New Legislation Needed to Fix Broken Industrial Cleanup System

Until the mid-20th century, utility companies operated manufactured gas plants (MGPs), including one in Champaign, which routinely polluted their properties and surrounding land and water.  Despite a general belief that utilities have been held accountable and are required to identify and clean the areas contaminated by their former plants, nothing could be further from the truth.  Nancy Rich, Co-Chair of the Environmental Practice  at Katten Muchin Rosenman LLP in Chicago says that in reality, while utility companies are legally responsible for the investigation and cleanup, they can essentially follow their own timetables in what is almost always a voluntary process that often drags on for many years and is nowhere near comprehensive.

For this reason and others, Ms. Rich, who has successfully represented clients in high profile environmental matters against Chicago utility companies ComEd and NICOR, says that new legislation is necessary to protect property owners and streamline and expedite the investigation and cleanup process.

"The overarching legal issue here is that because the scope and extent of contamination from these plants have not been adequately defined, property owners, and local governments who are trying to develop land, are often unable to identify and address the true extent of pollution on their properties," she says.  "The problems range from the fact that the responsible utilities often do not seek access to properties as needed to identify the areas impacted by the former MGPs, to the lack of laws or regulations in many areas of the U.S. that require utilities to clean manufactured gas sites.  New legislation is clearly needed to force the utilities to notify residents and property owners within a several-block radius of each MGP, and hold utilities to reasonable schedules for investigating and cleaning MGP sites and all affected surrounding properties.  Legislation should also address loss of use costs for owners whose property is contaminated by MGPs and require the utilities' shareholders, instead of the ratepayers, to pay litigation costs for meritorious lawsuits.

Ms. Rich also notes that property owners should protect themselves by not assuming that contamination caused by MGPs or other industrial properties ends at the boundary of the property where the former plant was located.

"That's important even when you own or purchase property near sites that have already received 'no further remediation' or 'no further action' letters from state agencies' voluntary cleanup programs," Ms. Rich says.  "These programs generally allow the applicant to define the boundaries of the property they plan to clean up.  Hazardous substances often migrate - or were stored or dumped - well beyond the boundaries of the areas that applicants define as their cleanup site.  Nearby property owners, residents and local governments simply can't assume that they're being protected."

Ms. Rich is available for interviews on federal and state environmental cleanup matters, particularly as they relate to manufactured gas plants and other historic industrial facilities. [07/13/2010]