Saturday, May 29, 2010

Illinois Federal District Court Dismisses Contamination Claim Against Drainage and Levee District

On May 13, 2010, the U.S. District Court for the Central District of Illinois granted a motion to dismiss claims for breach of the Illinois Drainage Code, trespass, and contribution/indemnification, in Wilder Corp. v. Thompson Drainage & Levee District, No. 09-1322.

This case has a complicated procedural history.  In 2006, the Nature Conservancy filed a complaint against Wilder Corp. alleging breaches of various agreements related to the Conservancy’s purchase of certain land in Fulton County, Illinois from Wilder.  In 2008, the Conservancy filed an Amended Complaint in that litigation alleging that there was additional contamination in an area south of the pump house on the property that had been operated by Thompson Drainage and Levee District (the “District”).  In July 2009, Wilder sought leave to file a third-party complaint against the District based on its contention that this contamination was caused by the District, which was denied as untimely.

Wilder then filed a new lawsuit against the District alleging breach of the Illinois Drainage Code, trespass, and a claim for contribution/indemnification. The District moved to dismiss the complaint as barred by the statute of limitations and for failure to state a claim upon which relief can be granted.

The Court granted the motion to dismiss.  The Court first ruled that the claims under the Drainage Code and trespass were barred by the one-year statute of limitations under the Local Governmental and Governmental Employees Tort Immunity Act.  The Court then ruled that the contribution/indemnity claim should be dismissed because Wilder had not claimed that the District was a joint tortfeasor with the District for purposes of contribution and that there was no express or implied contract between Wilder and the District upon which indemnity could be based.

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

Friday, May 28, 2010

Illinois Federal District Court Dismisses Village's Trespass and Nuisance Action

On May 12, 2010, the U.S. District Court for the Central District of Illinois granted a motion to dismiss a village's nuisance and trespass claims in Village of DePue v. Viacom International, Inc., Nos. 08-cv-1272 and 08-cv-1273.  This case dealt with a zinc smelting facility and a diammonium phosphate fertilizer plant within the Village of DePue, Illinois, which operated from 1903 until 1989.  These operations left the site with elevated levels of cadmium, lead, and other metals. 

The successors of the company that operated the facility (Viacom, CBS Operations, Inc., and Exxon Mobil Corp.) were sued by the Village of DePue based on theories of common law trespass and nuisance.  More specifically, the village claimed that the defendants were liable to it for trespass, by allowing contaminants from the site to flow onto village land, and for both public and private nuisance relating to the contamination of village land. 

The defendants filed a motion to dismiss based on the five-year statute of limitations on nuisance and trespass claims.  The Court granted the motion, finding that the village's claim was "facially barred" by the statute of limitations, because the village's lawsuit was filed on August 10, 2008, and the village did not allege any tortious conduct by the defendants after 1989.

The Court also rejected the village's argument that several exceptions to the statute of limitations applied.  For example, the Court held that the defendants' conduct did not amount to a "continuing tort," because the village did not allege that the defendants or their corporate predecessors engaged in any conduct aside from merely owning the site after 1989.  The Court held that the "discovery rule" did not apply, because fact sheets from the Illinois EPA in 1992 and 1995 put the village "on inquiry to determine whether actionable conduct [was] involved."  Finally, the Court held that the sovereign immunity exception did not apply, because the village's claims were "brought solely to recover damages allegedly incurred because of [the village's] interests as a private landowner. . . ."

However, the defendants are not off the hook completely.  According to the opinion, the defendants were previously sued by the Illinois Attorney General and entered into an interim consent order which mandated a phased investigation of the site and implementation of certain interim remedies.

