Wednesday, May 4, 2011

The Illinois Environmental Law Blog Has Moved!

Thank you very much for visiting the Illinois Environmental Law Blog.  You can now find updated blog posts and all of the content from this site at http://www.illinoisenvironmentallaw.com/.

Friday, March 4, 2011

Live Tweeting from Great Lakes Environmental Law Symposium

This afternoon, I'll be attending and live tweeting from the Great Lakes Environmental Law Symposium.  You can follow me at http://twitter.com/ILEnviroLawBlog.

Thursday, February 24, 2011

Please Join Us For Today's CBA YLS Environmental Law Meeting

Please join us for today's free meeting hosted by the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, which will take place at 12:15 pm - 1:15 pm at the Chicago Bar Association.

Our meeting will feature Illinois Pollution Control Board Member Carrie Zalewski, who will be speaking about practicing law before the Illinois Pollution Control Board. Ms. Zalewski was appointed to the Illinois Pollution Control Board by Governor Pat Quinn in 2009. During this presentation, Ms. Zalewski will provide an introduction to the background and organization of the Illinois Pollution Control Board. Ms. Zalewski will also discuss the different types of cases heard by the Illinois Pollution Control Board and will provide some tips and additional resources available for the practitioner.

We invite attorneys of all ages, law students, and interested members of the public to attend this presentation.  I hope to see you there!

Tuesday, February 22, 2011

State Appellate Court Allows Construction of "Megadairy"

The Appellate Court of Illinois, Second District, recently issued an opinion in Helping Others Maintain Environmental Standards v. Bos, Case Nos. 2-09-1283 & 2-10-0162, which concerned the construction of a livestock management facility in Nora Township, Jo Daviess County, Illinois.  The "Tradition South" dairy would have 6,850 "animal units" in the form of dairy cows and calves and would use three livestock waste holding ponds, one with dimensions of 300 by 855 by 20 feet; the second 760 by 850 by 20 feet; and the third 400 by 400 by 20 feet.  Bos sought the Department of Agriculture's approval of the dairy pursuant to the Livestock Management Facilities Act.  The Department ruled that "it was more likely than not" that the Livestock Act's provisions had been met regarding the Tradition South facility, and it approved its construction.

Plaintiffs filed an action in State court, challenging the Department's ruling and seeking preliminary and permanent injunctions halting construction of the facility under theories of private nuisance, public nuisance, and trespass.  Although the trial court issued a preliminary injunction that initially halted construction, the court ruled, after a trial on the merits, that a permanent injunction should not be issued.  The court also ruled that Plaintiffs did not have standing to challenge the Department's ruling.

On appeal, the Appellate Court affirmed the ruling that Plaintiffs did not have standing to challenge the Department's ruling.  The Court found that the "right to review administrative decisions is limited to those who were both parties of record to the agency proceeding and aggrieved by the agency's decision."  Because Plaintiffs were not parties of record (although they did participate in a public informational meeting), Plaintiffs did not have standing to challenge the administrative decision of the Department.  The Court held that the Livestock Act allowed Plaintiffs to pursue claims against the owner of the facility but not against the Department.

The Appellate Court held that the Trial Court "acted within its discretion" in refusing to dissolve the preliminary injunction (and thus Bos was not entitled to damages as the result of an improperly entered preliminary injunction).  However, the Appellate Court affirmed the ruling that a permanent injunction should not have issued, accepting the Trial Court's evaluation of the parties' experts:

"In the end, the trial court was faced with testimony from credentialed, experienced experts who arrived at opposite conclusions as to whether there was evidence of karstified carbonate bedrock on the proposed dairy site.  As stated, it is the trier of fact's role to resolve conflicts in the evidence, assess witnesses' credibility, and determine the weight to be given to their testimony.  The record supports the trial court's finding that Bos's expert witnesses, unlike plaintiffs' expert witnesses, conducted more site-specific analysis in arriving at their conclusions that there was no evidence of karstified carbonate bedrock below the containment ponds.  Accordingly, we cannot say that the trial court's decision, that plaintiffs failed to show that there was a high probability of groundwater contamination and were not entitled to a permanent injunction on that basis, is against the manifest weight of the evidence."

