Tuesday, November 30, 2010

Illinois Pollution Control Board Orders Residential Developer to Pay $45,000 Penalty for Clean Water Act Violations

The Illinois Pollution Control Board recently granted the State's uncontested motion for summary judgment in People v. Moline Place Development, LLC, Case No. PCB 07-53, which concerned a
residential housing area called One Moline Place, located at 6th Street and 11th Avenue in Moline, Rock Island County, Illinois.

The State alleged that the defendant, which was developing a residential community, terminated coverage of a Clean Water Act permit for its stormwater discharges associated with construction site activities.  However, the defendant terminated coverage too early--before all disturbed soils had been finally stabilized, and before all stormwater discharges had been eliminated.

The State alleged that the defendant caused, allowed or threatened to cause water pollution by failing to provide adequate storm water pollution controls; failed to obtain coverage under the general National Pollutant Discharge Elimination System ("NPDES") storm water permit prior to commencing construction site activities; failed to prepare and implement an adequate Storm Water Pollution Prevention Plan ("SWPPP"); and submitted a Notice of Termination of permit coverage prior to final stabilization being achieved at the site.

After granting summary judgment, the Pollution Control Board held that the defendant must pay a $45,000 civil penalty.  The Board also ordered that the defendant "must properly implement the SWPPP in its NPDES permit, and comply with all other requirements of that permit.  When final site stabilization has been accomplished and all storm water discharges from construction activities have been eliminated, [defendant] must promptly submit a Notice of Termination to IEPA."  The Board also ordered that the defendant "must cease and desist from further violations of the [Illinois Environmental Protection] Act and the Board’s regulations."

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

Sunday, November 28, 2010

Printing Business Settles State Enforcement Action Alleging Air Emission Violations

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Avante, LLC, Case No. PCB 10-77, which concerned the defendant's lithographic printing business formerly located at 865 North Ellsworth Avenue in Villa Park, DuPage County, Illinois and subsequently located at 1228 West Capital Drive in Addison, DuPage County, Illinois.

The State alleged that the defendant violated the Illinois Environmental Protection Act by constructing and operating printing presses, which were emissions sources, without first obtaining the requisite permits from the Illinois Environmental Protection Agency ("IEPA"); by failing to submit the required certification to the IEPA, keep required records, and pay construction permit fees; by failing to submit Annual Emissions Reports (AERs) for 1992 through 2005 and for 2008 and to timely submit an AER for 2006; and by operating emissions sources without submitting an operating program to control fugitive particulate matter emissions.

Under the settlement, the defendant does not affirmatively admit the alleged violations, but it agrees to pay a civil penalty of $10,000, $800 of which represents avoided permit fees.

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

Friday, November 26, 2010

Federal District Rules Clean Water Act Claim Not Viable Against Village

The U.S. District Court for the Northern District of Illinois recently granted a motion to dismiss in Lobrow v. Village of Port Barrington, Case No. 10 C 3004, a case in which the plaintiff alleged that a subdivision was developed without required wetlands permits under Clean Water Act section 404.

Citing the Seventh Circuit’s decision in Froebel v. Meyer, 27 F.3d 928 (7th Cir. 2000), the district court ruled that the village defendant could not be held liable under Section 404, just because the village may have owned the property at the time of development.  Moreover, the court held that the village could not be held liable because it "conspired" with the developer to accomplish the Clean Water Act violation.

The court concluded that the plaintiff did not allege a viable claim under the Clean Water Act: "Because plaintiff has not alleged that the Village of Port Barrington discharged dredged or fill material into the Deer Grove wetlands, she has not stated a viable CWA claim against it."  The Court dismissed the claim without prejudice and granted plaintiff leave to file an amended complaint.

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

Thursday, November 25, 2010

Happy Thanksgiving!

Happy Thanksgiving to all of my readers in the United States!  Thanks to everyone who reads this blog and posts comments.  This blog would not exist and would not be so successful without you.  Take care and be safe!

