shall
be determined by the date the Agency receives a complete
request for partial or final payment. Upon receipt of
notification from the Agency that the requirements of this
Title have been met, the Comptroller shall make payment to
the owner or operator of the amount approved by the Agency,

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if sufficient money exists in the Fund. If there is
insufficient money in the Fund, then payment shall not be
made. If the owner or operator appeals a final Agency
payment determination and it is determined that the owner
or operator is eligible for payment or additional payment,
the priority date for the payment or additional payment
shall be the same as the priority date assigned to the
original request for partial or final payment.
(4) Any deductible, as determined pursuant to the
Office of the State Fire Marshal's eligibility and
deductibility final determination in accordance with
Section 57.9, shall be subtracted from any payment invoice
paid to an eligible owner or operator. Only one deductible
shall apply per underground storage tank site.
(5) In the event that costs are or will be incurred in
addition to those approved by the Agency, or after payment,
the owner or operator may submit successive plans
containing amended budgets. The requirements of Section
57.7 shall apply to any amended plans.
(6) For purposes of this Section, a complete
application shall consist of:
(A) A certification from a Licensed Professional
Engineer or Licensed Professional Geologist as
required under this Title and acknowledged by the owner
or operator.
(B) A statement of the amounts approved in the

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budget and the amounts actually sought for payment
along with a certified statement by the owner or
operator that the amounts so sought were expended in
conformance with the approved budget.
(C) A copy of the Office of the State Fire
Marshal's eligibility and deductibility determination.
(D) Proof that approval of the payment requested
will not result in the limitations set forth in
subsection (g) of this Section being exceeded.
(E) A federal taxpayer identification number and
legal status disclosure certification on a form
prescribed and provided by the Agency.
(F) If the Agency determined under subsection
(c)(3) of Section 57.7 of this Act that corrective
action must include a project labor agreement, a
certification from the owner or operator that the
corrective action was (i) performed under a project
labor agreement that meets the requirements of Section
25 of the Project Labor Agreements Act and (ii)
implemented in a manner consistent with the terms and
conditions of the Project Labor Agreements Act and in
full compliance with all statutes, regulations, and
Executive Orders as required under that Act and the
Prevailing Wage Act.
(b) Commencement of site investigation or corrective
action upon availability of funds. The Board shall adopt

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regulations setting forth procedures based on risk to human
health or the environment under which the owner or operator who
has received approval for any budget plan submitted pursuant to
Section 57.7, and who is eligible for payment from the
Underground Storage Tank Fund pursuant to an Office of the
State Fire Marshal eligibility and deductibility
determination, may elect to defer site investigation or
corrective action activities until funds are available in an
amount equal to the amount approved in the budget. The
regulations shall establish criteria based on risk to human
health or the environment to be used for determining on a
site-by-site basis whether deferral is appropriate. The
regulations also shall establish the minimum investigatory
requirements for determining whether the risk based criteria
are present at a site considering deferral and procedures for
the notification of owners or operators of insufficient funds,
Agency review of request for deferral, notification of Agency
final decisions, returning deferred sites to active status, and
earmarking of funds for payment.
(c) When the owner or operator requests indemnification for
payment of costs incurred as a result of a release of petroleum
from an underground storage tank, if the owner or operator has
satisfied the requirements of subsection (a) of this Section,
the Agency shall forward a copy of the request to the Attorney
General. The Attorney General shall review and approve the
request for indemnification if:

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(1) there is a legally enforceable judgment entered
against the owner or operator and such judgment was entered
due to harm caused by a release of petroleum from an
underground storage tank and such judgment was not entered
as a result of fraud; or
(2) a settlement with a third party due to a release of
petroleum from an underground storage tank is reasonable.
(d) Notwithstanding any other provision of this Title, the
Agency shall not approve payment to an owner or operator from
the Fund for costs of corrective action or indemnification
incurred during a calendar year in excess of the following
aggregate amounts based on the number of petroleum underground
storage tanks owned or operated by such owner or operator in
Illinois.
Amount Number of Tanks
$2,000,000........................fewer than 101
$3,000,000................................101 or more
(1) Costs incurred in excess of the aggregate amounts
set forth in paragraph (1) of this subsection shall not be
eligible for payment in subsequent years.
(2) For purposes of this subsection, requests
submitted by any of the agencies, departments, boards,
committees or commissions of the State of Illinois shall be
acted upon as claims from a single owner or operator.
(3) For purposes of this subsection, owner or operator
includes (i) any subsidiary, parent, or joint stock company

