Monday, June 28, 2010

Illinois Appellate Court Rules That Employers Must Protect Family of Employees From Asbestos Dangers

In Simpkins v. CSX Corp., No. 5-07-0346, the Illinois Appellate Court, Fifth District, recently ruled that employers owe the immediate families of their employees a duty to protect against take-home asbestos exposure.

The Plaintiff alleged in her complaint that she contracted mesothelioma cancer due to exposure to asbestos brought home on her husband's body and work clothes (commonly referred to as "take-home" asbestos exposure).  The complaint named numerous defendants, including asbestos manufacturers and former employers.  The three counts of the complaint here at issue named only CSX (as a successor to the B&O Railroad) and the Dow Chemical Company, where the husband worked from 1964 through the end of the marriage in 1965.  Count VII of the complaint alleged that both former employers negligently failed to take precautions to protect the family from take-home asbestos exposure, count VIII alleged that both defendants were strictly liable for engaging in an ultrahazardous activity, and count IX alleged willful and
wanton conduct on the part of both employers.

The trial court granted CSX's motion to dismiss, which argued that an employer does not owe any duty to the families of its employees.  On appeal, the Appellate Court disagreed and reversed the the trial court's decision.  The Appellate Court held that "ordinary principles of Illinois negligence law" supported the conclusion that employers owed a duty to protect family members of employees in take-home asbestos cases.  The Court ruled:

(1) That the harm to be prevented was reasonably foreseeable: "We believe that it takes little imagination to presume that when an employee who is exposed to asbestos brings home his work clothes, members of his family are likely to be exposed as well."

(2) That the likelihood of serious or fatal injury to anyone foreseeably exposed to asbestos is substantial enough to warrant the imposition of a duty on employers.

(3) That "the burden of guarding against take-home asbestos exposure is not unduly burdensome when compared to the nature of the risk to be protected against."

(4) That the consequences of placing the burden on employers are acceptable if the scope of liability is limited to immediate family members.

According to the opinion, this is the first time that an Illinois appellate court ruled on the issue of liability for take-home asbestos exposure.  CSX is likely to appeal this decision to the Illinois Supreme Court.

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

Saturday, June 26, 2010

2010 American Solar Challenge

I have uploaded photos (via our Facebook page) and video (via our You Tube Channel) from the finish line at the 2010 American Solar Challenge.  The solar cars raced 1,200 miles from Broken Arrow, OK to Naperville, IL.

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

Friday, June 25, 2010

Owner of Apartment Building to Pay $43,000 Penalty For Failing to Follow Asbestos Requirements During Renovation

The Illinois Pollution Control Board recently accepted the parties' settlement in People v. Al-Algonquin Apartments, LLC, Case No. PCB 09-39, which concerned a residential apartment building at 1605 East 50th Street in Chicago, Cook County, Illinois.

The State alleged that the owners of the building violated the Illinois Environmental Protection Act by: (1) failing to adequately wet and keep wet all regulated asbestos-containing material (RACM) removed during renovation operations until such asbestos-containing waste materials were collected and contained in leak-tight wrapping in preparation for disposal, (2) failing to provide notice of a renovation activity, (3) failing to have a trained foreman or representative present during the disturbance of regulated asbestos containing materials, (4) failing to maintain adequate containment of RACM, thereby causing and allowing the release of asbestos fibers into the environment, and (5) failing to deposit all asbestos-containing waste material within a site permitted to accept such waste as soon as practicable.

Under the terms of the settlement, the owners do not affirmatively admit the alleged violations but agree to pay, jointly and severally, a civil penalty of $43,000.

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

Wednesday, June 23, 2010

Asian Carp Found Above Electric Barrier System

On June 23rd, the Asian Carp Regional Coordinating Committee announced that that one Bighead Asian carp was found in Lake Calumet along the Chicago Area Waterway System (CAWS).  This is the first physical specimen that has been found in the CAWS above the U.S. Army Corps of Engineer’s Electric Barrier System that was designed to keep Asian carp out of the Great Lakes.

The Bighead carp was found in Lake Calumet which sits between T. J. O’Brien Lock and Dam and Lake Michigan.  The find was made in the northwest corner of the lake near Harborside Golf Course, approximately six miles downstream of Lake Michigan by a commercial fisherman contracted by the Illinois Department of Natural Resources during routine sampling efforts in the area.  The fish was measured to be 34.6 inches long and weighed 19.6 pounds.
Despite this finding, the Army Corps of Engineers stated that it has no intention to close the shipping locks on Chicago's waterways.  The Corps is unlikely to change this intention, unless more Asian carp are found above the Electric Barrier System.

