• Legislators Seek to Expand the Powers of the Illinois EPA
  • June 16, 2005 | Authors: Charles F. Helsten; Heather K. Johnson
  • Law Firm: Hinshaw & Culbertson LLP - Rockford Office
  • House Bill 0667 was introduced to the Illinois House of Representatives on Jan. 28, 2005. The Bill seeks to dramatically expand the powers of the Illinois Environmental Protection Agency (IEPA) and may severely limit the ability to remediate and market "Brownfields" properties. House Bill 0667 was referred to the Rules Committee on Jan. 31, 2005, and assigned to the Environment & Energy Committee on Feb. 3, 2005. Thereafter, the bill was placed on the House Calendar for its Second Reading on March 10, 2005.

    The purpose of the proposed legislation is to provide the Director of the IEPA with the authority to unilaterally issue orders requiring potentially responsible parties to participate in "cleanup" actions. In addition to authorizing the Director to issue orders, the proposed legislation also allows a person subject to an order from the Director of the IEPA to recover the costs of complying with the order if the person establishes by a preponderance of the evidence that he or she is not a potentially responsible party with respect to the release or threatened release, or if he or she can demonstrate that the Director's decision in selecting the ordered response action was arbitrary, capricious or not in accordance with law. The proposed legislation, much like Section 113(h) of CERCLA, provides limited review of the orders, establishing that the Illinois Pollution Control Board and courts have no jurisdiction to review such orders except to enforce an order issued, to recover a penalty for a violation of the order or to seek reimbursement from the Director for an improper order.

    In addition to the above, the proposed legislation, among other things, also: 1) creates a contamination evaluation committee to evaluate releases of contaminants and recommend appropriate IEPA actions in responses to releases; 2) establishes the Right-to-Know Committee to evaluate and recommend appropriate and effective methods of providing notices; 3) requires the IEPA to provide certain information and resources on the Internet, and 4) requires coordination between the IEPA and Department of Public Health to provide training to local and regional health department staff regarding the use of information posted on the Internet.

    The Effect of the Proposed Legislation
    While this legislation has not yet been passed by the Illinois House and Senate, all property owners in Illinois should be aware of its existence because this proposed legislation has potentially far-reaching effects. Most significantly, the proposed legislation will allow the IEPA to issue orders requiring property owners to institute cleanup actions without any type of formal proceeding to determine if the property owner is actually the potentially responsible party. Once the IEPA issues such an order, the property owner is obligated to comply with the order even if he or she is not the responsible party. In fact, there is no judicial review of such orders. A property owner's only recourse will be to institute an action to recover the costs it paid under the order by proving that the property owner is not responsible for the contamination or that the order is arbitrary, capricious or unlawful. This is particularly troublesome given the recent Cooper decision which limits the ability of one to bring a contribution action under CERCLA.

    This proposed legislation, therefore, places a tremendous burden on owners of contaminated property who will be required to expend large amounts of money to clean up contamination that they may not even be responsible for, and places the onus on property owners to prove that they are not responsible for contamination on their property. Although this legislation may result in the remediation of contaminated properties, it may do so at the expense of innocent landowners, and may stifle ongoing legislative efforts to revitalize Brownfields properties.