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of the owner or operator and (ii) any company owned by any
parent, subsidiary, or joint stock company of the owner or
operator.
(e) Costs of corrective action or indemnification incurred
by an owner or operator which have been paid to an owner or
operator under a policy of insurance, another written
agreement, or a court order are not eligible for payment under
this Section. An owner or operator who receives payment under a
policy of insurance, another written agreement, or a court
order shall reimburse the State to the extent such payment
covers costs for which payment was received from the Fund. Any
monies received by the State under this subsection (e) shall be
deposited into the Fund.
(f) (Blank.)
(g) The Agency shall not approve any payment from the Fund
to pay an owner or operator:
(1) for costs of corrective action incurred by such
owner or operator in an amount in excess of $1,500,000 per
occurrence; and
(2) for costs of indemnification of such owner or
operator in an amount in excess of $1,500,000 per
occurrence.
(h) Payment of any amount from the Fund for corrective
action or indemnification shall be subject to the State
acquiring by subrogation the rights of any owner, operator, or
other person to recover the costs of corrective action or

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indemnification for which the Fund has compensated such owner,
operator, or person from the person responsible or liable for
the release.
(i) If the Agency refuses to pay or authorizes only a
partial payment, the affected owner or operator may petition
the Board for a hearing in the manner provided for the review
of permit decisions in Section 40 of this Act.
(j) Costs of corrective action or indemnification incurred
by an owner or operator prior to July 28, 1989, shall not be
eligible for payment or reimbursement under this Section.
(k) The Agency shall not pay costs of corrective action or
indemnification incurred before providing notification of the
release of petroleum in accordance with the provisions of this
Title.
(l) Corrective action does not include legal defense costs.
Legal defense costs include legal costs for seeking payment
under this Title unless the owner or operator prevails before
the Board in which case the Board may authorize payment of
legal fees.
(m) The Agency may apportion payment of costs for plans
submitted under Section 57.7 if:
(1) the owner or operator was deemed eligible to access
the Fund for payment of corrective action costs for some,
but not all, of the underground storage tanks at the site;
and
(2) the owner or operator failed to justify all costs

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attributable to each underground storage tank at the site.
(n) The Agency shall not pay costs associated with a
corrective action plan incurred after the Agency provides
notification to the owner or operator pursuant to item (7) of
subsection (b) of Section 57.7 that a revised corrective action
plan is required. Costs associated with any subsequently
approved corrective action plan shall be eligible for
reimbursement if they meet the requirements of this Title.
(Source: P.A. 98-109, eff. 7-25-13.)
(415 ILCS 5/57.9)
Sec. 57.9. Underground Storage Tank Fund; eligibility and
deductibility.
(a) The Underground Storage Tank Fund shall be accessible
by owners and operators who have a confirmed release from an
underground storage tank or related tank system of a substance
listed in this Section. The owner or operator is eligible to
access the Underground Storage Tank Fund if the eligibility
requirements of this Title are satisfied and:
(1) Neither the owner nor the operator is the United
States Government.
(2) The tank does not contain fuel which is exempt from
the Motor Fuel Tax Law.
(3) The costs were incurred as a result of a confirmed
release of any of the following substances:
(A) "Fuel", as defined in Section 1.19 of the Motor

