By Jeryl L. OlsonKay R. Bonza, and Craig B. Simonsen

Seyfarth Synopsis: New Illinois Office of State Fire Marshall (“OSFM”) regulations, (42 Ill. Reg. 10476, 10662-667, June 15, 2018, effective October 13, 2018), require that periodic operation and maintenance include recorded “walkthrough inspections” for underground storage tank (UST) facilities. 

Under new OSFM rules, each Class A Operator, who has the primary responsibility of operating and maintaining the UST system, and Class B Operator, designated with day-to-day aspects of operating, maintaining and recordkeeping for UST systems “… shall perform walkthrough inspections of each storage tank system for which he or she is designated, and shall record the results of each inspection on a checklist to be maintained with the facility records.”  The walkthrough inspection requirement took effect on October 13, 2018, and replaces the previous requirement to conduct quarterly equipment inspections.  The rules under Part 35, Section 176.655 of the Illinois Administrative Code, require that at a minimum, a walkthrough inspection shall be conducted at least once every 30 days and include inspection of:

  • Release detection methods, including monitoring systems and all associated sensors;
  • The integrity of spill and overfill prevention and spill containment equipment and manholes;
  • Dispensers, hoses, breakaways and hardware for leaks and damage; and
  • Operational status of impressed current cathodic protection systems, including checking and recording that the power is on and that the voltage, amps and hour meter have the appropriate readings required under Section 175.510(f), with a log entry that shows date of inspection, initials of inspector, hour, volt and amp readings, and power on verification.

In addition, at least once per year the Operator shall inspect:

  • All containment sumps by: (i) checking for visual damage to the sumps, covers and lids; (ii) checking for the presence of regulated substances or any indication that a release may have occurred; and (iii) checking that the sumps and the interstitial areas for any double-walled sumps with interstitial monitoring are free of water, product and debris;
  • All UST equipment including emergency stops for the presence or absence of visible damage to any UST component;
  • Emergency stops to document they have been tested by the owner/operator or a contractor for interconnection and pump shutdown;
  • Shear valves to document they have been visually inspected by the owner/operator or a contractor;
  • All required signs to ensure they are fully visible and all communication systems in place and operational;
  • All daily, 30-day, monthly and annual inspections, testing, reporting and records required under 41 Ill. Adm. Code 174, 175 and 176; and
  • If applicable, the tank gauge stick or groundwater bailers, for operability and serviceability (manual tank gauging or groundwater monitoring).

To assist owners and operators with rule compliance and recordkeeping requirements, the OSFM provides a UST Operations and Maintenance Plan Template Form (OSFM O&M Plan Template).  As noted in the OSFM O&M Plan Template and in the rules, each Class A or Class B Operator “shall perform walkthrough inspections” of each storage tank system for which they are designated and shall record the results of each inspection “on a checklist to be maintained with the facility records.”  Specific 30 day inspection report forms and annual walkthrough inspection report forms are also available from the OSFM.  The OSFM also provides FAQs For Class A, B, and C Operator Training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s Environmental Compliance, Enforcement & Permitting Team.

By Patrick D. Joyce, Philip L. Comella, and William R. Schubert

The U.S. Environmental Protection Agency’s Office of Inspector General, in a February 5, 2014 memorandum, stated that it intends to evaluate how federal and state regulation of the hydraulic fracturing (fracking) industry has protected water resources and managed potential threats. “EPA’s Oversight of Hydraulic Fracturing Impact on Water Resources.”

Currently the states are the primary regulators of the fracking industry.  While the federal government has had limited involvement in fracking regulation, the EPA has been conducting impact studies on fracking for several years.

On a related note, the EPA just released its revised guidance for fracking activities that use diesel fuels.  79 Fed. Reg. 8451 (February 12, 2014). The Revised Guidance: Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels: Underground Injection Control Program Guidance #84 (EPA 816-R-14-001, February 2014), indicates the Agency’s position on how the Underground Injection Control “Class II” requirements, authorized under the Safe Drinking Water Act, should apply to fracking operations using diesel fuels. The Guidance is intended to be taken along-side of another concurrently issued memorandum, “Implementation of the Safe Drinking Water Act’s Existing Underground Injection Control Program Requirements for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels.”

In some states the use of diesel fuels in fracking operations is already heavily regulated – or prohibited altogether (see, e.g., § 245.870 of the draft Illinois regulations, which we previously blogged about). Because the Safe Drinking Water Act specifically excludes the injection of fluids or propping agents other than diesel fuels from regulation, the new EPA guidance will have little or no impact on the fracking activities in those states.

