Wednesday, December 29, 2010

State Enforcement Action Alleging Water Pollution Violations At Industrial Park Partially Settled

The Illinois Pollution Control Board recently accepted a stipulation and proposed settlement in People v. Freeport Area Economic Development Foundation, Case No. PCB 10-89, which concerned
a site known as "Mill Race Industrial Park," a 145-acre property located east of Springfield Road, north of Hiveley Road, and south of Business 20, in Freeport, Stephenson County, Illinois.  This settlement only concerned one of the defendants, the Freeport Area Economic Development Foundation ("FAEDF").

The State alleged that the defendants violated the Illinois Environmental Protection Act by (1) failing to maintain storm water controls at the site, thus causing or allowing contaminants to discharge into a water of the State, causing water pollution (count I), (2) allowing discharges containing color and turbidity of other than natural origin and causing bottom deposits in Silver Creek (count II), and (3) depositing sediment onto the land in such a place and manner so as to create a water pollution hazard (count III).  The State also alleges that FAEDF alone failed to implement provisions of its storm water pollution prevention plan and allowing contaminants to discharge into Silver Creek (count IV).

Under the terms of the settlement, FAEDF admits the alleged violations and agrees to pay a civil penalty of $546.

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

Tuesday, December 28, 2010

Illinois Pollution Control Board Dismisses Case Against Cement Mixing Facility As Frivolous

The Illinois Pollution Control Board recently issued an opinion dismissing as frivolous the case of Gregory v. Regional Ready Mix, LLC, Case No. PCB 10-106, which concerned alleged air and noise emissions from Defendant's cement mixing facility located at 415 River Road, Rochelle, Ogle County, Illinois.

Plaintiff attempted to allege that cement dust and noise from Defendant's facility affected Plaintiff's property and health.  However, the Pollution Control Board found that Plaintiff's complaint was frivolous because it failed to state a cause of action upon which the Board can grant relief:

"The Board once again points out that, for a claim to exist under Section 24 of the Act, Gregory must indicate specific violations of the Board’s regulations or standards, located under Title 35 of the Illinois Administrative Code.  Gregory indicates in her complaint that Regional is causing air (35 ILCS Subtitle B) and noise (35 ILCS Subtitle H) pollution but does not indicate which provisions under these subtitles are being violated.  As noted in the Board’s previous order, a complaint 'shall specify the provision of the Act or the rule or regulation . . . under which such person is said to be in violation . . ..' 415 ILCS 5/31(c) (2008); see also 35 Ill. Adm. Code § 103.204(c)(1).  It is not enough that Gregory cited to entire subtitles under the Act.  Rather, Gregory must indicated specific provisions under these subtitles that have been violated. Gregory has not done so and Regional should not be expected to prepare a defense of these subtitles in their entirety.  Gregory’s only other citation is to Section 23 of the Act (415 ILCS 5/23) which is a legislative declaration and is not properly the subject of an enforcement action (415 ILCS 5/39.2 (2008)).

"The Board again notes that Gregory claims Regional has violated Section 25b-2 of the Act (415 ILCS 5/25b-2 (2008)) but again does not allege any facts related to the alleged violation of this provision.  The Board finds this claim frivolous and not meeting the content requirements of the Board’s procedural rules."

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

Federal Court Rules That Public Water Suppliers Have Standing To Sue Herbicide Manufacturer

The U.S. District Court for the Southern District of Illinois recently resolved a motion to dismiss in City of Greenville v. Syngenta Crop Protection, Inc., Case No. 10-cv-188, which is an action filed by providers of water to the public against a manufacturer of atrazine, a herbicide used by farmers, and the manufacturer's parent company.

Plaintiffs are obligated under the Safe Drinking Water Act to test the finished water (i.e., the water after Plaintiffs have processed it from their raw water) they provide to the public to ensure it does not contain contaminants in concentrations that exceed maximum contaminant levels (“MCLs”) set by the United States Environmental Protection Agency.  Plaintiffs alleged that Defendants manufactured atrazine and sold it to farmers knowing it had great potential to run off of crop land and into bodies of water, including the bodies of water from which water providers like Plaintiffs draw their raw water.  Plaintiffs seek to hold Defendants liable for the costs they have incurred to test and monitor levels of atrazine and to remove it from their raw water.  They also seek to recover the costs that will be required for each Plaintiff to construct, install, operate, and maintain a system to filter atrazine from its raw water in the future, and to collect punitive damages.