At the end of the day, it appears that Plaintiffs, a citizens' group and individuals organized to oppose the facility's construction, could not muster (or pay for) sufficient expert testimony to defeat the owner's expert.  They also had no recourse against the administrative agency, which had authority to give the green light to the owner to build the facility.  This is a typical example of an environmental citizen lawsuit in action.  Usually, environmental statutes allow the agency to make a decision with citizen input, and then presume that the agency decision is correct, with limited ability by the citizens to challenge the decision after the fact.

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

Monday, February 21, 2011

Chicago Area Gets Major Investment In Electric-Vehicle Infrastructure

According to two stories in the Chicago Tribune (click here and here), $8.9 million will be invested in the Electric Vehicle Infrastructure Project, which promises 280 charging stations in the city and surrounding region by the end of 2011.  Here is how the project was described in the Tribune:

"San Diego-based 350Green LLC, the contractor that will install and manage the charging stations, said there will be 73 quick-charging stations and 207 Level 2 chargers. The 240-volt Level 2 type can add roughly 10 miles of range per hour to vehicles like the Chevrolet Volt, Nissan Leaf and Mitsubishi i-MiEV. The upcoming 2012 Ford Focus Electric is capable of adding 20 miles of range per hour at Level 2 but will not be equipped with a quick-charge port. Currently, quick-charge capability is limited to the Leaf and i-MiEV. . . .

"[Suzanne] Malec-McKenna [Commissioner, City of Chicago, Department of Environment] said roughly 50 quick-chargers and 170 Level 2 stations will be in the city proper, and the distribution extends more than 40 miles from the city center, encompassing 23 suburbs and multiple counties. Though all locations aren't finalized, they will include retail shopping centers, O'Hare and Midway airports and parking lots, as well as tollway oases. A map at the 2011 Chicago Auto Show announcement showed installations on Interstates 80, 90, 94 and 294."

The $8.9 million for this project comes from three sources--$6.9 million in private investments, $1 million from the Illinois Department of Commerce and Economic Opportunity, and $1 million of Clean Cities Grant funds from the federal American Recovery and Reinvestment Act.  As the Tribune articles indicate, however, there may be some growing pains here.  For example, the Ford Focus electric vehicles will not be able to plug into the quick-charging stations.  And, "as soon as Chicago's fast-charging stations are installed, they may be obsolete."

My opinion is that it is about time that investments are being made in these charging stations.  If we are going to realize the goal of getting away from gasoline-powered vehicles, in favor electric vehicles, then charging stations will need to be available.  This is just the first step in making that goal a reality.

What do you think: Is the State of Illinois and the City of Chicago doing the right thing here?  Please post your thoughts in the comments section.

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

Sunday, February 20, 2011

Illinois Pollution Control Board Dismisses Noise Pollution Case Against ComEd as Frivolous

The Illinois Pollution Control Board recently dismissed Chvalovsky v. Commonwealth Edison, Case No. PCB 10-13, which concerned alleged noise emissions from a transformer behind Plaintiff's house and transmission lines in the vicinity of Church Street and Laramie Avenue in Skokie, Cook County, Illinois. 

The Board held that Plaintiff's complaint failed to address the issue of when the alleged pollution began.  Moreover, Plaintiff's complaint alleges the violation of Section 24 of the Illinois Environmental Protection Act, which reads: "No person shall emit beyond the boundaries of his property any noise that unreasonably interferes with the enjoyment of life or with any lawful business or activity, so as to violate any regulation or standard adopted by the Board under this Act."  The Board found that Section 24 is not a stand-alone provision, although a violation of certain Board noise regulations could result in a violation of Section 24.  The Board held that Plaintiff's complaint does not allege the violation of any Board noise regulation or standard:

The complaint "does mention decibel level readings, but without any citation to the Board’s noise rules (numeric or nuisance), respondents cannot reasonably be expected to prepare a defense.  Because [Plaintiff] has not properly pled a violation of the Act or any Board noise regulation or standard, the Board finds that the complaint, as amended, still 'fails to state a cause of action upon which the Board can grant relief' and remains, by definition, 'frivolous.'  Accordingly, the Board cannot accept this matter for hearing."

