Wednesday, December 29, 2010

State Enforcement Action Alleging Water Pollution Violations At Industrial Park Partially Settled

The Illinois Pollution Control Board recently accepted a stipulation and proposed settlement in People v. Freeport Area Economic Development Foundation, Case No. PCB 10-89, which concerned
a site known as "Mill Race Industrial Park," a 145-acre property located east of Springfield Road, north of Hiveley Road, and south of Business 20, in Freeport, Stephenson County, Illinois.  This settlement only concerned one of the defendants, the Freeport Area Economic Development Foundation ("FAEDF").

The State alleged that the defendants violated the Illinois Environmental Protection Act by (1) failing to maintain storm water controls at the site, thus causing or allowing contaminants to discharge into a water of the State, causing water pollution (count I), (2) allowing discharges containing color and turbidity of other than natural origin and causing bottom deposits in Silver Creek (count II), and (3) depositing sediment onto the land in such a place and manner so as to create a water pollution hazard (count III).  The State also alleges that FAEDF alone failed to implement provisions of its storm water pollution prevention plan and allowing contaminants to discharge into Silver Creek (count IV).

Under the terms of the settlement, FAEDF admits the alleged violations and agrees to pay a civil penalty of $546.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Tuesday, December 28, 2010

Illinois Pollution Control Board Dismisses Case Against Cement Mixing Facility As Frivolous

The Illinois Pollution Control Board recently issued an opinion dismissing as frivolous the case of Gregory v. Regional Ready Mix, LLC, Case No. PCB 10-106, which concerned alleged air and noise emissions from Defendant's cement mixing facility located at 415 River Road, Rochelle, Ogle County, Illinois.

Plaintiff attempted to allege that cement dust and noise from Defendant's facility affected Plaintiff's property and health.  However, the Pollution Control Board found that Plaintiff's complaint was frivolous because it failed to state a cause of action upon which the Board can grant relief:

"The Board once again points out that, for a claim to exist under Section 24 of the Act, Gregory must indicate specific violations of the Board’s regulations or standards, located under Title 35 of the Illinois Administrative Code.  Gregory indicates in her complaint that Regional is causing air (35 ILCS Subtitle B) and noise (35 ILCS Subtitle H) pollution but does not indicate which provisions under these subtitles are being violated.  As noted in the Board’s previous order, a complaint 'shall specify the provision of the Act or the rule or regulation . . . under which such person is said to be in violation . . ..' 415 ILCS 5/31(c) (2008); see also 35 Ill. Adm. Code § 103.204(c)(1).  It is not enough that Gregory cited to entire subtitles under the Act.  Rather, Gregory must indicated specific provisions under these subtitles that have been violated. Gregory has not done so and Regional should not be expected to prepare a defense of these subtitles in their entirety.  Gregory’s only other citation is to Section 23 of the Act (415 ILCS 5/23) which is a legislative declaration and is not properly the subject of an enforcement action (415 ILCS 5/39.2 (2008)).

"The Board again notes that Gregory claims Regional has violated Section 25b-2 of the Act (415 ILCS 5/25b-2 (2008)) but again does not allege any facts related to the alleged violation of this provision.  The Board finds this claim frivolous and not meeting the content requirements of the Board’s procedural rules."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Federal Court Rules That Public Water Suppliers Have Standing To Sue Herbicide Manufacturer

The U.S. District Court for the Southern District of Illinois recently resolved a motion to dismiss in City of Greenville v. Syngenta Crop Protection, Inc., Case No. 10-cv-188, which is an action filed by providers of water to the public against a manufacturer of atrazine, a herbicide used by farmers, and the manufacturer's parent company.

Plaintiffs are obligated under the Safe Drinking Water Act to test the finished water (i.e., the water after Plaintiffs have processed it from their raw water) they provide to the public to ensure it does not contain contaminants in concentrations that exceed maximum contaminant levels (“MCLs”) set by the United States Environmental Protection Agency.  Plaintiffs alleged that Defendants manufactured atrazine and sold it to farmers knowing it had great potential to run off of crop land and into bodies of water, including the bodies of water from which water providers like Plaintiffs draw their raw water.  Plaintiffs seek to hold Defendants liable for the costs they have incurred to test and monitor levels of atrazine and to remove it from their raw water.  They also seek to recover the costs that will be required for each Plaintiff to construct, install, operate, and maintain a system to filter atrazine from its raw water in the future, and to collect punitive damages.

Defendants filed a motion to dismiss.  Part of the motion asserted that Plaintiffs do not have standing to sue, because Plaintiffs have not alleged that their raw water sources or the finished water they provide to the public contain atrazine above the MCL.  The Court held that Plaintiffs do have standing to sue:

"Clearly, if a contaminant manufacturer creates a need (not just a desire) to monitor or remediate raw water for the particular contaminant that it would not otherwise monitor or remediate in order to satisfy its duty to the public, it has made more difficult and more costly the job of the water supplier to use the water to meet its statutory obligation to provide clean water.  Thus, the public water provider has suffered a specific and concrete injury to its protected interests because of the manufacturer’s actions.  It is illogical to state that because a public water supplier successfully removes a contaminant from raw water and delivers potable water to the public, the supplier’s excess costs – no matter how large – caused by a product manufacturer’s indiscriminate disregard for the impact of its product on raw water sources cannot be an injury in fact. . . .  Furthermore, it seems an extremely bad rule to require a public water supplier to provide overly contaminated water to the public before it can seek redress from one responsible for the contamination.  Thus, the Court agrees . . . that a water provider may demonstrate an injury in fact even if its finished water does not exceed an MCL if its use of the water to meet its statutory obligations to the public becomes more costly because of a defendant’s conduct."

The Court concluded that the "allegations that the presence of [Defendants'] atrazine in their water sources has forced them to incur additional expenses in order to provide potable water to the public is sufficient to establish an injury in fact and to demonstrate -- at the motion to dismiss stage, at least -- that they have standing to sue."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Sunday, December 26, 2010

Agrichemical Company Pleads Guilty to Criminal Violations of Clean Water Act

The Illinois Environmental Protection Agency recently announced that Effingham-Clay Service Company, Inc., an Effingham-based agrichemical company, pled guilty in the Circuit Court of Clay County to two counts of “Negligent Unpermitted Point Source Discharge,” which are violations of the Illinois Environmental Protection Act: 

"The charges stem from a December 9, 2008, incident involving Jerry D. Troyer, an employee of Effingham-Clay Service Company, Inc., allegedly transporting a 1,000 gallon tank containing pesticide contaminated wastewater from Effingham-Clay Service’s Louisville, Illinois, facility to two different remote rural Clay County locations and opening a release valve, discharging contaminated wastewater into roadside ditches.  A citizen complaint led to an investigation by Illinois EPA’s Emergency Response Unit and the Illinois Department of Agriculture.

"Following an Illinois State Police investigation, a Clay County Grand Jury returned a six count Indictment against Troyer, charging him with two counts of knowingly discharging a contaminant to waters of the State without a National Pollutant Discharge Elimination System (NPDES) permit (Class 4 felonies), two counts of water pollution, and two counts of criminal disposal of waste (Class A misdemeanors).  The charges to which the company pled guilty are Class A misdemeanors and were based on their having negligently supervised Troyer, thus enabling him to commit the alleged violations.  Troyer’s charges remain pending and his jury trial is scheduled to begin on March 14, 2011.  An Indictment is a way in which a criminal charge is filed; all persons are presumed innocent until proven guilty.

"As a result of its guilty plea, the Company was sentenced to 12 months conditional discharge and ordered to pay of fine of $20,000 ($10,000 per count), plus court costs.  In addition, the company is required to provide enhanced safety and environmental training for all company employees who manage or handle agrichemicals.  It must also designate an individual at each facility responsible for ensuring compliance with all environmental and agricultural laws, regulations and permit conditions and to report and address any violations.

"The Company must also amend its agrichemical containment and disposal policy to include proper management of any liquid waste generated during cleaning and washing of agrichemical processing and application equipment, and create and maintain a daily written log at each facility of the volume and nature of all agrichemical liquid waste generated, contained, stored on site, and removed off site.  This log must be available upon request and subject to inspection by the Illinois EPA and Illinois Department of Agriculture.

"In a companion matter, the State brought a separate proceeding seeking forfeiture from the company of an amount of money equal to the value of all economic benefit incurred as a direct or indirect result of the violations, as well as the value of any vehicle or conveyance used in perpetration thereof.  Without admitting liability the forfeiture claim was settled by the company for $180,000.00, which amount was divided between the Illinois State Police, the Clay County State’s Attorney and the Illinois EPA Hazardous Waste Fund. Illinois EPA attorney Dan Merriman acted as Court-appointed Special Prosecutor in the case."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Tuesday, December 21, 2010

City of Chicago to Pay $220,380 to Settle Superfund Claims by EPA for 76th & Albany Site

The U.S. Environmental Protection Agency recently announced in a Federal Register notice that it entered into an administrative agreement with the City of Chicago concerning the 76th & Albany hazardous waste site in Chicago, Illinois.

