Illinois Adopts New Environmental Assessment Requirements
- Charles J. Northrup

This past year, Illinois eliminated one of its most unique overlooked statutory provisions of environmental law. The provisions have been temporarily replaced with a national industry standard which, in turn, will be replaced by federal regulations. These federal regulations are anticipated next year. Like federal Superfund law, the Illinois Environmental Protection Act provides a defense to a compelled clean up if a property owner can demonstrate it purchased the contaminated property without any knowledge of the property’s environmental condition. To avail oneself of this defense, however, the “innocent” purchaser must demonstrate that it took “all appropriate inquiry” into the environmental condition of the property. As a means of performing this inquiry, and being able to document it, Phase I and Phase II environmental assessments were born. Until revisions to the federal Superfund law were made in 2002, there were no federal guidelines, and very little reported judicial authority, on what types of environmental assessments would be considered to have met the “all appropriate inquiry” standard. To fill this void, in 1997 the American Society for Testing and Materials (“ASTM”), a well- respected national organization of scientists and engineers, created standards for these assessments. These quickly became the national standard by which environmental assessments were judged. Except in Illinois. Unlike federal Superfund law, Illinois had adopted its own specific requirements for environmental assessments. Many environmental professionals in Illinois failed to recognize these standards, even if they did routinely perform environmental assessments under the ASTM standards. Nevertheless, the standards were slightly different, most notably with respect to the necessity under Illinois law of performing a 50-year title search. However, in the summer of 2003, the “Illinois Regulatory Review Commission” recommended that Illinois’ environmental assessment requirements be scrapped. The legislature and Governor agreed. In its place, the Act now provides that “appropriate inquiry” can be satisfied by following the ASTM standards with respect to Phase I environmental assessments. However, a title search must still be conducted for certain title defects, such as Illinois specific title documents like No Further Remediation Letters, Environmental Land Use Controls, and Highway Authority Agreements. Given that these defects are relatively new to property law (c. 1990), however, a title search may need only go back to the early 1990s, unlike the previous 50 year requirement. Also, it is interesting to note that Illinois’ Phase II requirements and general attestation requirements were not affected. Finally, as with federal law, the use of the ASTM standards will be supplanted by the adoption of federal standards sometime next year. With the repeal of Illinois’ Phase I Environmental Assessment Standards, a unique chapter of Illinois’ environmental law has been closed. Only time will tell if the adoption of a national standard will best serve Illinois business and the public. For more information regarding this article, please contact the author or any Sorling attorney who practices environmental law by clicking: Charles J. Northrup www.sorlinglaw.com/practice-environment.htm Click here to review the Sorling disclaimer: http://www.sorlinglaw.com/About-Disclaimers.htm

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