The Act and its Effect
On July 25, 2005 Governor Rod R. Blagojevich signed legislation (the "Act")2 putting Illinois at the forefront of State-enacted environmental protection law.3 The Act applies to any party whom the government believes "caused a release" or poses a "substantial threat of a release" with respect to hazardous substances, pesticides or petroleum products.4 In order to expand State remedial powers, the Act amends the Illinois Environmental Protection Act and Groundwater Protection Act ("IEPAGPA") by adding §§22.d, 22.50 and Title VI-D, and modifying §58.8 — expanding the authority of the Director of the Illinois Environmental Protection Agency ("IEPA") and requiring polluters to take affirmative steps to notify the public of hazardous spills.5 Because the Act pertains to those actively releasing hazardous substances as well as those posing the threat of such a release, it may have a substantial impact on businesses that work with, use, store, or handle pesticides, petroleum or chemicals. To avoid being publicly denounced for contaminating the communities in which they operate, Illinois businesses should familiarize themselves with the Act and take appropriate preventive measures.
Attorneys Take Note
Since the Act is effective immediately, Attorneys need to be aware of the new obligations their corporate clients will have under amended law, both to government and to the communities in which they operate. Both In-House Counsel and outside Counsel to Illinois corporations should be prepared to answer questions, address concerns, and properly advise clients of the potential fallout from this incredibly broad legislation. Attorneys must also be mindful of the financial burdens that the new law puts on companies – even if they are only potentially responsible for a release of hazardous substances.
What This Article Will Discuss
This article will provide a summary of the amendments found in the Act, focusing on those provisions that allow the Director of the IEPA to issue orders of remediation, as well as on the enhanced "community right-to-know" provisions. This information will be critical in advising corporate clients and ensuring that they are prepared to meet their new obligations. This article will also address the options available to corporations not yet postured to deal with this change in the law: retaining an environmental law firm to adopt a community relations plan, or engaging environmental counsel to undertake a Supplemental Environmental Project program to repair and enhance public perception following the release of hazardous substances.
A Brief History of the Act
The original Illinois Right-to-Know law was called the Illinois Emergency Planning and Community Right-to-know law ("Illinois EPCRA"), and was modeled after the federal EPCRA statute.6 The Illinois EPCRA included a release notification provision as well, but the notification was limited to the State Emergency Response Commission and Local Emergency Response Commission. The public did not have to be notified of the release, although the State Emergency Response Commission and Local Emergency Response Commission were required to make this information available to the public if an individual submitted a written request subject to the Illinois Freedom of Information Act provisions.7 In addition, the original Illinois EPCRA only required that a contact person be provided in the notification, whereas the amended law requires that the owner or operators name and address be provided.8 The new law requires a potentially responsible party ("PRP") to publicly disclose much more information and eliminates any burden on the public to take the initiative to learn about releases in the community. It is now the obligation of the PRP to compensate IEPA for notifying the entire community regardless of whether the public requests the information or has an interest in it.
According to a Public Health Assessment, the idea to draft this law was derived from a DuPage County community that was exposed to contamination for many years without the knowledge of the community’s residents. In 1968 a metal fabricating company, opened its doors in the Village of Lisle, DuPage County, Illinois.9 Indicated in the Public Health Assessment, employees used Trichloroethylene to clean and de-grease metal machinery and equipment. The Illinois Department of Public Health ("IDPH") advised the IEPA to investigate the location after an IDPH inspection of the company in 2000. The company had been enrolled in the Illinois Site Remediation Program since 1994, but had not met state standard nor obtained a "No Further Remediation Letter." Samples taken of the soil surrounding the facility indicated that Trichloroethylene was present in concentration levels 136,000 times greater than the state standard. Private wells in the Lisle community also tested positive for Trichloroethylene contamination. The company has consistently denied involvement with the off-site contamination.
