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.
Showing posts with label Groundwater Contamination. Show all posts
Showing posts with label Groundwater Contamination. Show all posts
Tuesday, February 22, 2011
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.
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.
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.
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.
Saturday, October 23, 2010
Illinois Appellate Court Allows Claims Alleging that Coal Mine Waste Contaminated Community Drinking Water Supply
The Appellate Court of Illinois, Fifth District, recently issued an opinion in Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., Case No. 05-09-0207, which concerned a coal mine owned by Monterey Coal (a division of ExxonMobil Coal U.S.A.) and located near Albers, Illinois. From 1977 until August 1996, when the mine closed, a coal preparation plant and two coal refuse and slurry disposal areas operated on the property.
The plaintiff-citizens' organization filed a lawsuit seeking to obtain injunctive relief to cause ExxonMobil to remove and properly dispose of slurried coal production waste, which was allegedly leaching into the community drinking water supply known as the Pearl Sand Aquifer. Plaintiff brought its claims under the Surface Coal Mining Land Conservation and Reclamation Act and the Water Use Act of 1983. The trial court granted the defendants' motion to dismiss the plaintiff's complaint, and this appeal followed.
The Appellate Court reversed the trial court's decision. The Appellate Court held that, because Plaintiff challenged ExxonMobil's compliance with its permits and did not challenge the actual issuance of permits, Plaintiff was allowed to bring an action under the Surface Coal Mining Land Conservation and Reclamation Act.
The Court also held that Plaintiff could bring an enforcement action under the Water Use Act, which requires that groundwater withdrawal must be done following the "reasonable use" rule, which is defined as "the use of water to meet natural wants and a fair share of artificial wants. It does not include water used wastefully or maliciously." According to the complaint, ExxonMobil is withdrawing four million gallons of water per week from the Pearl Sand Aquifer in order to keep contaminated groundwater within the boundaries of the permit.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
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.
Wednesday, September 15, 2010
IL Department of Public Health Recommends Well Testing for Areas in Kendall and McHenry Counties
The Illinois Department of Public Health recently recommended that two communities test their wells for contamination.
First, IDPH advised residents who obtain their drinking water from private wells in the Hollis Subdivision (Kendall County) area to test their water for possible groundwater contamination. Routine testing of Illinois American Water Company - Hollis community water supply wells by the Illinois Environmental Protection Agency indicated contaminants could be present in the area’s private wells. The contaminant xylene was detected at levels lower than the Illinois Groundwater Standard. Although the contaminant’s levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells.
Second, IDPH advised residents who obtain their drinking water from private wells in the Marengo (McHenry County) area to test their water for possible groundwater contamination. Routine testing of Marengo’s community water supply wells by Illinois EPA indicated contaminants could be present in the area’s private wells. The contaminants benzene and methyl tert-butyl ether (MTBE) were detected at levels lower than the Illinois Groundwater Standard. Although the contaminants’ levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells.
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 Joe O’Connor, IDPH West Chicago Regional Office, 245 West Roosevelt Road, Bldg 5, West Chicago, IL. 60185, phone (630) 293-6800 or joe.o’connor@illinois.gov.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
First, IDPH advised residents who obtain their drinking water from private wells in the Hollis Subdivision (Kendall County) area to test their water for possible groundwater contamination. Routine testing of Illinois American Water Company - Hollis community water supply wells by the Illinois Environmental Protection Agency indicated contaminants could be present in the area’s private wells. The contaminant xylene was detected at levels lower than the Illinois Groundwater Standard. Although the contaminant’s levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells.
Second, IDPH advised residents who obtain their drinking water from private wells in the Marengo (McHenry County) area to test their water for possible groundwater contamination. Routine testing of Marengo’s community water supply wells by Illinois EPA indicated contaminants could be present in the area’s private wells. The contaminants benzene and methyl tert-butyl ether (MTBE) were detected at levels lower than the Illinois Groundwater Standard. Although the contaminants’ levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells.
