Section 22.18

Section 22.18 of the Environmental Protection Act (Repealed by P.A. 88-496, effective September 13, 1993)

Underground storage tanks; enforcement; liability.

  1. Notwithstanding any other provision or rule or law, the owner or operator, or both, of an underground storage tank shall be liable for all costs of preventive action, corrective action and enforcement action incurred by the State of Illinois as a result of a release or a substantial threat of release of petroleum from an underground storage tank.
    1. Nothing in this Section shall affect or modify in any way:
      1. The obligations or liability of any person under any other provision of this Act or State or Federal law, including common law, for damages, injury or loss resulting from release or substantial threat of a release of petroleum from an underground storage tank, or
      2. The liability of any person under subsection (a) for costs incurred by the State of Illinois for preventive action, corrective action and enforcement action that are not paid with monies from the Underground Storage Tank Fund.
    1. The owner or operator, or both, of an underground storage tank may be liable to the State of Illinois for punitive damages in an amount at least equal to, and not more than 3 times, the amount of any cost incurred by the State as a result of the State response to a release or a substantial threat of release of petroleum from the underground storage tank if the owner or operator:
      1. Failed, without sufficient cause, to respond to a release or a substantial threat of a release of petroleum from the underground storage tank upon, or in accordance with, a notice issued by the Agency under subsection (v) of Section 4, and
      2. Failed to perform any one or both of the following:
        1. Register the underground storage tank in accordance with Section 4 of the Gasoline Storage Act; and
        2. Pay into the Underground Storage Tank Fund all fees required for the underground storage tank in accordance with Section 5 of the Gasoline Storage Act and regulations adopted by the Office of the State Fire Marshal.
    2. The punitive damages imposed under this subsection (b) shall be in addition to any costs recovered from that person pursuant to this Section and in addition to any other penalty or relief provided by this Act or any other law.
  2. The standard of liability which obtains under subsection (f) of Section 22.2 of this Act shall be construed to be the standard of liability under this Section.
  3. The costs and damages provided for in this Section may be imposed by the Board in an action brought before the Board in accordance with Title VIII of this Act, except that subsection (c) of Section 33 of this Act shall not apply to the action. Costs recovered pursuant to this Section shall be deposited in the fun from where the monies were expended. Damages recovered pursuant to this Section shall be deposited in the Underground Storage Tank Fund.
    1. For purposes of this Act:
      1. The terms “petroleum” and “underground storage tank” shall have the meanings ascribed to them in Subtitle I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616), of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580), except that “underground storage tank” shall include heating oil underground storage tanks.
      2. When used in connection with, or when otherwise relating to, underground storage tank, the terms “owner,” “operator,” and “facility” shall have the meanings ascribed to them in Subtitle I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 98-616), of the Resource Conservation and Recovery Act of 1976 (P.L. 94-580).
      3. “Corrective action” means an action to stop, minimize, eliminate, or clean up a release of petroleum or its effects as may be necessary or appropriate to protect human health and the environment. This includes, but is not limited to, release response investigation, mitigation of fire and safety hazards, tank removal, soil remediation, hydrogeological investigations, free product removal, groundwater remediation and monitoring, exposure assessments, and the provisions of alternate water supplies. Corrective action does not include legal defense costs. Legal defense costs include legal costs for seeking payment under Section 22.18b.
      4. “Indemnification” means indemnification of an owner or operator for the amount of any judgment entered against the owner or operator in a court of law, for the amount of any final order or determination made against the owner or operator by an agency of State government or any subdivision thereof, or for the amount of any settlement entered into by the owner or operator, if the judgment, order, determination, or settlement arises out of bodily injury or property damage suffered as a result of a release of petroleum from an underground storage tank owned or operated by that owner or operator. Indemnification shall not include legal defense costs. Legal defense costs include legal costs for seeking payment under Section 22.18b.
      5. “Bodily injury” means bodily injury, sickness, or disease sustained by a person, including death at any time, resulting from a release of petroleum from an underground storage tank.
      6. “Property damage” means physical injury to, destruction of, or contamination of tangible property, including all resulting loss of use of that property; or loss of use of tangible property that is not physically injured, destroyed, or contaminated, but has been evacuated, withdrawn from use or rendered inaccessible because of an occurrence.
      7. “Occurrence” means an accident, including continuous or repeated exposure to conditions, which results in a release of petroleum into the environment from an underground storage tank.
      8. “Heating oil” means petroleum that is No. 1, No. 2, No. 4 light, No. 4 heavy, No. 5 light, No. 5 heavy, or No. 6 technical grades of fuel oil; or other residual fuel oils including Navy Special Fuel Oil and Bunker C.
      9. “Heating oil underground storage tank” means an underground storage tank serving other than farms or residential units that is used exclusively to store heating oil for consumptive use on the premises where stored.
    2. Notwithstanding the provisions of clause (B) of paragraph (1) of this subsection (e), in any action brought under Section 22.2, the terms “owner,” “operator,” and “facility” shall have the meanings ascribed to them in subsection (h) of Section 22.2.