In January 2001, the Illinois Attorney General and DuPage County filed an action in DuPage County against the company for alleged violations of environmental law.10 A consent order was entered into with the Illinois Attorney General in 2004. The company entered into a settlement agreement with Lisle residents allegedly affected by the Trichloroethylene which had entered into their drinking water supply. In an attempt to prevent contamination from entering public or private water supplies without the public’s knowledge, the Illinois legislature drafted the amended law to keep the public apprised of environmental accidents and releases.
Once the IEPA learns of a release, the new law obligates the IEPA to determine if soil or groundwater contamination extends beyond the site where the release occurred. The IEPA is required to issue public notices, and the Director has the option of imposing administrative orders to force the remediation of the site. The costs of the required public notice must be bore by the party believed to be responsible for the release.
Meet-N-Greet with the Bill
This new environmental law puts Illinois on the forefront of community-right-to know laws and demonstrates the State’s priority to keep the public apprised of hazardous conditions in communities.11 The purpose of the new law is to expedite notice and clean-up when the public is at risk from migrating contaminants. The first portion of the amendment is modeled after Section 106(a) of the federal Comprehensive Emergency Response Compensation, and Liability, Act ("CERCLA") and is called "Authority of Director to issue orders."12 This part actually amends the Illinois Environmental Protection Act to give the IEPA Director greater authority to issue orders. The next significant portion of the bill is the new 415 ILCS 5/25d entitled "Right-To-Know", which requires the IEPA to evaluate the release of contaminants and recommend appropriate agency actions to respond to the release. The Illinois EPCRA defines "release" as:
Any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles) of any hazardous chemical, extremely hazardous chemical, or toxic chemical.13
To thoroughly understand the new law, a summary is provided below of each section.
IEPA Director’s Authority to Issue Orders
Under the new law, the IEPA has been given enhanced authority to issue orders analogous to the CERCLA Section 106(a) power given to the President.14 This section allows the Director to issue orders against potentially responsible parties ("PRP") to take "appropriate response action" to abate "a release or substantial threat of a release of a hazardous substance, pesticide, or petroleum.15" Any substance listed under the CERCLA list of hazardous substances is also considered a hazardous substance under the new law.16 Once an order has been issued against a PRP, the PRP must undertake the required actions set forth in the Director’s order before a defense may be raised against the order.17 This was intentionally done to prevent delay in the remediation process. Once remediation has been undertaken, the PRP may recover costs of the remediation if either: 1. they are not liable under the act; or 2. the Director’s order was arbitrary or capricious. Reimbursement includes the reasonable response costs and reasonable and appropriate costs or expenses incurred in petitioning the board (attorney’s fees). Additionally, the PRP may seek reimbursement from other private parties that contributed to the contamination. Whether seeking reimbursement from the government or another private party, a PRP may not seek monetary contribution until they have completed the obligations and actions required under the Director’s order and no further remediation is required of the threat or actual hazard.
If the new 415 ILCS 5/22.2d(a) was not broad enough, the statute even further increases the Director’s discretion in 5/22.2d(b). In addition to action taken by the federal, state, or local government, the Director may issue an order when he has determined that there may be an imminent and substantial endangerment to the public health or welfare or the environment. This order may be issued against any party potentially liable under the act for a release or a substantial threat of a release, and therefore, a party will be obligated to undertake actions in an order even if it is a mere possibility that they are responsible for creating a threat of release.
The Director shall issue a Special Notice letter to a PRP prior to issuing the administrative order.18 This letter will include the reasons why the Director suspects that the party is a PRP, and the PRP has 30 days to negotiate with the Agency a settlement agreement before any order will be issued by the Director. A party that "without sufficient cause" willfully does not comply with the Director’s order is in violation of the act. A party that does fulfill its obligations under the order may file a petition to the Director for reimbursement 60 days after completing the required action. In addition, a party that completes the ordered requirements may seek contribution from any other party as well.
