Originally published September 7, 2005
Recently passed state environmental legislation requires the Illinois EPA (the "Agency") to notify the public of "off-site" releases of contaminants. It also grants the Agency power to issue unilateral orders rather than having to ask the Illinois Attorney General to take action.
The new law, effective July 25, 2005, requires the Illinois EPA to give public notice to owners of all property within a 2,500 feet radius of any facility that the Agency determines has contaminated soil or groundwater that "poses a threat of exposure to the public." The notification methods under the Act include personal notification, public meetings, signs, electronic notification or print media. Prior to this public notification, the Agency can issue an information demand letter to the owner or operator of the facility where the release occurred that requires the owner or operator to provide the Agency with the information necessary to give the public notice required under the new Act. In addition, beginning July 1, 2006, copies of all notifications given under the new law must be indexed and searchable on Agency databases available on the Internet. Finally, within six (6) months of the effective date, the Agency shall require potable water supply well surveys and community relation activities in areas surrounding facilities where releases of contaminants have impacted or may impact off-site potable water supply wells. (415 ILCS 5/25 d-1 through d-10)
The Agency has also been granted the power under the new Act to directly issue unilateral orders requiring appropriate response actions against potentially liable persons to address releases of contaminants that threaten the public health and welfare and the environment. This new law allows the Agency to act without undertaking the potentially time-consuming referral process to the Illinois Attorney General. Previously, the Agency was required to request the Attorney General to seek a court order on behalf of the Agency in these contamination cases. (415 ILCS 5/22 2d)
Touted as the most aggressive community-right-to-know statutory scheme in the country, the notification mechanisms contemplated under the Act include door-to-door visits, local television and radio, public service announcements, hand-out flyers, community and small group meetings and direct mail postcards. This legislation was created in the wake of the releases and contamination allegedly caused by the DuPage County company Lockformer, which the Attorney General sued in 2000.
Under the new law, any Illinois facility that has a reported release may be subject to increased scrutiny by the Agency and may require public notification of this release at the Agency's discretion. If the Agency determines that any soil or groundwater contamination extends beyond the facility's boundaries and poses a threat of off-site exposure to the public above Tier I remediation objectives or Class I groundwater standards, increased publicity and public inquiry may be directed toward the facility owners. Where possible, preparation in anticipation of these events will enable facility owners and operators to communicate effectively and rationally with environmental regulators and the community.
Vincent S. Oleszkiewicz is based in the Chicago office and Seth v.d.H. Cooley is based in the Philadelphia office.
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