James L. Curtis, Erin Dougherty Foley, and Craig B. Simonsen

Effective January 1, 2014, the Illinois Vehicle Code, at 625 ILCS 5/12-610.2, was amended to prohibit driving while using an electronic communication device, including hand-held wireless telephones, hand-held personal digital assistants, or portable or mobile computers.

The amendment provides for exceptions including the use of hands-free devices, two-way radios, and electronic devices capable of performing multiple functions as long as these devices are not used for a prohibited purpose.

The law establishes a graduated fine scale for repeat offenses. A first offense for driving while using an electronic communication device is not considered a moving violation.

Under the current Code provisions, cellphone/wireless use while driving, including a hands-free device, is prohibited for drivers under age 19, except in the case of an emergency to contact a law enforcement agency, health-care provider or emergency services agency. Cellphone/wireless use by drivers 19 and over is prohibited unless using a hands-free device.

The newly enacted law does not address employer liability specifically, but another portion of the Illinois Vehicle Code does. 

Under the Hands Free Act, if one of your employees is not complying with the new Illinois law and is operating his/her vehicle while on company time, then the employer could be held liable for the employee’s non-compliance.  Section 16 of the Illinois Vehicle Code states that individuals who engage in the commission of a crime (and under the Hands Free Act operating a mobile phone without a hands-free option is considered a misdemeanor), or individuals who “aid or abet” in the commission of that crime can be held liable. 

More specifically, the Vehicle Code states:

Sec. 16-202. Offenses by persons owning or controlling vehicles. It is unlawful for the owner, or any other person, employing or otherwise directing the driver of any vehicle to require or knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law.  (625 ILCS 5/16-202.) 

In other words, if one of your employees is driving his own car and using his/her phone in violation of the Act, but is doing so while working for your company (i.e., on the clock, driving between job sites or project locations) and gets into an accident during this time, the Company *may* also be responsible for any injuries or damages under a legal theory called respondeat superior.  If the employee is found to have been acting “in the scope of his employment” at the time of the accident, the employer *may* be liable for that employee’s conduct, because the employee was “at work.” 

What does this mean to employers with employees that are driving the roads of Illinois? A great deal! The statute (625 ILCS 5/16-202) allows for the imposition of criminal penalties if the employer directs or otherwise knowingly permits an employee to act in violation of the law.

The enactment of this amendment provides Illinois employers with the opportunity to publish (or create) a policy that tells employees that they are NOT to talk on their mobile phones while on company business and in the car UNLESS they can do so in compliance with this new law.  (Please note that Illinois already has a statute in place that bans texting while driving.)  While having such a policy does not bar employer liability, having a strongly worded policy could help mitigate the risk of any liability.  It is also a great opportunity to train employees and their managers about the dangers of “distracted driving” and the reasons why employees should only use their phones if they can do so using the “hands free” options outlined in the statute (speaker phone, blue tooth, etc.) on devices that have the ability to be activated by pressing the *one* button (i.e., answering and ending a call). 

If you have any questions about this new amendment or policies related to banning distracted driving, please contact any of the authors, a member of Seyfarth’s Workplace Policies and Handbooks Team, or your Seyfarth attorney.

By Jeryl L. Olson and Craig B. Simonsen

The Illinois Pollution Control Board just rejected Illinois Environmental Protection Agency’s (IEPA) proposed “emergency” rules that would have imposed additional Statewide requirements on the handling of coke and coal, including petroleum coke or “petcoke,” at bulk terminals and other specified facilities. Opinion and Order, January 23, 2014.

The IEPA had filed the emergency rulemaking on January 16, 2014, docketed as In the Matter of: Emergency Rulemaking Regarding Regulation of Coke/Coal Bulk Terminals: New 35 Ill. Adm. Code 213 (R14-20). With the proposal IEPA sought to require numerous immediate measures, including road paving, dust suppression systems, setbacks, containment of stormwater, and disposal of any coke or coal that has been on-site for more than one year.

The Board allowed public comments on the proposal, and allowed the IEPA to respond. The Board received 34 comments. “After careful consideration of the record, the Board determined that it could not adopt IEPA’s proposed emergency rules because the statutory test for an “emergency” had not been met.” Specifically, the Board found that IEPA failed to prove “that a situation exists which reasonably constitutes a threat to the public interest, safety or welfare.” 415 ILCS 5/27(c) (2012). The Board did allow IEPA’s proposal to continue under the Board’s general rulemaking process.

