Originally published as a Schiff Hardin Environmental Update newsletter

The Illinois General Assembly’s spring 2012 session brought a host of new environmental laws that impact environmental agencies’ administrative responsibilities, impact landfill operations, place additional restrictions on the use of toxic chemicals in Illinois, and address nutrient issues. Just as noteworthy, however, is the number of environmentally related bills that are still considered “active” and may present themselves again during the spring 2013 session. The following are a few highlights from the past legislative session.

New Open Meetings Act Requirements and Changes to the IPCB’s Process of Adopting Federal Ambient Air Quality Standards

Per new legislation (Public Act (“P.A.”) 97-827), the Open Meetings Act requires meeting agendas to sufficiently describe (in general as opposed to itemized terms) the items that will be considered and whether they will be subject to final action at the meeting. The new law requires that notice of the meeting and the agenda be posted 48 hours before the meeting, but if the agenda and notice are not available for reasons out of the agency’s control, the lack of availability will not invalidate any action taken at that meeting.

New legislation (P.A. 97-945) was enacted to streamline and expedite the process for adopting Illinois air quality standards. The new law requires the Illinois Pollution Control Board (“IPCB” or “Board”) to adopt ambient air quality standards identical in substance to the National Ambient Air Quality Standards (“NAAQS”) promulgated by USEPA. Traditionally, NAAQS rulemakings proceeded through the general rulemaking process. The legislation categorizes NAAQS proposals as identical-in-substance rulemakings, thereby expediting the process and eliminating the requirement for the IPCB to hold hearings on the proposals. Effectively, the IPCB must complete identical-in-substance rulemakings within one year after adoption of the corresponding federal rule, which may be extended as necessary to complete the proceeding. The Board regulations, however, may be more stringent than the federal air standards.

New Laws Impacting Landfill Operations

A new law (P.A. 97-843) creates a moratorium on the construction of any new landfill or the expansion of any existing landfill in Cook County, including in Chicago. This legislation was very controversial, and Schiff Hardin’s Environmental Group will be monitoring efforts to challenge the new law or further legislative efforts.

Additional new legislation (P.A. 97-905) clarifies language in the Illinois Environmental Protection Act (“Act”) regarding which parties must carry financial assurance for waste operations. The amendatory language clarifies that liability extends not only to those who “conduct” waste disposal operations, but to those who “own or operate” such operations. This law was proposed by the Illinois Environmental Protection Agency in response to a recent (August 2011) Illinois appellate court decision finding a site operator in violation of the Act for not securing and maintaining adequate financial assurance for a waste operation, but refusing to place liability on the local municipality that, in part, owned the operation. This decision overturned the Illinois Pollution Control Board’s decision in part, which held the city jointly and severally liable for the penalties imposed as a result of not obtaining the financial assurance.

Stricter Perc Requirements for Dry Cleaners

New legislation requires dry cleaners using perchloroethylene (“perc”) to have both primary and secondary control systems. Machines with only primary control systems, however, can be used until the end of their useful lives. The new law requires a person properly trained in dry cleaning best management practices be present at dry cleaning facilities using perc whenever machines are being operated. There are also additional reporting requirements under the new law, such as annual certifications to the Drycleaner Environmental Response Trust Fund Commission that dry cleaners are operating in accordance with state and federal requirements, and annual copies of all hazardous waste manifests to the Commission.

New Prohibition Against Selling Children’s Cups Containing BPA in Illinois

Beginning January 1, 2013, manufacturers and wholesalers are prohibited from selling or offering to sell in Illinois any children’s food or drink containers containing bisphenol A (“BPA”). Beginning January 1, 2014, retailers may not knowingly sell or offer for sale any such containers in Illinois. Violations may lead to a $200 civil penalty.

Significant Changes to the Illinois Fertilizer Act Supported by Agriculture Industry

USEPA considers Illinois agriculture responsible for excess nutrient loading (in particular nitrogen and phosphorus) to Illinois lakes, rivers and streams, and a contributor to hypoxia in the Gulf of Mexico. The agriculture industry, environmental groups, IEPA, and the Illinois Department of Agriculture (“IDA”) all supported major revisions to the Illinois Fertilizer Act, which became law on August 15, 2012 (P.A. 97-960). The goal of the new law is to fund critical research and education regarding nutrient issues in Illinois. To meet these goals, the law establishes the Nutrient Research and Education Council (“NREC”), a public-private 13 member council with nine voting members representing agriculture, and four non-voting members representing academia, IEPA and environmental groups. Under the new requirements, fertilizer distributors must collect and pay assessments to the NREC. The assessments will fund research and education regarding nutrient efficiency, enhancing crop production and protecting water quality. Because the funds for this program will be managed by industry rather than government, the funds will remain dedicated to the program’s goals rather than subject to sweeps as they have been in the past. The agriculture industry hopes to prove that growers and the fertilizer industry can manage nutrient loss to the environment and that onerous state regulations on nutrient application are unnecessary. The new law also streamlines the licensing requirements for the fertilizer industry, prohibits misbranding or the adulteration of a fertilizer, creates an administrative hearing process and gives additional authority to IDA to prevent violations of the Illinois Fertilizer Act.

Still No Hydraulic Fracturing Law for Illinois

We reported this spring that the Illinois Senate unanimously passed SB 3280, which would set standards for the extraction of hydrocarbons from shale using hydraulic fracturing, known as “fracking,” in Illinois. However, that bill has not passed out of the Illinois House of Representatives. During the final days of the spring session, the House presented its own versions of comprehensive fracking requirements, including a one-year moratorium on fracking and a tax on production. We can expect further legislative activity most likely during the regular session.

Governor’s Veto a Major Obstacle for the Leucadia National Corporation Chicago Facility

Leucadia National Corporation (“Leucadia”) plans to develop a synthetic natural gas (“syngas”) facility (utilizing the coal gasification process) at a location on the southeast side of the city of Chicago. The Illinois General Assembly passed a bill last year authorizing development of the facility. Since that time, two of the four gas utilities that had entered into sourcing agreements for the purchase of syngas from Leucadia opted out of their procurement obligations. Just last month, the governor vetoed a bill introduced on behalf of Leucadia that would have imposed far greater purchase obligations on the remaining two utilities, Nicor Gas and Ameren Illinois. The governor concluded the resulting situation would not have been fair for the remaining two utilities or Illinois consumers, especially given current natural gas prices and forecasts that predict such prices will remain law for years to come. After more than three years of effort, Leucadia has indicated it will not seek to override the governor’s veto. This legislation implicated a wide number of interests, including job creation in a depressed area of the state as well as what some have characterized as the state’s failure to have in place a comprehensive energy policy.