Sunday, February 28, 2010

IL Pollution Control Board Accepts Settlement of Action Against Construction Company for Open Dumping

On February 4, 2010, the Illinois Pollution Control Board accepted the settlement of an administrative citation action filed by the Illinois Environmental Protection Agency against Blickhan Family Corporation, Inc. and Blick’s Construction Co. Inc. in Illinois Environmental Protection Agency v. The Blickhan Family Corporation, IPCB No. AC 09-43.

The Illinois EPA alleged that the defendants violated the Illinois Environmental Protection Act by causing or allowing the open dumping of waste in a manner resulting in litter, open burning, and the deposition of general or clean construction or demolition debris.  These allegations concerned the defendants' facility located at Lock and Dam Road in Quincy, Adams County, Illinois.

Under the terms of the settlement, the defendants admit that they violated the Illinois Environmental Protection Act by causing or allowing the open dumping of waste resulting in open burning, and they agree to pay the statutory civil penalty of $1,500 for this violation.  The settlement further states that the waste that was the subject of the administrative citation has been removed and properly disposed.  In addition, the Illinois EPA agrees not to refer the violations that are the subject of the administrative citation to the Office of the Illinois Attorney General or any other prosecuting authority to initiate a civil enforcement action.

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

Saturday, February 27, 2010

Court Finds Owner of Facility's Equipment Liable in Cost-Recovery Case

In United States v. Saporito, Case No. 07 C 3169, the United States District Court for the Northern District of Illinois recently ruled that the federal government could recover its environmental cleanup costs against the current owner of a facility's equipment.

Beginning in the 1970s, Crescent Plating operated a facility on the northwest side of Chicago that plated steel and brass objects with various metals such as zinc, chromium, and copper.  In addition to those metals, the plating process also used, among other potentially hazardous chemicals, sodium cyanide, hexavalent chromium, and trichloroethene.  Very simply explained, the electroplating process involved dipping the item to be plated into a series of chemical baths through which electrical current is run.

In December 2003, U.S. EPA began removal activities at the site and in February 2004, the EPA authorized funding for the removal action based on its determination that the conditions at Crescent Plating presented “an imminent and substantial endangerment to the public health, welfare, and the environment.”  The first EPA site assessment found 58 vats and tanks and 464 containers holding various liquids and sludges as well as a 20-cubic-yard box filled with plating sludge.  Some containers had deteriorated and spilled, the building and equipment were coated with plating sludge, and the building had no heat or electricity.  During the cleanup, the government found two large areas of concrete floor that had corroded to expose the soil below. In all, the EPA spent more than $1.5 million to clean up tens of thousands of gallons of hazardous liquids and sludge.  After cleaning up the site, the government sued to recover the costs incurred.
The Court agreed with the government’s motion for summary judgment, which relied on the theory that Saporito was a facility owner at the time of the cleanup based on his undisputed ownership of equipment used in the plating process.  In so doing, the Court held that the government did not need to present evidence showing that any specific piece of equipment he owned was responsible for specific releases of hazardous chemicals or specific cleanup costs.
This is another example of the government, with approval of the courts, going after individuals to recover environmental cleanup costs.

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

Wednesday, February 24, 2010

U.S. EPA Announces Comprehensive Asian Carp Strategy

Earlier this month, the U.S. Environmental Protection Agency published a draft "Asian Carp Control Strategy Framework."  The main objectives of the Framework were to

• Establish the need for participating agencies to act urgently to prevent Asian carp from becoming established in the Great Lakes.

• Integrate and unify the future actions of participating agencies.

• Transition from a single point defense (electric barriers) to a multi-tiered approach.

• Provide general direction while recognizing that the pattern of Asian carp migration demands a measure of flexibility on the part of participating agencies to act.

• Recognize potential hurdles that might complicate Framework implementation.

• Suggest an approach for stakeholders and other agencies to actively collaborate in future efforts.
The Framework suggested the following actions:
Short-term Actions (Either underway or are expected to commence by May 15, 2010)

1. Operations to confirm and reduce carp populations

• Utilize chemical, netting and other mechanisms in known eDNA priority zones (Cal-Sag Channel, O’Brien Lock and Dam, Wilmette pumping station, and Calumet Harbor).

• Ensure Rotenone (a piscicide) supplies and fishing capabilities are adequate for possible responses.

• Prepare for immediate rapid response operations by procuring equipment, providing training and exercises for personnel, and creating stand-by capability for rapid deployment.