Section 22.18a of the Environmental Protection Act (Repealed by P.A. 87-323, effective September 6, 1991)

  1. Each owner or operator shall establish and maintain evidence of financial responsibility, as provided in this Section, for taking corrective action and compensating third parties for bodily injury and property damage.
  2. Each owner or operator shall maintain financial responsibility at the following minimum amounts:
    1. $10,000 per occurrence for corrective action;
    2. $10,000 per occurrence for bodily injury and property damage to third parties.
  3. Each owner or operator shall establish and maintain evidence of financial responsibility by any combination of the following:
    1. commercial or private insurance, including risk retention groups;
    2. qualification as a self insurer; or
    3. guarantee, surety bond, letter of credit, certificate of deposit or designated saving account.

To qualify as a self insurer pursuant to this Section, the owner or operator must demonstrate net worth equal to or in excess of 10 times the amount specified in subsection (b) of this Section.

  1. The establishment and enforcement of standards for the financial responsibility of the owners and operators of underground storage tanks and associated piping are exclusive powers and functions of the State. A home rule unit may not regulate or establish standards for the financial responsibility of the owners and operators of underground storage tanks. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.

Section 22.18b of the Environmental Protection Act (Repealed by P.A. 88-496, effective September 13, 1993)

Underground Storage Tank Fund; eligibility.

  1. An owner or operator is eligible to receive money from the Underground Storage Tank Fund for costs of corrective action or indemnification only if all of the following requirements are satisfied:
    1. Neither the owner nor operator of the underground storage tank is the United States Government.
    2. The underground storage tank does not contain fuel which is exempt from the provisions of Section 2a of The Motor Fuel Tax Law.
    3. The costs of corrective action or indemnification were incurred by an owner or operator as a result of a release of petroleum, but not including any hazardous substance, from an underground storage tank.
    4. The owner or operator has registered the tank in accordance with Section 4 of the Gasoline Storage Act and paid into the Underground Storage Tank Fund all fees required for the tank in accordance with Sections 4 and 5 of that Act and regulations adopted by the Office of State Fire Marshal.
    5. The released petroleum is within one or more of the following categories:
      1. Fuel, as that term is defined in Section 1.19 of the Motor Fuel Tax Law.
      2. Aviation fuels, heating oil, or kerosene.
      3. Used oil. For purposes of this Section, “used oil” means any oil that has been refined from crude oil used in a motor vehicle, as that term is defined in Section 1.3 of the Motor Fuel Tax Law, and that, as a result of that use, is contaminated by physical or chemical impurities.
    6. For costs of indemnification, in addition to items (1) through (5), the provisions of subsection (e) have been met.
    1. The Agency shall not approve payment to an owner or operator from the Underground Storage Tank Fund of 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:
    AmountNumber of Tanks
    $1,000,000fewer than 101
    $2,000,000101 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 Section and Section 22.18c, owner or operator includes the following:
      1. any subsidiary, parent, or joint stock company of the owner or operator; and
      2. any company owned by any parent, subsidiary, or joint stock company of the owner or operator.
  2. Notwithstanding subsection (a) or (b), no owner or operator is eligible to receive money from the Fund for costs of indemnification or corrective action for any underground storage tank installed after July 28, 1989, unless the owner or operator demonstrates to the Agency that the tank was installed and operated in accordance with rules adopted by the Office of the State Fire Marshal. For purposes of this subsection, certification by the Office of the State Fire Marshal that the underground storage tanks were installed in accordance with those rules, shall be prima facie evidence that the owner or operator so installed such underground storage tanks.
    1. Upon receipt of notification from the Agency that the requirements of this Section have been met, the Comptroller shall make payment to the owner or operator of the amount approved by the Agency, if sufficient money exists in the Fund in excess of amounts appropriated for administering the activities of the Agency, the State Fire Marshal and the Department of Revenue relative to the Fund. If there is insufficient money in the Fund, then payment shall not be paid; however, such payments may be paid if sufficient money later becomes available.
    2. In no case shall the Fund or the State of Illinois be liable to pay claims or requests for costs of corrective action or indemnification if money in the Fund is insufficient to meet such claims or requests.
      1. If an owner or operator submits a claim or claims to the Agency for approval under this Section 22.18b, the Agency shall deduct from the amount approved a total of $10,000 for each site for which a claim is submitted. This deductible amount shall apply annually for each site at which costs were incurred under a claim submitted pursuant to this Section, 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.
        1. Except as provided in item (v) of this subparagraph (B), if prior to July 28, 1989, the owner or operator had registered none of the underground storage tanks at the site on that date at the site, the deductible amount under subparagraph (A) of paragraph (3) of this subsection (d) shall be $100,000 rather than $10,000. Except as provided in item (iv) of this subparagraph (B), after the $100,000 deductible amount has been paid, the deductible amount shall thereafter be as provided under subparagraph (A) of paragraph (3) of this subsection (d).
        2. If prior to July 28, 1989, the owner or operator has registered one or more but not all of the underground storage tanks at the site on that date, the deductible amount under subparagraph (A) of paragraph (3) of this subsection (d) shall be $15,000 rather than $10,000. After the $15,000 deductible amount has been paid, the deductible amount shall thereafter be as provided under subparagraph (A) of paragraph (3) of this subsection (d).
        3. For purposes of this subparagraph, registration of tanks means registration in accordance with Section 4 of the Gasoline Storage Act.
        4. For costs of indemnification or corrective action incurred as a result of a release of petroleum from an underground storage tank installed after July 28, 1989, the deductible amount shall be $10,000 if the tank was installed and operated in accordance with rules adopted by the Office of the State Fire Marshal.
        5. If a complete application for eligibility determination under this item (v) is received by the Agency by December 31, 1992, from an owner or operator, the deductible amount of $100,000 under this subparagraph (B) shall not apply if the owner or operator demonstrates to the Agency that groundwater, soil, and parent material at the site does not contain any release of petroleum contaminant that exceeds the groundwater standards for Class I Potable Resource Groundwater adopted by the Board under Section 8 of the Illinois Groundwater Protection Act.