While the rule is ostensibly aimed at a controversial coke pile in the City of Chicago, the proposed emergency rule would have addressed coal, coke, and petcoke facilities throughout the state, with significant regulatory and economic impacts on those with existing stockpiles. In the meantime, the City of Chicago is working on its own rule to address coal, coke and petcoke sites within the City.

Lawrence Moss and Scott Schonfeld recently published a client alert on the City of Chicago’s new Building Energy Use Benchmarking Ordinance. Chapter 18-14.

Chicago now joins several other major municipalities which have adopted similar legislation, including New York City, Washington D.C., Philadelphia, Minneapolis, Boston, and San Francisco. Subject to limited exceptions, and staggered reporting obligations, the Ordinance broadly requires owners of larger commercial and residential buildings (>50,000 sq. ft.) to submit information to “Energy Star Portfolio Manager” (the “Benchmarking Tool”) to create a benchmark of energy consumption for buildings covered by the Ordinance. These benchmarks will then be shared with both the City, and, subject to the approval of the Chicago’s commissioner of business affairs and consumer protection, the general public.  It is estimated that approximately 3,500 buildings city-wide are implicated by the Ordinance.

Please check-out the client alert for the full analysis of this important new ordinance.

By Patrick D. Joyce, Philip L. Comella, and William R. Schubert

Illinois and California, two states that passed major pieces of legislation governing hydraulic fracturing (fracking) earlier this year, have just released drafts of the regulations that will implement their new laws.

What are the major issues?  While the two States’ schemes are not identical (please see our previous blog posts discussing the key components of the Illinois and California statues), they share some important similarities. For example, a permit under either set of regulations would require disclosures of certain chemical constituents, subject to potential trade secret protection.  It would also require preliminary analyses that map out the likely effect of well stimulation on groundwater, as well as the submission of management plans that document the existence of specific groundwater protection measures and anticipated water usage.  These types of requirements include substantive and procedural components that have yet to be set in stone in Illinois and California.

The draft Illinois regulations are open to public comment through January 3, 2014.  The Illinois Department of Natural Resources (DNR), which is charged with administering the law, had originally planned two public meetings to address its draft regulations.  It just added three more, presumably due to the high level of stakeholder involvment.  The updated Illinois public meeting schedule is available on the DNR website.

Public comment in California is open through January 14, 2014.  The pertinent administrative body is the Division of Oil, Gas & Geothermal Resources (DOGGR), part of California’s Department of Commerce. DOGGR has five meetings scheduled, all in January 2014 (see the DOGGR website).  The final California rules will not go into effect until January 2015, but a set of emergency regulations are expected in the interim.

Abigail Cahak and Ronald J. Kramer have just put out an important Client Alert that provides an update and a link to the recent Illinois State Police Department guidance on signage required under the Firearm Concealed Carry Act.

The Department press release included a template of an approved sign for use on private property.  Consistent with that Act, the 4 inch x 6 inch sign includes a white background, no text (except for a reference to the relevant Illinois Code section), and a depiction of a handgun with a red circle and slash across it. The Department has also proposed administrative rules (37 Ill. Reg. 15859) which would allow the posting of a larger sign, as well as the inclusion of additional language.

In view of Federal OSHA’s emphasis enforcement program to protect employees against the hazard of workplace violence there is now added impetus to develop an effective concealed firearm policy as part of a Company’s workplace violation prevention and response policy. Clearly the presence of firearms can present a hazard of workplace violence. Additional background on the Firearm Concealed Carry Act can be found in our earlier blog.

Employers should bear in mind that the law will impact the ability of both their employees and customers to carry concealed weapons on to their premises. Now is the time to update your policies and procedures to address the new concealed carry law as it impacts your business. Company policies can be tailored to prohibit weapons on company properties or while doing company business. To the extent your business leases property, management should work with the property owners to agree upon an appropriate policy.

By Mark A. Lies II and Craig B. Simonsen

Illinois has just enacted the Firearm Concealed Carry Act, PA 98-63, July 9, 2013. Accordingly, in response to the fact that employees may be carrying weapons, Illinois employers have to ask themselves “are the Company’s policies and procedures up-to-date.”