The validity of environmental law that requires parties to undertake remediation via order prior to determination of liability has been tested in CERCLA cases. As previously stated, the Illinois statute is based on the federal CERCLA law which permits executive orders to be issued requiring remediation to be undertaken as well. In Solid State Circuit Inc. v. USEPA,19 the court held that if the EPA has determined that hazardous substance has been or is likely to be released at a particular facility; orders may be issued against the responsible party directing that cleanup actions be undertaken.
Clients should be advised that the language selected by the legislature is extremely broad. An actual release does not have to occur before the Director may issue an order against a company. If the Director believes a substantial threat exists, this is sufficient evidence to permit the Director to issue an order and obligate a PRP to undertake modifications to their facility. Under Federal CERCLA law, "imminent and substantial endangerment is not limited to emergency situations...endangerment is not actual harm, but a threatened or potential harm. Endangerment is imminent if conditions which give rise to it are present, even though the actual harm may not be realized for years."
In a subsequent case, "imminent" was defined as conditions which give rise to an endangerment are present even if the actual harm may not occur for years.20 Therefore, under federal law, the government may preemptively issue orders against PRP’s even if there are no health affects from the use of hazardous substances, pesticides, or petroleum. The CERCLA case law demonstrates the latitude which the EPA has, and now the IEPA has for taking steps to protect the public and environment while simultaneously ordering private companies to adopt their orders.
Under the amended Community Right-To-Know Act containment evaluation will be done.21 The IEPA will evaluate releases into the environment and the extent of either soil or groundwater contamination which may have extended beyond the boundary of the release site onto public or private property. When soil contamination poses a threat above Tier 1 residential remediation objectives, the agency will provide direct notice to the owner of the contaminated property.22 Next, if groundwater contamination poses a threat of exposure to the public above Class I groundwater quality standards, the agency must give notice to private and public water systems and the owners of the properties that water systems serve.23 The PRP will bear the cost of notifying the public. Finally, if the IEPA refers a matter to enforcement or a party undertakes a CERCLA remediation, the IEPA must give notice of the action to all property owners within 2,500 feet of the contamination.24 Therefore, the Act requires the IEPA to take affirmative steps to notify the public of threats of contamination even if active remediation has already been initiated by the PRP and regardless of whether it is proven that other property has been affected.
Especially damaging are the public notifications themselves. Not only does the notification have to identify the contaminant released, but the name and address of the PRP must be identified as well.25 In addition, the notification requires the IEPA to provide a description of the contaminant and the potential health effects that are associated with the contaminant.26
IEPA will determine the appropriate methods to provide the required notices, which will eventually be paid for by the PRP. Notices may include: personal notifications, public meetings, signs, internet and e-mail notification, and printed notification. Additionally, on January 1, 2006, the IEPA must make all notifications, releases, suspected releases, and links to USEPA databases available on the internet for the public. Releases must be searchable by notification date, zip code, site or facility name, and geographic location. Therefore, not only will members of the surrounding community be notified of a release, but anyone can obtain information on a PRP regardless if it is proven that the company actually caused the release. As a result of this law, the PRP must compensate the IEPA for notifications the IEPA is required to make which will publicly distributes information about a contaminate that they may have released into the environment and has not been proven to have affected either public or private property.
Chevron Deference Interweaving with the New Law
In the Supreme Court case Chevron v. Natural Resource Defense Council, the Court provided that extreme deference should be given to agency decisions based on their superior knowledge of the specific issue.27 Illinois uses the Chevron holding to evaluate the orders imposed by a state agency.28 For a party to prove that deference should not be given to the agency, the party must demonstrate that the agency has an unreasonable interpretation of a statute, and therefore the agency has acted arbitrarily. The new environmental law permits the Director to take action against parties that may potentially have caused a threat. This means that a party may be forced to clean a contaminated site, fix a potentially hazardous facility, or notify an entire community of a potential threat without the Director having to prove that the party is directly responsible. Additionally, as long as the agency is not acting completely arbitrary, the order will be upheld under Chevron deference. In a federal CERCLA case regarding the ability of the President to issue an order and force a remediation, the court stated that the "agency’s construction of [CERCLA] while not binding- was entitled to substantial judicial deference under Chevron. A PRP is left with only the solution of filing an action after the order has been completed to seek contribution or reimbursement. Therefore, a PRP may have to waste money and time rectifying something that has not become a hazard which they may not have caused before they are able to seek restitution.
