Recent Illinois Legislative Proposals Involving Environmental Law
The Illinois General Assembly’s hopper is active this year with environmental proposals – some needed, some not, and some just because. Below are a baker’s dozen of pending bills that appear to have legs.
Environmental Justice (EJ) Community Designation
HB 2520 seeks to require the Illinois Environmental Protection Agency to annually review and update the underlying data for, and use of, indicators used to determine whether a community is designated as an environmental justice community. It also would establish a process by which communities not designated as environmental justice communities may petition for such a designation. Sponsors are Sonya Harper, Camille Lilly, Theresa Mah, Aaron Ortiz, Carol Ammons, Joyce Mason, Eva-Dina Delgado, Diane Blair-Sherlock; Kelly Cassidy, Cyril Nichols, Elizabeth Hernandez and Will Guzzardi.
Most cumbersome is the provision requiring an applicant for a major source under the Clean Air Act and applicants for a new source that has or will require a Federally Enforceable State Operating Permit (FESOP), which will be located in an environmental justice community, must conduct a public meeting before submission of the permit application and must submit with the permit application an environmental justice assessment identifying the potential environmental and health impacts to the area associated with the proposed project. The proposed legislation describes the requirements for the environmental justice assessment.
In addition, the bill provides that a supplemental fee of $100,000 for each construction permit application shall be assessed if the construction permit application is subject to the requirements regarding the construction of a new source located in an environmental justice community.
The proposed legislation also requires public participation for permit in an environmental justice community, and if the agency grants a permit to construct, modify, or operate a facility that emits air pollutants and is classified as a minor source, a third party may petition the Pollution Control Board for a hearing to contest the issuance of the permit. The bill had its second reading in the House and has been referred to the House’s Rules Committee.
Environmental Justice, Part II - Power Plant Demolition
HB 3595 also involves environmental justice and provides that before an owner or operator may initiate demolition of a thermal power plant via implosion, the owner or operator must satisfy specific notice requirements and obtain an agency-approved air quality plan.
In addition, at least 30 days after providing the notice, the owner or operator must hold at least one public meeting in the municipality in which the site is located and discuss the proposed demolition. The bill contains requirements for the public meeting and the air quality plan - things like, an air quality plan to include dust mitigation, a contingency plan, and a site cleanup plan.
Finally, in its current form, the bill proposes that any person who engages in demolition of a thermal power plant via implosion in violation of the act shall be liable for a civil penalty of up to $50,000 for the first violation and up to $250,000 for subsequent violations. This bill passed the House, and on its first reading in the Senate (Sponsor: Celina Villanueva), the proposed legislation was referred to the Senate’s Assignments Committee.
SINGLE-USE PLASTICS AND POLYSTYRENE FOAM BAN
Retail Establishments – Polystyrene Containers
HB 2376 passed the House and is pending in the Senate Assignments Committee. The bill seeks to amend the Illinois Environmental Protection Act by providing that as of January 1, 2025, no retail establishment may sell or distribute in this state a disposable food service container composed in whole or in part of polystyrene foam. There are certain exemptions. Given the sheer number of sponsors in the House and Senate, this proposed legislation is likely to be law.
Single-Use Plastic Regulation
Originally SB 58 (Sponsors: Laura Fine, Mike Simmons, & Cristina H. Pacione-Zayas) sought to amend the Degradable Plastic Act by providing that, on or before July 1, 2025, each state agency shall establish and implement a plan to reduce the quantity of single-use plastics used or purchased by that state agency by 50 percent on or before 2031 and by 75 percent on or before 2036, with certain exemptions. And, on or before May 1, 2026, and on or before May 1 of each year thereafter, each state agency was to deliver to the Department of Central Management Services a status report on its single-use plastics reduction efforts. As proposed, the Department of Central Management is to compile a report with specified information and submit it to the General Assembly and the public.
As amended, the proposed legislation removed the definition of "single-use food service ware" and now defines "single-use plastic disposable food ware" as containers, bowls, straws, plates, trays, cartons, cups, lids, forks, spoons, knives, and other items designed for one-time use for beverages, prepared food, or leftovers from meals and that are made of plastic, are not compostable, and are not accepted in residential curbside recycling pickup.
