New Illinois Legislation

The Illinois General Assembly's Spring session 2011 brought a host of new environmental laws that streamline the permitting process, hand new environmental responsibilities to municipalities, impact cleanups of contaminated properties, pave the way for coal-to-gas energy facilities, and add enforceability to settlement agreements with Illinois Environmental Protection Agency (IEPA). The following are a few highlights from the past legislative session.

The new streamlining legislation is an effort towards enhancing economic development in Illinois by simplifying and expediting the environmental permitting process and reducing the burden on businesses to save time and money. The legislation requires the IEPA to develop a procedure for online permitting, processing and tracking applications. As an example, IEPA is directed to develop online forms that can be completed and saved electronically and submitted to IEPA with digital signatures. The new law also allows for expedited permitting. To receive expedited review, the applicant must pay four times the standard permit fee, or $100,000, whichever is less. IEPA will also increase the types of general permits it issues in Illinois. Types of activities or operations for which general permits might be appropriate could be nonhazardous solid waste activities and discharges of storm water from landfills. The legislation also allows the Illinois Pollution Control Board (IPCB) to allow for permits by rule for certain classes of facilities or equipment. According to the legislation, permitting by rule may be appropriate for open burning activities, certain package boilers and heaters using only natural gas or refinery gas and certain internal combustion engines. Under the new legislation, low-polluting smaller entities may simply register annually with IEPA rather than obtaining a more extensive air permit. In order to implement the permit streamlining procedures, air pollutant operating permit fees have increased and there is a new diversion of sales tax dollars on air pollution control equipment to IEPA.

The new legislation also streamlines permit requirements for emissions of greenhouse gases (GHGs). The law now incorporates the definition of GHGs from the federal regulations and sets permitting thresholds consistent with the federal program (the GHG Tailoring Rule) as well. There is also an exemption for sources of GHGs that are not subject to the federal Prevention of Significant Deterioration and Title V permitting programs. Finally, if USEPA's ability to regulate greenhouse gases is preempted by federal legislation, judicial or presidential action, then the GHG provisions of the Illinois law are also preempted.

Cleanups of contaminated properties often contemplate environmental covenants restricting the use or future development of the property. During this session, the General Assembly amended the Uniform Environmental Covenants Act (UECA) so that IEPA can now enforce environmental covenants created under the UECA in the same way as other property use restrictions created under the Act. The UECA was signed into law on August 15, 2008. However, the UECA was adopted as an independent act. As a result, until now IEPA could not enforce against violations of the UECA under the Illinois Environmental Protection Act. Sometimes the development of a property will use coal combustion by-products (CCB) as structural fill material. New legislation effective August 23, 2011 requires that the design and construction of structural fill using CCB meet American Society of Testing and Materials (ASTM) standards (ASTM E2277 - 03) or Illinois Department of Transportation specifications.

The definition of "renewable energy resources" now includes biogas and biosolids produced by wastewater treatment plants operated by local governments. Illinois law now explicitly recognizes that governments operating wastewater treatment plants may sell sludge and biogas as a renewable source of energy that may be applied towards compliance with the state's renewable portfolio standard for Illinois utilities. Other new legislation provides grants to county recycling coordinators to educate residents about recycling electronics.

In the wake of the Crestwood contaminated drinking water scandal, operators of public water supplies, which include units of local government, may now be subject to new criminal offenses relating to public water supplies. As of July 28, 2011, it is a Class 2 felony for knowingly distributing water in quality or quantity that could be injurious to human health; or a Class 4 felony for knowingly placing someone in danger of serious illness or great bodily harm or creating an immediate or long-term danger to public health. Until now, offenses committed against a public drinking water supply could only be a Class A misdemeanor at most, no matter how serious the harm or potential harm.

Other new legislation hones Illinois law to smooth the development of coal-gas plants in Illinois such as the anticipated Leucadia clean coal gasification plant and the proposed Illinois Power Holdings synthetic natural gas power facility. In addition, a new Clean Coal FutureGen for Illinois Act of 2011 shifts ownership of sequestered carbon dioxide (CO₂) to Illinois once the operational life of the facility ends, but limits Illinois' financial responsibility associated with a proposed near zero-emissions coal-fueled power plant utilizing gasification to produce hydrogen and electricity as well as carbon capture and storage.

New legislation allows the Illinois Commerce Commission to authorize the construction and operation of a CO₂ pipeline. New coal gasification plants will convert Illinois coal from solid to gas that can substitute for natural gas, diesel fuel or electricity. This process allows CO₂ to be captured for permanent underground storage, or "sequestration." Alternatively, CO₂ can be transported by pipeline from gasification facilities to Illinois oil fields where it can be used in an advanced recovery technique to extract more oil from existing Illinois reserves. The CO₂ can be used for enhanced oil recovery in other states as well.

Under legislation effective August 23, 2011, voluntary Compliance Commitment Agreements (CCAs) entered into between IEPA and any violator of the Environmental Protection Act are enforceable. CCAs are voluntary, but until now, there were no consequences for alleged violators who failed to comply with CCAs. This legislation recognizes the time and effort both parties put into the CCA process. Now IEPA can refer violations of CCAs for enforcement. At the same time, the Attorney General's office must weigh a successfully completed CCA in favor of the person completing it in deciding whether to file a complaint for the violations that were the subject of the CCA. Even if a complaint is subsequently filed, a successfully completed CCA mitigates the amount of a civil penalty, if one is assessed.

New legislation establishes a Commission on Environmental Justice that will be responsible for advising state entities and communities on environmental justice issues, assessing the adequacy of state laws and local laws on environmental justice issues, and reviewing the impact of state law and policies on environmental justice and sustainable community issues.

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