Chevron deference also applies to the Right-To-Know section of the new law. In this section of the law, public notification is required by the government if contamination may have extended outside the boundaries of the facility. Based on the language of the law, the government is obligated to disseminate the name and contact information of a facility they believe to be causing contamination, even if the government only has a reasonable belief that the contamination exists. Therefore, because of the extreme deference afforded government agencies, the IEPA may be disseminating information to the public about companies without absolute knowledge that harmful effects may be experienced from the PRP’s actions.
Advising Corporate Clients of the New Environmental Laws
Drafting a Community Relations Plan
Under the new law, the government will not be required to issue public notices if the PRP has already drafted its own community relations plan prior to the release, and the IEPA has approved the notices.29 Clients should be advised that there are specialty environmental law firms that can assist corporations in drafting a community relations plan and notices that will be accepted by the IEPA. By drafting a community relations plan, the corporation can decrease costs incurred during notification and have control as to the mediums which are used. Additionally, the corporation will provide the information to the public as opposed to the public relying on information that is generated by the government, which may be conveyed detrimentally to the corporation. Therefore, to avoid relying on the government’s perspective as to how to notify the public, a client should be aware that environmental legal counsel can create a plan prior to release which can be used in lieu of the IEPA public notification.
Entering the Supplemental Environmental Project Program
As you now have seen, a corporation does not have to affect or cause any harm before the public may be notified that they have released a hazardous substance, pesticide, or petroleum. Attorneys must be prepared to assist clients in limiting the loss of credibility and decreased positive public perception such notification may have, and therefore attorneys need to quickly assist the client in damage control by promoting the corporation’s dedication to the community.
Illinois has adopted a Supplemental Environmental Project program ("SEP"). The SEP program was implemented so that companies alleged to have violated environmental laws may undertake environmentally beneficial projects to "improve, restore, protect, or reduce risks to public health and/or the environment.30" A SEP is typically used in enforcement actions within the Settlement Agreement to off-set an environmental fine or penalty. Examples of SEP include the following:
1. Sponsoring a pollution prevention workshop for local businesses;
2. Purchasing and installing pollution control devices and/or cleaner fuels for local school buses;
3. Fund school field trips to local recycling businesses, landfills, water treatment plants, or waste water treatment plants.31
Currently, the IEPA is greatly encouraging violators to undertake a SEP. SEPs provide money for many environmental programs that the state does not have the funding for, and promotes environmental awareness statewide. Additionally, a SEP requires a violator to give back to the environment and community after they have allegedly caused damage. Therefore, the SEP program is currently being pushed by the IEPA since it has vast benefits for residents of Illinois.
The SEP program should be recommended to parties who are accused of releasing a hazardous substance, pesticide, or petroleum. As the new law permits, a party can be accused of a release, the public can be notified, and at no point does the government have to prove that the party actually caused the release. Accusations of causing a release may endanger the reputation of a corporation. To redeem its positive appearance, a company should consider entering into the SEP program with the assistance of environmental legal counsel. This will demonstrate to the community notified about the release that the company takes environmental issues and health hazards very seriously. Additionally, it will allow a community to become a more effective environmental steward without any monetary cost to the town or city. Finally, this demonstrates to the IEPA that the company takes the environment seriously and appreciates the seriousness of the release. By entering into the SEP program, a company can ensure that an accusation by the IEPA that a release occurred will not disparage their reputation.
