New Illinois Pollution Notice Law Gives the IEPA New Authority
 
February 23, 2006
 
Mark J. Steger- Chicago

Recent amendments to the Illinois Environmental Protection Act require the Illinois Environmental Protection Agency (IEPA) to provide notice of off-site soil and groundwater contamination to impacted parties. The amendments also give the IEPA the authority to issue orders to responsible parties requiring that appropriate action to be taken to remediate contamination that has migrated off-site.

With respect to the notice or “Right-to-Know” provisions, the amendments require the IEPA to evaluate soil or groundwater contamination that has migrated off-site. The IEPA must take an appropriate response action, which could include public notice, investigation, administrative orders, or an enforcement referral. However, if the appropriate action is already being taken by someone with IEPA oversight, then the IEPA may decide that it does not have to do anything further to comply with this evaluation requirement.

Beginning January 1, 2006, if the IEPA determines that off-site soil contamination poses a threat to the public above the appropriate cleanup standards for that property, then the IEPA is required to notify the property owner. Also, if the IEPA determines that groundwater contamination poses a threat to the public above drinking water standards, then the IEPA is required to notify the owners of the properties served by the drinking water supply (private or semi-private water supply systems) or the owners and operators of the public water supply system. Finally, if the IEPA determines that such public notice should be issued, it can issue an “information demand letter” to the owner/operator of the site from which the release occurred or is suspected to have occurred, requiring such owner/operator to provide the IEPA with information necessary to give the required notice.

Also beginning January 1, 2006, if the IEPA initiates an action to abate an immediate threat or the IEPA, USEPA or third party initiates an immediate removal action , then within 60 days after the action, the IEPA is required to give notice of the action to the owners of all property within 2,500 feet of the subject contamination or any closer or farther if deemed appropriate.

The authority for the IEPA to issue orders is new. The amendments provide that the orders may be issued unilaterally or on consent and are subject to administrative and judicial review. Before issuing an order, the IEPA is required to send a “special notice letter” to all responsible parties advising them of the basis for liability and a time period to allow for negotiations of the appropriate response action. The recipient of an order has the right to petition the Illinois Pollution Control Board for a hearing on the order.

Any person who complies with an order may, within 60 days after completion of the required action, petition the IEPA for reimbursement of costs incurred by the petitioner that are attributable to a bankrupt or insolvent party. The amendments also give any person the right to seek contribution from other liable parties similar to that allowed under federal law and grants contribution protection to those persons that have complied with the order and resolved their liability. Finally, any person who, without sufficient cause, willfully violates or fails or refuses to comply with an order is in violation of the Environmental Protection Act.

The new authority given the IEPA is similar to the authority USEPA currently has under the Comprehensive Environmental Response, Compensation and Liability Act. This new authority along with the notification requirements is intended to enable the IEPA to expedite remediation and to inform property owners and owners/operators of drinking water supplies about contamination impacts that previously may have gone unnoticed for some time. While the IEPA response to the notice or “Right-to-Know” provisions is unclear, it is certain to impact current and future remediation projects in Illinois and possibly encourage lawsuits from affected parties as they become more knowledgeable of the impacts on their property from off-site locations.

For more information, e-mail Mark J. Steger at mark.steger@hklaw.com or call toll free, 1-888-688-8500.