According to this presentation from the City, the site (now known as the Gateway Park Industrial Complex) "had been the home of a drive-in theater and a flea market after the mid-1900s.  From 1980 to the mid-1990s, 600,000 cubic yards of concrete, asphalt, construction and demolition debris, soil, rubbish, and hazardous automobile shredder residue found their way into the site to form what was considered an environmental disaster."  The Greater Southwest Development Corporation and the City "dedicated themselves to finding a private partner for the redevelopment of the site.  Gateway Park, LLC, a partnership between Martha Williams of StyleMaster and other investors, together with local and federal agencies, transformed the site into a dynamic industrial park."

Under the proposed agreement, the City will pay $220,380 to EPA to resolve EPA’s claims against it for response costs incurred by EPA for investigating and performing response actions to mitigate potential imminent and substantial endangerments to human health or the environment presented or threatened by hazardous substances present at the Site.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Wednesday, December 15, 2010

Illinois Pollution Control Board Reminds Practitioners of Time Limits for Motions to Dismiss

The Illinois Pollution Control Board recently ordered stricken a motion to dismiss in United City of Yorkville v. Hamman Farms, Case No. PCB 08-96, which is a citizen's enforcement action concerning the defendant's farmland in Kendall County, Illinois.  The plaintiff's complaint alleged open dumping violations, landscape waste violations, air pollution violations, and water pollution violations.

The defendant filed a motion to dismiss certain counts of the amended complaint, and the plaintiff moved to strike the motion to dismiss on the basis that the motion to dismiss was untimely.  The Board agreed that the motion should be stricken because the motion to dismiss failed to comply with the 30-day deadline of the Board's procedural rules for filing motions to dismiss.  Under the Board's procedural rules, a motion to dismiss must be filed within 30 days after service unless material prejudice would result; in contrast, any answer to a complaint is not due until 60 days after service.

This opinion should be a reminder to all practitioners to check the procedural rules of the Illinois Pollution Control Board, as they are different from the typical rules of state and federal courts.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, December 13, 2010

Environmental Register for November 2010

The Illinois Pollution Control Board has issued its Environmental Register publication for November 2010.

The Environmental Register features a letter from Chairman Girard, which discusses progress that the Board made in a number of open rulemaking dockets. The Environmental Register also contains a rulemaking update, a summary of actions of the Board, a summary of new cases, a list of provisional variances, and the Board's calendar.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Sunday, December 12, 2010

U.S. EPA Region 5 Releases Annual Enforcement and Compliance Results

The U.S. Environmental Protection Agency Region 5 recently released annual results from its enforcement and compliance efforts:
"Enforcement of environmental laws resulted in nearly $6 billion invested in pollution control and cleanup during fiscal year 2010 in Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin.  The largest cases are three Midwest oil spills -- Enbridge Energy Partners for spills in Marshall, Mich. and Romeoville, Ill., and BP Products North America Inc. for a spill in Whiting, Ind. Judgements against Cincinnati and Hamilton County required them to spend $1.79 billion to reduce untreated combined sewer and sanitary sewer overflows.

"In addition, Region 5's enforcement efforts will cause more than $1.8 million to be spent for supplemental projects benefiting communities and populations that could be disproportionately affected by the violation of environmental laws.

"During FY10, more than 16.9 million pounds of pollution were reduced, treated or eliminated in Region 5.  There were 1,415 violations reported with a resulting 2,750 pounds of hazardous wastes, 161 lab packs and 10 pounds of radioactive waste removed and disposed of.

"In FY 2010, Region 5 successfully negotiated and finalized decisions on 11 disclosures submitted by participants in the Region's Audit Agreement with Colleges and Universities.  Approximately 1415 violations were disclosed and have been corrected, resulting in the removal and disposal approximately 2750 pounds of hazardous wastes, 161 lab packs and 10 pounds of radioactive wastes."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Saturday, December 11, 2010

Federal Court Denies Motion to Immediately Close Locks to Prevent Infiltration of Asian Carp

The U.S. District Court for the Northern District of Illinois recently denied a motion for preliminary injunction in Michigan v. U.S. Army Corps of Engineers, Case No. 10-cv-04457, which is a case brought by five States to prevent the infiltration of Asian carp into the Great Lakes.  The plaintiffs' motion for preliminary injunction included a request to "temporarily clos[e] and ceas[e] operation of the locks at the O’Brien Lock and Dam and the Chicago River Controlling Works except as needed to protect public health and safety."

In a nutshell, the Court held that "Plaintiffs have not met the high burden necessary to obtain a mandatory preliminary injunction.  In the face of multi-agency efforts to prevent Asian carp migration – efforts that have only increased and expanded in the months since this lawsuit was filed – Plaintiffs have not shown either a sufficient likelihood of success on the merits of their substantive claims or a sufficient prospect of irreparable harm absent the requested injunction."

Specifically, the Court held that plaintiffs have "a minimal chance of success on the merits" of their Administrative Procedure Act claims: "[T]the evidence does not support the view that the Corps’ actions were wrong at all, much less arbitrary and capricious.  In fact, there is no evidence that Asian carp have entered Lake Michigan through the [Chicago Area Waterway System], that the barrier system has not operated with reasonable effectiveness, or that the operation of the O’Brien Lock has adversely affected Plaintiff’s interests."  The Court also held that plaintiffs have "a very modest likelihood of success" on their public nuisance claim, given that "the current evidence shows that (1) only one Asian carp has been discovered above the barrier; (2) at most, crediting the eDNA testing, only a small number of individual Asian carp exist above the electric barrier; (3) there is no basis for concluding that the electric barrier has been breached at all, much less in any significant way; (4) the closest known population of Asian carp in any significant numbers is in either the Brandon Road pool (south of Joliet), or more likely, in the Dresden Island pool (near Morris, many miles below the barrier); (5) the best estimate of the location of any juvenile (or 'young of year') Asian carp is even further downstream in the Marseilles area; and (6) the potential for the establishment of a self-sustaining population in the CAWS above the electric barrier or in Lake Michigan remains an unknown."

In considering whether plaintiffs have proven irreparable harm, the Court discounted the testimony of plaintiffs' expert: "[T]he centerpiece of Plaintiffs’ claim of irreparable harm is Dr. Lodge’s testimony based on the positive eDNA results that he reported above the electric barrier, along with the discovery of a single live fish in Lake Calumet and one dead fish found (below the barrier) in the December 2009 rotenone event.  Yet the eDNA results and those few fish, amongst the hundreds of thousands of pounds of fish collected, do not establish the requisite likelihood of imminent or irreparable harm.  Nor does the state of the eDNA science permit a reasonable inference that live Asian carp are in the canal system above the barrier in numbers that present an imminent threat.  Negative eDNA results comprise a super-majority of the results when compared to the number of samples taken."

Finally, the Court held that plaintiffs did not carry their burden of showing that the balance of the harms weighed in their favor.  In fact, the Court held that the balance of the harms actually weighed in the favor of the defendants: "Indeed, based on the evidence of record, the harms associated with the potential for increased flooding and sanitary issues and the economic hardships associated with the requested relief outweigh the more remote harm associated with the possibility that Asian carp will breach the electronic barriers in significant numbers, swim through the sluice gates and locks, and establish a sustainable population in Lake Michigan."

Note that this is not the end of the case.  Instead, the Court denied plaintiff's motion for preliminary injunction, which is a request for temporary relief before discovery and a trial on the merits occur.  However, considering the Court's conclusions regarding the plaintiffs' expert witness, this is a big blow to the plaintiffs' case.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Wednesday, December 8, 2010

You're Invited: 12/15 Seminar on Insurance Coverage Issues in Toxic Tort Litigation

As co-chair of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, I invite you to our next meeting on December 15, 2010 at 12:15 pm at the Chicago Bar Association, 321 South Plymouth Court, or via webcast.

Our meeting will be held jointly with the YLS Tort Litigation Committee and will feature Sara Brundage from Pretzel & Stouffer.  Sara concentrates in civil defense litigation, insurance coverage and appeals.  She has significant experience with declaratory judgment actions that involve commercial general liability policies, as well as homeowners, automobile and lawyer’s professional liability insurance.

Sara will be discussing insurance coverage issues in toxic tort litigation.  In particular, she will discuss her involvement with insurance coverage issues resulting from groundwater contamination recently faced by the Village of Crestwood.

We are very pleased to have Sara as our speaker.  We invite attorneys of all ages, law students, and others to attend this informative and timely presentation.

Tuesday, November 30, 2010

Illinois Pollution Control Board Orders Residential Developer to Pay $45,000 Penalty for Clean Water Act Violations

The Illinois Pollution Control Board recently granted the State's uncontested motion for summary judgment in People v. Moline Place Development, LLC, Case No. PCB 07-53, which concerned a
residential housing area called One Moline Place, located at 6th Street and 11th Avenue in Moline, Rock Island County, Illinois.

The State alleged that the defendant, which was developing a residential community, terminated coverage of a Clean Water Act permit for its stormwater discharges associated with construction site activities.  However, the defendant terminated coverage too early--before all disturbed soils had been finally stabilized, and before all stormwater discharges had been eliminated.

The State alleged that the defendant caused, allowed or threatened to cause water pollution by failing to provide adequate storm water pollution controls; failed to obtain coverage under the general National Pollutant Discharge Elimination System ("NPDES") storm water permit prior to commencing construction site activities; failed to prepare and implement an adequate Storm Water Pollution Prevention Plan ("SWPPP"); and submitted a Notice of Termination of permit coverage prior to final stabilization being achieved at the site.