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

Tuesday, June 22, 2010

EPA Provides Additional Time to Obtain Training and Certifications to Comply with New Lead Rules

The U.S. Environmental Protection Agency recently issued enforcement guidance regarding its Lead Renovation, Repair and Painting Rule.  Under the rule, contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 must be certified and must follow specific work practices to prevent lead contamination. The rule was supposed to become effective in April 2010.

In the enforcement guidance, EPA announced additional time to allow contractors to comply with the training requirements of the new rule:

--Until October 1, 2010, EPA will not take enforcement action for violations of the rule's firm certification requirement.

--For violations of the rule's renovation worker certification requirement, EPA will not enforce against individual renovation workers if the person has applied to enroll in, or has enrolled in, by not later than September 30, 2010, a certified renovator class to train contractors in practices necessary for compliance with the rule. Renovators must complete the training by December 31, 2010.

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

Monday, June 21, 2010

Illinois Legislature Passes Bill to Fight VOC Contamination in Community Water Systems

The Illinois General Assembly recently enacted and sent to Governor Quinn Senate Bill 3070, which amends the Illinois Environmental Protection Act to prevent carcinogenic volatile organic compounds from exceeding their maximum contaminant levels in the finished water of community water systems by requiring owners and operators of community water systems to take appropriate action when carcinogenic volatile organic compounds are detected in finished water.

If a carcinogenic volatile organic compound is detected in the finished water of a community water system at a certain level (equal to or more than 50% of the maximum contaminant level), and the Illinois Environmental Protection Agency issues a notice based on the presence of the carcinogenic volatile organic compound, then the owner or operator of that system must submit a response plan that meets certain requirements to the Illinois EPA.  The response plan must be designed to (i) prevent an exceedence of the maximum contaminant level in the finished water and (ii) reduce the concentration of the carcinogenic volatile organic compound so that it does not exceed the applicable method detection limit in the finished water.  The response plan must also include periodic sampling designed to measure and verify the effectiveness of the response plan.

When approving, modifying, or denying a plan, the Illinois EPA must take into account the technical feasibility and economic reasonableness of the plan and any modification to the plan.  The bill makes it a violation of the Environmental Protection Act for a person who is required to do so to fail (i) to submit a response plan, (ii) to implement a response plan, or (iii) to submit certain reports.

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

Sunday, June 20, 2010

Environmental Register for May 2010

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

The Environmental Register features a letter from Chairman Girard, a rulemaking update, a summary of actions of the Board, information about a provisional variance, the Board's calendar, and Class III Groundwater Final Listing Notices.

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

Friday, June 18, 2010

Contamination Claims Against Dry Cleaner Allowed to Proceed in Federal Court

The U.S. District Court for the Northern District of Illinois recently issued an opinion in Tinaglia Family L.P. v. North Shore Cleaners, Inc., No. 09 C 6031, which concerned the Plaintiff's commercial and residential property in Glencoe, Illinois.  The Plaintiff's property is adjacent to property owned by the Defendants, who operate a dry cleaning establishment on site.

According to the complaint, there has been and continues to be a release of hazardous substances on the dry cleaning property and that the hazardous substances have migrated to adjacent properties including the Plaintiff's property.  In 2002, Defendants allegedly hired an environmental consultant to investigate a possible contamination problem.  The Plaintiff allegedly signed an agreement providing consent for Defendants’ consultant to test the Plaintiff's property.  Pursuant to that agreement, Defendants were also required to provide Plaintiff with the results of all tests.  According to Plaintiff, Defendants falsely reported to the Plaintiff both orally and in writing that there was no contamination on the Plaintiff's property.  The Plaintiff allegedly believed the representations, relied on them, and took no further action to investigate the issue.  In February 2008, the Plaintiff allegedly attempted to sell its property, and as part of the sale, the lender required an environmental assessment.  The assessment allegedly showed that the Plaintiff's property was contaminated by the hazardous substances that had migrated from the dry cleaning property.

The Defendants moved to dismiss the complaint, which was based on the Comprehensive Environmental Response, Compensation, and Liability Act (more commonly known as Superfund), the Resource Conservation and Recovery Act, negligence, trespass, private nuisance, breach of contract, intentional misrepresentation, and negligent misrepresentation.  The Court denied the motion to dismiss and ruled that the Plaintiff had alleged enough facts in the complaint to proceed with its claims.
There have been several instances where claims have been made against dry cleaners for contamination, because of the use of hazardous chemicals, including perchloroethylene (perc), by those establishments.  As dry cleaners become "greener" and use less hazardous chemicals, we expect less claims to be made against those establishments.

