Recent State Right-to-Know Laws Focus on Individual Property Owners
 
November 3, 2006
 
Mark J. Steger- Chicago

In 1986, in the wake of the 1984 Bhopal, India, chemical release that resulted in the deaths of over 10,000 local residents, Congress passed the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). EPCRA required the establishment of state and local emergency planning committees to develop plans for responding to chemical releases in their communities. Also, entities subject to EPCRA were required to notify the state and local emergency planning committees’ companies of the presence of certain chemicals at their facility so that the required plans could be prepared. In addition to this notification, annual reports are required to be filed so that emergency plans can be kept up to date. Finally, EPCRA requires companies that release certain chemicals into the air, land or water to report these releases to the federal government as well as to their state and local emergency response committees. The information submitted to state and local emergency planners must also be made available to the general public.

 

A New Twist

Now, 20 years later, state right-to-know laws are adding a new twist to the notification requirement by mandating that responsible parties notify certain individual property owners (as opposed to an entire community) of the presence of contamination on their property. In large part, this notification requirement has evolved as a result of state voluntary cleanup programs under which interested parties could voluntarily investigate and remediate contamination on their properties. States were concerned that adjacent property owners were kept in the dark about impacts to their property until late in the overall process. Unlike federal and state enforcement-driven remediation programs, which tend to include a robust community relations component, state voluntary cleanup programs do not typically include a strong community relations requirement. In addition, some states required that it be notified of contamination only if the contamination was present in excess of certain state-established standards or if the property was to be transferred. Adjacent property owners were not required to be notified. In practice, adjacent property owners were only notified if the remediation plan required that its property be limited in some fashion in order for the state to issue a closure letter to the responsible party. These notifications were not sent until the responsible party entered into the voluntary program to address the particular contamination area.

 

Parties Responsible for Contamination Now Responsible for Notification

Recently, Illinois and Florida have moved to more individualized right-to-know statutes that require a responsible party to notify property owners whose property has been impacted by contamination in excess of state-established clean-up standards. This new notice requirement is in addition to many states that require contamination discovered in excess of certain standards to be reported to the state. Under both Illinois’ and Florida’s right-to know laws, if information is developed that indicates that contamination has migrated at certain levels onto adjacent properties either through soil or groundwater, the impacted property owner must be notified of this condition. In Illinois, notice is required upon discovery by the state, and the state while required to provide notice, can require the responsible party to provide such notice. In contrast, Florida requires that the responsible parties notify the impacted property owner if a compliance point is being established on that property.

The thinking behind these new right-to-know laws is that contamination will be addressed more expeditiously and involve all interested/impacted property owners prior to or during the initiation of the investigative stage of the project. It also gives impacted property owners a “leg up” on obtaining the necessary information to enable them to negotiate successful resolution of any claims that such property owners may have against the responsible party. It also relieves the state and local governments from having to identify and notify impacted property owners, putting the onus on the responsible party. These right-to-know laws have penalties associated with failure to notify as well.

Whether these new right-to-know laws achieve their desired goal remains to be seen. It is clear, however, that more information will be available to impacted property owners early on in the overall remedial process which may or may not result in a more comprehensive remedial plan. These new laws cannot help but increase the cost of the remedial plan to the responsible party.

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