(415 ILCS 100/1)(from Ch. 111 1/2, par. 7201) Sec. 1. This Act shall be known and may be cited as the "Response
Action Contractor Indemnification Act". (Source: P.A. 84‑1445.)
(415 ILCS 100/2)(from Ch. 111 1/2, par. 7202) Sec. 2. For the purposes of this Act: (a) The terms "hazardous
substance", "waste", "response", "remedial action", and "removal" have the
meanings ascribed to them in the Environmental Protection Act. (b) "Pollutant" means any waste, hazardous substance, irritant or
contaminant, including smoke, vapor, soot, fumes acids, alkalis, asbestos,
toxic or corrosive chemicals, radioactive waste and mine tailings, and
including any such material intended to be recycled, reconditioned or reclaimed. (c) "Response action contractor" or "contractor" means an individual,
partnership, corporation, association, joint venture or other commercial
entity which enters into a State response action contract, and includes any
employee, agent, subcontractor or consultant of the primary response action
contractor that is involved in performing services or supplying materials
relating to the State response action contract. (d) "State agency" means the Illinois Environmental Protection Agency or
any other department or agency of the State of Illinois. (e) "State response action contract" means any contract, or portion of
a contract, relating to a
remedial or response action, or to the identification, handling, storage,
treatment or disposal of a pollutant, which is entered into on or after the
effective date of this Act and during a period in which a final declaration
of the availability of liability insurance under Section 6 of this Act is
not applicable, between a State agency and a person or entity not liable
for the creation or maintenance of the condition to be ameliorated under
the contract, and which does not provide for the payment of any federal
funds to the contractor. (Source: P.A. 86‑1006.)
(415 ILCS 100/3)(from Ch. 111 1/2, par. 7203) Sec. 3. The General Assembly finds and determines that: (a) It is the public policy of the State of Illinois to provide for the
safe and expeditious handling, treatment and disposal of hazardous
substances and pollutants, and the abatement of asbestos in public and
nonpublic facilities. (b) Private response action contractors are often necessary and useful
in achieving these purposes, but such contractors are frequently reluctant
or unable to participate in State cleanup efforts because of the risk of
incurring substantial liability for damages caused by conditions they did
not create but are attempting to correct. (c) Adequate liability insurance to protect response action contractors
is not currently available in Illinois. (d) In the interest of the public health, safety and welfare, it is
necessary for the State of Illinois to defend and indemnify response action
contractors from liability arising out of cleanup efforts, in order to
assure and encourage the availability of participants in such efforts until
such time as appropriate liability insurance becomes available in this State. (Source: P.A. 84‑1445.)
(415 ILCS 100/4)(from Ch. 111 1/2, par. 7204) Sec. 4. (a) In the event that any civil proceeding arising out of a
State response action contract is commenced
against any response action contractor, the Attorney General shall, upon
timely and appropriate notice to him by such contractor, appear on behalf
of such contractor and defend the action. Any such notice shall be in
writing, shall be mailed within 15 days after the date of receipt by the
contractor of service of process, and shall authorize the Attorney General
to represent and defend the contractor in the proceeding. The giving of
this notice to the Attorney General shall constitute an agreement by the
contractor to cooperate with the Attorney General in his defense of the
action and a consent that the Attorney General shall conduct the defense as
he deems advisable and in the best interests of the contractor and the State,
including settlement in the Attorney General's discretion. In any such
proceeding, the State shall pay the court costs and litigation expenses of
defending such action, to the extent approved by the Attorney General as
reasonable, as they are incurred. In the event that the Attorney General determines either (1) that so
appearing and defending a contractor involves an actual or potential
conflict of interest, or (2) that the act or omission which gave rise to
the claim was not within the scope of the State response action contract,
or was intentional, willful or wanton misconduct, the Attorney General
shall decline in writing to appear or defend or shall promptly take
appropriate action to withdraw as attorney for such contractor. Upon
receipt of such declination or withdrawal by the Attorney General
on the basis of an actual or potential conflict of interest, the contractor
may employ his own attorney to appear and defend, in which event the State
shall pay the contractor's court costs, litigation expenses and attorneys'
fees to the extent approved by the Attorney General as reasonable, as they are incurred. (b) In any civil proceeding arising out of a State response action
contract in which notice was given to the Attorney General under subsection
(a), if the court or jury finds that the act or omission of the
response action contractor was within the scope of the State response
action contract and was not intentional, willful or wanton misconduct, the
court shall so state in its judgement, and the State shall indemnify the
contractor for any damages awarded and court costs and attorneys' fees
assessed as part of the final and unreversed judgment. In such event, if
the Attorney General declined to appear or withdrew on the grounds that the