Defendants filed a motion to dismiss.  Part of the motion asserted that Plaintiffs do not have standing to sue, because Plaintiffs have not alleged that their raw water sources or the finished water they provide to the public contain atrazine above the MCL.  The Court held that Plaintiffs do have standing to sue:

"Clearly, if a contaminant manufacturer creates a need (not just a desire) to monitor or remediate raw water for the particular contaminant that it would not otherwise monitor or remediate in order to satisfy its duty to the public, it has made more difficult and more costly the job of the water supplier to use the water to meet its statutory obligation to provide clean water.  Thus, the public water provider has suffered a specific and concrete injury to its protected interests because of the manufacturer’s actions.  It is illogical to state that because a public water supplier successfully removes a contaminant from raw water and delivers potable water to the public, the supplier’s excess costs – no matter how large – caused by a product manufacturer’s indiscriminate disregard for the impact of its product on raw water sources cannot be an injury in fact. . . .  Furthermore, it seems an extremely bad rule to require a public water supplier to provide overly contaminated water to the public before it can seek redress from one responsible for the contamination.  Thus, the Court agrees . . . that a water provider may demonstrate an injury in fact even if its finished water does not exceed an MCL if its use of the water to meet its statutory obligations to the public becomes more costly because of a defendant’s conduct."

The Court concluded that the "allegations that the presence of [Defendants'] atrazine in their water sources has forced them to incur additional expenses in order to provide potable water to the public is sufficient to establish an injury in fact and to demonstrate -- at the motion to dismiss stage, at least -- that they have standing to sue."

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

Sunday, December 26, 2010

Agrichemical Company Pleads Guilty to Criminal Violations of Clean Water Act

The Illinois Environmental Protection Agency recently announced that Effingham-Clay Service Company, Inc., an Effingham-based agrichemical company, pled guilty in the Circuit Court of Clay County to two counts of “Negligent Unpermitted Point Source Discharge,” which are violations of the Illinois Environmental Protection Act: 

"The charges stem from a December 9, 2008, incident involving Jerry D. Troyer, an employee of Effingham-Clay Service Company, Inc., allegedly transporting a 1,000 gallon tank containing pesticide contaminated wastewater from Effingham-Clay Service’s Louisville, Illinois, facility to two different remote rural Clay County locations and opening a release valve, discharging contaminated wastewater into roadside ditches.  A citizen complaint led to an investigation by Illinois EPA’s Emergency Response Unit and the Illinois Department of Agriculture.

"Following an Illinois State Police investigation, a Clay County Grand Jury returned a six count Indictment against Troyer, charging him with two counts of knowingly discharging a contaminant to waters of the State without a National Pollutant Discharge Elimination System (NPDES) permit (Class 4 felonies), two counts of water pollution, and two counts of criminal disposal of waste (Class A misdemeanors).  The charges to which the company pled guilty are Class A misdemeanors and were based on their having negligently supervised Troyer, thus enabling him to commit the alleged violations.  Troyer’s charges remain pending and his jury trial is scheduled to begin on March 14, 2011.  An Indictment is a way in which a criminal charge is filed; all persons are presumed innocent until proven guilty.

"As a result of its guilty plea, the Company was sentenced to 12 months conditional discharge and ordered to pay of fine of $20,000 ($10,000 per count), plus court costs.  In addition, the company is required to provide enhanced safety and environmental training for all company employees who manage or handle agrichemicals.  It must also designate an individual at each facility responsible for ensuring compliance with all environmental and agricultural laws, regulations and permit conditions and to report and address any violations.

"The Company must also amend its agrichemical containment and disposal policy to include proper management of any liquid waste generated during cleaning and washing of agrichemical processing and application equipment, and create and maintain a daily written log at each facility of the volume and nature of all agrichemical liquid waste generated, contained, stored on site, and removed off site.  This log must be available upon request and subject to inspection by the Illinois EPA and Illinois Department of Agriculture.

"In a companion matter, the State brought a separate proceeding seeking forfeiture from the company of an amount of money equal to the value of all economic benefit incurred as a direct or indirect result of the violations, as well as the value of any vehicle or conveyance used in perpetration thereof.  Without admitting liability the forfeiture claim was settled by the company for $180,000.00, which amount was divided between the Illinois State Police, the Clay County State’s Attorney and the Illinois EPA Hazardous Waste Fund. Illinois EPA attorney Dan Merriman acted as Court-appointed Special Prosecutor in the case."