It will take some time for the State to begin issuing conceal carry permits. Items needed to be completed to facilitate the Act are the creation of an application system, identifying and authorizing firearms trainers and firing ranges to carry out the required sixteen hour training courses mandated by the Act. A Concealed Carry Licensing Review Board must be appointed by the Governor and confirmed by the State Senate, to be composed of seven members to hear application licensing cases.

The Act includes twenty-three prohibited areas for concealed carry permits. The prohibited areas include establishments where alcohol sales account for more than 50 percent of annual sales, any elementary or secondary schools, any portion of a building that is used as a child-care facility, any community college or university, and any stadium or arena of a collegiate or professional sporting event. In addition, weapons cannot be carried public at gatherings such as parades and festivals, Cook County forest preserves, casinos, stadiums, public parks, libraries, museums or zoos. No loaded weapon can be brought aboard public transportation.

Illinois State Police will need to run background checks, including fingerprint searches, on all applicants. Under the Act police and prosecutors can object to a conceal carry  permit on several grounds if they believe a person is a danger to themselves or others. Objections can be filed if a person has had mental health issues, or has been arrested five or more times in the previous seven years, or had three or more arrests gang-related charges. Applicants may also be rejected for two or more convictions related to driving under the influence of alcohol or drugs, or if they have undergone residential or court-ordered treatment for substance abuse in the last five years.

For Illinois employers it is time now to act to update your policies and procedures to speak to and address the reality of armed employees. Company policies can be tailored to prohibit weapons on company properties or while doing company business.

By Jeryl L. Olson and Rebecca A. Davis

The Georgia Environmental Protection Division (EPD) has joined several other states (including e.g., Illinois, Minnesota, and South Carolina) in implementing an expedited air permit process where applicants can, for a fee, enjoy accelerated air permit review, and issuance of air permits, in Georgia.

The expedited permitting program is optional for permit applicants. See Standard Operating Procedures for Expedited Permitting Program, and EPD Permit Application Procedures, Georgia Rules Chapter 391-3-1. As such, there is no guarantee that a particular application permit will be accepted, and EPD can still reject applications for a variety of reasons.

Expedited Permitting Program – Eligibility

To participate in the expediting permitting process, an applicant must meet several eligibility criteria. First, only certain types of permits will be reviewed under the program: the process cannot be used for Title V initial permit applications, Title V renewal applications, minor modifications without construction, administrative amendment requests, or for simple changes such as a change in ownership or name. Second, EPD has stressed that, as part of the eligibility, applicants who submit “high quality applications” are more likely to be accepted into the expedited review program.

As part of the eligibility process, applicants requesting entry into the expedited permitting program must participate in a pre-application meeting with EPD. For PSD permit applications, the pre-application meeting must take place with EPD at least 30 days prior to submission of the PSD permit application and, for all other types of permits allowed under the program, the pre-application meeting must take place at least 14 days prior to submittal of the application by the applicant.

Certain applications are ineligible for the program. EPD reserves the right to reject an application determined to be “highly unusual,” “unusually complex,” “very controversial,” or “large in scope.” As suggested earlier, applications determined to be of “poor overall quality” will be ineligible for the program.

Expedited Permitting Program – Fees

The fees collected by EPD under the expedited permitting program will be used to offset the cost of expediting the permit applications. Expedited permit fees vary depending on the type of permit. Minor source, synthetic minor, PSD permits, and NESHAPs permits have varying time periods for review and range somewhat based on the type of industry. For example, the fee for a concrete batch plant, minor source will cost $1,000, while the fee for the expedited review of a non-attainment new source review permit will cost $40,000. (Fees for expedited review of PSD permits are in the $20,000 to $30,000 range.)

Expedited Permitting Program – Timing

EPD has established a schedule that predicts the number of days for review under the expedited permitting program and like the fee schedule varies depending on the type of permit (generic permits, minor source permits, synthetic minor permits, major source permits subject to PSD, major source permits not subject to PSD, etc.) and the type of industry (asphalt plants, concrete batch plants, etc.).  A specific application form has been developed by EPD and must be used for entry into the program. Once the applicant is notified of their selection for expedited review, they must verbally accept or reject the program within five days of acceptance into the program and must pay the expedited permit review fee within ten business days of the acceptance. It should be noted that where public hearings are requested on a permit, at least 60 days will be added to the expedited review deadline.

Much like other states experimenting with an expedited review process, Georgia EPD will reassess the program after a period of time to determine its success. EPD insists that this program will not result in a delay of processing permit applications not involved in the expedited permit program.