After granting summary judgment, the Pollution Control Board held that the defendant must pay a $45,000 civil penalty.  The Board also ordered that the defendant "must properly implement the SWPPP in its NPDES permit, and comply with all other requirements of that permit.  When final site stabilization has been accomplished and all storm water discharges from construction activities have been eliminated, [defendant] must promptly submit a Notice of Termination to IEPA."  The Board also ordered that the defendant "must cease and desist from further violations of the [Illinois Environmental Protection] Act and the Board’s regulations."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Sunday, November 28, 2010

Printing Business Settles State Enforcement Action Alleging Air Emission Violations

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Avante, LLC, Case No. PCB 10-77, which concerned the defendant's lithographic printing business formerly located at 865 North Ellsworth Avenue in Villa Park, DuPage County, Illinois and subsequently located at 1228 West Capital Drive in Addison, DuPage County, Illinois.

The State alleged that the defendant violated the Illinois Environmental Protection Act by constructing and operating printing presses, which were emissions sources, without first obtaining the requisite permits from the Illinois Environmental Protection Agency ("IEPA"); by failing to submit the required certification to the IEPA, keep required records, and pay construction permit fees; by failing to submit Annual Emissions Reports (AERs) for 1992 through 2005 and for 2008 and to timely submit an AER for 2006; and by operating emissions sources without submitting an operating program to control fugitive particulate matter emissions.

Under the settlement, the defendant does not affirmatively admit the alleged violations, but it agrees to pay a civil penalty of $10,000, $800 of which represents avoided permit fees.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Friday, November 26, 2010

Federal District Rules Clean Water Act Claim Not Viable Against Village

The U.S. District Court for the Northern District of Illinois recently granted a motion to dismiss in Lobrow v. Village of Port Barrington, Case No. 10 C 3004, a case in which the plaintiff alleged that a subdivision was developed without required wetlands permits under Clean Water Act section 404.

Citing the Seventh Circuit’s decision in Froebel v. Meyer, 27 F.3d 928 (7th Cir. 2000), the district court ruled that the village defendant could not be held liable under Section 404, just because the village may have owned the property at the time of development.  Moreover, the court held that the village could not be held liable because it "conspired" with the developer to accomplish the Clean Water Act violation.

The court concluded that the plaintiff did not allege a viable claim under the Clean Water Act: "Because plaintiff has not alleged that the Village of Port Barrington discharged dredged or fill material into the Deer Grove wetlands, she has not stated a viable CWA claim against it."  The Court dismissed the claim without prejudice and granted plaintiff leave to file an amended complaint.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Thursday, November 25, 2010

Happy Thanksgiving!

Happy Thanksgiving to all of my readers in the United States!  Thanks to everyone who reads this blog and posts comments.  This blog would not exist and would not be so successful without you.  Take care and be safe!

All the best,

Dave Scriven-Young

Tuesday, November 23, 2010

State Health Department Recommends Testing of Private Wells Near Marquette Heights, IL

The Illinois Department of Public Health (IDPH) recently advised residents who obtain their drinking water from private wells in the Marquette Heights (Tazewell County) area to test their water for possible groundwater contamination.  Routine testing of Marquette Heights community water supply wells by the Illinois Environmental Protection Agency (IEPA) indicates contaminants could be present in the area’s private wells.

Specifically, the contaminant 1,1,1-trichloroethane (1,1,1-TCA) was detected at levels lower than the Illinois Groundwater Standard.  Although the contaminant’s level was lower than the standard, this is the same groundwater that serves private wells and it is possible the level of the contaminant may be higher in private wells.

Residents with private wells located within the area north of Elm Street, east of the Illinois Central Railroad, west of North McArthur Drive if extended to LaSalle Boulevard, and south of the LaSalle Boulevard/Illinois 29 intersection if extended to the Illinois Central Railroad, are encouraged to have their water tested for volatile organic compounds by a private laboratory.

For a list of laboratories certified to analyze drinking water for volatile organic compounds, interpretation of test results, contaminant health effects information, and recommendations for individuals who regularly consume well water, contact John Smet (john.smet@illinois.gov), Illinois Department of Public Health Peoria Regional Office, 5415 North University, Peoria, IL 61614, phone (309) 693-5360.

Despite releasing this information and encouraging well testing, IDPH stated that no violations of State of Illinois or federal drinking water standards have occurred in the Marquette Heights community water supply.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, November 22, 2010

Federal Trial Court Holds That Agencies Properly Issued Permits For Oil Pipeline Expansion, Including Pipeline in Illinois

The U.S. District Court for the District of Minnesota recently granted summary judgment for the defendants in Sierra Club v. Clinton, Case No. 09-cv-02622, which concerned permits that federal agencies issued to Enbridge Energy for an oil pipeline expansion project, which includes pipeline in Illinois.  Here's how the Court described the project:

"This case involves the construction and operation of the [Alberta Clipper] AC and [Southern Lights Diluent] SLD Pipelines in the United States.  These pipelines are being constructed by Enbridge as part of a pipeline expansion project.  The AC Pipeline is an underground pipeline that extends from Hardisty, Alberta, Canada, to Superior, Wisconsin.  The AC Pipeline crosses the U.S.-Canada border near Neche, North Dakota.  In the United States, the AC Pipeline consists of approximately 326 miles of a 36-inch diameter pipeline extending from Neche, North Dakota,  across Minnesota, to Superior, Wisconsin.  At Superior, the AC Pipeline will connect with an existing mainline to Chicago, Illinois.  The AC Pipeline will transport heavy crude oil, or bitumen, extracted from tar sands in Canada.  The AC Pipeline project will have the capacity to transport approximately 450,000 barrels-per-day ('bpd') of crude oil.  The AC Pipeline will be installed primarily within or adjacent to an existing Enbridge pipeline corridor.

"The SLD Pipeline is a 20-inch diameter pipeline extending from Manhattan, Illinois, to Clearbrook, Minnesota.  At Clearbrook, it will connect with an existing Enbridge pipeline, Line 13.  Enbridge intends to reverse the flow of Line 13 to create a diluent delivery line to transport diluent from Illinois to Canadian oil sands producers.  Diluent is a light petroleum liquid used to facilitate the flow of heavy crude oil, which must be diluted in order to be transported through a pipeline.  The new segment of the SLD Pipeline that will run from Superior, Wisconsin, to Clearbrook, Minnesota, will also be 'installed primarily within or adjacent to the existing Enbridge pipeline corridor' and will be constructed at the same time as the AC Pipeline."

The Plaintiffs, nonprofit environmental organizations, claimed that the defendants, federal agencies and the heads of those agencies, violated the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act when they issued final Environmental Impact Statements ("EIS") and permits for the new projects.  The trial court denied the plaintiffs' motion for summary judgment but granted the defendants' motion for summary judgment, thereby ending the case.

Generally, NEPA requires federal agencies to prepare an EIS for major Federal actions significantly affecting the quality of the human environment.  The EIS must contain a "detailed statement" on the environmental impact of the proposed action, any avoidable adverse environmental effects of the proposed action, the resource commitments involved in the proposed action, and alternatives to the proposed action.  However, the standard is deferential to the agencies: "NEPA imposes procedural requirements, not substantive results, on agencies.  NEPA does not allow a court to substitute its judgment for that of an agency as to the environmental consequences of the agency's actions.  A court's review is to "insure that the agency has taken a 'hard look' at the environmental consequences."

In a detailed forty-one page opinion, the trial court ruled that the defendants did not violate NEPA and indeed did take a "hard look" at the environmental consequences of the new pipeline project.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Friday, November 19, 2010

Environmental Register for October 2010

The Illinois Pollution Control Board has issued its Environmental Register publication for October 2010.

The Environmental Register features a letter from Chairman Girard, which discusses the Board's "very active rulemaking docket."  The Environmental Register also contains a rulemaking update, a summary of actions of the Board, a summary of new cases, the Board's calendar, and the Division of Public Water Supplies' Restricted Status List of Public Water Supplies.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Tuesday, November 16, 2010

Environmental Trust Fund Established in GM Bankruptcy to Clean Up 89 Sites, Including Illinois Site

The Department of Justice recently published in the Federal Register a notice concerning a consent decree and settlement agreement to be lodged in the GM bankruptcy case, In re: Motors Liquidation Corp, et al., f/k/a General Motors Corp., et al., Jointly Administered Case No. 09–50026 (REG).  The settlement agreement resolves claims and causes of action of the Environmental Protection Agency under the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act with respect to 89 sites, including the GMPT—Danville Landfill Site in Illinois.

Under the terms of the settlement agreement, a environmental response trust will be set up in the amount of $499,434,945 to clean up these 89 sites.  An additional payment of $142 million will be made and certain personalty and title of 88 real properties will be transferred to the environmental response trust to fund administrative expenses.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, November 15, 2010

Federal Clean Air Act Enforcement Action Results in Settlement

The U.S. Environmental Protection Agency recently announced that it settled an enforcement action against a Chicago company relating to alleged Clean Air Act violations:

"U.S. Environmental Protection Agency Region 5 has reached an agreement with Lakeside Lithography, 1600 S. Laflin St., Chicago on alleged Clean Air Act violations.