The amendment also clarified that the "single-use plastic disposable food ware" is the subject of the bill and that beginning July 1, 2024, each state agency shall (1) track its own purchases of single-use plastic disposable food ware that are less than $2,000 or otherwise not reduced to writing, and (2) establish goals on reducing single-use plastic disposable food ware purchases based on the tracked purchases. It removes the changes made to the Illinois Procurement Code.
POLYFLUOROALKYL (PFAS) REGULATION
PFAS Monitoring and Take-Back Program
HB 3508 is proposed legislation that passed the House (sponsors: Anna Moeller, Robyn Gabel & Abdelnasser Rashid) and is pending in the Senate (sponsor: Laura Fine), where, after first reading, the bill was referred to the Assignments Committee. In its current form, the bill directs the Illinois Environmental Protection Agency to follow the most up-to-date guidance from the United States Environmental Protection Agency to the states on addressing the discharge of PFAS in National Pollutant Discharge Elimination System (NPDES) permits. The proposed legislation also requires the agency to create a PFAS monitoring plan to be submitted to the governor and the General Assembly by July 1, 2024. In addition, the bill provides that the Prairie Research Institute's Illinois Sustainable Technology Center is to provide PFAS-related technical assistance to industrial wastewater dischargers, and requires the Illinois Environmental Protection Agency to establish a take-back program for fire departments that use and store firefighting foam containing PFAS.
This bill was once included in a series of PFAS bills requiring PFAS monitoring and data collection and is the result of negotiated compromises.
SECTION 31 AMENDMENT (415 ILCS 31)
Section 31 and Compliance Commitment Agreements
HB 2788 seeks to amend Section 31 of the Illinois Environmental Protection Act by allowing the Illinois Environmental Protection Agency and the person responding to an alleged violation to agree to an extended time period in which to (1) submit a written response to the alleged violations and (2) hold a requested meeting without a representative of the Office of the Attorney General or the state's attorney of the county in which the alleged violation occurred being present. Specifically, the agency and the respondent may agree to a later time period, not to exceed an additional 30 days, in which the respondent shall either agree to and sign the proposed Compliance Commitment Agreement or notify the agency of the respondent's rejection of the Compliance Commitment Agreement proposed by the agency. This measure passed the House unanimously and upon first reading in the Senate, the bill was referred to the Senate’s Assignments Committee.
Pesticide and Lawn Care Products Acts Fee Increases
HB 3086 seeks to amend the Illinois Pesticide Act by increasing various fees imposed under the act beginning in 2024. The bill also amends the Lawn Care Products Application and Notice Act, increasing the fee for a lawn care containment permit fee from $100 to $250. The bill passed the House (Sponsors Sonya Harper and Kam Buckner), and after first reading in the Senate (Sponsor Doris Turner), the measure has been assigned to the Senate’s Assignments Committee.
Illinois Pollution Control Board Filing Fee Increases
HB 3426 passed the House (Sponsors Ann Williams a Kam Buckner) and after first reading in the Senate (Sponsor: Laura Ellman), the measure was assigned to the Senate’s Assignments Committee. As proposed, this bill would increase the filing fee charged by the Illinois Pollution Control Board to $250 from $75 for petitions for site specific regulation, variance, permit review, contests of local government decisions under Section 40.1 of the Illinois Environmental Protection Act, adjusted standards, and time-limited water quality standards.
Site Remediation Program Application Fee Increases and Timing of Review
HB 2901 (Sponsor: Lawrence Walsh, Jr.) seeks to amend the Illinois Environmental Protection Act by providing the Illinois Environmental Protection Agency with authority to require a remediation applicant seeking review under the Site Remediation Program 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). This bill also makes changes concerning the persons who must review and approve site remediation plans, and it allows reviews undertaken by the agency or by a RELPEG to be completed and the decisions communicated to the remediation applicant within 90 days after the request for review or approval – so long as two or more plans or reports are submitted concurrently. In addition, the proposed statute provides that, notwithstanding any other provision in the statute, the agency is not required to take action on any submission from or on behalf of a remediation applicant if the remediation applicant has failed to pay all fees when due. Finally, the proposal requires that any deadline requiring agency action on any such submission be tolled until all of the fees are paid. This proposal passed the House, and after the first reading in the Senate (Sponsor: Laura Ellman), the bill was referred to the Senate’s Assignments Committee.