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

Thursday, February 17, 2011

Asian Carp Bill Offered In the U.S. House of Representatives

Today, Representative Dave Camp (R-Michigan) offered an amendment to the House budget bill that would have closed locks to prevent infiltration of the Asian carp into the Great Lakes.
Four representatives from Illinois, including Judy Biggert, a Republican, and Danny Davis, a Democrat, all spoke to oppose the amendment.  The basic arguments against the amendment were three-fold: (1) closing the locks would be a job killer and hurt the economy, (2) closing the locks may not keep Asian carp out of the Great Lakes, and (3) other methods, such as the electric barriers, should be tried first before going to the extreme step of closing the locks.  Rep. Camp argued that there is no time to be patient--the locks should be closed immediately.

On a voice vote, the Asian carp amendment to the budget bill was rejected.  Although a recorded vote was requested, further proceedings were tabled under the House rules.

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

Tuesday, February 15, 2011

You're Invited: 2/24 CBA YLS Environmen​tal Law Committee Meeting with IL Pollution Control Board Member Carrie Zalewski

As Co-Chair of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, I invite you to our next meeting, which will take place on February 24th at 12:15 pm - 1:15 pm at the Chicago Bar Association.

Our meeting will feature Illinois Pollution Control Board Member Carrie Zalewski, who will be speaking about practicing law before the Illinois Pollution Control Board.  Ms. Zalewski was appointed to the Illinois Pollution Control Board by Governor Pat Quinn in 2009.  During this presentation, Ms. Zalewski will provide an introduction to the background and organization of the Illinois Pollution Control Board.  Ms. Zalewski will also discuss the different types of cases heard by the Illinois Pollution Control Board and will provide some tips and additional resources available for the practitioner. 

We invite attorneys of all ages, law students, and interested members of the public to attend this presentation.  For more information and to RSVP, please go to http://events.linkedin.com/CBA-YLS-Environmental-Committee-Meeting/pub/555010.

Monday, February 14, 2011

Environmental Register for January 2011

The Illinois Pollution Control Board has issued its Environmental Register publication for January 2011.

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, the Board's calendar, and lists of public water supplies that are under restricted status and under critical review.

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

Sunday, January 30, 2011

Court Rules That Landfill Cannot Prevent Water Authority From Commenting on Permit

The Illinois Appellate Court, Fourth District, recently issued an opinion affirming the denial of a preliminary injunction in Clinton Landfill, Inc. v. Mahomet Valley Water Authority, Case No. 4-10-0704, which concerned the plaintiff's attempt to get permits for a chemical-waste landfill.  Plaintiff filed a motion for a preliminary injunction against the defendant seeking sought to enjoin defendant from contesting or being involved in plaintiff's permitting process on the basis that defendant lacked the authority to do so.

The trial court denied the motion, and the appellate court affirmed: "The trial court did not err by denying plaintiff's motion for a preliminary injunction.  Plaintiff failed to raise a fair question (1) of the likelihood of success on the merits, (2) of a clearly ascertained right in need of protection, (3) of irreparable harm, or (4) that the balance of hardships favored plaintiff."  Specifically, the Court found that the defendant regulates and maintains the water supply, and, therefore, it has the power to express an opinion about activities that may affect the area's water supply.  The defendant's expert report noted that "domestic and municipal water supply wells that produce water from both the glacial sediments and Mahomet Aquifer establish that human[s] are potential receptors of contaminants released from the Clinton Landfill."  Therefore, the defendant has the ability to publicly comment on the plaintiff's proposed permit.

This is an interesting opinion because the plaintiff's theory is novel.  Should a potentially permittee be allowed to stifle public comment on the proposed permit through a lawsuit?  The Court, in a strongly worded opinion, said no.