"The agreement, which includes a $4,123 penalty, requires Lakeside to install new equipment to reduce air pollution from the facility and keep its garage door closed when its coating line is operating to prevent emissions from affecting the surrounding area.

"In addition, the company has agreed to carry out two supplemental environmental projects designed to protect the environment and public health. Lakeside Lithography must spend $15,000 on a lead poisoning prevention and care abatement project in and around its facility in the Pilsen neighborhood. It will contract with and pay a local nonprofit organization experienced in lead abatement to conduct the work. It must also spend $40,000 to reduce greenhouse gas emissions in the neighborhood by adding controls to its natural gas burners. This change would reduce carbon dioxide emissions in this environmental justice community by 670,360 pounds per year."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Thursday, November 11, 2010

U.S. EPA Disapproves of NOX Revision to Illinois' State Implementation Plan

The U.S. Environmental Protection Agency recently published a rule in the Federal Register disapproving a revision of Illinois' State Implementation Plan (SIP) that governs the State's efforts to comply with the federal Clean Air Act.

The proposed revision provided for the determination and crediting of Nitrogen Oxides (NOX) emission reductions resulting from the voluntary application of NOX emission controls as NOX emission allowances that could be sold in a national NOX emission allowance trading system.

The U.S. EPA had the following general concerns regarding the proposed rule: (1) The rule would unacceptably grant NOX emission allowances for source closures; (2) the rule does not prevent crediting of facility-specific NOX emission reductions resulting from shifting of production and NOX emissions from one facility to another; (3) the rule establishes an emission baseline year (from which NOX emission allowances are earned through subsequent NOX emission reductions), 1995, that is too far in the past, prior to the State’s adoption of the rule and prior to the baseline year used for other sources involved in EPA’s NOX Budget Trading Program; (4) the rule unacceptably allows the use of 40 CFR part 60 emission monitoring requirements rather than 40 CFR part 75 monitoring requirements required of other sources involved in the NOX Budget Trading Program; and, (5) the rule contains other minor deficiencies.  Together, these problems led U.S. EPA to disapprove of the rule as a revision to the Illinois SIP.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Wednesday, November 10, 2010

Parties Settle State Enforcement Action Alleging Landfill Violations

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Swinson, Case No. PCB 10-8, which concerns defendant Don Swinson's vacant lot at 2000 Cunningham Road in Rockford, Winnebago County, Illinois, and the general construction or demolition debris (C&D) that co-defendant Champion Environmental Services allegedly transported there.

The State alleged that the defendants violated the Illinois Environmental Protection Act by causing or allowing the open dumping of waste without fulfilling the requirements of a sanitary landfill, which resulted in litter.  The State also alleged that the defendants disposed, treated, or stored C&D waste at the site without a permit from the Illinois Environmental Protection Agency.  The State alleged that Swinson failed to apply for and obtain permits from IEPA to develop and operate a new solid waste management site.  Lastly, the State alleged that Swinson failed to submit to the IEPA the necessary information prior to accepting C&D waste at the site.

Under the terms of the settlement, the defendants do not affirmatively admit the alleged violations, Champion agrees to pay a civil penalty of $2,500, and Swinson agrees to pay a civil penalty of $5,000.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, November 8, 2010

EPA and NHTSA Announce Intent to Regulate Greenhouse Gas Emissions from Light-Duty Vehicles for Model Years 2017-2025

The U.S. Environmental Protection Agency and the National Highway Traffic Safety Administration recently published in the Federal Register a joint notice describing in broad terms their work on a National Program to improve fuel efficiency and to reduce greenhouse gas emissions of light-duty vehicles for model years 2017-2025.  The term "light-duty vehicles" includes passenger cars, light-duty trucks, and medium-duty passenger vehicles.  This Notice builds upon the agencies' prior notice earlier this year for fuel economy and greenhouse gas emissions standards for model years 2012-2016, reported on in this blog here.

The agencies "performed an initial assessment of potential stringencies with annual reductions in the range of 3 to 6% per year, or 47 to 62 mpg-equivalent in 2025, which demonstrates that substantial reductions in fuel consumption and GHGs can be achieved with the use of advanced technologies.  EPA and NHTSA emphasize that this is an initial assessment, and significant data and additional analysis will be done to support the future joint Federal rulemaking.  EPA and NHTSA will continue to meet with stakeholders and assess new technical information as we develop the new proposed program.  Over the next two months, EPA and NHTSA will work to update our analysis of potential standards for 2017–2025. EPA and NHTSA will work closely with [the California Air Resources Board] in developing and reviewing additional technical data and information as part of conducting this more refined joint analysis."

EPA and NHTSA expect to issue, by the end of November 2010, a Supplemental Notice of Intent that will
outline additional details regarding the design of a National Program, including a more refined analysis of potential scenarios for model years 2017–2025 standards for GHGs and fuel economy.  The agencies expect to issue a joint proposed rulemaking by September 30, 2011 and to issue a final rule by July 31, 2012.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Friday, November 5, 2010

You're Invited: Legal Risk in Green Building (November 15th)

As co-chair of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, I invite you to join us for our November meeting.  We are pleased to host Logan Hollobaugh, LEED AP, Ogletree Deakins, Patrick Miller, Baker & Daniels LLP, and Eric Berg who will be speaking about legal risks in green building.  The meeting is scheduled for November 15th at 12:15 pm at Jenner & Block LLP (353 N. Clark St. in Chicago).

The speakers will provide an introduction to green building, including an explanation of the U.S. Green Building Council’s LEED certification process.  They will also highlight emerging legal challenges to green construction as well as the top risks in green building projects.

We invite attorneys of all ages and law students to attend this exciting and informative presentation on an emerging area of law.  Lunch will be provided.

If you would like to attend, please RSVP to atorrence@jenner.com and bring a photo ID for building security.

Wednesday, October 27, 2010

Parties Settle Noise Pollution Case Dealing With Auto/Truck Repair Facility

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in Morrissey v. Pahios, Case No. PCB 09-10, which concerned the defendants' "auto/truck repair, 24 hour towing service and police impound facility" located at 1320 Ensell Road in Lake Zurich, Lake County, Illinois.  Plaintiffs allege that the defendants violated Illinois environmental laws by causing noise to be emitted from twenty-four hour vehicle towing, truck and auto repair activities, a ventilation system, and diesel engine idling.

Under the terms of the parties’ proposal for settlement, defendants must: "(1) restrict their noise generating operations to the inside of the building with the rear (north) bay doors completely closed when high audible impact wrenches, air hammers or other large noise making tools are used, (2) restrict the loading and unloading of all towed vehicles that are in a drivable condition to an area on the property (south and/or west of the building) where the Alpine Automotive building shields the residential homes from noise; and (3) maintain the wooden fence and barrier surrounding the ventilation/exhaust fan."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Illinois Federal District Court Rules That Plaintiff Does Not Have Standing To Challenge Clean Water Act Permit For Landfill

The U.S. District Court for the Southern District of Illinois recently issued an opinion granting summary judgment for the defendants in American Bottom Conservancy v. U.S. Army Corps of Engineers, Case No. 09-603-GPM, which concerns a permit issued by the U.S. Army Corps of Engineers to Waste Management of Illinois pursuant to Section 404 of the Clean Water Act.

Since 1984, Waste Management has operated a landfill called the Milam Recycling and Disposal Facility ("Milam RDF") in Madison, Illinois.  Milam RDF is estimated to reach capacity in 2012.  During its remaining landfill life, Milam RDF will require approximately 2,000,000 cubic yards of soil for daily, intermediate, and final cover.  Waste Management proposes to develop and operate a 180-acre expansion of the existing Milam RDF, to be referred to as North Milam, to provide 17 years of disposal capacity for general non-hazardous municipal solid waste; demolition, construction, and debris waste; asbestos waste; non-hazardous permitted special waste; and non-hazardous permitted liquid waste for solidification.  Waste Management’s ultimate plan has two phases: immediate excavation of cover soil to be used at the existing Milam RDF and later construction of a landfill at the North Milam site.  Neither phase is dependent on the other; excavation for soil cover is necessary to support the existing Milam RDF regardless of whether the North Milam site is used as a landfill.

Waste Management received a certification under the Clean Water Act from Illinois EPA to allow for "the excavation of wetlands in conjunction with providing soil for daily cover for a landfill."  Waste Management also received a permit from the Army Corps of Engineers to allow for “placement of fill material into waters of the United States in conjunction with the construction of the North Milam Recycling and Disposal Facility (RDF) to be located just north of the existing Milam RDF in wetlands adjacent to Cahokia Canal near Madison, Madison County, Illinois.”
Plaintiff, a nonprofit group, challenged the Corps' issuance of the permit.  Plaintiff alleged that the Corps violated the Clean Water Act by issuing a permit authorizing placement of fill material into navigable waters for the construction of a landfill without the required certification from Illinois EPA.  After reviewing affidavits of three members of Plaintiff, the District Court found that Plaintiff did not have standing to bring the action against the Corps:

"Reviewing each of the affidavits, the Court finds that none of the three members has standing.  Members Andria and Feldworth can be considered together.  Both affidavits address construction of a landfill and the effects that a landfill would have on them, including the risk that the proposed landfill will be subject to a 100-year flood.  As a matter of law, the Corps’ § 404 permit does not authorize the construction of a landfill.  That authority is granted exclusively to the IEPA under Title X of the Illinois Environmental Protection Act.  . . . Because Andria’s and Feldworth’s affidavits establish neither injury in fact nor a causal connection between any purported injury and the issuance of the § 404 permit, these members do not create standing for [Plaintiff].