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Fuel Tax Law.
(B) Aviation fuel.
(C) Heating oil.
(D) Kerosene.
(E) Used oil which has been refined from crude oil
used in a motor vehicle, as defined in Section 1.3 of
the Motor Fuel Tax Law.
(4) The owner or operator registered the tank and paid
all fees in accordance with the statutory and regulatory
requirements of the Gasoline Storage Act.
(5) The owner or operator notified the Illinois
Emergency Management Agency of a confirmed release, the
costs were incurred after the notification and the costs
were a result of a release of a substance listed in this
Section. Costs of corrective action or indemnification
incurred before providing that notification shall not be
eligible for payment.
(6) The costs have not already been paid to the owner
or operator under a private insurance policy, other written
agreement, or court order.
(7) The costs were associated with "corrective action"
of this Act.
If the underground storage tank which experienced a
release of a substance listed in this Section was installed
after July 28, 1989, the owner or operator is eligible to
access the Underground Storage Tank Fund if it is

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demonstrated to the Office of the State Fire Marshal the
tank was installed and operated in accordance with Office
of the State Fire Marshal regulatory requirements. Office
of the State Fire Marshal certification is prima facie
evidence the tank was installed pursuant to the Office of
the State Fire Marshal regulatory requirements.
(b) For releases reported prior to the effective date of
this amendatory Act of the 96th General Assembly, an owner or
operator may access the Underground Storage Tank Fund for costs
associated with an Agency approved plan and the Agency shall
approve the payment of costs associated with corrective action
after the application of a $10,000 deductible, except in the
following situations:
(1) A deductible of $100,000 shall apply when none of
the underground storage tanks were registered prior to July
28, 1989, except in the case of underground storage tanks
used exclusively to store heating oil for consumptive use
on the premises where stored and which serve other than
farms or residential units, a deductible of $100,000 shall
apply when none of these tanks were registered prior to
July 1, 1992.
(2) A deductible of $50,000 shall apply if any of the
underground storage tanks were registered prior to July 28,
1989, and the State received notice of the confirmed
release prior to July 28, 1989.
(3) A deductible of $15,000 shall apply when one or

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more, but not all, of the underground storage tanks were
registered prior to July 28, 1989, and the State received
notice of the confirmed release on or after July 28, 1989.
For releases reported on or after the effective date of
this amendatory Act of the 96th General Assembly until the
effective date of this amendatory Act of the 101st General
Assembly, an owner or operator may access the Underground
Storage Tank Fund for costs associated with an Agency approved
plan, and the Agency shall approve the payment of costs
associated with corrective action after the application of a
$5,000 deductible.
For a release reported on or after the effective date of
this amendatory Act of the 101st General Assembly, an owner or
operator may access the Underground Storage Tank Fund for costs
associated with an Agency approved plan, and the Agency shall
approve the payment of costs associated with corrective action
without the application of a deductible, except a $5,000
deductible shall apply to an owner or operator of an
underground storage tank that is not registered under the
Gasoline Storage Act.
A deductible shall apply annually for each site at which
costs were incurred under a claim submitted pursuant to this
Title, except that if corrective action in response to an
occurrence takes place over a period of more than one year, in
subsequent years, no deductible shall apply for costs incurred
in response to such occurrence.

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(c) Eligibility and deductibility determinations shall be
made by the Office of the State Fire Marshal.
(1) When an owner or operator reports a confirmed
release of a regulated substance, the Office of the State
Fire Marshal shall provide the owner or operator with an
"Eligibility and Deductibility Determination" form. The
form shall either be provided on-site or within 15 days of
the Office of the State Fire Marshal receipt of notice
indicating a confirmed release. The form shall request
sufficient information to enable the Office of the State
Fire Marshal to make a final determination as to owner or
operator eligibility to access the Underground Storage
Tank Fund pursuant to this Title and the appropriate
deductible. The form shall be promulgated as a rule or
regulation pursuant to the Illinois Administrative
Procedure Act by the Office of the State Fire Marshal.
Until such form is promulgated, the Office of State Fire
Marshal shall use a form which generally conforms with this
Act.
(2) Within 60 days of receipt of the "Eligibility and
Deductibility Determination" form, the Office of the State
Fire Marshal shall issue one letter enunciating the final
eligibility and deductibility determination, and such
determination or failure to act within the time prescribed
shall be a final decision appealable to the Illinois
Pollution Control Board.

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(Source: P.A. 96-908, eff. 6-8-10.)
Section 99. Effective date. This Act takes effect January
1, 2021.