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

Friday, January 28, 2011

Illinois Environmental News Update

Here's a look at what has been making news in the Illinois environmental community:

(1) Governor Pat Quinn announces 20-year agreements with wind and solar energy vendors to supply Ameren and ComEd with renewable electricity to provide to consumers throughout the state.  http://tinyurl.com/4quhbny

(2) The Illinois EPA refers to the Illinois Attorney General’s office an enforcement action regarding alleged improper removal, handling, and disposal of asbestos-containing material.  http://tinyurl.com/4lw4pj7

(3) The Illinois Department of Natural Resources approves allowing 10 Lake County communities to tap into Lake Michigan water.  http://tinyurl.com/4hsdk7n

(4) The Illinois EPA issues violation notices to a southern Illinois landfill for violations of the Illinois Environmental Protection Act that resulted in strong odors several miles away.  http://tinyurl.com/4cpn6ax

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

Thursday, January 27, 2011

Please Attend Today's Event Featuring Chief Legal Counsel of Illinois EPA

Please attend our YLS Environmental Law Committee's free event today at 12:15 pm at the Chicago Bar Association, featuring John Kim of the Illinois Environmental Protection Agency.  As Chief Legal Counsel, Mr. Kim oversees the IEPA’s enforcement cases and coordinates cases with the USEPA, the Illinois Attorney General, and local state’s attorneys.  Mr. Kim also provides legal interpretations on environmental issues to the IEPA and assists in the development of environmental legislation.

During his presentation, Mr. Kim will be discussing the structure of the IEPA, the IEPA’s enforcement policies, and the relationship the IEPA has with the USEPA.

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

Wednesday, January 26, 2011

Interview with Tim Gieseke, the Author of "EcoCommerce 101"

Last week, I had the pleasure of interviewing Tim Gieseke, author of the book EcoCommerce 101.  Mr. Gieseke is the founder of Ag Resource Strategies, LLC, a business that develops and implements on-farm environmental quality assurance programs.  Please check out the website for his book at http://www.ecocommerce101.com/.  Here is the transcript of my interview with Mr. Gieseke:

Scriven-Young: Please tell me about your background and what led you to write your book.

Gieseke: I have been in the natural resource business since the early 90’s finishing up my Masters Degree in Environmental Sciences and began farming shortly thereafter. I have been farming for about 15 years on a part-time basis in South Central Minnesota. Carrying that environmental background with me, and then along with the farming operation, I worked for a local government agency that provided technical assistance to aid crop or livestock producers to add conservation to their land in some manner. Throughout this process I never felt like the system in place was really getting at the outcomes. They weren’t really integrated with agriculture, they were kind of separate entities working on the same issues separately. It was the same experience when I moved on to federal farm policy work. So when I began my business in October of 2007, I used the tag line “unifying agriculture, economics and ecological goals” and was focused on how we pull them all together. As a producer, I understood the dynamics of agriculture production, and I also understood the demands that were being placed on agriculture. Many others were each developing a different system to somehow try to quantify, reward, and pay for ecological services. As a producer I knew that I needed to combine them and put them on one page.

Scriven-Young: In the preface to your book you talk about moral objectives and that basically people are morally interested in protecting the environment. But if they don’t have the proper economic signal, those moral objectives don’t always get pursued. How does your book try to give those economic signals?

Gieseke: I do believe that most people like to do the good thing. But I think, as we saw the climate changes issue emerge, I think people would have generally went along with that if they saw there was some economic benefits to it. It could have been woven into their lives and their activities if they had a market signal for that. As we get more socially networked and these ecological issues become more understood, I think people will want to do it. But when they get up in the morning and those activities are not valued, they have to make those decisions on that kind of a hierarchy until you come down to your community, family and self and what do they have to do to get their stuff done today. What EcoCommerce does is to provide an avenue for those global, national, and regional ecoservice goods to be presented to people so when they get up in the morning and they make decisions, one of their economic decisions can be to do activities to provide cleaner water downstream, for example. EcoCommerce in theory should be able to be applied to all human activities within terrestrial types of ecosystems; urban, rural, forestry and agriculture.

Scriven-Young: What are some of the challenges to providing those market signals for ecoservices?