. . . .

"Member Homeyer’s affidavit requires additional analysis, although she also complains primarily about the effects of constructing a landfill.  She also mentions '[d]estruction of wetlands' and '[h]abitat destruction' – albeit she mentions these in the context of a landfill – and states that there 'are birds and butterflies using the 200 acres in question right now.'  The Court considers whether these concerns constitute actual and imminent injury to Homeyer as a result of the borrow activity permitted to take place at the North Milam site.  It is important to keep in mind that the Corps’ § 404 permit relates to 26.8 acres of wetlands – only 18.4 acres of which will be impacted.  Approximately 8.4 acres of wetlands will be avoided and preserved without impacts.  The wetland mitigation plan includes creating an additional 36.55 acres on adjacent property. . . . Reading her affidavit liberally, Homeyer alleges that the destruction of wetlands will reduce the number and variety of birds, butterflies, other insects, snakes, and amphibians that she frequently observes around Horseshoe Lake.  But this injury is merely speculative.  Her anticipated injury disregards the fact that 31% of the subject wetlands will be avoided and preserved and that nearly twice the amount of affected wetlands will be created in mitigation. . . . Homeyer has not shown a concrete injury. . . . Homeyer has not stated that she will stop visiting Horseshoe Lake if the wetlands are destroyed as proposed, and her concern for the effects on the habitat is too generalized to give rise to standing."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Sunday, October 24, 2010

Illinois Appellate Court Affirms Distribution of Class Action Settlement Fund Resulting from Gasoline Release

The Appellate Court of Illinois, Third District, recently issued an opinion in Quick v. Shell Oil Co., No. 3-09-0987, which concerned a class action settlement arising out of a release of thousands of gallons of gasoline from a Shell pipeline onto the Danhausen farm in Limestone Township, Kankakee County, Illinois.

The settlement agreement provided a fund of $26 million to be distributed by a settlement administrator, who in turn consulted a licensed real estate appraiser, Jay M. Heap, to determine the diminution in value of property in the class area resulting from the gasoline release.  The trial court approved the settlement administrator’s recommendation to distribute $120,489 of the settlement fund to the Danhausen estate. 

The Danhausen estate filed an appeal, arguing that an award of $1,172,300 for diminution in value and $3,516,900 for nuisance and interference with quiet enjoyment would be more appropriate.  The estate based its calculations on its own appraiser, Richard F. Hansen.  The appellate court disagreed and affirmed the trial court's order:

"Regarding the award for diminution in value of the Danhausen estate property, the court found Heap’s appraisal to be worthy of greater weight than that of Hansen, due to Heap’s credentials and experience.  We have reviewed both Heap’s and Hansen’s appraisals and cannot find that the trial court’s decision in this regard was arbitrary, fanciful or unreasonable.  In addition, considering the large number of claimants and the lengthy time period that has elapsed since the gasoline spill, we cannot find that the trial court’s decision to approve the Settlement Administrator’s use of a formulaic approach to approximate agricultural property values and the diminution in value of those pieces of property was unfair, unreasonable, or inadequate.  Thus, the trial court’s decision to approve the Settlement Administrator’s award to the Danhausen estate for diminution in value was not an abuse of discretion.

"We also conclude that the trial court did not abuse its discretion by approving the recommended distribution to the Danhausen estate for nuisance and interference with quiet enjoyment of its property.  The Danhausen estate maintains it is entitled to more than $3 million for this claim.  However, it does not provide any legal or factual support for its claim.  On the other hand, the Settlement Administrator’s formula for compensating Core Area property owners for nuisance and interference with quiet enjoyment of their property, taken as a whole, was fair, reasonable and adequate.  While it is undisputed that the gasoline spill occurred on the Danhausen estate’s property, it did not present adequate evidence that it was entitled to a larger distribution of the settlement fund for these damages."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Saturday, October 23, 2010

Illinois Appellate Court Allows Claims Alleging that Coal Mine Waste Contaminated Community Drinking Water Supply

The Appellate Court of Illinois, Fifth District, recently issued an opinion in Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., Case No. 05-09-0207, which concerned a coal mine owned by Monterey Coal (a division of ExxonMobil Coal U.S.A.) and located near Albers, Illinois.  From 1977 until August 1996, when the mine closed, a coal preparation plant and two coal refuse and slurry disposal areas operated on the property.

The plaintiff-citizens' organization filed a lawsuit seeking to obtain injunctive relief to cause ExxonMobil to remove and properly dispose of slurried coal production waste, which was allegedly leaching into the community drinking water supply known as the Pearl Sand Aquifer.  Plaintiff brought its claims under the Surface Coal Mining Land Conservation and Reclamation Act and the Water Use Act of 1983.  The trial court granted the defendants' motion to dismiss the plaintiff's complaint, and this appeal followed.

The Appellate Court reversed the trial court's decision.  The Appellate Court held that, because Plaintiff challenged ExxonMobil's compliance with its permits and did not challenge the actual issuance of permits, Plaintiff was allowed to bring an action under the Surface Coal Mining Land Conservation and Reclamation Act. 

The Court also held that Plaintiff could bring an enforcement action under the Water Use Act, which requires that groundwater withdrawal must be done following the "reasonable use" rule, which is defined as "the use of water to meet natural wants and a fair share of artificial wants.  It does not include water used wastefully or maliciously."  According to the complaint, ExxonMobil is withdrawing four million gallons of water per week from the Pearl Sand Aquifer in order to keep contaminated groundwater within the boundaries of the permit.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Friday, October 22, 2010

Owner of Landfill Settles State Enforcement Action Alleging Methane Gas Violations

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Roxana Landfill, Inc., Case No. PCB 11-4, which concerned the defendant's landfill facility at 4601 Cahokia Road in Roxana, Madison County, Illinois.

The State alleged that the defendant violated Illinois environmental laws and regulations by (1) failing to notify the Illinois EPA within two business days of observed exceedances of methane gas limits, (2) conducting a waste-storage, waste-treatment, or waste-disposal operation in violation of regulations or standards adopted by the Pollution Control Board, and (3) conducting a waste-storage, waste-treatment, or waste-disposal operation in violation of a condition within the operating permit by failing to submit an application to the IEPA for significant modification within 180 days of the occurrences.

Under the terms of the settlement, the defendant does not affirmatively admit the alleged violations but agrees to pay a civil penalty of $10,000 and complete a supplemental environmental project
consisting of landfill disposal services with a settlement value of $18,000.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Thursday, October 21, 2010

U.S. EPA Settles Superfund Claims With Potentially Responsible Parties at Gilberts/Kedzie Site

The U.S. Environmental Protection Agency recently provided notice in the Federal Register of an administrative settlement for recovery of past response costs concerning the Gilberts/Kedzie Site in the Village of Gilberts, Illinois with the following settling parties: Glen J. Kedzie, Big Timber Landscape Company, Inc., and GTCS Corp. 

The site is the location of a former battery cracking and recycling operation.  The main site is located immediately north of the intersection of Railroad and Mill Streets bounded by Galligan Road on the east and the Chicago and Northwestern Railway on the west.  Lead acid batteries were cracked open to recover the lead.  Some of the lead seeped into the ground along with the acid contained in the batteries.  Extensive environmental sampling last summer identified a six-acre area of gross contamination (mainly lead).  Later, a second area of contamination was discovered to the southwest, where the Village of Gilberts Public Works building is now located, west of the railroad tracks - this is known as the Tower Hill Road site.

The settlement requires the settling parties to pay $3,000.00 to the Hazardous Substance Superfund and additional payments when the Site is sold.  The settlement includes a covenant not to sue the settling parties pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9607(a).

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Tuesday, October 19, 2010

Environmental Register for September 2010

The Illinois Pollution Control Board has issued its Environmental Register publication for September 2010.

The Environmental Register features a letter from Chairman Girard, which discusses progress that the Board made in a number of open rulemaking dockets.  The Environmental Register also contains a rulemaking update, a summary of actions of the Board, a summary of new cases, a list of provisional variances, and the Board's calendar.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, October 18, 2010

Defendant Agrees to Pay Penalty for Failure to Provide Notification Concerning Tire Storage

The Illinois Pollution Control Board recently accepted the parties' settlement of People v. Pickett, Case No. PCB 10-87, which concerned the defendant's used car lot at 1401 Broadway, Rockford, Winnebago County, Illinois.  The State alleged that the defendant violated the Illinois Environmental Protection Act by failing to notify the Illinois Environmental Protection Agency that defendant was operating a tire storage site and failing to register and pay a fee for the tire storage site.

Under the terms of the settlement, the defendant admits the alleged violations and agrees to pay a civil penalty of $1,340.00.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Sunday, October 17, 2010

Seventh Circuit Rules That Clean Air Act's Citizen-Suit Provision Cannot Be Used To Enforce Illinois' "Prohibition Of Air Pollution" Or "Fugitive Particulate Matter" Regulations

The U.S. Court of Appeals for the Seventh Circuit ruled, in McEvoy v. IEI Barge Services, Inc., No. 09-3494, that the federal Clean Air Act's citizen-suit provision cannot be used to enforce Illinois' "Prohibition of Air Pollution" and "Fugitive Particulate Matter" regulations.