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

Tuesday, June 8, 2010

Illinois Legislature Passes Bills To Encourage Solar Energy Use

The Illinois General Assembly recently passed two bills, now awaiting signature by Governor Quinn, that encourage the use of solar energy in Illinois:

HB6202 amends the Illinois Power Agency Act to provide annual targets to move towards the 6% solar requirement in the State's renewable portfolio standard, which was signed into law in 2007 and required that utilities in Illinois produce a certain percentage of their power from renewable sources, starting with 2% in 2008 and increasing to 25% by 2025.  Prior to HB6202, the 6% solar requirement came into effect in 2015.  The new law will require that utilities begin meeting their solar goals on an earlier schedule: 0.5% by June 1, 2012; 1.5% 12 by June 1, 2013; 3% by June 1, 2014; and 6% by June 1, 2015 and thereafter.

HB5429 creates the Homeowners' Solar Rights Act, which prohibits adoption of a bylaw or exercise of any power by a homeowners' association, common interest community association, or condominium unit owners' association that prohibits or has the effect of prohibiting the installation of a solar energy system.  A "solar energy system" is defined as "(1) a complete assembly, structure, or design of solar collector, or a solar storage mechanism, which uses solar energy for generating electricity or for heating or cooling gases, solids, liquids, or other materials; and (2) the design, materials, or elements of a system and its maintenance, operation, and labor components, and the necessary components, if any, of supplemental conventional energy systems designed or constructed to interface with a solar energy system."

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

8/21/10 UPDATE: Governor Quinn signed the bills into law on August 17, 2010.  For more information, click here.

Monday, June 7, 2010

100,000 Pounds of Fish Collected, But No Asian Carp Found in Latest Fishkill Operation

The Illinois Department of Natural Resources recently reported that its latest fishkill operation did not turn up any Asian carp.  This is part of the research operation to prevent the carp from entering the Great Lakes.

Biologists applied "the fish toxicant Rotenone to a more than two-mile stretch of the waterway at T.J. O’Brien Lock and Dam as a part of ongoing Asian carp sampling efforts by the Asian Carp Regional Coordinating Committee (RCC).  The length and location of the application and fish removal area was chosen to maximize the opportunity to capture Asian carp by including a variety of habitats along a substantial length of river channel that has had a high frequency of positive eDNA detections.  In addition to the Rotenone action, simultaneous electrofishing and commercial netting will take place between the downstream block net and Acme Bend."

The results: "[O]ver 100,000 pounds of fish [were collected] during the week-long operation.  Over 40 species of fish were collected, though no Bighead or Silver Asian carp were found." 

A similar operation was conducted in December 2009.  That effort "yielded one Bighead carp caught just above the Lockport Lock and Powerhouse approximately six miles downstream of the electric barrier.  No Asian carp have been found above the electric barrier to date."

Please click here and here for the full IDNR press releases concerning the latest round of sampling.

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

Friday, June 4, 2010

U.S. EPA Cites Developer for Alleged Stormwater Violations

U.S. EPA Region 5 recently issued a complaint and final order against Sharp Homes-Hunter’s Ridge Development and Charles D. Sharp for failure to comply with federal stormwater rules.  EPA alleges that the defendant (a Joliet, Illinois company) failed to prevent or minimize discharges, initiate stabilization measures, conduct inspections and maintain proper records. 

According to EPA, "construction on more than five acres of land being developed for homes allegedly caused discharges of storm water through sewers, surface runoff and discharge pipes to Aux Sable Creek, a tributary to the Illinois River.  Procedures for erosion control, as required by a National Pollutant Discharge Elimination System, were not followed."

A penalty of $15,000 has been assessed.

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

Wednesday, June 2, 2010

Settlement of State Enforcement Action Alleging Asbestos-Related Violations

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Schultz, PCB 09-74, which concerned the defendant's property located at 400 N. Ninth Street, Springfield, Sangamon County, Illinois.  The property is a commercial building (Building T), formerly a part of St. John’s Hospital of the Sisters of the Third Order of St. Francis.

The State alleged that the defendant violated the Illinois Environmental Protection Act and environmental regulations by not providing timely advance notification of renovation; failing to properly wet, collect, and deposit “regulated asbestos-containing material” (RACM); improperly disposing of RACM; and by failing to have a person properly trained in NESHAPs requirements present during the renovation activities.

According to the terms of the settlement, the defendant admits the alleged violations and agrees to pay a civil penalty of $7,000.00.

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