Gieseke: I think a lot of the challenges were self-generated in the process of building these markets [that are in place today]. They have these duplicities, meaning if you do one activity you shouldn’t get paid twice for producing two different things from that one activity. Permanency so that if you do store carbon or generate clean water then you have to do it forever. And , additionalities, is that if you were providing it today you shouldn’t get paid for providing it tomorrow unless you provide additional ecoservices. So I look at ecoservices as commodities and really my perspective is that if you start putting these additional burdens on these commodities, you are not going to move this market forward. I think several of the obstacles that are in place today are artificial. To develop a foundation for these new type of markets I asked, “how am I going to provide this service in a commodities fashion that is fluid” and to do that we had to get rid of these artificial barriers or burdens. If people walk through the EcoCommerce model, they will recognize that I remove [the challenges] and explain why they should be removed.

Scriven-Young: Who is the intended audience for your book?

Gieseke: Its quite broad. I look at it as many sectors, [including] legal counsel, financial traders, government technical staff, economists, legislative staff, and agricultural or policy organizations such as National Corn Growers Association and even specific industries such as ethanol processors. Anyone who was engaged in the bioeconomy really was an open audience, and in particular those that provide leadership within those sectors.

Scriven-Young: Finally, where can we get a copy?

Gieseke: The website at www.ecocommerce101.com, and the book will be available around January 31st. After the release date, it will be available at all common book sites such as Borders, Barnes & Noble, and Amazon.

Tuesday, January 25, 2011

City Settles State Enforcement Action Alleging Water Pollution Violations Due to Sewer Overflows

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. City of Colchester, Case No. PCB 11-20, which concerned Colchester’s sewage treatment plant and overflows that occurred at Colchester’s Bishop Street, Cole Street, and North Street lift stations in association with a 2.5-inch rainfall.  The city is located approximately seven miles west of Macomb in McDonough County, Illinois.

The State alleged that the city violated the Illinois Environmental Protection Act by (1) causing, threatening, or allowing the discharge of contaminants into the environment so as to cause or tend to cause water pollution; (2) depositing contaminants upon the land so as to create a water pollution hazard; (3) causing or allowing the Cole Street Lift Station to overflow; (4) causing, threatening, or allowing the discharge of contaminants into waters of the State in violation of the NPDES permit; (5) failing to construct and operate the treatment works so as to minimize violations of applicable standards during contingencies; and (6) failing to take reasonable measures to prevent the spillage of contaminants from causing water pollution.

Under the terms of the settlement, the city admits the alleged violations and agrees to pay a civil penalty of $5,346 and complete specified improvements.

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

Sunday, January 23, 2011

Settlement of State Enforcement Action Alleging Fish Kill Resulting From Demolition of Swine Production Facility

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Gerald N. Knoblauch, LLC, Case No. PCB 11-19, which concerns a fishkill resulting from improper demolition of a former swine production facility located along Brick Town Road in the Southeast Quarter of Section 17, T28N in Cazenovia Township, Woodford County, Illinois.

The State alleged that Knoblauch owns the former swine production facility and hired Bender Land Improvement, Inc. to demolish the facility’s buildings and convert the facility’s old livestock lagoon into a pond.  The State also alleged that the defendants violated the Illinois Environmental Protection Act by (1) causing, threatening, or allowing livestock manure to discharge into an unnamed tributary of Richland Creek; (2) causing bottom deposits, odor, color, and turbidity of other than natural origin in the receiving waters of the facility; (3) placing excavated manure solids in piles on the outer edge of the old livestock lagoon without installing structures to contain any runoff from the piles; and (4) creating a water pollution hazard by allowing contaminated stormwater to discharge from the manure stockpiles and enter both an unnamed tributary to Richland Creek and Richland Creek itself without a National Pollutant Discharge Elimination System (NPDES) permit.

Under the terms of the settlement, the defendants admit the alleged violations, agree to pay a civil penalty of $5,000, and also agree to pay $20,699.68 to the State of Illinois Wildlife and Fish Fund for recovery of fish killed and investigation expenses.

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

Friday, January 21, 2011

Environmental Register for December 2010

The Illinois Pollution Control Board has issued its Environmental Register publication for December 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, and the Board's calendar.