In this case, the defendant stored coal in outdoor piles and then loaded the coal onto river barges.  As the defendant moved the coal around, coal dust was thrown into the air.  One of the company's neighbors objected to the coal dust because it was drifting into his home.  The plaintiff sued under the Clean Air Act's citizen-suit provision, which provides private citizens the right to bring civil actions in federal courts against, among others, violators of emission standards or limitations.  Plaintiff sued under the theory that the defendant violated two Illinois regulations.  The first is entitled “Prohibition of Air Pollution,” which provides:

"No person shall cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as, either alone or in combination with contaminants from other sources, to cause or tend to cause air pollution in Illinois, or so as to violate the provisions of this Chapter, or so as to prevent the attainment or maintenance of any applicable ambient air quality standard."

The second is the “Fugitive Particulate Matter” regulation, which states:

"No person shall cause or allow the emission of fugitive particulate matter from any process, including any
material handling or storage activity, that is visible by an observer looking generally toward the zenith at a point beyond the property line of the source."

The trial court granted summary judgment to the defendant, concluding that the Clean Air Act did not provide a private right of action to enforce the two Illinois regulations.  The Seventh Circuit affirmed and held that neither of the Illinois regulations was an "emission standard or limitation" that could be enforced through the Clean Air Act's citizen-suit provision.  The Court reasoned that the regulations did not limit the quantity, rate, or concentration of emissions.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Wednesday, October 13, 2010

IL Pollution Control Board Issues $20,000 Penalty to Clean Construction and Demolition Debris Fill Business

The Illinois Pollution Control recently entered summary judgment against one of the defendants in People v. 87th & Greenwood, LLC, No. PCB 10-71, which concerned a storage facility located at 1040 E. 87th Street, Chicago, Cook County, IL and a clean construction and demolition debris fill business operated by Land Reclamation Services ("LRS") located at 1127 South Chicago Street, Joliet, Will County, IL.

The State alleged that defendants violated the Illinois Environmental Protection Act by causing and allowing the disposal of waste at the LRS site, disposing of waste at the LRS site that was not permitted for waste disposal by the Illinois Environmental Protection Agency (the "IEPA"), and causing and allowing the disposal of approximately 350 truckloads of waste at the LRS Site, thereby conducting a waste disposal operation without a permit.  IEPA inspectors found that the soil taken to the LRS Site contained a number of compounds at levels which exceeded background levels for both the City of Chicago and the Chicago Metropolitan Area.  These contaminants included benzo(a)anthracene, carbazole, cadmium, copper, iron, lead, magnesium, beryllium, antimony, and total chromium.

The State filed a motion to deem facts admitted and for summary judgment against LRS, who failed to file an answer to the State's complaint in this case.  The Illinois Pollution Control Board granted the motion and directed LRS to pay a civil penalty of $20,000.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Sunday, October 10, 2010

Individual Settles State Water Enforcement Action for $12,000

The Illinois Pollution Control Board recently accepted the parties' settlement of People v. Rawson, Case No. PCB 09-91, which concerned a sanitary sewer and potable water lines to service future residential subdivisions in the City of Crystal Lake, McHenry County, Illinois.

The State alleged that the Rawson violated state environmental laws by "by causing, threatening, or allowing the discharge of a contaminant into the environment so as to cause or tend to cause water pollution; by depositing contaminants onto the land so as to create a water pollution hazard; and by allowing storm water discharges in violation the general National Pollutant Discharge Elimination System (NPDES) storm water permit for construction site activities."

Under the settlement terms, Rawson did not affirmatively admit the alleged violations but agreed to pay a civil penalty of $12,000.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Saturday, October 9, 2010

You're Invited: Careers in Environmental Law Seminar on 10/29/10

As co-chair of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, I am pleased to invite you to our Careers in Environmental Law seminar:

Careers in Environmental Law

Date: 10/29/2010

Time: 2:00 PM - 3:30 PM

Location: The Chicago Bar Association, 321 South Plymouth Court, Chicago, IL 60604

Hear a panel of environmental practitioners discuss their career paths and the practical differences between the different areas of environmental law. The panelists will also share advice for law students and newer attorneys seeking to enter the practice area.

PANELISTS

Renee Cipriano, Partner, Schiff Hardin

Allison Torrence, Associate, Jenner & Block

Jessica Dexter, Attorney at the Environmental Law and Policy Center

Edward Manzke, Partner, Collins Law Firm

Sharon Neal, Assistant General Counsel, Environmental, Corporate, and Commercial Law Department, Exelon Business Services

MODERATORS

David Johnson, Esq.

David Scriven-Young, Peckar & Abramson, P.C.
 
A networking reception will follow the seminar.  The seminar is free for CBA members and only $15 for nonmembers.  To register for the seminar, please click here.
 
I hope to see you there!

Wednesday, October 6, 2010

Federal Court Allows Contribution and Indemnity Claims Against Drainage & Levee District to Proceed

The U.S. District Court for the Central District of Illinois recently issued an opinion in Wilder Corp. v. Thompson Drainage and Levee District, Case No. 09-1322.  I first reported on this case when the Court dismissed the plaintiff's original complaint in May 2010 (click here).

In this case, Wilder seeks contribution and indemnification from Thompson Drainage and Levee District, to the extent that Wilder is found liable in a different case brought by the Nature Conservancy for breaches of various agreements related to the Conservancy's purchase of certain land in Fulton County, Illinois from Wilder.

The District filed a motion to dismiss Wilder's Second Amended Complaint.  The Court denied the motion.

Count I of the Second Amended Complaint alleged a claim for contribution based on the District's contamination of the property, to the extent that Wilder is held liable to the Conservancy for damages related to the contamination.  The Court held that Count I properly "put the District on notice of its allegation that it could have been liable to Wilder for its role in the pollution of the Property according to the Illinois Tortfeasor Act.  Wilder alleges for that at the time of the first suit, the Conservancy could have also claimed that Wilder was liable in tort for negligence and lack of due care in allowing the damage caused by the pollution.  This is marginally sufficient to promote a reasonable inference of a joint tortfeasor relationship at this stage of the proceedings."

Count II contains the more interesting claim.  It alleged a claim for indemnity based on an implied warranty made by the District to Wilder.  Wilder "alleges the existence of a pre-tort relationship based on the District's use of its property daily since 1918 pursuant to a right of way."  Specifically, Wilder claimed that "by running a petroleum pipe across its property, the District impliedly promised to indemnify Wilder from any and all damages that occurred as a result of the District's actions or inactions.  Wilder further alleges that as a result, they should be indemnified and held harmless by the District against the prior judgment [against Wilder] regarding the contamination. . . . Through its Complaint, Wilder has pled sufficient facts to put the District on notice of its allegation that Wilder should be indemnified against the prior judgment."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Tuesday, October 5, 2010

In Disjointed Opinion, IL Appellate Court Affirms Grant of Petition to Delist Residue as Hazardous Waste

The Appellate Court of Illinois, Third District, recently issued an opinion in Sierra Club v. Illinois Pollution Control Board, Case No. 3-09-0120, which concerned Peoria Disposal Company's ("PDC") permit to operate a waste stabilization facility near Peoria, Illinois, for the storage and treatment of hazardous and nonhazardous waste.  PDC filed a petition with the Illinois Pollution Control Board to delist residue resulting from the treatment of electric arc furnace dust ("EAFD") as a hazardous waste for disposal purposes, after the EAFD is treated and stabilized. 

The Pollution Control Board issued an order granting PDC's petition, subject to several conditions.  Two groups, Sierra Club and Peoria Families Against Toxic Waste, filed an appeal seeking reversal of the Board's order, arguing that the Board erred in (1) failing to consider the factors set forth in the relevant statute, (2) not requiring PDC to address future permit modifications; (3) finding that local citing approval was not required; and (4) not requiring reopener language.  PDC and the Board argued that the opposition groups did not have standing to appeal the Board’s order.

Each appellate court justice on the three-justice panel came to a different conclusion concerning this appeal:

(1) Justice Lytton (delivering the "opinion of the court") found that the opposition groups had standing because they were persons "adversely affected or threatened" by the delisting.  However, Justice Lytton affirmed the Board's order on the merits of the case, finding that the Board properly granted PDC's petition.

(2) Justice Carter specially concurred in the judgment, reasoning that the opposition groups did not have standing to bring the appeal. 

(3) Justice Wright concurred in part and dissented in part, reasoning that the opposition groups did have standing, but concluding that the Board's decision was arbitrary and capricious because the Board did not make required factual findings. 

The opinions of Justices Lytton and Carter combined to dismiss the appeal.  However, it will be interesting to see what will happen with the standing issue if this case gets decided by the Illinois Supreme Court.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, September 27, 2010

Environmental Register for August 2010

The Illinois Pollution Control Board has issued its Environmental Register publication for August 2010.