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

Thursday, May 27, 2010

Illinois Federal Court Denies Motion to Dismiss PRPs' Cost-Recovery Claim

On May 12, 2010, the U.S. District Court for the Southern District of Illinois denied a motion to dismiss crossclaims for cost recovery under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" and more commonly known as Superfund) in United States v. Pharmacia Corp., No. 99-cv-63

Section 107(a) of CERCLA (42 U.S.C. 9607(a)), subjects certain persons or companies, known as potentially-responsible parties (or "PRPs"), to liability when there is a release or threatened release of hazardous substances.  In general, PRPs are liable for (1) costs of removing or cleaning-up the hazardous substances incurred by the government, (2) other necessary costs of response incurred by any other person consistent with the national contigency plan, (3) damages to natural resources, and (4) costs of health assessments or health effects studies under certain circumstances.

Section 113(f) of CERCLA (42 U.S.C. 9613(f)) allows any person to seek contribution from any other PRP for costs paid to reimburse another party (such as the government).  In theory, this means that each PRP will only be liable to pay its fair share (i.e., each PRP's liability will be based only on how much its conduct contributed to the release).

In United States v. Pharmacia, Pharmacia Corporation, Solutia, Inc. Cerro Flow Products, Inc., and ExxonMobil Oil Corporation were PRPs at the Sauget Area One site, which is located in the Villages of Sauget and Cahokia, in St. Clair County, Illinois.  The PRPs were sued by the federal government under Section 107 of CERCLA for the recovery of clean-up costs allegedly incurred by the government at the site.  The PRPs filed a contribution claim under Section 113 of CERCLA against Rogers Cartage to allocate responsibility for costs that may have to be paid to the government.  The federal government also sued Rogers Cartage under Sections 107 and 113, and the government ultimately lost at trial on those claims.

The PRPs also incurred their own costs while investigating and cleaning up contamination at the site, and filed a claim under Section 107 of CERCLA against Rogers Cartage to recover those costs.  Rogers Cartage then filed a motion to dismiss that claim.  The Court denied the motion to dismiss:

"Here, [the PRPs] expressly allege that the purpose of their Section 107(a) action is to recover response costs which were neither derivative of, nor co-extensive with the United States costs; in other words, expenses that are allegedly different from those sought by the United States in its trial against Rogers Cartage back in November 2003.  Now, [the PRPs] are seeking to recover some of those response costs from Rogers Cartage who, they allege, owned portions of at least three sites within Sauget Area One, and operated a truck terminal and truck washing operation on that property in the 1960's and 1970's.  One of CERCLA’s main purposes is to encourage private parties to assume the financial cleanup by allowing them to seek recovery from others.  Thus, allowing [the PRPs'] Section 107(a) cost recovery action to proceed neither contravenes the Supreme Court’s current interpretation of CERCLA, nor one of act’s fundamental purposes."

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

Tuesday, May 25, 2010

Illinois Department of Public Health Recommends Testing of Private Wells in Rock Island

On May 4, 2010, the Illinois Department of Public Health advised residents who obtain their drinking water from private wells in the Coyne Center Co-Op area (Rock Island, south of 106th Avenue, north of 127th Avenue, east of U.S. 67 and west of Mill Creek) to test their water for possible groundwater contamination.  Routine testing of Coyne Center Co-Op community water supply wells indicated contaminants could be present in the area’s private wells.

Specifically, 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.  Therefore, IDPH encouraged residents with private wells located within the area 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, IDPH recommends contacting John Smet (, Illinois Department of Public Health Peoria Regional Office, 5415 North University, Peoria, IL 61614, phone (309) 693-5360. You may also contact Paul Guse, Rock Island County Health Department, 2112 25th Ave, Rock Island, IL 61201, phone (309) 793-1955 or

Despite this recommendation, IDPH stated that no violations of State of Illinois or federal drinking water standards have occurred at Coyne Center Co-Op.

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

Monday, May 24, 2010

Sauk Village Sued by State After Vinyl Chloride Found in Groundwater Well

According to this story from the Chicago Tribune, the Illinois Attorney General's office has sued Sauk Village, Illinois "to force cleanup of one of three groundwater wells that serve as the community's primary source of drinking water, following the discovery of vinyl chloride and fecal contamination during routine testing in 2009."