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

Monday, January 17, 2011

Waste Management Agrees to $12,000 Supplemental Environmental Project to Settle State Enforcement Action

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Waste Management of Illinois, Inc., Case No. PCB 11-14, which concerned the defendant's municipal solid waste landfill located at 10400 Hillstown Road in Marissa, St. Clair County, Illinois.

The State alleged that the defendant violated the Illinois Environmental Protection Act by by failing to collect and contain litter from the site by the end of each operating day, failing to properly cover refuse, accepting landscape waste and used or waste tires for final disposal at the facility, designating a Chief Operator who serves in that capacity at two or more waste disposal sites, failing to keep groundwater monitoring wells covered with vented caps and equipped with devices to protect against tampering and damage, and failing to properly record information and observations derived from random inspections.

Under the terms of the settlement, the defendant admits to the alleged violations and agrees to undertake a supplemental environmental project with a settlement value of $12,000, consisting of providing landfill disposal space to the State.

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

Saturday, January 15, 2011

Landfill Owner Settles State Enforcement Action Alleging "Emissions of Offensive and Malodorous Landfill Gas"

The Illinois Pollution Control Board recently accepted the parties stipulation and proposed settlement in People v. Clinton Landfill, Inc., Case No. PCB 11-11, which concerned the defendant's sanitary landfill located near the City of Clinton in DeWitt County, Illinois. 

The State alleged in Count I of the Complaint that the defendant violated the Illinois Environmental Protection Act by by causing or allowing the emissions of offensive and malodorous landfill gas from the landfill so as to unreasonably interfere with the use and enjoyment of the neighbors’ property, causing air pollution and an odor nuisance.  Count I also alleged violations by operating the landfill's gas management system in a manner resulting in malodors being detected beyond the property boundary.  Count II also alleged violations by failing to provide an adequate amount of clean soil material on all exposed waste by the end of each day of operation.

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 to perform a supplemental environmental project with a settlement value of $30,000, consisting of providing landfill disposal services to the State.

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

Thursday, January 13, 2011

Selection as "Rising Star" in Illinois Super Lawyers Magazine

I'm pleased to announce that I have been selected as a "Rising Star" in Illinois Super Lawyers Magazine.

The "Rising Stars" list is Illinois Super Lawyers Magazine's "listing of top lawyers who are 40 years old and younger or who have been in practice 10 years or less."  According to the magazine, only 2.5 percent of Illinois lawyers are selected for the "Rising Stars" list.

As you may know, I practice in the areas of civil litigation, environmental law, and construction law, and I am accepting new clients at this time.  To set up a free initial consultation regarding a legal matter, please contact my office by phone at (312) 239-9722 or e-mail at dscriven-young@pecklaw.com.

Wednesday, January 12, 2011

Welding and Machine Shop Settles State Enforcement Action Alleging Water Pollution and Waste Disposal Violations

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Durre Bros. Welding & Machine Shop, Inc., Case No. PCB 07-81, which concerned the defendant's welding and machine shop located at 405 South Chestnut Street in Minonk, Woodford County, Illinois.

The State alleged that the defendant violated the Illinois Environmental Protection Act by causing, allowing, or threatening to cause water pollution (count I); by causing, threatening, or allowing the discharge of any contaminant into waters of the State without a National Pollutant Discharge Elimination System (NPDES) permit (count II); by causing or allowing contaminants to be deposited upon the land so as to create a water pollution hazard (count III); by causing or allowing the open dumping of waste (count IV); by disposing of waste at a site that is neither permitted by the Illinois Environmental Protection Agency as a sanitary landfill nor compliant with the requirements of the Act and regulations (count IV); and by storing containers filled with used oil without clearly labeling them as to their contents (count V).

Under the terms of the settlement, the defendant admits the alleged violations and agrees to pay a civil penalty of $5,000.

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

Monday, January 10, 2011

Seventh Circuit Allows Claims Splitting in Downers Grove Environmental Case

The U.S. Court of Appeals for the Seventh Circuit recently issued an opinion reversing the trial court's dismissal of Arrow Gear Co. v. Downers Grove Sanitary District, Nos. 90-1509 & 09-4030, which concerned the Ellsworth Industrial Park Superfund Site in Downers Grove, Illinois. 