2. Increased fish collection effort for confirmation of eDNA results and carp populations

• Deploy more frequent and intense harvesting methods in conjunction with rotenone applications where feasible and coordinate efforts with eDNA sampling to increase likelihood of successful collection.

3. eDNA indicator refinement

• Increase capacity to 120 samples per week by April of eDNA results to guide efforts.

4. Modified structural operations

• Change the manner in which existing CAWS structures, such as locks & dams, sluice gates and pumping stations, are operated in combination with other management actions, to impede the migration of Asian carp into the Great Lakes. This concept is likely to be incrementally executed as capabilities become available. The impacts of this as well as the potential efficacy of any actions will be evaluated pursuant to applicable laws such as the National Environmental Policy Act

• Implement an approach with three phases

i. Phase 1: Concept Development – Integrate agencies’ efforts to develop methods to suppress Asian carp population growth while USACE and U.S. Coast Guard (USCG) simultaneously determine how to optimize/reduce the number of lock openings, and the Metropolitan Water Reclamation District (MWRD) considers how to operate the Wilmette Pumping Station to impede Asian carp movement. This will occur after engaging the navigation industry. The goal for this phase is to complete concept development and recommended actions by early March 2010;

ii. Phase 2: Initial Implementation – Execute modified structural operations as quickly as possible once methodologies are ready, with initial elements underway by April 30, 2010;

iii. Phase 3: Additional Implementation – Adjust initial methodologies based on field results to sustain longer term operations. In conjunction with continued population suppression, continue to field new methodologies as they become available, such as acoustic bubble barriers or electric barriers, as well as addition of screens at sluice gates and bulkheads for use during flood damage reduction operations with goal of full implementation by the end of 2010.

5. Construct emergency engineering measures to block passage of water and fish between (1) Des Plaines River and CSSC and (2) Illinois and Michigan (I&M) Canal and CSSC.

6. Increased biological control efforts

• With increased funding and capacity, expedite research on targeted control, including pheromone attractants, disruption of spawning behavior, and decreasing egg viability.

7. Barrier operations

• Sustained operations of the current electric dispersal barriers and construction of the new planned electric barrier, both important impediments to the Asian carp expansion in the Great Lakes.

Long-term Actions

The Long-term Actions are also integral to the success of preventing Asian carp from establishing a self-sustaining population in Lake Michigan. Examples of actions are shown below in five sub-categories; however the set of proposed actions, listed later in this document, is more comprehensive.

1. Structural:

• Efficacy studies to investigate the construction and implementation of additional barriers such as electric, light, and/or bio-acoustic bubble barriers

2. Chemical:

• Additional possible rotenone applications where testing suggests Asian carp presence

3. Biological:

• Suppression of Asian carp populations in CAWS and in downstream areas utilizing a variety of methods

• Development of biological controls similar to those used for lamprey suppression

4. Operational:

• Sustained operations of electric barriers

• Enhanced monitoring programs via traditional or new methods

5. Other:

• Controlled lock operations using chemical and other means to reduce migration

• Promotion of Asian carp market development

• Integration of the Great Lake States, Provincial, and Tribal capabilities and expertise into the proposed framework actions

• Technology enhancement programs

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

Tuesday, February 23, 2010

U.S. EPA Finalizes New Air Standards for Nitrogen Dioxide

On February 9th, the U.S. Environmental Protection Agency published in the Federal Register a final rule setting new primary national ambient air quality standards for nitrogen dioxide.  Specifically, EPA is establishing a new 1-hour standard at a level of 100 ppb to supplement the existing annual standard.  EPA is also establishing requirements for a nitrogen dioxide monitoring network that will include monitors at locations where maximum nitrogen dioxide concentrations are expected to occur, including within 50 meters of major roadways, as well as monitors sited to measure the area-wide nitrogen concentrations that occur more broadly across communities.

According to U.S. EPA, studies have shown that short-term nitrogen dioxide exposure can result in negative respiratory impacts in humans.  And, according to the Chicago Tribune, Chicago is the only U.S. metro area that would fail to meet the new nitrogen dioxide standard.

This final rule becomes effective on April 12, 2010.

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

Monday, February 22, 2010

IL Pollution Control Board Again Penalizes for Open Dumping

On January 21, 2010, the Illinois Pollution Control Board found that the owner of a facility in Clay County, Illinois violated the Illinois Environmental Protection Act and ordered the owner to pay $3,000 in civil penalties, in Illinois Environmental Protection Agency v. Luttrell, IPCB No. AC 10-09.  This follows on the heels of a $3,000 penalty for a disposal facility in Sangamon County, Illinois.

