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.


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


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.