        For purposes of the demonstration under this item (v), the groundwater standards adopted by the Board under Section 8 of the Illinois Groundwater Protection Act shall apply not only to groundwater, but shall apply also to soil and parent material.

        1. If the costs incurred were in response to a release of petroleum for which the State received notification on or after July 28, 1989, the deductible amount shall be as provided under subparagraph (A) or (B) of paragraph (3) of this subsection (d), whichever is applicable.
        2. If the costs incurred were in response to a release of petroleum for which the State received notification prior to July 28, 1989, the deductible amount under subparagraph (A) of paragraph (3) of this subsection (d) shall be $50,000 rather than $10,000, unless subparagraph (B)(i) applies, in which case the deductible amount shall be $100,000.
      2. If the owner or operator incurred $100,000 or more in costs prior to July 28, 1989, for the performance of corrective action measures at a site for which a claim is submitted, no deductible shall apply under subparagraph (A) of paragraph (3) of this subsection (d) for the first occurrence for which a claim is submitted.
      3. 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.
        1. Costs of corrective action or indemnification incurred by an owner or operator that have been paid to an owner or operator under a policy of insurance, another written agreement, or a court order shall not be eligible for payment or reimbursement 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 the payment covers costs for which payment was received from the Underground Storage Tank Fund. Any monies received by the State under this subparagraph (F) shall be deposited into the Underground Storage Tank Fund.
        2. Costs of corrective action, preventive action, or enforcement action incurred by the State of Illinois after issuance of a notice pursuant to Section 4(v) of this Act for which an owner or operator, or both, may be liable under Section 22.18 shall not be eligible for payment under this Section.
      4. The Agency shall determine the applicable deductible under this paragraph (3) as of the date that a complete request for partial or final payment under paragraph (4) of this subsection (d) is received by the Agency.
        1. For heating oil underground storage tanks, the deductible amount under subparagraph (B) of this paragraph shall be based upon whether the tanks were registered by July 1, 1992, rather than July 28, 1989.
        2. For heating oil underground storage tanks, in determining the deductible amount under subparagraph (C) of this paragraph and the eligible costs under subparagraphs (D) and (E) of this paragraph, the applicable date shall be July 28, 1989.
      5. If an owner or operator completes corrective action on soils using an alternative technology approved by the Agency within 3 years after the date of approval and if the owner or operator demonstrates that the costs payable under this Section using the alternative technology were more than $5,000 less than the costs payable under this Section using a conventional technology, the owner or operator shall be eligible to receive a reduction of $5,000 in the applicable deductible amount.
    3. Requests for partial or final payment for claims under this Section shall be sent to the Agency and shall satisfy all of the following:
    A.
    The owner and operator are eligible under subsections (a) and (c) of this Section.
    B.
    Approval of the payments requested will not result in the limitations set forth in subsection (b) of this Section being exceeded.
    C.*
    The owner or operator provided an accounting of all costs, demonstrated that the costs incurred to perform the corrective action were reasonable, and provided proof of payment of the applicable deductible amount under paragraph (3) of subsection (d). The accounting of those costs shall be provided to the Agency on a time and materials cost basis (or other Agency approved accounting methods) on Agency prescribed forms. No handling charge is eligible for payment except for handling charges for subcontracts and field purchases when the charge does not exceed 2% of the amounts of the subcontract or field purchase.
    C.*
    The owner or operator provided an accounting of all costs, demonstrated that the costs incurred to perform the corrective action were reasonable, and provided proof of payment of the applicable deductible amount under paragraph (3) of subsection (d). The accounting of those costs shall be provided to the Agency on a time and materials cost basis (or other Agency approved accounting methods) on Agency prescribed forms. No handling charge is eligible for payment except for handling charges for subcontracts and field purchases when the charge does not exceed the amounts set forth in subsection (i) of this Section.

