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.

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.

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.

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.

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.

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.

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.

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.