All the best,

Dave Scriven-Young

Tuesday, November 23, 2010

State Health Department Recommends Testing of Private Wells Near Marquette Heights, IL

The Illinois Department of Public Health (IDPH) recently advised residents who obtain their drinking water from private wells in the Marquette Heights (Tazewell County) area to test their water for possible groundwater contamination.  Routine testing of Marquette Heights community water supply wells by the Illinois Environmental Protection Agency (IEPA) indicates contaminants could be present in the area’s private wells.

Specifically, the contaminant 1,1,1-trichloroethane (1,1,1-TCA) was detected at levels lower than the Illinois Groundwater Standard.  Although the contaminant’s level was lower than the standard, this is the same groundwater that serves private wells and it is possible the level of the contaminant may be higher in private wells.

Residents with private wells located within the area north of Elm Street, east of the Illinois Central Railroad, west of North McArthur Drive if extended to LaSalle Boulevard, and south of the LaSalle Boulevard/Illinois 29 intersection if extended to the Illinois Central Railroad, are encouraged 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, contact John Smet (john.smet@illinois.gov), Illinois Department of Public Health Peoria Regional Office, 5415 North University, Peoria, IL 61614, phone (309) 693-5360.

Despite releasing this information and encouraging well testing, IDPH stated that no violations of State of Illinois or federal drinking water standards have occurred in the Marquette Heights community water supply.

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

Monday, November 22, 2010

Federal Trial Court Holds That Agencies Properly Issued Permits For Oil Pipeline Expansion, Including Pipeline in Illinois

The U.S. District Court for the District of Minnesota recently granted summary judgment for the defendants in Sierra Club v. Clinton, Case No. 09-cv-02622, which concerned permits that federal agencies issued to Enbridge Energy for an oil pipeline expansion project, which includes pipeline in Illinois.  Here's how the Court described the project:

"This case involves the construction and operation of the [Alberta Clipper] AC and [Southern Lights Diluent] SLD Pipelines in the United States.  These pipelines are being constructed by Enbridge as part of a pipeline expansion project.  The AC Pipeline is an underground pipeline that extends from Hardisty, Alberta, Canada, to Superior, Wisconsin.  The AC Pipeline crosses the U.S.-Canada border near Neche, North Dakota.  In the United States, the AC Pipeline consists of approximately 326 miles of a 36-inch diameter pipeline extending from Neche, North Dakota,  across Minnesota, to Superior, Wisconsin.  At Superior, the AC Pipeline will connect with an existing mainline to Chicago, Illinois.  The AC Pipeline will transport heavy crude oil, or bitumen, extracted from tar sands in Canada.  The AC Pipeline project will have the capacity to transport approximately 450,000 barrels-per-day ('bpd') of crude oil.  The AC Pipeline will be installed primarily within or adjacent to an existing Enbridge pipeline corridor.

"The SLD Pipeline is a 20-inch diameter pipeline extending from Manhattan, Illinois, to Clearbrook, Minnesota.  At Clearbrook, it will connect with an existing Enbridge pipeline, Line 13.  Enbridge intends to reverse the flow of Line 13 to create a diluent delivery line to transport diluent from Illinois to Canadian oil sands producers.  Diluent is a light petroleum liquid used to facilitate the flow of heavy crude oil, which must be diluted in order to be transported through a pipeline.  The new segment of the SLD Pipeline that will run from Superior, Wisconsin, to Clearbrook, Minnesota, will also be 'installed primarily within or adjacent to the existing Enbridge pipeline corridor' and will be constructed at the same time as the AC Pipeline."

The Plaintiffs, nonprofit environmental organizations, claimed that the defendants, federal agencies and the heads of those agencies, violated the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act when they issued final Environmental Impact Statements ("EIS") and permits for the new projects.  The trial court denied the plaintiffs' motion for summary judgment but granted the defendants' motion for summary judgment, thereby ending the case.

