ILLINOIS ENACTS BROWNFIELD'S INITIATIVE

By DIANA M. JAGIELLA, Howard & Howard Attorneys, (309) 672-1483

Introduction

In December 1995 Illinois enacted HB 901 (PA 89-0443), an initiative to spur redevelopment of contaminated, abandoned industrial properties, commonly referred to as "Brownfields." Historically, developers and lenders have avoided redevelopment of Brownfields due to environmental liability concerns. As a result, thousands of urban sites remain vacant and decaying while agricultural and residential land ("Greenfields") become industrialized. The goal of PA 89-0443 is to curb the growing trend of Greenfield development and to promote Brownfield development. PA 89-0443 seeks to achieve this goal by minimizing the risks associated with Brownfield development through risk-based clean up objectives. These risk based clean up objectives are intended to be less stringent than earlier clean up standards and, therefore, encourage voluntary clean up and development of Brownfields.

Illinois Voluntary Clean Up Program History

Voluntary cleanups are not new to Illinois. Prior to PA 89-0443, the Pre-Notice Voluntary Clean Up Program ("VCP") provided the mechanism for voluntary clean up of contaminated property. It replaces the VCP with Title XVII of the Illinois Environmental Protection Act, entitled "Site Remediation Program." Under the VCP the Illinois Environmental Protection Agency (IEPA) could provide review and evaluation services for remediation at certain sites upon request by the owner or operator of the property and payment of certain fees. Upon receipt of VCP program approval, an assessment of the property and proposed clean up plan would be submitted by the property owner. Following negotiations with the IEPA, numeric clean up levels would be set for the clean up of the property. Clean up would be complete once the contamination was remediated to the numeric criteria set by IEPA. Critics of the VCP allege that numeric clean up criteria have been overly stringent and have failed to take into account the future use of the property.

Illinois Brownfields Program

PA 89-0443 repeals the VCP, and replaces it with the new Title XVII Brownfields initiative program ("Brownfields Program"). The highlights of the Brownfields Program are the risk based clean up objectives under which sites are to be cleaned up.

Any person ("Remedial Applicant") may seek to participate in the program. Sites are eligible for the program unless subject to clean up under CERCLA, RCRA, LUST laws, or subject to enforcement action. A written request must be submitted to IEPA to participate in the program. Once accepted into the program, the Remedial Applicant must prepare remediation objectives and remediation reports at prescribed times during the process. The Remedial Applicant must also enter into an agreement to have the IEPA review and approve the remediation objectives and reports or contract with an independent review and evaluation licensed professional engineer to conduct the review on behalf of the IEPA, with final authority to approve or disapprove reserved to IEPA.

The initial determination of remediation objectives is made based on a comparison between background levels and contaminants at the site. Remediation objectives may not require remediation to levels that are less than background levels unless the background level poses an acute threat to human health or the environment and the site is proposed for residential use.

If contaminants present at the site exceed background levels, risk based clean up objectives must be identified for the site. Regulations require establishing a tiered approach to clean up objectives to be promulgated.

July 1996 / Illinois Municipal Review / Page 27

Under the new law. Tier I remediation objectives shall be numeric clean up standards for soil and groundwater. These objectives will be in the form of a look-up table. Tier II objectives will be based on formulas using input variables based on specific site circumstances. Tier III will provide for development of site specific risk based remediation objectives. Under the tiered approach, property intended for residential use will be subject to more stringent clean up standards than land intended for industrial purposes. Prospective developers should be aware that land remediated under Tier II or Tier III will be subject to land use restrictions prohibiting future residential development.

Note: A draft of proposed tiered approach clean up objectives is currently available from IEPA. These proposed '742 rules are expected to become final rules promulgated by the Pollution Control Board in late 1996.

Once the cleanup meets the remediation objectives, IEPA will issue a No Further Remediation Letter to the owner. This letter is considered prima facie evidence that the site does not warrant further remediation and does not constitute a further threat to health or the environment. The Letter must be recorded with the Recorder of Deeds within 45 days of receipt.

A No Further Remediation Letter can be voided by IEPA under certain limited circumstances. If conditions set forth in the Letter are violated, IEPA may revoke the Letter. Similarly, if the Letter was issued based on future industrial use of the property, subsequent residential use may trigger IEPA revocation of the Letter. IEPA must provide notice to the owner of Letter revocation and the owner may appeal IEPA's action to the Illinois Pollution Control Board.

Conclusion

Tiered objectives should provide greater certainty regarding clean ups at Brownfields. This in turn may promote the intended development of these sites and encourage economic growth in economically depressed, urban areas. The success of the Brownfields program will, however, ultimately be dependent on the IEPA's willingness to work with business in a cost effective and timely manner in the clean up and development of Brownfields.

MUNICIPAL Exchange SERVICE Provided as a public service to member municipalities . . . UTILITY SUPERINTENDENT The Village of Glen Carbon (pop. 9,500) is seeking a qualified applicant to serve as Utility Superintendent. The position requires an energetic, decisive leader with excellent interpersonal skills and 3 to 5 years managerial experience. Responsible for the operation and maintenance of the villages' water and waste- water utilities. Class "A" certification preferred. Responsibilities include directing daily operations, record keeping and departmental budgeting. Computer experience required. Experience with unionized employees beneficial. Salary $35,500.00. Please submit resume, three professional references and operator certification by August 30, 1996 to: Village of Glen Carbon, c/o Director of Public Works, 151 North Main, Glen Carbon, IL 62034.

Page 28 / Illinois Municipal Review / July 1996