The penalty resulted from an administrative citation that was filed by the Illinois Environmental Protection Agency concerning a facility located at approximately 800 North Aspen Road, Xenia, Clay County, Illinois and commonly known as the “Xenia/Luttrell, Tony A. and Crystal K. (northeast)” site.  Illinois EPA alleged that the defendant violated the Illinois Environmental Protection Act by causing or allowing the open dumping of waste in a manner resulting in litter and deposition of general construction or demolition debris.

To contest an administrative citation, a defendant must file a petition with the Pollution Control Board no later than 35 days after being served with the administrative citation. If the defendant fails to do so, the Pollution Control Board must find that the defendant committed the violations alleged and impose the corresponding civil penalty.

Because the defendant failed to file a petition with the Pollution Control Board, the Board found that the defendant committed the alleged violations and imposed a $3,000 penalty.

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

Wednesday, February 17, 2010

Climate Change Seminar at Chicago Bar Association

On March 17, 2010, I will present a climate change seminar entitled "Greenhouse Gas Regulations: Advising Clients in an Uncertain Legal Environment".  I will present this seminar as part of the "Hot Topics in Environmental Law" program, which will take place from 3:00 pm to 6:00 pm at the Chicago Bar Association, 321 South Plymouth Court, Chicago, IL 60604.

My seminar will address recent developments regarding greenhouse gas regulations, including the U.S. Environmental Protection Agency's endangerment findings and mandatory reporting requirements.  I will discuss the uncertain legal environmental caused by Congressional inaction on climate change legislation and will provide guidance on what businesses should be doing to prepare for present and future regulation.

You can find more information and register for the program through this link to the Chicago Bar Association.  I hope to see you there!

Tuesday, February 9, 2010

U.S. Representatives Introduce Bill to Prohibit Regulation of Greenhouse Gases Under Clean Air Act

As recently reported on this blog, members of the U.S. Senate introduced a resolution disapproving U.S. EPA's endangerment finding that greenhouse gases pose a threat to human health and welfare.  On February 2nd, members of the U.S. House of Representatives introduced legislation that would prohibit U.S. EPA from regulating greenhouse gases under the Clean Air Act:


Section 302(g) of the Clean Air Act (42 U.S.C. 7602(g)) is amended by adding the following at the end thereof: `The term `air pollutant' shall not include any of the following solely on the basis of its effect on global climate change:

`(1) Carbon dioxide.
`(2) Methane.
`(3) Nitrous oxide.
`(4) Hydrofluorocarbons.
`(5) Perfluorocarbons.
`(6) Sulfur hexafluoride.'."

The bill was introduced by Representative Ike Skelton (D-Missouri) and co-sponsored by Representatives Jo Ann Emerson (R-Missouri) and Collin Peterson (D-Minnesota).

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

Securities & Exchange Commission Issues Climate Change Disclosure Guidance

On February 8th, the Securities and Exchange Commission published in the Federal Register a final rule entitled "Commission Guidance Regarding Disclosure Related to Climate Change".  This document provides guidance to public companies on what climate-change related matters must be disclosed to the public under SEC's existing disclosure requirements.

Depending on the facts and circumstances of a particular company, the SEC states that its disclosure rules may be triggered by climate change matters, including:

(1) The impact of federal and state legislation and regulations on the company's business, including legislation and regulations that are "pending" (meaning not yet passed into law);

(2) The impact of international treaties or accords, such as the Kyoto Protocol, that may impact a company's business;

(3) The impact of indirect consequences of regulation or business trends, such as a decreased (or increased) demand for certain goods and services, that may impact a company's business; and

(4) Physical impacts of climate change, weather severity, sea levels, the arability of farmland, and water availability and quality, that may impact a company's business.

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

Sunday, February 7, 2010

Michigan Requests That Supreme Court Reconsider Asian Carp Ruling

As reported on this blog, the U.S. Supreme Court recently denied the State of Michigan's request for a preliminary injunction that would have immediately closed Chicago-area locks to protect against Asian carp.  According to a recent press release from the office of Michigan Attorney General Mike Cox, a motion to reconsider that decision was filed on Michigan's behalf:

"Cox pointed to eDNA tests showing evidence of Asian carp in Lake Michigan that was available three days before the Court made its decision but not provided by the U.S. Army Corps of Engineers until afterward.  In the aftermath of this revelation, Michigan's motion questions the lack of action by Illinois and federal authorities to increase efforts against the spread of Asian carp despite claims they made in earlier legal filings that they would 're-visit the conclusions related to lock closure' in the event new information became available.

