OLD LANDFILLS/NEW PROBLEMS

*By KEVIN T. McCLAIN

The ghosts of old landfills are beginning to haunt municipalities throughout the State of Illinois as the Illinois Environmental Protection Agency is issuing Notices to clean up old "dump" sites. Public Act 83-983, effective December 12,1983, gave the Illinois Environmental Protection Agency authority to issue Notices to owners and operators of old landfills for releases or threats of releases of hazardous substances. A Notice pursuant to Section 4(q) of the Environmental Protection Act must include the identified response action and an opportunity for the recipient to perform that response action. A municipality is usually the former owner or operator of the landfill. Even though an old landfill hasn't been used for years, under P.A. 83-983 a municipality is apparently still responsible. Seemingly innocent and laudable on its face, this new legislation is and will continue to cause many problems for municipalities — politically and economically.

Section 4(q) of the Environmental Protection Act is a copycat piece of legislation based upon the federal "Superfund" program. However, unlike many federal programs which thrive on the "carrot and the stick" philosophy, the Illinois Superfund Program offers nothing but sticks. Under the present program the IEPA issues a 4(q) Notice to owners, operators and generators (usually local industries who dispose their materials at the sites). The 4(q) Notice requires the recipient to begin development of a Remedial Investigation and Feasibility Study. A qualified Environmental consultant must be retained, and approved by the IEPA, to develop the field analysis report and a work plan. The plan to investigate the site must first be submitted to the IEPA for approval. Following approval, the 4(q) recipient must investigate the site to determine whether there are problems and what measures must be taken to remedy the problems at the site. A strict time-table is established by the IEPA. Failure to reasonably meet the agency's requirements can result in the agency unilaterally taking steps to perform the tasks itself. The agency will then seek relief before the Pollution Control Board or Circuit Court to receive compensation for its expenditures. Failure to provide a remedy or remove hazardous substances without reasonable cause can result in treble damages to owners, operators and generators. The treble damage amount is assessed by multiplying three times the amount of costs expended by the IEPA. Treble damages are then added to the costs paid by the IEPA. The costs of studying and cleaning up old landfills sites can easily cost in the hundreds of thousands or even millions of dollars, depending on the size of the landfill and extent of the problem. The threat of treble damages "influences" many 4(q) Notice recipients to bid the Agency's wishes even though they may have a defense to the Agency's action.

Section 22.2(j) provides 4(q) recipients with a number of defenses to liability for releases or threats of releases of hazardous substances. Unfortunately, the Environmental Protection Act does not specifically provide a forum where a recipient can assert those defenses. In any case, often times a number of issues or defenses can be raised. For example, whether a substance meets the definition of hazardous or non-hazardous is not always clear. The hazardous waste definitions in the State of Illinois have changed over the years. An old landfill site which accepted "special" waste, as opposed to "hazardous" waste, several years ago can be presented with a claim by the IEPA that the substances are hazardous. If a 4(q) recipient decides to challenge the Agency's Notice, and loses in Court, treble damages "shall" be assessed.

A municipality should be aware of its legal and equitable rights and prerogatives. Moreover, municipal administrators will be concerned how they appear politically. If a municipal administrator decides to comply with the Agency's Notice, the municipality may be forced to spend hundreds of thousands or millions of dollars. If a municipal administrator decides to contest the Agency's Notice and raise defenses to liability, the municipality may appear indifferent to the possible environmental effects of hazardous substances. There is no easy alternative. The whole process becomes increasingly frustrating when the old landfill preexisted the administrator who now must decide what to do.

One possible option is to seek pre-enforcement review through a Declaratory Judgment Action in Circuit Court. It is important for a municipality to immediately evaluate its possible legal defenses in deciding whether to seek relief in Court or to cooperate with the IEPA. (It should be noted that it is possible to file a Complaint or Declaratory Judgment and still "cooperate" with the IEPA). If a legal defense to a 4(q) Notice does not exist, it would be advisable to work with the IEPA to see whether there is an environmental problem, and what must be done. If a legal defense to 4(q) Notice exists, it would be more economical to assert the defense as early as possible to avoid spending large amounts of money without any possible recovery of monies spent. There are no provisions in the Environmental Protection Act which allow the recovery of funds spent by 4(q) recipients even if a valid defense is raised. In any event, 4(q) recipients are usually better off in working together to minimize costs by assessing the possibility of environmental harm to possibly neutralize any environmental harm. •

Page 6 / Illinois Municipal Review / February 1987