The Tribune reported that "multiple well samples collected in May 2009 showed levels of vinyl chloride –– a byproduct of certain types of manufacturing and a common pollutant in urban communities –– at 3.67 micrograms per liter, exceeding the threshold of 2 micrograms per liter considered safe by the U.S. EPA."

Sauk Village may also face civil penalties: "Sauk Village faces the maximum $50,000 fine for each violation of four separate counts, which include water contamination but also failure to store chemicals properly, drain stagnant water and implement certain control methods. They've also been fined $10,000 per violation per day since May 2009, but likely would pay only a fraction of that amount if the problem is fixed, said Scott Mulford, a spokesman for the attorney general's office."

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

EPA and NHTSA Establish New Standards For Light-Duty Vehicles To Reduce Greenhouse Gas Emissions

On May 7, 2010, U.S. Environmental Protection Agency and National Highway Traffic Safety Administration published in the Federal Register a Final Rule to establish a national program consisting of new standards for light-duty vehicles to reduce greenhouse gas emissions and improve fuel economy.  These standards apply to passenger cars, light-duty trucks, and medium-duty passenger vehicles, covering model years 2012 through 2016.  One of the purposes of the rule is to allow automobile manufacturers to build a single light-duty national fleet that satisfies all requirements under both programs while ensuring that consumers still have a full range of vehicle choices.

EPA and NHTSA established two separate sets of standards, each under its respective statutory authorities.  EPA set national carbon dioxide emissions standards for light-duty vehicles under the Clean Air Act.  These standards will require these vehicles to meet an estimated combined average emissions level of 250 grams/mile of carbon dioxide in model year 2016.  NHTSA set Corporate Average Fuel Economy ("CAFE") standards for passenger cars and light trucks.  These standards will require manufacturers of those vehicles to meet an estimated combined average fuel economy level of 34.1 mpg in model year 2016.

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

Saturday, May 22, 2010

Advisory Group Makes Recommendations for Midwestern Cap-And-Trade Program

On May 7, 2010, the Advisory Group of the Midwestern Greenhouse Gas Reduction Accord issued its final recommendations for the establishment of targets for emissions reductions in the region and for the design of a regional cap-and-trade program.  Here are some of the highlights:

(1) Greenhouse Gas Emission Reduction Target:  In general, the Advisory Group recommended a target of 20% below 2005 levels by 2020 and an 80% reduction below 2005 levels by 2050.

(2) Types of Sectors Covered: Electricity generation and imports to the region, industrial combustion sources, industrial process sources provided that credible measurement and monitoring protocols exist or can be developed, fuels serving residential, commercial, and industrial buildings not otherwise covered, and transportation fuels.

(3) Greenhouse Gases Covered: Carbon dioxide, methane, nitrous oxide, hydro-fluorocarbons,  perfluorocarbons, and sulfur hexafluoride.

(4) Threshold for Coverage: Entities with annual emissions of 25,000 metric tons or more shall be subject to the program, provided that electric generating units with a capacity of less than 25 megawatts should be exempt and combustion units that burn 100% biomass should be exempt for carbon dioxide emissions only.  Annual emissions shall be calculated using a three-year rolling average.

(5) Auctions and Allowances: The Advisory Group recommends a hybrid approach to allowance distribution.  It should combine auctions to provide a robust allowance market with price discovery and sufficient liquidity, as well as funding for needed programs, together with allocations to covered entities at modest fixed fees to limit allowance cost and volatility risks and also to provide additional funding for climate-related purposes.  This hybrid approach should apply during the first three compliance periods, after which a transition to full auction of allowances should take place within the following three compliance periods.

(6) Offsets: The Advisory Group recommends that participating jurisdictions develop an offset component as part of the cap-and-trade program.

(7) Mandatory Emissions Reporting: Mandatory reporting of emissions for the six families of greenhouse gases included under the cap will commence one year before the program start date, with data collection beginning two years before the start date.

(8) Starting Date: The first compliance period for the cap-and-trade program will start at the beginning of the first calendar year at least 12 months subsequent to execution of an implementation Memorandum of Understanding among participating jurisdictions.