    * P.A. 87-1171 and P.A. 87-1088 amended Section 22.18b(d)(4)(C). We expect the 1993 revisory to correct any inconsistency.
    D.
    The owner or operator notified the State of the release of petroleum in accordance with applicable requirements. Costs of corrective action or indemnification incurred before the owner or operator has provided that notification shall not be eligible for payment. Costs for removal of an underground storage tank shall not be eligible for payment if the tank was removed or permitted for removal by the Office of the State Fire Marshal before the owner or operator provided notice of a release of petroleum in accordance with applicable notice requirements.
    E.
    The owner or operator notified the Agency of any initial corrective measures taken and demonstrated such measures to be consistent with the final corrective action approved by the Agency and performed the corrective action in accordance with the plan approved by the Agency.
    F.
    The owner or operator submitted plans for final corrective action to the Agency and performed the corrective action in accordance with the plans approved by the Agency.
    1. Where the owner or operator requests payment for costs of indemnification, if the owner or operator has satisfied the requirements of paragraph (4) of subsection (d) 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 (i) if there is a legally enforceable judgment entered against the owner or operator caused by a release of petroleum from an underground storage tank and such judgment was not entered as a result of fraud, or (ii) if a settlement with a third party due to a release of petroleum from an underground storage tank is reasonable.
    2. The Agency shall notify the Comptroller in accordance with subsection (d) of this Section of the Attorney General’s approval.
  3. The Agency is authorized to adopt reasonable and necessary rules for the administration of this Section.
  4. If the Agency refuses to reimburse or authorizes only a partial reimbursement, 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.
  5. For the purposes of this Section, “alternative technology” means a process or technique other than conventional technology used to perform a corrective action with respect to soils contaminated by a release of petroleum from an underground storage tank; “conventional technology” means a process or technique used to perform a corrective action by removal, transportation, and disposal of soils contaminated by release of petroleum from an underground storage tank in accordance with applicable laws and regulations, but without processing to remove petroleum from the soils.
    1. For purposes of this Section, “handling charge” means administrative, insurance, and interest costs and a reasonable profit for procurement, oversight, and payment of subcontracts and field purchases.
    2. Handling charges are eligible for payment only if they are equal to or less than the following amounts:
    Subcontract or Field Purchase CostEligible Handling Charges as a Percentage of Cost
    $1 - $5,00012%
    $5,001 - $15,000$600+10% of amt. over $5,000
    $15,001 - $50,000$1,600+8% of amt. over $15,000
    $50,001 - $100,000$4,400+5% of amt. over $50,000
    $100,001 - $1,000,000$6,900+2% of amt. over $100,000

Section 22.18c of the Environmental Protection Act (Repealed by P.A. 88-496, effective September 13, 1993)

  1. The Agency shall not approve any payment from the Fund to reimburse an owner or operator (i) for costs of corrective action incurred by such owner or operator in an amount in excess of $1,000,000 per occurrence; and (ii) for costs of indemnification of such owner or operator in an amount in excess of $1,000,000 per occurrence.
  2. Notwithstanding subsection (a) of this Section, the Agency shall not approve any payment from the Fund which would result in the annual aggregate limitations in subsection (b) of Section 22.18b being exceeded.
  3. Payment of any amount from the Fund for corrective action or indemnification shall be subject to the State of Illinois acquiring by subrogation the rights of any owner, operator or other person to recover the costs of corrective action or indemnification for which the Fund has compensated such owner, operator or person from the person responsible or liable for the release.
  4. Nothing in this Section shall be construed to authorize recovery for costs of corrective action or indemnification for any release authorized or permitted pursuant to State or federal law.