Illinois has passed new environmental law making it a pioneer of Right-to-Know law nationwide. The IEPA Director has new authority to issue orders that will require companies to remediate releases before it is proven that they are responsible. At the same time, the IEPA is required to keep the public informed about releases even if no actual harm has occurred. Because of the negative affect this will have on companies’ public relations, attorneys should be aware of the SEP program and how this will assist their clients in maintaining positive relations with the community while helping the environment at the same time. The new environmental law will force attorneys to take on different responsibilities by protecting our client’s reputations when IEPA classifies them as a PRP.
1 Jocelyn Cornbleet is the chair of the DuPage County Bar Association Environmental Law Committee.
2 Public Act 094-0314, online at www.ilga.gov.legislation/publicacts/fulltext.asp?Name=094-0314. The chief sponsor was Sen. John Cullerton (D-Chicago), and the bill was co-sponsored by Sen. Kirk Dillard (R-Westmont), Sen. Mattie Hunter (D-Chicago), Rep. Patricia Bellock (R-Westmont), Rep. John Fritchey (D-Chicago), Rep. James Meyer (R-Naperville) and Rep. Michael Smith (D-Canton).
3 Governor Blagojevich Signs Landmark Environmental Law to Help Protect Families and Communities and Hold Polluters Accountable: Illinois Becomes Nation’s Leader on Community Right-to-Know Issues, Press Release (July 25, 2005), http://www.illinois.gov./PressReleases/ShowPressRelease.cfm?SubjectID=18&RecNum=4174.
4 415 ILCS 5/22.2d(a) (new). To view a copy of Public Act 094-0314
6 430 ILCS 100/1 et seq.
7 430 ILCS 100/15
8 430 ILCS 100/10 (c); 415 ILCS 5/25d-3(c) (new).
9 Ken Runkle and Mike Moomey, Public Health Assessment: Lisle Residential Wells (aka Lockformer Company) Lisle, DuPage County, Illinois, at http://www.atsdr.cdc.gov/HAC
10EPA, U.S. Expects to Issue Notification Letter to Lockformer Company, (June 2001) found online at http://www.epa.gov/region5/sites/lockformer/pdfs/lockformer_0601.pdf.
11Michael Bologna, New Law Requires Community Notification About Releases of Hazardous Substances, Environmental Reporter BNA Inc., Vol. 36, No. 31 page 1635 (August 5, 2005).
12 415 ILCS 5/22.2d
13 430 ILCS 100/3 (West 2005).
14 42 USCA 9606 (West 2005).
15 415 ILCS 5/22.2d(a) (new).
16 430 ILCS 100/3 "Hazardous Chemical"
17 415 ILCS 5/22.2d(d) (new).
18 415 ILCS 5/22/2d(b) (new).
19 812 F.2d 383 (1987).
20 Kelly v. EPA, 15 F.3d 1100 (1994).
21 415 ILCS 5/25d-2 (new)
22 415 ILCS 5/25d-3(a)(1) (new).
23 Id. at (a)(2).
24 415 ILCS 5/25d-3(b) (new).
25 415 ILCS 5/25d-3(c)(6) (new).
26 Id. at (4).
27 467 U.S. 837 (1984).
28 Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376 (2004).
29 415 ILCS 5/25d-3(c) (new).
30 Supplemental Environmental Project Idea Bank, EPA, at http://www.epa.state.il.us/enforcement/sep.
31 Instructions for SEP Deposit Form, EPA, at http://www.epa.state.il.us/enforcement/sep/instructions/html.
Jocelyn F. Cornbleet is an attorney at The Misiorowski Law Group, LLC, an environmental litigation firm located in Naperville, Illinois. Ms. Cornbleet has spoken before the Chicago Bar Association’s Environmental Law Committee and worked on hazardous environmental cleanup cases in Illinois, Ohio, Indiana, Pennsylvania, Kansas, West Virginia and Virginia. Ms. Cornbleet graduated from Brandeis University with a B.A. in English and a minor in Legal Studies and Environmental Studies. She earned her juris doctor degree from the University Of Iowa College Of Law, where she both wrote for and edited the Journal of Gender, Race & Justice.
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