Illinois Environmental Justice Legislation Update



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Illinois Environmental Justice Legislation Update

Illinois Environmental Justice Legislation Update

Illinois House Bill 4093 Summary 

On March 4, 2022, the Illinois House of Representatives passed House Bill 4093, which creates new environmental justice (“EJ”) related provisions and amendments in the Illinois Environmental Protection Act, 415 ILCS 5/1 et seq (“Act”). HB 4093 (the “EJ Bill”) was sent to the Illinois Senate for consideration on March 7, 2022 – the current status of the EJ Bill and full text can be found here.

Though some new provisions and amendments are generally applicable, the EJ Bill is primarily focused on changes in permitting procedures and factors considered in the issuance of permits for facilities in EJ communities. However, the definition of an EJ community set forth in HB 4093, which adopts the definition already codified in the Illinois Solar for All statute, is intentionally fluid and subject to change as the provision requires that the data and environmental or demographic factors considered be updated/reevaluated annually. The EJ Bill will also create a procedure for communities that are not formally designated as EJ communities to petition for designation, a procedure which also already exists under the Illinois Solar for All statute.

For reference, current Illinois EJ communities can be identified using an address lookup on Illinois EPA’s EJ Start mapping tool. The Illinois Solar for All EJ Community mapping tool can be used to better predict an EJ community designation that would apply if the definition passed in HB 4093 is enacted since the new definition aligns with the Illinois Solar for All definition.

A summary of some of the key changes in the current version of HB 4093 passed by the Illinois House is below.

Generally Applicable Provisions in the EJ Bill 

Consideration of Prior Non-Compliance In Permit Issuance (415 ILCS 5/39)

For any facility (not just those in EJ communities) filing an application for a permit for the construction, installation or operation of any type of facility, equipment, vehicle, vessel or aircraft, the amended provisions of the EJ Bill, if enacted, will require that Illinois EPA shall consider prior actions alleging noncompliance. This is a significant change from the current provision which states that Illinois EPA may consider adjudicated noncompliance. Also, the alleged noncompliance that Illinois EPA shall consider under the new provision is expanded beyond just the Act to include compliance commitment agreements (non-penalty contractual agreements between Illinois EPA and regulated parties) and any other alleged noncompliance with any state or local rules, or other commitment (e.g. a consent order) related to a release of a contaminant into the environment.

The amendment to this Section also provides that Illinois EPA shall impose conditions in a permit related to any alleged noncompliance as expanded above, or any other conditions that are “necessary to accomplish the purposes of the Act.” This again, if enacted, would represent a significant change from the current provision which states that the Illinois EPA may impose conditions related to adjudicated noncompliance with the Act.

Other New Provisions (415 ILCS 5/34.5, 39.15(h), 40.4))

Other  generally applicable provisions include a new third party permit appeal procedure for minor air sources; an environmental justice grievance procedure for complaints made pursuant to the Federal Civil Rights Act; and a requirement for Illinois EPA to establish an environmentally beneficial project bank that may be used by regulated parties to propose a supplemental environmental project in an Illinois enforcement action.

New Requirements for Facilities in EJ Communities

The new and amended provisions below apply to facilities in EJ communities filing a permit application for: 

(1)   Construction of a new source that will become a major source under the Clean Air Act requiring a Clean Air Act Permit Program (“CAAPP”) permit;

(2)   Construction of a new source that will require a Federally Enforceable State Operating Permit (FESOP); or

(3)   Applications for a modification or expansions to existing sources that will result in an increase in the hourly rate of emissions or the total annual emission of any air pollutant.

Public Participation and EJ Assessment Permit Application Requirements (415 ILCS 5/39(z), (aa))

New requirements include expanded public participation such as a public meeting and public comment period facilitated by the company prior to the submission of the permit application, enhanced public notice and information dissemination requirements related to public meetings and the permit application, and additional notice and language access requirements for “linguistically isolated” communities (a new defined term in the EJ Bill).

Further, the applications for the types of permits above will require submission of an EJ assessment identifying potential environmental & health impacts to the area that among other requirements, must include air dispersion modeling and consideration of the direct, indirect, and cumulative impacts on the surrounding area. If the EJ assessment shows that the proposed project will cause harm to the environment or public health, Illinois EPA shall impose conditions that mitigate the harm, or Illinois EPA shall deny the permit if the harm is unavoidable and “causes or contributes to disproportionate harm.”

New Local Siting Approval Requirement (415 ILCS 5/39.2, 39(c))

The facility must meet local siting review requirements, including approval by a county board or governing body of a municipality. Local siting approval must meet specific criteria in the Act to be granted and is in addition to all other local land use and zoning standards.

New Construction Permit Fees for Facilities in EJ Communities (415 ILCS 9.12(b)(1)(K))

The construction permit fee is raised to $200,000.

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