Andrew H. Perellis and William R. Schubert

The Illinois General Assembly passed and Governor Pat Quinn signed into law a highly-publicized bill overhauling the regulation of hydraulic fracturing (fracking). Public Act 098-0022, Hydraulic Fracturing Regulatory Act. The new Illinois scheme will be among the most stringent and comprehensive in the Country, and a likely model for other States seeking to regulate the industry.

Fracking is a technique involving horizontal drilling that extracts natural gas from layers of shale rock beneath the earth’s surface.  Freeing up the natural gas requires the injection of a combination of water and other additives (fracking fluid) at high pressure into the underground shale layer.  Fracking wells use metal pipes (casing) to create a vertical pathway from the surface to the shale layer, and a horizontal pathway within the shale layer.  After the high-pressure injection of fracking fluid into the shale layer, natural gas migrates into perforations in the metal casing.  The casing is cemented in place to seal off a pathway back to the surface and prevent outward migration.

Key provisions in the proposed legislation:

Preventative Practices

The law would require permittees to submit plans and comply with numerous quality standards and best management practices pertaining to well construction, casing, and containment.

Setbacks

The proposed law includes setback provisions that aim to reduce the risk of contamination that could affect human health and the environment.  For example, the law would require that well sites be at least 1,500 feet away from any surface water or groundwater intake of a public water supply.

Fluid and Waste Management Standards

These include:

  • requirements for storing fluids and managing flowback (i.e., recovered fracking fluid) during both the fracturing and production operations;
  • a requirement that flowback be tested for volatile and semi-volatile organic chemicals, inorganic chemicals, heavy metals, and naturally occurring radioactive materials prior to removal from the site;
  • duties to report releases of fracking fluids, flowback and additives to the DNR (in conjunction with any reporting obligations under federal law);
  • secondary containment requirements;
  • a requirement to immediately notify DNR and to “shut in” the well if fluid or flowback migrates outside the designated area; and
  • reporting requirements regarding “produced water” associated with permitted wells.

Tiered Requirements for Air Emission Management Practices at Oil and Gas Wells   

The proposed law would require permittees to take specific actions to manage air emissions.  As an initial matter, permittees must capture and route recovered natural gas and hydrocarbon fluids and put them to beneficial re-use through a method specifically identified in the statute (e.g., by routing gas through a flow line or collection system).  To the extent that the practices called for in the statute are technically infeasible or economically unreasonable, permittees generally would need to capture and direct emissions into a combustion device or a flare.

Disclosure of Chemicals and Application for Trade Secret Protection

The proposed law provides that permittees must disclose to the DNR up-to-date lists of all base fluids, additives, and chemicals used in their fracking operations.  The DNR will publish these lists on its website.

The disclosure provisions contain an important carve out for trade secrets.  Permittees seeking to protect certain information from public disclosure by the DNR will need to submit a redacted and un-redacted version of the list described above.  Further, they will need to submit a statement to show that the redacted information has competitive value and has not become a matter of public knowledge.

The law will permit limited disclosure of trade secret information to health professionals on the basis of health-related needs.  The DNR will be required to promulgate regulations governing these types of disclosures.

Presumption of Groundwater Pollution

The proposed law establishes a rebuttable presumption that fracking operations have caused the “pollution or diminution of a water source” when: (1) the water source is within 1,500 feet of the well site; (2) water quality data showed no pollution prior to the start of operations; and (3) the pollution occurred during or within 30 months of the fracking operations.

To rebut the presumption, the permittee must show “clear and convincing evidence” either controverting the first or third element above or showing that the pollution resulted from another identifiable cause.

This rebuttable presumption is significant for two key reasons.   First, it could trigger the DNR’s authority under the fracking law to order the permittee to restore or replace the polluted water supply.  Second, it could subject a permittee to liability under the Illinois Environmental Protection Act.

Citizen Suit Provisions and Personal Injury and Property Damage Claims

On 60 days’ notice to the DNR and any alleged violator, citizens would be able to bring civil actions:

  • against the alleged violator of the Act, to compel compliance in lieu of government enforcement; or
  • against the DNR, to force it to carry out a non-discretionary duty.

In either instance, the court has the authority to award may award costs of litigation (including attorney and expert witness fees) to any party, on the basis of the importance of the proceeding and the participation of the parties to the efficient and effective enforcement of this Act.

In addition, the new legislation authorizes a civil action for personal injury or property damage claims against an operator in violation of any applicable rule or regulation established under the fracking law, and such damages would include reasonable attorney’s fees and expert witness fees.