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Illinois Passes New Environmental Legislation in Spring 2019 Session

June 28, 2019

With what many have described as a historic Illinois legislative session having recently concluded, and with the focus having been on the budget, gaming, cannabis, and infrastructure, you’d be forgiven for thinking that there weren’t many significant changes to Illinois’ environmental laws. But you would be wrong. Several environmental bills of interest to the regulated community made it to Governor JB Pritzker’s desk and have either already been signed by the Governor or will be in the next few weeks. A quick recap of that legislation follows.

Ethylene Oxide: This issue received a great deal of media and legislative attention during last fall’s gubernatorial campaign and through the spring legislative session. It is therefore of little surprise that SB 1852 and SB 1854, which place restrictions on the emission of ethylene oxide, received overwhelming legislative support and were promptly signed by the Governor.

SB 1852 requires 100% capture of all ethylene oxide emissions from ethylene oxide sterilization facilities and reductions of ethylene oxide emissions from each exhaust point source by at least 99.9% or to 0.2 parts per million. The bill also includes requirements for emission testing, monitoring, and reporting.

SB 1854 addresses emissions from “nonnegligible ethylene oxide emission sources,” which means a source that currently emits more than 150 pounds of ethylene oxide per year and is located in a county with a population of at least 700,000. The bill mandates that such sources obtain a permit within 180 days of the effective date in order to continue operation, mandates dispersion modeling, and directs the Illinois EPA to impose a site-specific cap on ethylene oxide emissions. The bill also mandates that Illinois EPA include conditions in facilities’ permits granting IEPA the authority to reopen the permit if it determines that the ethylene oxide emissions pose a risk to public health.

While both bills apply only to three existing sources in Illinois, it will be important to watch how these bills are implemented and whether this sets a precedent for other legislation targeted at certain contaminants or otherwise-compliant industries.

Coal Ash: SB 9 is awaiting the Governor’s signature and concerns coal combustion residuals, or coal ash, generated by electric utilities and independent power producers. The bill amends the Illinois Environmental Protection Act, prohibiting the discharge of any contaminants from a coal ash surface impoundment into the environment so as to cause a violation of the Act or regulations adopted by the Pollution Control Board. A permit issued by Illinois EPA is required to construct, install, modify, operate, or close any coal ash surface impoundment. The bill also requires the submittal of a closure alternatives analysis to Illinois EPA that analyzes all closure methods being considered. (Complete removal of coal ash must be considered and analyzed.) Finally, the bill mandates that the Pollution Control Board adopt rules establishing construction and operating permit requirements, design standards, reporting, financial assurance, and closure and post-closure requirements for coal ash surface impoundments. Opponents raised a number of objections in the waning days of the legislative session before the bill passed, prompting the legislative sponsors to suggest a “clean-up” trailer bill may be negotiated over the summer. Between this possibility and some additional questions pertaining to the scope of the bill, the timing, and possible federal overlap, a number of issues will need to be addressed as the Illinois EPA works through implementation of the bill.

Expanded Notification: SB 1847 passed both houses and is awaiting the Governor’s signature. It provides that notice shall be given when an air permit for a new facility is required. Illinois EPA shall give notice by certified or registered mail (or upon request, electronically) to the State Senator and State Representative of the district where the facility will be located. Public notice must also be given via a posting on Illinois EPA’s website in a format that is searchable by zip code. Future permit applicants should watch for the Illinois EPA to come out with rules to implement this requirement later this year, and applicants should adjust their expectations when it comes to the time involved during the administrative process.

Imminent Hazard: SB 1114 is awaiting the Governor’s signature and addresses imminent hazards to the public health or safety present on one acre or less of residential property. If a county finds an imminent hazard on one acre or less of residential property arising from an unfit condition that requires immediate action to protect public health or safety, the county may bring an action for immediate injunctive relief. Such action may include causing the removal of the imminent hazard, which may include accumulations or concentrations of garbage, debris, certain organic materials, human or animal waste, and other hazardous, noxious, or unhealthy substances from a property or structure. The county may file a notice of lien for the cost and expense of the actions taken.

There are a number of bills that did not make it out of the General Assembly, either due to running out of time or as result of negotiation over other issues. These include:

1) SB 1407, which mandated the use of union contractors for a variety of construction and maintenance projects in several chemical industry sectors, including petroleum refining and petrochemical manufacturing;

2) HB 2839, which addressed legal standing for residents to challenge agency-issued permits, providing that any person suffering a legal wrong due to a decision by an administrative agency, or adversely affected or aggrieved by such a decision, is entitled to judicial review;

3) HB 2728, which required expansive public notice of permits and permit renewals in environmental justice communities, and a requirement to enter into a community benefits agreement with the local government mandating the permit applicant to mitigate the environmental and public health impact of the permitted activity.

These bills, as well as other bills that did not pass this session, are likely to be the subject of further negotiations during the Fall Veto Session or the 2020 Spring Legislative Session.

Alec Messina is the immediate past Director of the Illinois Environmental Protection Agency and heads HeplerBroom’s Government Affairs practice area. For more information about the impact of Illinois’ environmental legislation, please contact him at 217-993-6088 or email alec.messina@heplerbroom.com.