The Environmental Register features a letter from Chairman Girard, which discusses five environmental bills that Governor Quinn recently signed into law.  The Environmental Register also contains an appellate court update, a rulemaking update, a summary of actions of the Board, a summary of new cases, a list of provisional variances, and the Board's calendar.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Thursday, September 23, 2010

Illinois ENERGY STAR® Appliance Rebate Program--Friday, September 24th

On Friday September 24th, Illinois residents can receive a 15% off instant discount at the point of sale, up to $250, on an ENERGY STAR qualified model for washers, dishwashers, freezers, or refrigerators.  This program is sponsored by the Illinois Department of Commerce and Economic Opportunity and the American Recovery and Reinvestment Act of 2009.

Note that this is an appliance replacement program.  Customers must complete a self-certification form attesting that the appliance purchased is for replacement purposes.

For more details on the program, you can click here or call 877-782-7005.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, September 20, 2010

Selection to "14 Under 40" List in DePaul Magazine

I would like to announce my selection to the "14 Under 40" list in the Fall 2010 publication of DePaul Magazine.  According to the magazine, "each year, we call on members of the community, including alumni, faculty, staff and friends, to nominate DePaul graduates who distinguish themselves.  We then choose 14 of them, with the goal of representing schools and colleges across the university.  The result is an inspiring, interesting mix of people, professions, and achievements." 

Please click here to view my profile that was published in the magazine.  Thank you DePaul Magazine for this great honor!

Wednesday, September 15, 2010

IL Department of Public Health Recommends Well Testing for Areas in Kendall and McHenry Counties

The Illinois Department of Public Health recently recommended that two communities test their wells for contamination.

First, IDPH advised residents who obtain their drinking water from private wells in the Hollis Subdivision (Kendall County) area to test their water for possible groundwater contamination.  Routine testing of Illinois American Water Company - Hollis community water supply wells by the Illinois Environmental Protection Agency indicated contaminants could be present in the area’s private wells.  The contaminant xylene was detected at levels lower than the Illinois Groundwater Standard.  Although the contaminant’s levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells.

Second, IDPH advised residents who obtain their drinking water from private wells in the Marengo (McHenry County) area to test their water for possible groundwater contamination.  Routine testing of Marengo’s community water supply wells by Illinois EPA indicated contaminants could be present in the area’s private wells.  The contaminants benzene and methyl tert-butyl ether (MTBE) were detected at levels lower than the Illinois Groundwater Standard.  Although the contaminants’ levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells.

For a list of laboratories certified to analyze drinking water for volatile organic compounds, interpretation of test results, contaminant health effects information, and recommendations for individuals who regularly consume well water, contact Joe O’Connor, IDPH West Chicago Regional Office, 245 West Roosevelt Road, Bldg 5, West Chicago, IL. 60185, phone (630) 293-6800 or joe.o’connor@illinois.gov.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Tuesday, September 14, 2010

Federal Appeals Court Upholds Dismissal of Lawsuit Seeking to Prevent Village's Acquisition of Utility Assets

The U.S. Court of Appeals for the Seventh Circuit recently issued an opinion in Rock Energy Cooperative v. Village of Rockton, No. 10-1106, which concerned a dispute over the ownership of assets used by natural gas and electric utilities.

Rock Energy is a consumer-owned utility that provides gas and electricity to its members on a cost-of-service, nonprofit basis.  In 2004, Alliant Energy announced that it would take bids for the sale of assets held by a subsidiary company.  The announcement caught the attention of both Rock Energy and the Village of Rockton, Illinois.  Rock Energy submitted a bid for the Alliant assets, and the Board of Trustees of Rockton passed an ordinance on January 18, 2005, authorizing the Village to acquire the assets by purchase or condemnation.

On June 30, 2005, the Village and Rock Energy entered into a Memorandum of Understanding (the “MOU”), in which they expressed their “mutual intent to explore the feasibility of Rockton[’s] acquiring the local utility assets” from Rock Energy.  In the MOU, Rock Energy agreed to sell the assets to the Village if certain conditions were satisfied, including the completion by the Village of a feasibility analysis addressing topics such as finance, safety, reliability, and operations; the parties also needed to come to an agreement on the price that the Village would pay.  The next day, Rock Energy entered into a contract with Alliant to purchase the assets; for reasons that are not explained, it took another year and a half for that transaction
to close.  After that, the Village told Rock Energy on more than one occasion that it wanted to acquire the assets, as contemplated by the MOU.  The Village has also threatened to condemn the assets, using its power of eminent domain.

On May 11, 2009, Rock Energy filed a complaint in federal court seeking a declaratory judgment stating that “the Village of Rockton has not met the requirements of Illinois law to acquire electric and gas utility assets from Rock Energy Cooperative.”

The trial court dismissed the complaint, and the 7th Circuit appellate court affirmed.  The appellate court held that, although the Village threatened to do certain things, the Village actually took no action to acquire the utility assets.  Therefore, Rock Energy did not have standing to sue:

"We begin with Rock Energy’s eminent-domain theory.  The company would like us to believe that its Alliant assets are likely to be taken by the Village at any moment.  As we held in Shannon, it continues, it is 'no bar to ripeness if the government has only threatened enforcement, rather than actually brought a lawsuit.' . . .  But this record is startlingly devoid of evidence that the Village is waiting to pounce with an eminent domain
action.  The ordinance about which Rock Energy complains was passed five years ago; Rock Energy has
had a contractual right to own the assets for the same five years; and it has actually held them for more than three years.  That does not sound like imminence to us."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Sunday, September 12, 2010

Romeoville Oil Leak Update

9/14/10 UPDATE: According to an article in the Chicago Tribune, the Illinois EPA has referred this matter to the Illinois Attorney General's office for a possible enforcement action.

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9/13/10 UPDATE: According to an article in the Chicago Tribune, the leak has been stopped: "Crews on Monday removed a 12-foot section of pipe at the site of an oil spill outside Chicago that led to a spike in regional gasoline prices, but it could take weeks to clean up the contamination."

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For those of you who have not watched the local news lately, an oil leak in Romeoville was discovered on Thursday, September 8th.  The Chicago Sun Times website has a good article providing an updated news account of the story.  This is still a major concern because oil still seems to be leaking, and the source of the leak has not yet been identified.

I drove out to the site yesterday (a short drive because I live in Naperville).  Unfortunately, I could not get very close to the site because police had blocked off the nearby streets.  But there was a lot going on, with police, EPA, and contractor vehicles onsite.

The only thing that seems to be clear is that the company responsible for the leak, Enbridge (which has another major oil incident to contend with in Michigan) has a lot of explaining to do.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Thursday, September 9, 2010

Asian Carp Czar Named by White House

The federal Council on Environmental Quality recently announced the appointment of John Goss as the Asian Carp Director.  According to CEQ's press release, Goss "will serve as the principal advisor to CEQ Chair Nancy Sutley on Asian carp issues, and oversee the coordination of Federal, state, and local efforts to keep Asian carp from establishing in the Great Lakes ecosystems. . . . Goss will also chair the Asian Carp Regional Coordinating Committee (RCC), which is a team of Federal, state and local agencies working together to prevent Asian carp from establishing populations in the Great Lakes."

CEQ's press release also describes Goss's background: "Goss joins CEQ from the Indiana Wildlife Federation, the Indiana State affiliate of the National Wildlife Federation, where he served for four years as the Executive Director.  In his role at the Wildlife Federation, he worked with conservation, business and industry groups to support the Great Lakes Compact.  Goss previously served as Director of the Indiana Department of Natural Resources and as Vice Chair of the Great Lakes Commission. . . . Prior to his position at the Indiana Department of Natural Resources, Goss was Director of Tourism for the State of Indiana and chaired the Great Lakes International Marketing Initiative for the Great Lakes Governors Association. Goss served as Chief of Staff for Lt. Governor Frank O’Bannon, District Director for Congressman Frank McCloskey and Deputy Mayor for the City of Bloomington, Indiana. Goss received his Masters of Public Affairs and his B.A. in Economics from Indiana University."

The question is whether the federal government needs an Asian carp czar now.  Several states have sued to force the closure of Chicago locks to physically prevent Asian carp from entering the Great Lakes.  Apparently, they believe that this is the only solution, because they have criticized everything else the Obama administration is doing.  While the appointment of Mr. Goss shows that the White House is very serious about this issue, will it really do anything to change the mind of those people who think that we must close the locks or else?  I doubt it.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Tuesday, September 7, 2010

Deferring to Illinois EPA, Environmental Appeals Board Rules That PSD Permits Are Not Required to Regulate Greenhouse Gas Emissions

U.S. EPA's Environmental Appeals Board recently issued an interesting decision concerning greenhouse gas requirements of air permits in the case of In re: Power Holdings of Illinois, LLC, PSD Appeal No. 09-04.  This case involves a petition for review filed by the Sierra Club challenging certain conditions of a prevention of significant deterioration (“PSD”) permit issued by the Illinois Environmental Protection Agency, under delegated federal authority, to Power Holdings of Illinois, LLC for construction of a synthetic natural gas (“SNG”) manufacturing plant in Jefferson County, Illinois.