"Additionally, Michigan's motion includes an economic study on the effects of the closure of the locks necessary to separate the Mississippi River basin from the Great Lakes basin.  The study, conducted by a Wayne State University transportation expert, concludes Illinois' claim that 'even a temporary closure of the locks will devastate the local economy' cannot be supported.  For example:

· Statistics previously submitted to the Court by Illinois and the federal government on the potential economic costs of lock closure are 'seriously exaggerated.'  The report says annual costs would amount to less than $70 million, much lower than the $190 million claim made by Illinois and the federal government.  This stands in contrast to the billions in economic activity and thousands of jobs at risk if Asian carp enter the Great Lakes.

· While noting the canal system would largely remain open to barge traffic after a lock closure, cargo though the O'Brien Lock is already down 45 percent in recent years, showing its rapidly declining significance in Chicago's $521 billion economy.

· Truck traffic would increase by only 1/10 of 1 percent as a result of lock closure, while jobs would likely increase overall as a result of the new modes of transposition needed, like trucking."

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

Friday, February 5, 2010

US DOJ Settles Clean Air Act Suit: $5 Million Penalty

In the February 5th Federal Register, the U.S. Department of Justice provided notice of the settlement of its lawsuit against Lafarge North America, Inc., Lafarge Midwest, Inc., and Lafarge Building Materials, Inc.

The lawsuit concerned Clean Air Act violations at Lafarge cement plants located in Alpena, Michigan; Ravena, New York; Tulsa, Oklahoma; Fredonia, Kansas; Sugar Creek, Missouri; Buffalo, Iowa; Paulding, Ohio; Gand Chain, Illinois; Seattle, Washington; Whitehall, Pennsylvania; Harleyville, South Carolina; Atlanta, Georgia; and Calera, Alabama.

Under the proposed settlement, the Lafarge Companies will be required to implement pollution control technologies to reduce emissions of nitrogen oxides and sulfur dioxide at designated cement kilns and to meet emission limits which are either set forth in the Consent Decree or will be set later by following procedures specified in the Decree.  In addition, the Lafarge Companies must pay a total civil penalty of $5,075,000.

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

UPDATE: The Consent Decree in this case was entered by the Court on March 18, 2010.

Monday, February 1, 2010

President Obama Requests $10 Billion for EPA for 2011

Today, the Obama administration issued its 2011 budget proposal, which included $10.020 billion in discretionary budget authority for the U.S. Environmental Protection Agency.  Highlights of EPA's budget include:

--$1.3 billion "to address Superfund sites that may be releasing harmful or toxic substances into the surrounding community."

--$215 million "to clean up abandoned or underused industrial and commercial sites that are available for alternative uses but where redevelopment may be complicated by the presence of environmental contaminants."

--$27 million for EPA’s new Healthy Communities Initiative, which "will address community water priorities; promote clean, green, and healthy schools; improve air toxics monitoring in at-risk communities; and encourage sustainability by helping to ensure that policies and spending at the national level do not adversely affect the environment and public health or disproportionally harm disadvantaged communities."

--$60 million "to support state efforts to implement updated National Ambient Air Quality Standards (NAAQS)."

--$1.3 billion for state and tribal grants to help "implement new and expanded requirements under the Clean Air Act and Clean Water Act."

--"$43 million for additional efforts to address climate change and work toward a clean energy future.  EPA will implement the greenhouse gas reporting rule; provide technical assistance to ensure that any permitting under the Clean Air Act will be manageable; perform regulatory work for the largest stationary sources of greenhouse gas emissions; develop standards for mobile sources such as cars and trucks; and continue research of carbon capture and sequestration technologies."

--$300 million for the Great Lakes Restoration Initiative "for programs and projects strategically chosen to target the most significant environmental problems in the Great Lakes ecosystem."

--$3.3 billion "to maintain and improve outdated water infrastructure and keep our wastewater and drinking water clean and safe."

--$56 million "for chemical assessment and risk review to ensure that no unreasonable risks are posed by new or existing chemicals."

--$8 million "for environmental justice programs.  It targets increased brownfields investments to under-served and economically disadvantaged neighborhoods, and proposes $9 million for community water priorities in the Healthy Communities Initiative, funds that will help under-served communities restore urban waterways and address water quality challenges."

EPA's $10.020 billion request for 2011 is down from the $10.5 billion requested for 2010.  Congress enacted a $10.3 billion budget for EPA for FY2010.

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