Environmental Progress - Fall 1997

Legal Counsel Side-Bars

New Law Clears Way For "Third Party" Permit Intervention

New law gives citizens broader powers to intervene in the permit process.

Legislation signed by Gov. Jim Edgar on July 30, 1997, gives citizens the right to appeal the issuance of, or conditions in, National Pollutant Discharge Elimination System (NPDES) permits for the discharge of wastewater. The permits are issued by the Illinois EPA under the federal Clean Water Act.

Citizens have occasionally appealed NPDES permits or their conditions to the Illinois Pollution Control Board in the past. However, litigation decided in 1996 concluded that the Illinois Environmental Protection Act allowed only the NPDES permit applicant to contest the way the Illinois EPA wrote a NPDES permit. The new legislation, Public Act 90-274, cures that deficiency and will allow interested parties, under certain conditions, to challenge the permits.

Concerned citizens still have to raise their concerns during the public comment period or the hearing on each NPDES permit, must show how they would be affected by the permitted facility, and pay a filing fee to the Illinois Pollution Control Board.

Drafted by the Illinois Environmental Protection Agency with comments from the Illinois Pollution Control Board and the Illinois Chamber of Commerce, the bill was sponsored by Senator Bill Mahar and Representative George Scully.

Site Remediation Program

Site activities must be supervised by a licensed professional engineer.

On July 1, 1997, Pollution Control Board (PCB) regulations for the Site Remediation Program (SRP) became effective. Required by Title XVII of the Environmental Protection Act, the regulations provide for Illinois EPA oversight of threatened releases or cleanup of releases of regulated substances and pesticides. They set out administrative procedures for the operation of the remediation effort including applicability, entering into service agreements, record-keeping and payment for review and evaluation services, site investigations, preparation of plans and reports, review of plans and reports, and No Further Remediation Letters.

The SRP replaces the Pre-Notice Site Cleanup Program, and upgrades the regulations. Changes are primarily designed to facilitate cleanups at Brownfields sites and return them to productive use. By identifying, investigating and remediating these properties, it is hoped they can be revitalized while slowing the trend of moving industrial activities to previously uncontaminated areas.

Applicants may participate on an elective basis or through the enforcement process. However, unless otherwise provided by federal law or other federal approval or authorization, sites are excluded if they are on the National Priorities List, subject to federally delegated state programs, or subject to federal administrative or court orders.

Participation in the SRP begins with an application and agreement in which the participant agrees to conduct site investigation and remediation, if necessary, in accordance with the regulations, and the Illinois EPA agrees to provide technical review and evaluation services. An advance partial payment, to be applied to review and evaluation services, generally is required for acceptance into the program. Voluntary participants define their own remediation sites and contaminants of concern.

Following acceptance into the SRP, the site is investigated, remediation objectives if necessary are selected, remedial action plans are designed and implemented, and remedial action completion reports are filed and reviewed. Selection of remediation objectives will be based on the new regulations, Tiered Approach to Corrective Action Objectives (TACO) at 35 Ill. Adm. Code 742. All site activities must be conducted by or under the supervision of a licensed professional engineer.

There will be two alternatives for review and evaluation of site activities. The Illinois EPA will act as the sole reviewer, or participants may contract with a reviewing licensed professional engineer (who must be different from the site licensed professional engineer) to provide review of site activities as assigned by the Agency. The Illinois EPA will then have ultimate approval authority based on the recommendations of the reviewing licensed professional engineer. Final decisions and plans and reports will be subject to appeal to the PCB. The Illinois EPA also will provide a menu of extra services such as site sampling and analysis or assistance with community relations plans.

Upon approval of the remedial action completion report, No Further Remediation (NFR) letters will be issued. The NFR letters will signify a release from further responsibility for performance of the approved remedial action and will constitute prima facie evidence that the site is no longer a threat to human health and the environment, and does not require further remediation under the Act. There will be a fee for the NFR letter in addition to the fees for services -- the less of $2,500 or an amount equal to the amount owed for services. NFR letters will be voidable for several reasons, including fraud and the failure to properly maintain or operate engineering controls. Voidance of NFR letters will be appealable to the PCB. The choice of remediation objectives under TACO may require some property use restrictions. To place prospective purchasers of the property on notice that the property may not be suitable for all uses, NFR letters must be recorded with the appropriate county recorder or registrar of titles.

For additional information about the SRP or to receive a packet of forms and information, contact the Illinois EPA's Bureau of Land at 217-782-6760.