act or omission was not within the scope of the State response action
contract, or was intentional, willful or wanton misconduct, the State shall
also pay the contractor's court costs, litigation expenses and attorneys
fees to the extent approved by the Attorney General as reasonable. (c) Unless the Attorney General determines that the conduct or inaction
which gave rise to the claim or cause of action was not within the scope of
the State response action contract, or was intentional, willful or wanton
misconduct, any case in which notice was given pursuant to subsection (a)
may be settled, in the Attorney General's discretion, and the
State shall indemnify the contractor for any damages, court costs and
attorneys' fees agreed to as part of the settlement. If the contractor is
represented by private counsel, any settlement which obligates the State to
indemnify the contractor must be approved by the Attorney General and the
court having jurisdiction. (d) Court costs and litigation expenses and other costs of providing a
defense, including attorneys' fees, paid or obligated under this Section,
and the costs of indemnification, including the payment of any final
judgment or final settlement under this Section, shall be paid by warrant
from the Response Contractors Indemnification Fund pursuant to vouchers
certified by the Attorney General. (e) Nothing contained or implied in this Section shall operate, or be
construed or applied, to deprive the State, or any response action contractor,
of any defense otherwise available. (f) Any judgment subject to State indemnification under this Section
shall not be enforceable against the response action contractor, but shall
be paid by the State in the following manner. Upon receipt of a certified
copy of the judgment, the Attorney General shall review it to determine if
the judgment is
(1) final, unreversed and no longer subject to appeal, and (2)
subject to indemnification under this Section. If he
determines that it is, he shall submit a voucher for the amount
of the judgment and any interest thereon to
the State Comptroller, and the amount shall be paid by warrant to the
judgment creditor solely out of funds available in the Response
Contractors Indemnification Fund. In no event will the amount paid for a
single
occurrence surpass $100,000. (Source: P.A. 93‑152, eff. 7‑10‑03.)
(415 ILCS 100/5)(from Ch. 111 1/2, par. 7205) Sec. 5. Response Contractors Indemnification Fund. (a) There is hereby created the Response Contractors Indemnification Fund.
The State Treasurer, ex officio, shall be custodian of the Fund, and the
Comptroller shall direct payments from the Fund upon vouchers properly
certified by the Attorney General in accordance with Section 4. The Treasurer
shall credit interest on the Fund to the Fund. (b) Every State response action contract shall provide that 5% of each
payment to be made by the State under the contract shall be paid by the
State directly into the Response Contractors Indemnification Fund rather
than to the contractor, except that when there is at least $100,000 in the Fund
at the beginning of a State fiscal year, State
response action contracts
during that fiscal year need not provide that 5% of each payment made
under the contract be paid into the Fund. When only a portion of a contract
relates to a remedial or response action, or to the identification, handling,
storage, treatment or disposal of a pollutant, the contract shall provide that
only that portion is subject to this subsection. (c) Within 30 days after the effective date of this amendatory Act of 1997,
the Comptroller shall order transferred and the Treasurer shall transfer
$1,200,000 from the Response Contractors Indemnification Fund to the
Brownfields Redevelopment Fund. The Comptroller shall order transferred and
the Treasurer shall transfer $1,200,000 from the Response Contractors
Indemnification Fund to the Brownfields Redevelopment Fund on the first day of
fiscal years 1999, 2000, 2001, 2002, and 2003. (d) Within 30 days after the effective date of this amendatory Act of
the 91st General Assembly, the Comptroller shall order transferred and the
Treasurer shall transfer $2,000,000 from the Response Contractors
Indemnification Fund to the Asbestos Abatement Fund. (e) Within 30 days after the effective date of this amendatory Act of the
93rd General Assembly, the Comptroller shall order transferred and the
Treasurer shall transfer all monies in the Response Action Contractor
Indemnification Fund in excess of $100,000 from the Response Action Contractor
Indemnification Fund to the Brownfields Redevelopment Fund. (Source: P.A. 92‑486, eff. 1‑1‑02; 93‑152, eff. 7‑10‑03.)
(415 ILCS 100/6)(from Ch. 111 1/2, par. 7206) Sec. 6. The Director of Insurance shall monitor and observe the
insurance market in this State to determine if the occurrence form of
liability insurance becomes available to response action contractors in
this State. In the event that the Director determines that one or more
insurers are making such insurance available to response action contractors
in this State upon reasonable terms, he shall adopt a rule to that effect.
If the Director determines that such insurance is available only for
certain classes of contractors or pollutants, he shall include that
determination in the rule.
In the event that the Director determines that such insurance has ceased to
be available, he shall modify or rescind such rule. Such determinations shall be subject to review under the Administrative
Review Law, and shall be deemed final 30 days after adoption unless such
review has been sought within that period. (Source: P.A. 84‑1445.)
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