In 2004, a class action lawsuit (Muniz v. Rexnord) was filed on behalf of area residents alleging that their groundwater had been contaminated by companies in the Ellsworth Industrial Park.  The Muniz lawsuit asked for damages, mainly for impairment of property values.  The defendants agreed with the plaintiff class to a settlement of approximately $16 million, and the defendants agreed to settle contribution actions that they had against each other.

While the Muniz case was pending, Arrow Gear filed a separate action for contribution under the Superfund statute against several companies for, among other things, payment of hooking up Downers Grove residents to Lake Michigan water.  Some of those companies were also defendants in the Muniz class action case.

Once the Muniz case was dismissed with prejudice as a result of the class action settlement, the defendants in the Arrow Gear case argued that the Muniz dismissal was res judicata because Arrow Gear arose out of the same facts as Muniz (the groundwater contamination caused by the leakage of industrial solvents at the Ellsworth Industrial Park).  The district court agreed and dismissed the case.  The Seventh Circuit reversed and ruled that the Muniz dismissal was not res judicata:

"Coming finally to the merits, we face the adamant insistence by the defendants that a dismissal with prejudice bars, by principles of res judicata, a further suit arising from the same set of facts, regardless of what the parties intended.  This is false.  Litigants who want to split a claim among different suits can do so (subject to a qualification about to be noted). . . .

"When the Muniz case was settled, the EPA, moving with the majestic deliberateness characteristic of government agencies, was still investigating contamination by the firms that had been defendants in that case (which include Arrow and Precision) and was expected to impose additional costs on them, and may continue doing so because its investigative activities have not concluded.  Already it is seeking $1 million to reimburse it for the cost of investigating.  And because the Muniz settlement did not address the contamination of the class members' water supply, the defendants in that suit have, separately from the $16 million settlement of the Muniz suit, agreed to connect the houses of the class members to another water-supply system at a cost of some $4 million.

"It would have been difficult to settle all possible claims by the cross-claiming defendants before their total liability was determined.  So claim splitting-allocation of the $16 million first, and of the additional $5 million (which will doubtless grow) second-made sense, and the district court should not have forbidden it.  True, the order dismissing Muniz had not mentioned the settlements, and some of them had postdated the dismissal.  But as parties to the settlements the defendants were bound by them regardless of when they were made and whether they were mentioned in a judicial order."

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

Saturday, January 8, 2011

IEPA Report Shows "Downward Trends or Stable Trends Well Below The Level Of The Standards" for Air Pollutants

The Illinois Environmental Protection Agency recently issued its 2009 Annual Air Quality Report, which presents data for the six criteria pollutants (those for which air quality standards have been developed - particulate matter (PM10 and PM2.5), ozone, sulfur dioxide, nitrogen dioxide, carbon monoxide, and lead) along with some heavy metals, nitrates, sulfates, volatile organic and toxic compounds.  Monitoring was conducted at over 80 different site locations collecting data from more than 200 instruments.

The report shows "downward trends or stable trends well below the level of the standards" set for the criteria pollutants: "Percentage changes over the ten year period 2000 – 2009 are as follows: Particulate Matter (PM10) 26 percent decrease, Particulate Matter (PM2.5) 21 percent decrease, Sulfur Dioxide 40 percent decrease, Nitrogen Dioxide 21 percent decrease, Carbon Monoxide 40 percent decrease, Lead 36 percent decrease, and Ozone 13 percent decrease."  The report also shows a general trend toward decreasing emissions for stationary point sources.

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

Wednesday, January 5, 2011

Gov. Quinn Signs Order Establishing Illinois Coastal Management Program

Governor Pat Quinn recently signed an Executive Order establishing the Illinois Coastal Management Program within the Illinois Department of Natural Resources.  According to a DNR press release, "through the federally-funded program, Illinois will receive $2 million annually from the National Oceanic and Atmospheric Administration (NOAA) to improve the northeast Illinois economy and create jobs by protecting the state’s coastal resources along Lake Michigan. . . . The program will be fully funded with federal dollars, which will be used to restore threatened habitats and to 'green' harbors on Lake Michigan.  It will also help municipalities develop plans to restore and sustain shorelines.