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

Tuesday, December 21, 2010

City of Chicago to Pay $220,380 to Settle Superfund Claims by EPA for 76th & Albany Site

The U.S. Environmental Protection Agency recently announced in a Federal Register notice that it entered into an administrative agreement with the City of Chicago concerning the 76th & Albany hazardous waste site in Chicago, Illinois.

According to this presentation from the City, the site (now known as the Gateway Park Industrial Complex) "had been the home of a drive-in theater and a flea market after the mid-1900s.  From 1980 to the mid-1990s, 600,000 cubic yards of concrete, asphalt, construction and demolition debris, soil, rubbish, and hazardous automobile shredder residue found their way into the site to form what was considered an environmental disaster."  The Greater Southwest Development Corporation and the City "dedicated themselves to finding a private partner for the redevelopment of the site.  Gateway Park, LLC, a partnership between Martha Williams of StyleMaster and other investors, together with local and federal agencies, transformed the site into a dynamic industrial park."

Under the proposed agreement, the City will pay $220,380 to EPA to resolve EPA’s claims against it for response costs incurred by EPA for investigating and performing response actions to mitigate potential imminent and substantial endangerments to human health or the environment presented or threatened by hazardous substances present at the Site.

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

Wednesday, December 15, 2010

Illinois Pollution Control Board Reminds Practitioners of Time Limits for Motions to Dismiss

The Illinois Pollution Control Board recently ordered stricken a motion to dismiss in United City of Yorkville v. Hamman Farms, Case No. PCB 08-96, which is a citizen's enforcement action concerning the defendant's farmland in Kendall County, Illinois.  The plaintiff's complaint alleged open dumping violations, landscape waste violations, air pollution violations, and water pollution violations.

The defendant filed a motion to dismiss certain counts of the amended complaint, and the plaintiff moved to strike the motion to dismiss on the basis that the motion to dismiss was untimely.  The Board agreed that the motion should be stricken because the motion to dismiss failed to comply with the 30-day deadline of the Board's procedural rules for filing motions to dismiss.  Under the Board's procedural rules, a motion to dismiss must be filed within 30 days after service unless material prejudice would result; in contrast, any answer to a complaint is not due until 60 days after service.

This opinion should be a reminder to all practitioners to check the procedural rules of the Illinois Pollution Control Board, as they are different from the typical rules of state and federal courts.

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

Monday, December 13, 2010

Environmental Register for November 2010

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

Sunday, December 12, 2010

U.S. EPA Region 5 Releases Annual Enforcement and Compliance Results

The U.S. Environmental Protection Agency Region 5 recently released annual results from its enforcement and compliance efforts:
"Enforcement of environmental laws resulted in nearly $6 billion invested in pollution control and cleanup during fiscal year 2010 in Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin.  The largest cases are three Midwest oil spills -- Enbridge Energy Partners for spills in Marshall, Mich. and Romeoville, Ill., and BP Products North America Inc. for a spill in Whiting, Ind. Judgements against Cincinnati and Hamilton County required them to spend $1.79 billion to reduce untreated combined sewer and sanitary sewer overflows.

"In addition, Region 5's enforcement efforts will cause more than $1.8 million to be spent for supplemental projects benefiting communities and populations that could be disproportionately affected by the violation of environmental laws.

"During FY10, more than 16.9 million pounds of pollution were reduced, treated or eliminated in Region 5.  There were 1,415 violations reported with a resulting 2,750 pounds of hazardous wastes, 161 lab packs and 10 pounds of radioactive waste removed and disposed of.

"In FY 2010, Region 5 successfully negotiated and finalized decisions on 11 disclosures submitted by participants in the Region's Audit Agreement with Colleges and Universities.  Approximately 1415 violations were disclosed and have been corrected, resulting in the removal and disposal approximately 2750 pounds of hazardous wastes, 161 lab packs and 10 pounds of radioactive wastes."

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

Saturday, December 11, 2010

Federal Court Denies Motion to Immediately Close Locks to Prevent Infiltration of Asian Carp

The U.S. District Court for the Northern District of Illinois recently denied a motion for preliminary injunction in Michigan v. U.S. Army Corps of Engineers, Case No. 10-cv-04457, which is a case brought by five States to prevent the infiltration of Asian carp into the Great Lakes.  The plaintiffs' motion for preliminary injunction included a request to "temporarily clos[e] and ceas[e] operation of the locks at the O’Brien Lock and Dam and the Chicago River Controlling Works except as needed to protect public health and safety."