Generally, NEPA requires federal agencies to prepare an EIS for major Federal actions significantly affecting the quality of the human environment.  The EIS must contain a "detailed statement" on the environmental impact of the proposed action, any avoidable adverse environmental effects of the proposed action, the resource commitments involved in the proposed action, and alternatives to the proposed action.  However, the standard is deferential to the agencies: "NEPA imposes procedural requirements, not substantive results, on agencies.  NEPA does not allow a court to substitute its judgment for that of an agency as to the environmental consequences of the agency's actions.  A court's review is to "insure that the agency has taken a 'hard look' at the environmental consequences."

In a detailed forty-one page opinion, the trial court ruled that the defendants did not violate NEPA and indeed did take a "hard look" at the environmental consequences of the new pipeline project.

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

Friday, November 19, 2010

Environmental Register for October 2010

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

The Environmental Register features a letter from Chairman Girard, which discusses the Board's "very active rulemaking docket."  The Environmental Register also contains a rulemaking update, a summary of actions of the Board, a summary of new cases, the Board's calendar, and the Division of Public Water Supplies' Restricted Status List of Public Water Supplies.

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

Tuesday, November 16, 2010

Environmental Trust Fund Established in GM Bankruptcy to Clean Up 89 Sites, Including Illinois Site

The Department of Justice recently published in the Federal Register a notice concerning a consent decree and settlement agreement to be lodged in the GM bankruptcy case, In re: Motors Liquidation Corp, et al., f/k/a General Motors Corp., et al., Jointly Administered Case No. 09–50026 (REG).  The settlement agreement resolves claims and causes of action of the Environmental Protection Agency under the Comprehensive Environmental Response, Compensation, and Liability Act and the Resource Conservation and Recovery Act with respect to 89 sites, including the GMPT—Danville Landfill Site in Illinois.

Under the terms of the settlement agreement, a environmental response trust will be set up in the amount of $499,434,945 to clean up these 89 sites.  An additional payment of $142 million will be made and certain personalty and title of 88 real properties will be transferred to the environmental response trust to fund administrative expenses.

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

Monday, November 15, 2010

Federal Clean Air Act Enforcement Action Results in Settlement

The U.S. Environmental Protection Agency recently announced that it settled an enforcement action against a Chicago company relating to alleged Clean Air Act violations:

"U.S. Environmental Protection Agency Region 5 has reached an agreement with Lakeside Lithography, 1600 S. Laflin St., Chicago on alleged Clean Air Act violations.

"The agreement, which includes a $4,123 penalty, requires Lakeside to install new equipment to reduce air pollution from the facility and keep its garage door closed when its coating line is operating to prevent emissions from affecting the surrounding area.

"In addition, the company has agreed to carry out two supplemental environmental projects designed to protect the environment and public health. Lakeside Lithography must spend $15,000 on a lead poisoning prevention and care abatement project in and around its facility in the Pilsen neighborhood. It will contract with and pay a local nonprofit organization experienced in lead abatement to conduct the work. It must also spend $40,000 to reduce greenhouse gas emissions in the neighborhood by adding controls to its natural gas burners. This change would reduce carbon dioxide emissions in this environmental justice community by 670,360 pounds per year."

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

Thursday, November 11, 2010

U.S. EPA Disapproves of NOX Revision to Illinois' State Implementation Plan

The U.S. Environmental Protection Agency recently published a rule in the Federal Register disapproving a revision of Illinois' State Implementation Plan (SIP) that governs the State's efforts to comply with the federal Clean Air Act.

The proposed revision provided for the determination and crediting of Nitrogen Oxides (NOX) emission reductions resulting from the voluntary application of NOX emission controls as NOX emission allowances that could be sold in a national NOX emission allowance trading system.

The U.S. EPA had the following general concerns regarding the proposed rule: (1) The rule would unacceptably grant NOX emission allowances for source closures; (2) the rule does not prevent crediting of facility-specific NOX emission reductions resulting from shifting of production and NOX emissions from one facility to another; (3) the rule establishes an emission baseline year (from which NOX emission allowances are earned through subsequent NOX emission reductions), 1995, that is too far in the past, prior to the State’s adoption of the rule and prior to the baseline year used for other sources involved in EPA’s NOX Budget Trading Program; (4) the rule unacceptably allows the use of 40 CFR part 60 emission monitoring requirements rather than 40 CFR part 75 monitoring requirements required of other sources involved in the NOX Budget Trading Program; and, (5) the rule contains other minor deficiencies.  Together, these problems led U.S. EPA to disapprove of the rule as a revision to the Illinois SIP.