The Sierra Club raised three issues on which it sought review.  The first two issues were: (1) the permit fails to include a flare minimization plan as part of the final permit and allows Power Holdings to develop such a plan without full public participation; (2) the permit allows SNG or natural gas to be used to fire “superheaters” at the plant without addressing emissions associated with the manufacture of SNG.  The Appeals Board rejected the Sierra Club's challenge on these two issues.  The Board first held that the flare minimization plan supplements other permit requirements and properly requires Power Holdings to develop methods to reduce emissions from flaring events based on actual operating experience.  The Board then held that Sierra Club failed to demonstrate the presence of collateral environmental impacts that would justify eliminating SNG as a fuel for the superheaters.

The third issue raised by Sierra Club was that the permit failed to regulate greenhouse gases (carbon dioxide and methane), and thus violated a State emissions limitation at Ill. Admin. Code tit. 35 § 201.141 incorporated into Illinois’ approved state implementation plan (“SIP”).  Section 201.141 provides, in part, as follows:

"No person shall cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as, either alone or in combination with contaminants from other sources, to cause or tend to cause air pollution in Illinois . . . ."

According to Sierra Club, greenhouse gases constitute "contaminants" causing or contributing to "air pollution" under Section 201.141.  However, the Illinois EPA disagreed and made clear to the Board that it does not interpret Section 201.141 as requiring regulation of greenhouse gas emissions.  The Board deferred to Illinois EPA's interpretation and rejected Sierra Club's argument:

"Because the State of Illinois has interpreted the disputed provision of its state SIP as inapplicable to greenhouse gases, and because this interpretation does not strike the Board as so unreasonable as to not be entitled to the substantial deference afforded state interpretations of their own laws, the Board declines to substitute its judgment for that of the IEPA in this instance.  Review is therefore denied on this issue."

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, September 6, 2010

Federal Court Allows Three Parties to Intervene in Asian Carp Case

A federal judge recently allowed three parties to intervene in the Asian carp case (Michigan v. United States Army Corps of Engineers), currently pending in the U.S. District Court for the Northern District of Illinois.  Click here for more information on the Asian carp case.  The Court granted leave to the following parties to intervene as defendants: (1) the City of Chicago, (2) the Coalition to Save Our Waterways, and (3) Wendella Sightseeing Company, Inc. 

The Court held that the City "has demonstrated that its interests are direct, substantial, and capable of legal protection . . . ."  Those interests included: (1) to ensure that the Chicago police and fire departments' operations are not disrupted and that they are able to fully utilize the navigational locks and/or sluice gates to perform their emergency response, law enforcement, and homeland security duties; (2) to ensure that the sluice gates can continue to be used to maintain water quality and avert flooding; and (3) to ensure that the City's long-term efforts and plans to enhance the waterfront are not disrupted. 

The Coalition is a group of trade associations, whose interest in this case is in preserving the viability of the economic investments in businesses through the continued ability to navigate the Chicago Area Waterway System.  Similarly, Wendella provides boat tours, and its economic livelihood is directly at stake in this lawsuit.  The Court held that both the Coalition and Wendella had sufficient interests to intervene.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, August 30, 2010

IL Court Rules That BP Can Be Penalized by Village for Abandoned Gasoline Service Station

The Illinois Appellate Court, First District, recently issued an opinion in Village of Northfield v. BP America, Inc., No. 1-10-0142, which concerned an abandoned gasoline service station currently on BP's property at 1900 Willow Road in Northfield, Illinois.

The Village of Northfield issued BP a citation alleging that the abandoned gasoline service station constituted a public nuisance in violation of the Northfield Village Code.  A service station is defined as "abandoned" under the Code if it is not operated for at least 300 hours in any 60-day time period.  The Village Code further provides that any person causing a nuisance shall be fined not less than $100, and not more than $750, each day that the nuisance continues. 

The Trial Court initially ordered BP to pay a daily fine of $750 for 21 days, totaling $15,750.  However, the Court then reversed itself, ruling that BP was not required to pay a fine because the Village's ordinance was preempted by Illinois statute.

The Appellate Court reversed.  In fact, the Court held that State law specifically provided the Village with the authority to enact the ordinance.  The Court then held that State law did not preempt local ordinances that provide alternative methods for defining and abating nuisances.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Saturday, August 28, 2010

Court Rules Insurer Had Duty To Defend Against Superfund Action Filed By Federal Government

The United States District Court for the Northern District of Illinois recently issued an opinion granting summary judgment against an insurance company based on a duty to defend in United States v. Clark, No. 08-CV-4158, which concerned the South Green Plating Superfund Site in Chicago, Illinois. 

The federal government sought reimbursement for response costs incurred while cleaning up the site.  According to the complaint, heat-treating operations, a thermal process for strengthening metals, were conducted on site.  Some of the defendants filed a third-party complaint against several insurance companies seeking a declaratory judgment that the insurers have a duty to defend and indemnify the defendants in the case.  The defendants and the insurers filed cross motions for summary judgment on the duty to defend issue.

The Court granted the defendants' motion for summary judgment and denied the the insurers' motion.  There was no dispute that Comprehensive General Liability policies established the insurers’ duty to defend certain suits.  The policies provided for defense and indemnity of suits alleging property damage:

“The company [Liberty] will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of . . . property damage to which this policy applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such . . . property damage, even if any of the allegations of the suit are groundless, false or fraudulent . . . .”

The Court first held that the government's complaint adequately alleged "property damage" within the terms of the policies, because the allegations indicated the potential of environmental contamination through releases of hazardous substances.

The Court then held that the complaint alleges an "occurrence," which was defined in the policies as "“an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

Finally, the Court held that the allegations of the complaint did not fall under one of the policies' exclusions, which excluded coverage for "property damage to property owned or occupied by or rented to the insured."  The complaint sufficiently alleged that there may have been exposure to the environment outside of the property owned by the defendants.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Saturday, August 21, 2010

Hillside Landfill Owners and Operators to Pay Over $1 Million Penalty and Complete Compliance Plan

On August 18, 2010, the Illinois Attorney General's office announced the entry of a consent decree between the State of Illinois and the owners and operators of the Hillside landfill, a former solid waste landfill located at 4100 W. Frontage Rd., Hillside, Illinois.  Residents (and those driving past the landfill) have endured periods of sometimes nauseating odors since at least January 2004.

Under the terms of the consent decree, the defendants must pay a civil penalty of $1 million to address past conduct.  The defendants must also pay $100,000 to Illinois EPA for costs incurred up to the entry of the agreement and up to $25,000 for future costs associated with Illinois EPA implementing a Community Relations Plan.  Additionally, the defendants will reimburse the Attorney General’s office $100,000 for its costs of investigating and litigating the case.

The consent decree also confirms that the actions required of the defendants in prior agreed preliminary injunctions entered in April 2006 and January 2007 have been completed.  Those actions included: addressing the alleged hazards created by the uncontrolled release of landfill gas and evaluating and controlling all of the causes of odors at the site which, in conjunction with the installation of a 55-acre cover system, achieved a significant reduction in both reported odor complaints and surface emissions within the past year.

Within 45 days, the defendants are required to submit to the Attorney General's office and Illinois EPA a Landfill Compliance Plan that will include, among other things, a number of work plans that address: landfill settlement and the effect it may have on the facility’s cover; landfill gas collection and control systems and air quality; monitoring and corrective actions; leachate (contaminated waste water) monitoring and removal; surface water management; and groundwater monitoring and corrective actions.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Friday, August 20, 2010

Save the Date: 9/23/10 Presentation from Robert Kaplan from U.S. EPA

UPDATE: The presentation was a great success!  Thanks to everyone who attended.  A summary of Mr. Kaplan's remarks can be found at http://environblog.jenner.com/corporate_environmental_l/2010/09/cba-yls-environmental-law-committee-meeting-features-robert-kaplan-regional-counsel-us-epa-region-5.html

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As co-chair of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, I am pleased to invite you to a presentation from Robert Kaplan, Regional Counsel for U.S. EPA Region 5.  Here are the details:

Date: September 23, 2010

Time: 12:15PM-1:15PM

Place: Chicago Bar Association, 321 South Plymouth Court, Chicago

Speaker: Robert Kaplan, Regional Counsel, United States Environmental Protection Agency Region 5

Our first meeting of the bar year will feature Bob Kaplan from U.S. EPA.  As Regional Counsel, Bob is responsible for review of enforcement cases and defensive litigation for air, water, pesticides, toxic substances, oil pollution, hazardous waste and Superfund matters.  Bob also reviews financial law, tribal law, labor law and personnel law matters for the region.

During his presentation, Bob will provide an overview of U.S. EPA’s organizational structure and positioning of Office of Regional Counsel within that structure.  He intends to emphasize ORC’s relationship with the Department of Justice and the six Great Lakes states in Region 5.  He will also summarize six National Enforcement Initiatives as outlined by U.S. EPA Office of Enforcement and Compliance Assurance.  These initiatives reflect enforcement and regulatory goals that U.S. EPA intends to achieve over fiscal years 2011-2013.

To illustrate the variety of issues ORC takes on, Bob will highlight recent counseling and enforcement activity within ORC including: the Enbridge Pipeline spill in Marshall, Michigan; legal issues arising from fish kills in Chicago-area waterways as part of an ongoing effort to prevent Asian carp from entering the Great Lakes; and a criminal enforcement case in which untreated liquid waste was directly discharged into the Detroit sanitary sewer system.

We are very pleased to have Bob as our first speaker. We invite attorneys of all ages and law students to attend this exciting and informative presentation.  Please plan to attend!