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


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!

Tuesday, August 17, 2010

Settlement of State Enforcement Action Alleging Clean Construction & Demolition Debris Violations

The Illinois Pollution Control Board recently accepted the parties' settlement in People v. Stark Excavating Inc., Case No. PCB 09-65, which concerned the defendant's construction and demolition debris disposal site located immediately north of Interstate 74 in Section 5 of Downs Township, McLean County, Illinois.

The State alleged that the defendant violated the Illinois Environmental Protection Act by (1) allowing for the accumulation and use of clean construction and demolition debris on the site without following the requisite inspection and record-keeping practices, and (2) failing to inspect incoming loads of clean construction and demolition debris with a photo ionization detector device.

Under the terms of the settlement, the defendant admitted the alleged violations and performed a supplemental environmental project ("SEP") with a settlement value of $11,133.70, which the State agreed to accept in lieu of a civil penalty payment. The SEP consisted of the defendant providing material, labor, and equipment to demolish two dilapidated structures at 4000 North Peoria Road in Springfield, Sangamon County for the Illinois State Police Heritage Foundation, as well as the defendant paying to remove and dispose of the demolition debris.

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

Monday, August 16, 2010

Environmental Register for July 2010

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

The Environmental Register features a letter from Chairman Girard, 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.  The Environmental Register also contains listings of adjusted standards and combined sewer overflow exceptions granted by the Board during fiscal year 2010.  "Restricted Status" and "Critical Review" lists of public water supplies, sewers, or lift stations in the State are also included in the publication.

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

Sunday, August 15, 2010

$15,000 Settlement of State Enforcement Action by Operator of Liquid Agricultural-Chemical Facility

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Thermogas Co., Case No. PCB 10-10, which concerned a liquid agricultural-chemical facility located approximately two miles south of McLeansboro, Hamilton County.

The State alleged that the defendant violated the Illinois Environmental Protection Act by failing to control the agrichemicals handled at the facility and thereby causing or threatening water pollution and causing or allowing groundwater quality exceedences.  Under the terms of the settlement, the defendant denies the alleged violations but agrees to pay a civil penalty of $15,000.  The settlement further provides that the facility is the property of Ferrellgas, L.P., a signatory to the settlement, and that Ferrellgas must “obtain a deed restriction on the former facility property prohibiting withdrawal of the groundwater for potable use within the area where concentrations of agrichemicals exceed the Class I Groundwater Standards.”

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

Saturday, August 14, 2010

Proposed Superfund Consent Decree Calls for $3.6 Million Payment for Past and Future Response Costs

On August 16, 2010, the U.S. Department of Justice provided notice in the Federal Register that a proposed consent decree was filed in United States v. Central Rubber Co., Case No. 3:10-cv-50193 (Northern District of Illinois), which is a Superfund lawsuit filed by the federal government to recover response costs incurred or to be incurred by the United States as a result of releases and threatened releases of hazardous substances from the manufacturing facilities owned or operated by Central Rubber Company, Woodhead Industries, Inc., Textron, Inc., Camcar LLC, and Johns Manville.  The facilities are located at the Parsons Casket Hardware Superfund Site, in Belvidere, Boone County, Illinois.

Under the proposed consent decree, the Settling Defendants will pay $3.6 million to the United States in reimbursement of past and future response costs.  The decree will also require "Owner Settling Defendants" (those defendants who own real property within the Superfund Site), to provide access to their properties to the U.S. Environmental Protection Agency, which will be performing the remedial action at the site, to cooperate with U.S. EPA in its performance of the remedy, and to prepare and record Environmental Restrictive Covenants which grant certain Proprietary Controls to the State of Illinois and U.S. EPA to facilitate performance of the remedial action.

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

Wednesday, August 11, 2010

FutureGen Project Back on the Table

The federal government has revised plans for the FutureGen program once again.  FutureGen was once imagined as a new, futuristic power plant that would utilize state-of-the-art Integrated Gasification Combined Cycle technology that would capture and store carbon dioxide underground (commonly known as carbon sequestration).  The power plant was supposed to be built in Mattoon, Illinois.

Now, according to a recent article in the Chicago Tribune, a new power plant will not be built.  Instead, "an idle coal-fired power plant in Meredosia owned by Ameren Corp. will be retrofitted with advanced technology to dramatically cut emissions of carbon dioxide and other pollutants. . . . A first-of-its-kind carbon-dioxide transportation pipeline will be built from the Meredosia facility to Mattoon for sequestration. The communities are 150 miles apart."  The article states that $1 billion in stimulus money will be used to help finance the project.

This sounds like a good compromise that should result in less money being spent, but, at the same time, allow the use of this cutting-edge technology.  This should be a "win-win" for the people of the State of Illinois.

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

Tuesday, August 3, 2010

Residential Property Owners Settle Alleged Water Pollution Violations for $5,500

The Illinois Pollution Control Board recently accepted the settlement in People v. Fairfield, Case No. PCB 10-105, which concerned the defendants' residential property located at 1990 Lake Jacksonville Road in Jacksonville, Morgan County, Illinois.

The State alleged that the defendants violated the Illinois Environmental Protection Act by by causing, allowing, or threatening to cause water pollution and by violating a water quality standard.  Specifically, the State alleges that the defendants deposited a contaminant upon the land in such a place and manner as to create a water pollution hazard, and violated a water quality standard by causing, allowing, or threatening to allow offensive conditions in an unnamed tributary of Sandy Creek.  The State further alleged that the defendants caused, threatened, or allowed the discharge of a contaminant into a water of the State without a National Pollutant Discharge Elimination System permit.

Under the terms of the settlement, the defendants admit the alleged violations and agree to pay a civil penalty of $5,500.

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

Monday, August 2, 2010

Aluminum Products Manufacturer Fined $716,440 for Air Pollution Violations

The Illinois Pollution Control Board recently issued an opinion in People v. Toyal, Inc., Case No. PCB 00-211, which concerned the defendant's operation of an aluminum products manufacturing facility located at 17401 South Broadway, Lockport, Will County, Illinois.  The State's complaint related to the defendant's alleged failure to control emissions of volatile organic materials ("VOM") in violation of the Illinois Environmental Protection Act and environmental regulations.  Count I of the complaint alleged that the defendant failed, as required, to achieve VOM reductions of at least 81% no later than March 15, 1995.  Count II alleges that, by failing to control sources accordingly to industry standards, Toyal caused, allowed, or threatened air pollution.

There was no dispute that the defendant was out of compliance with VOM control standards from March 15, 1995 to April 30, 2003.  There was also no dispute that the defendant has been in compliance since April 30, 2003.  The dispute between the parties was over the appropriate penalty.  The Board found that a penalty was appropriate based on several factors:

"In summary, the Board finds that the analysis of the Section 33 (c) factors warrants imposition of a remedy, including a penalty, for Toyal’s eight year period of non-compliance.  The character and degree of injury to the People’s health, safety, and welfare was great, and of long duration.  While Toyal certainly has social and economic value as a business and employer, that is undercut during the period of its emission of excess VOM emissions in a non-attainment area.  Likewise, the suitability of its location is slightly undercut during the period of non-compliance.  It was technically feasible and economically reasonable for Toyal to achieve compliance.  To the extent Toyal may have had unusual difficulties, it was free to seek regulatory relief but did not avail itself of the opportunity to do so.  The fact that Toyal has continued to be in compliance since 2003, following its eight year non-compliance period, definitely weighs in Toyal’s favor."

The Board imposed a $400,000 penalty plus $316,440 to recapture the economic benefit that the defendant received from noncompliance.  Thus, the total penalty was $716,440.

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