NEW PROGRAM REQUIRING NEW LEGISTATION
Paint Stewardship Program
SB 147 (Sponsors: Linda Holmes and Rachel Ventura) seeks to create the Illinois Paint Stewardship Act, a program that requires manufacturers (or representative organizations) of architectural paint sold at retail in Illinois to submit to the Illinois Environmental Protection Agency a plan for the establishment of a postconsumer paint stewardship program. That program is required to meet specified requirements described in the bill.
In addition, the proposed statute provides that manufacturers or retailers shall not sell or offer for sale architectural paint to any person in the state unless the manufacturer of a paint brand or representative organization is implementing an approved paint stewardship plan.
The proposal goes on to prohibit the incineration of leftover architectural paint collected pursuant to an approved paint stewardship plan. In addition, the covered manufacturers or representative organizations shall submit reports with specified disclosures to the agency.
Manufacturers or representative organizations that participate in a postconsumer paint stewardship program shall not be liable for any claim of a violation of antitrust, restraint of trade, unfair trade practice, or other anticompetitive conduct arising from conduct undertaken in accordance with the program.
The bill also provides for administrative and oversight fees to be paid to the agency, and those manufacturers or their representative organizations are required to implement the postconsumer paint collection plan within six months of the date that the program plan is approved by the agency. Leftover paint is to be collected under this program at collection sites, collection events, and at participating retail stores. Finally, after collection, the leftover paint is either recycled or managed into other beneficial use products. Ten other states and the District of Columbia reportedly have similar programs in practice or in the works. The bill remains in the Senate and has been referred to the Senate’s Assignments Committee.
LIMITED SCOPE PROPOSED LEGISLATION
Advanced Recycling Facilities
HB 1616 (Sponsors: Lawrence Walsh, Jr. and Jeff Keicher) seeks to amend the Illinois Environmental Protection Act by requiring permitting and construction to commence prior to before July 1, 2027 (rather than 2025), before a pilot project allowing for a pyrolysis or gasification facility is permitted for a locally zoned and approved site in Will County or Grundy County. This bill received a second reading and has been referred to the House’s Rules Committee.
Great Lakes Coal Combustion Residue (CCR) Protection
HB 1608 (Sponsors: Rita Mayfield, Joyce Mason, Carol Ammons, Daniel Didech, Lilian Jiménez, Janet Yang Rohr, Kam Buckner, Nabeela Syed, Laura Faver Dias and Kevin John Olickal) seeks to amend the Illinois Environmental Protection Act by providing that owners and operators of Coal Combustion Residue (CCR) surface impoundments at electric generating plants bordering Lake Michigan (i.e., Waukegan) shall close the CCR surface impoundment by removing the CCR and transporting the CCR off-site for proper and lawful disposal. Also, the proposed statute requires an owner or operator of a site with CCR to remove and properly and lawfully dispose of the CCR generated by a facility that is not otherwise addressed – treated, stored, or abandoned in a CCR surface impoundment – and to remediate all soil and groundwater impacted by that CCR in accordance with specified requirements. In addition, the bill requires owners or operators to submit specified plans and reports to the Illinois Environmental Protection Agency and to post a performance bond with the agency for the purpose of ensuring removal and remediation in accordance with the provisions. The bill provides that the agency may enter into such contracts and agreements as it deems necessary to carry out the purposes of the provisions, and finally, it provides that neither the state, nor the director of the agency, nor any state employee shall be liable for any damages or injuries arising out of or resulting from any action taken under the provisions. The bill also contains a severability provision.
This proposal is criticized because CCR is currently regulated and the current CCR law is working as intended. The city of Waukegan, however, seeks this legislation under the cover of Lake Michigan in an attempt to circumvent the existing regulatory process.
TECHNICAL CORRECTION TO UNIFORM ENVIRONMENTAL COVENANTS ACT
Uniform Environmental Covenants Act (UECA)
HB 2278 looks to amend the Uniform Environmental Covenants Act by removing language that provides that an “environmental response project” includes a plan or work that is performed for environmental remediation of any site or facility in response to contamination at specified sites or facilities. Rather, the scope of UECA is to provide that an “environmental response project” is a plan or work that is performed or conducted to clean up, remediate, eliminate, investigate, minimize, mitigate, or prevent the release or threatened release of contaminants affecting real property to protect public health or welfare or the environment. The measure also removes the definition of “state.” The bill passed the House (Sponsors: Ann Williams, Carol Ammons and Joyce Mason), and after first reading in the Senate (Sponsor: Celina Villanueva), the bill was referred to the Senate’s Assignments Committee.