"Some of the ICMP’s goals include: supporting local, state and federal partnerships as agencies work to manage coastal resources; developing strategies to mitigate and adapt to climate change; developing long-term solutions to address toxins and invasive species; working to expand the use of green infrastructure to control storm water, promoting groundwater recharge and reduce flooding; and helping communities identify opportunities for water-related economic development."

More information can be found on the Illinois Coastal Management Program's website.

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

Tuesday, January 4, 2011

Village of Crestwood Settles Class Action for $500,000

The Chicago Tribune recently reported that the Village of Crestwood, Illinois "will pay residents $500,000 to settle one of the class-action lawsuits filed after it was learned that the southern Chicago suburb had been secretly pumping contaminated water to households for more than 20 years.  Crestwood will also provide residents with free garbage pickup, vehicle stickers and business licenses for two years.  Village officials will also hire an independent environmental consultant to certify that Crestwood's drinking water is safe for the next three years."

During the last meeting of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, counsel for the Village stated that the Village is embroiled in another lawsuit.  In that lawsuit, the Village contends that its insurer has the duty to defend (i.e., pay the Village's attorneys) against the class actions.  Likely, the Village will now contend that the insurer has the duty to indemnify (i.e., pay the settlement) as well.

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

Please Save The Date: 1/27/11 Chicago Bar Association YLS Environmental Law Committee Meeting

As Co-Chair of the Environmental Law Committee of the Chicago Bar Association Young Lawyers Section, I am excited to announce the speaker for our January 27, 2011 meeting.  Our speaker will be John J. Kim, Chief Legal Counsel of the Illinois Environmental Protection Agency.

The meeting will be held at 12:15 pm at the Chicago Bar Association, 321 S. Plymouth Court in Chicago.  A webcast will likely also be available for the meeting.  Please save the date!

Monday, January 3, 2011

US EPA's Updated Toxic Release Inventory Shows Decrease in Toxic Releases in Midwestern States

The U.S. Environmental Protection Agency recently published an updated Toxics Release Inventory, which quantifies the amount of pollutants released across the country.  In the most recent update, EPA reported that in 2009, "more than 511 million pounds of toxic chemicals were released into the environment in the six states located in Region 5[, which are Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin].  Compared to 2008 data, regional releases to the air were down 20 percent, on-site releases to surface water were down 24 percent and on-site releases to land were down 33 percent.  More than 5,000 facilities in Region 5 report their chemical releases by July 1 of each year."

EPA also released an Illinois-specific fact sheet as well as specific data for Chicago.  Regarding Chicago, EPA reported:

"Total on-site disposal or other releases for the Chicago metropolitan area decreased by 25% from 2001 to 2009 with a 12% decrease from 2008 to 2009.  Air releases decreased 29% from 2001 to 2009 and 14% from 2008 to 2009.  Surface water discharges decreased by 50% from 2001 to 2009 and 17% from 2008 to 2009.  The primary metals total disposal or other releases decreased by 20% from 2001 to 2009, including a 49% decrease in surface water discharges and a 31% decrease in air releases."

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

Sunday, January 2, 2011

Smart Home at Chicago's Museum of Science and Industry

Over the weekend, my family visited the Smart Home at Chicago's Museum of Science and Industry.  The Smart Home is almost twice as energy efficient as an ENERGY STAR home.  It features alternative energy sources via a wind turbine and photovoltaic film (the newest in solar energy technology) on the roof, and is designed around five eco-principles: smart design, material efficiency, energy efficiency, water efficiency, and healthy environment.

I've uploaded video on my YouTube channel and some photographs on my Facebook page.  Unfortunately, videotaping and photographs were not allowed inside the Smart Home.  However, we had a great tour guide (named Jeremiah), who did a wonderful job showing us the features of the home and answering any questions that we had.  The museum also provided us with an "Exhibit Resource Guide" that tells the story of the Smart Home and lists all of the products in the home.  The best part of the tour was seeing all of the choices for energy efficiency that can easily translate to my own home.  I definitely recommend that you check out this exhibit the next time you are at the museum.