In a nutshell, the Court held that "Plaintiffs have not met the high burden necessary to obtain a mandatory preliminary injunction.  In the face of multi-agency efforts to prevent Asian carp migration – efforts that have only increased and expanded in the months since this lawsuit was filed – Plaintiffs have not shown either a sufficient likelihood of success on the merits of their substantive claims or a sufficient prospect of irreparable harm absent the requested injunction."

Specifically, the Court held that plaintiffs have "a minimal chance of success on the merits" of their Administrative Procedure Act claims: "[T]the evidence does not support the view that the Corps’ actions were wrong at all, much less arbitrary and capricious.  In fact, there is no evidence that Asian carp have entered Lake Michigan through the [Chicago Area Waterway System], that the barrier system has not operated with reasonable effectiveness, or that the operation of the O’Brien Lock has adversely affected Plaintiff’s interests."  The Court also held that plaintiffs have "a very modest likelihood of success" on their public nuisance claim, given that "the current evidence shows that (1) only one Asian carp has been discovered above the barrier; (2) at most, crediting the eDNA testing, only a small number of individual Asian carp exist above the electric barrier; (3) there is no basis for concluding that the electric barrier has been breached at all, much less in any significant way; (4) the closest known population of Asian carp in any significant numbers is in either the Brandon Road pool (south of Joliet), or more likely, in the Dresden Island pool (near Morris, many miles below the barrier); (5) the best estimate of the location of any juvenile (or 'young of year') Asian carp is even further downstream in the Marseilles area; and (6) the potential for the establishment of a self-sustaining population in the CAWS above the electric barrier or in Lake Michigan remains an unknown."

In considering whether plaintiffs have proven irreparable harm, the Court discounted the testimony of plaintiffs' expert: "[T]he centerpiece of Plaintiffs’ claim of irreparable harm is Dr. Lodge’s testimony based on the positive eDNA results that he reported above the electric barrier, along with the discovery of a single live fish in Lake Calumet and one dead fish found (below the barrier) in the December 2009 rotenone event.  Yet the eDNA results and those few fish, amongst the hundreds of thousands of pounds of fish collected, do not establish the requisite likelihood of imminent or irreparable harm.  Nor does the state of the eDNA science permit a reasonable inference that live Asian carp are in the canal system above the barrier in numbers that present an imminent threat.  Negative eDNA results comprise a super-majority of the results when compared to the number of samples taken."

Finally, the Court held that plaintiffs did not carry their burden of showing that the balance of the harms weighed in their favor.  In fact, the Court held that the balance of the harms actually weighed in the favor of the defendants: "Indeed, based on the evidence of record, the harms associated with the potential for increased flooding and sanitary issues and the economic hardships associated with the requested relief outweigh the more remote harm associated with the possibility that Asian carp will breach the electronic barriers in significant numbers, swim through the sluice gates and locks, and establish a sustainable population in Lake Michigan."

Note that this is not the end of the case.  Instead, the Court denied plaintiff's motion for preliminary injunction, which is a request for temporary relief before discovery and a trial on the merits occur.  However, considering the Court's conclusions regarding the plaintiffs' expert witness, this is a big blow to the plaintiffs' case.

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

Wednesday, December 8, 2010

You're Invited: 12/15 Seminar on Insurance Coverage Issues in Toxic Tort Litigation

As co-chair of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, I invite you to our next meeting on December 15, 2010 at 12:15 pm at the Chicago Bar Association, 321 South Plymouth Court, or via webcast.

Our meeting will be held jointly with the YLS Tort Litigation Committee and will feature Sara Brundage from Pretzel & Stouffer.  Sara concentrates in civil defense litigation, insurance coverage and appeals.  She has significant experience with declaratory judgment actions that involve commercial general liability policies, as well as homeowners, automobile and lawyer’s professional liability insurance.

Sara will be discussing insurance coverage issues in toxic tort litigation.  In particular, she will discuss her involvement with insurance coverage issues resulting from groundwater contamination recently faced by the Village of Crestwood.

We are very pleased to have Sara as our speaker.  We invite attorneys of all ages, law students, and others to attend this informative and timely presentation.