Click here to see the Advisory Group's Final Model Rule that accompanied the recommendations.

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

Sunday, May 16, 2010

New Asian Carp Monitoring and Sampling Plan Released

On May 5th, the Asian Carp Regional Coordinating Committee released its three-month monitoring and sampling plan to prevent Asian carp from establishing self-sustaining populations in the Great Lakes.  The plan involves fishing as well as an additional round of rotenone poisoning.

The Regional Coordinating Committee described the plan in a press release as follows:

"The new sampling and monitoring plan will take those traditional fishing methods to the North Shore Channel where a three day sampling effort using electrofishing gear and commercial fishing nets will be used in an attempt to locate Asian carp.  The operation will require the Illinois Department of Natural Resources to close a portion of the North Shore Channel . . . . The area targeted for sampling extends ¼ mile south of Oakton Street- approximately five miles north to the Wilmette Pumping Station. . . .

"The new plan also calls for a rotenone sampling operation upstream of the electric barriers near the O’Brien Lock and Dam to determine whether- and if so, how many- Asian carp might exist in that location where positive eDNA samples have been taken.  The planned application and subsequent fish recovery will begin with waterway closure on Thursday, May 20 and last five to six days.  The application will take place on the Little Calumet River approximately one mile downstream of T.J. O’Brien Lock and Dam, east of the I-94 overpass, and will cover a stretch of two miles downstream of the starting location."

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

Saturday, May 15, 2010

U.S. EPA Proposes $743,293 Penalty for Hazardous Waste Violations

On May 6th, U.S. EPA Region 5 announced that it filed an administrative complaint and compliance order against Mercury Vapor Processing Technologies Inc., also known as River Shannon Recycling, for alleged violations of hazardous waste regulations at the facility located at 13605 Halsted Street, Riverdale, Illinois.  A $743,293 penalty is proposed.

According to EPA, the defendant was cited for violating Resource Conservation and Recovery Act ("RCRA") requirements for managing hazardous waste.  Specifically, the defendant failed to have a permit for hazardous waste treatment and storage.  The defendant treated large quantities of waste lamps including spent fluorescent tubes.  Often, these waste lamps contain mercury and are regulated as hazardous waste.

EPA has also ordered the defendant to immediately stop transporting, treating and storing hazardous waste at its facility unless it fully complies with RCRA requirements, and to conduct RCRA closure activities at the Riverdale facility.

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

Zinc Refinery Settles Federal Enforcement Action Alleging Clean Air Act Violations

On April 15th, the federal government announced the settlement of an enforcement action in United States v. Big River Zinc Corp., No. 10-cv-276 (U.S. District Court for the Southern District of Illinois), which concerned a zinc smelter plant located at 2401 Mississippi Avenue, Sauget, Illinois. 

The federal government's allegations concerned the defendant's Roasters, which are furnaces in which a zinc sulfide ore concentrate charge is heated in the presence of air to eliminate a significant portion (more than 10%) of the sulfur contained in the charge.  The government alleged that the defendant violated the Clean Air Act and applicable regulations by (1) failing to comply with the sulfur dioxide emission limit for Roasters, (2) failing to provide notification of its plans to reconstruct its Roasters, (3) failing to provide written notification of the date of construction of the new Roasters, (4) failing to provide written notification of the date of initial startup of the new Roasters, and (5) failing to conduct performance tests of the new roasters and providing a report of the test results to EPA.

Under the terms of the settlement, the defendant does not admit liability concerning these alleged violations; however, the defendant has agreed to pay $250,000 as a civil penalty to settle the case.  Although the defendant ceased its zinc roasting operations in 2006, the settlement agreement requires the defendant to take certain actions prior to resuming operations.  Specifically, the defendant must install and make operational a Scrubber System on its acid plant and and make operational a Continuous Emissions Monitoring System for Stack Gas Sulfur Dioxide.