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

Wednesday, November 10, 2010

Parties Settle State Enforcement Action Alleging Landfill Violations

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Swinson, Case No. PCB 10-8, which concerns defendant Don Swinson's vacant lot at 2000 Cunningham Road in Rockford, Winnebago County, Illinois, and the general construction or demolition debris (C&D) that co-defendant Champion Environmental Services allegedly transported there.

The State alleged that the defendants violated the Illinois Environmental Protection Act by causing or allowing the open dumping of waste without fulfilling the requirements of a sanitary landfill, which resulted in litter.  The State also alleged that the defendants disposed, treated, or stored C&D waste at the site without a permit from the Illinois Environmental Protection Agency.  The State alleged that Swinson failed to apply for and obtain permits from IEPA to develop and operate a new solid waste management site.  Lastly, the State alleged that Swinson failed to submit to the IEPA the necessary information prior to accepting C&D waste at the site.

Under the terms of the settlement, the defendants do not affirmatively admit the alleged violations, Champion agrees to pay a civil penalty of $2,500, and Swinson agrees to pay a civil penalty of $5,000.

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

Monday, November 8, 2010

EPA and NHTSA Announce Intent to Regulate Greenhouse Gas Emissions from Light-Duty Vehicles for Model Years 2017-2025

The U.S. Environmental Protection Agency and the National Highway Traffic Safety Administration recently published in the Federal Register a joint notice describing in broad terms their work on a National Program to improve fuel efficiency and to reduce greenhouse gas emissions of light-duty vehicles for model years 2017-2025.  The term "light-duty vehicles" includes passenger cars, light-duty trucks, and medium-duty passenger vehicles.  This Notice builds upon the agencies' prior notice earlier this year for fuel economy and greenhouse gas emissions standards for model years 2012-2016, reported on in this blog here.

The agencies "performed an initial assessment of potential stringencies with annual reductions in the range of 3 to 6% per year, or 47 to 62 mpg-equivalent in 2025, which demonstrates that substantial reductions in fuel consumption and GHGs can be achieved with the use of advanced technologies.  EPA and NHTSA emphasize that this is an initial assessment, and significant data and additional analysis will be done to support the future joint Federal rulemaking.  EPA and NHTSA will continue to meet with stakeholders and assess new technical information as we develop the new proposed program.  Over the next two months, EPA and NHTSA will work to update our analysis of potential standards for 2017–2025. EPA and NHTSA will work closely with [the California Air Resources Board] in developing and reviewing additional technical data and information as part of conducting this more refined joint analysis."

EPA and NHTSA expect to issue, by the end of November 2010, a Supplemental Notice of Intent that will
outline additional details regarding the design of a National Program, including a more refined analysis of potential scenarios for model years 2017–2025 standards for GHGs and fuel economy.  The agencies expect to issue a joint proposed rulemaking by September 30, 2011 and to issue a final rule by July 31, 2012.

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

Friday, November 5, 2010

You're Invited: Legal Risk in Green Building (November 15th)

As co-chair of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, I invite you to join us for our November meeting.  We are pleased to host Logan Hollobaugh, LEED AP, Ogletree Deakins, Patrick Miller, Baker & Daniels LLP, and Eric Berg who will be speaking about legal risks in green building.  The meeting is scheduled for November 15th at 12:15 pm at Jenner & Block LLP (353 N. Clark St. in Chicago).

The speakers will provide an introduction to green building, including an explanation of the U.S. Green Building Council’s LEED certification process.  They will also highlight emerging legal challenges to green construction as well as the top risks in green building projects.

We invite attorneys of all ages and law students to attend this exciting and informative presentation on an emerging area of law.  Lunch will be provided.

If you would like to attend, please RSVP to atorrence@jenner.com and bring a photo ID for building security.