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

Thursday, May 13, 2010

Environmental Register for April 2010

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

The Environmental Register features a letter from Chairman Girard, a rulemaking update, a summary of actions of the Board, a summary of new cases, the Board's calendar, and the Restricted Status and Critical Review Lists for public water supplies.

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

Wednesday, May 12, 2010

Senators Kerry and Lieberman Unveil New Climate Change and Energy Bill

On May 12th, Senators John Kerry and Joe Lieberman introduced their climate change and energy bill, entitled "The American Power Act."  The bill's goal is to reduce carbon pollution by 17% by 2020 and by over 80% in 2050, and the bill attempts to achieve this goal through cap-and-trade and support for domestic energy.  That's right, not just alternative energy, but also other forms of domestic energy, including coal, natural gas, and nuclear.  The bill calls for major investments in research and development, as well as new infrastructure. 

For example, the bill calls for the Nuclear Regulatory Agency to make recommendations for procedures that would expedite the licensing process for new nuclear reactors.  The bill calls for funding of programs for the development and deployment of carbon capture, sequestration, and conversion technologies.  The bill also calls for a national transportation low-emission energy plan that projects the near- and long-term need for and location of electric drive refueling infrastructure and identifies infrastructure and standardization needs of electricity providers, vehicle manufacturers, and electricity purchasers.

The bill would also provide a national cap-and-trade program for the reduction of greenhouse gases (existing programs run by the states would be preempted).  Essentially, the bill would establish an annual tonnage limit (25,000 tons) on greenhouse gas emissions from specified activities.  If covered entities cannot meet that limit, they would be able to purchase emission credits (at an auction) or get offset credits (for specified eligible activities).

Although a climate change bill has been on President Obama's agenda for some time, Congress has never really come close to passing one (because of lack of support by some on both sides of the aisle).  But many hoped that this bill had a good chance to pass, because it had bipartisan support--Republican Senator Lindsey Graham had been one of the original co-sponsors.  But Senator Graham dropped his support recently over a spat concerning immigration reform.  We'll keep a close eye on where this bill goes.

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

Sunday, May 9, 2010

U.S. EPA Reveals Its Semiannual Regulatory Agenda

On April 26th, the U.S. Environmental Protection Agency published in the Federal Register its Semiannual Regulatory Agenda.  The Agenda identified seven themes to focus the regulatory work of EPA:

(1) Taking Action on Climate Change,

(2) Improving Air Quality,

(3) Assuring the Safety of Chemicals,

(4) Cleaning Up Our Communities,

(5) Protecting America’s Waters,

(6) Expanding the Conversation on Environmentalism and Working for Environmental Justice, and

(7) Building Strong State and Tribal Partnerships.

As reported on this blog, U.S. EPA has already commenced action on several of these goals by proposing or finalizing regulations.

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

Friday, May 7, 2010

BlueStar Energy to Offer 100% Renewable Energy at Discounted Rate

Most people know about ComEd, but not many people are aware that there are other ways to purchase electricity for residences and businesses.

BlueStar Energy recently announced that it is offering consumers a 12-month agreement at an estimated 11% discount off ComEd’s new electricity rate increase.  It will offer 100% Renewable American Energy at an estimated 5% discount off ComEd’s new electricity rate increase.  According to the company:

"BlueStar Energy was founded in Illinois in 2002, and provides a wide array of energy solutions including retail electricity supply in Illinois, Maryland, Pennsylvania and Washington, D.C., and energy efficiency services nationwide.  BlueStar is one of the fastest-growing energy suppliers in the United States and has been consistently recognized by Inc. Magazine on its annual Inc. 500 list of fastest-growing companies.

"BlueStar Energy is the first statewide energy supplier in Illinois to provide residents with a choice of whom supplies their electricity, but also the first to give them the option to use 100% Renewable American Energy to power their homes.  Most importantly, BlueStar also makes one choice easier than ever.  No longer is renewable energy a more expensive alternative – with BlueStar Energy, customers can choose to use 100% Renewable American Energy at a 5% discount off ComEd’s new electricity rates."

You can find more information at

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