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 Joe O’Connor, IDPH West Chicago Regional Office, 245 West Roosevelt Road, Bldg 5, West Chicago, IL. 60185, phone (630) 293-6800 or joe.o’connor@illinois.gov.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Sunday, August 15, 2010
$15,000 Settlement of State Enforcement Action by Operator of Liquid Agricultural-Chemical Facility
The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Thermogas Co., Case No. PCB 10-10, which concerned a liquid agricultural-chemical facility located approximately two miles south of McLeansboro, Hamilton County.
The State alleged that the defendant violated the Illinois Environmental Protection Act by failing to control the agrichemicals handled at the facility and thereby causing or threatening water pollution and causing or allowing groundwater quality exceedences. Under the terms of the settlement, the defendant denies the alleged violations but agrees to pay a civil penalty of $15,000. The settlement further provides that the facility is the property of Ferrellgas, L.P., a signatory to the settlement, and that Ferrellgas must “obtain a deed restriction on the former facility property prohibiting withdrawal of the groundwater for potable use within the area where concentrations of agrichemicals exceed the Class I Groundwater Standards.”
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
The State alleged that the defendant violated the Illinois Environmental Protection Act by failing to control the agrichemicals handled at the facility and thereby causing or threatening water pollution and causing or allowing groundwater quality exceedences. Under the terms of the settlement, the defendant denies the alleged violations but agrees to pay a civil penalty of $15,000. The settlement further provides that the facility is the property of Ferrellgas, L.P., a signatory to the settlement, and that Ferrellgas must “obtain a deed restriction on the former facility property prohibiting withdrawal of the groundwater for potable use within the area where concentrations of agrichemicals exceed the Class I Groundwater Standards.”
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Saturday, August 14, 2010
Proposed Superfund Consent Decree Calls for $3.6 Million Payment for Past and Future Response Costs
On August 16, 2010, the U.S. Department of Justice provided notice in the Federal Register that a proposed consent decree was filed in United States v. Central Rubber Co., Case No. 3:10-cv-50193 (Northern District of Illinois), which is a Superfund lawsuit filed by the federal government to recover response costs incurred or to be incurred by the United States as a result of releases and threatened releases of hazardous substances from the manufacturing facilities owned or operated by Central Rubber Company, Woodhead Industries, Inc., Textron, Inc., Camcar LLC, and Johns Manville. The facilities are located at the Parsons Casket Hardware Superfund Site, in Belvidere, Boone County, Illinois.
Under the proposed consent decree, the Settling Defendants will pay $3.6 million to the United States in reimbursement of past and future response costs. The decree will also require "Owner Settling Defendants" (those defendants who own real property within the Superfund Site), to provide access to their properties to the U.S. Environmental Protection Agency, which will be performing the remedial action at the site, to cooperate with U.S. EPA in its performance of the remedy, and to prepare and record Environmental Restrictive Covenants which grant certain Proprietary Controls to the State of Illinois and U.S. EPA to facilitate performance of the remedial action.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Under the proposed consent decree, the Settling Defendants will pay $3.6 million to the United States in reimbursement of past and future response costs. The decree will also require "Owner Settling Defendants" (those defendants who own real property within the Superfund Site), to provide access to their properties to the U.S. Environmental Protection Agency, which will be performing the remedial action at the site, to cooperate with U.S. EPA in its performance of the remedy, and to prepare and record Environmental Restrictive Covenants which grant certain Proprietary Controls to the State of Illinois and U.S. EPA to facilitate performance of the remedial action.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Monday, June 21, 2010
Illinois Legislature Passes Bill to Fight VOC Contamination in Community Water Systems
The Illinois General Assembly recently enacted and sent to Governor Quinn Senate Bill 3070, which amends the Illinois Environmental Protection Act to prevent carcinogenic volatile organic compounds from exceeding their maximum contaminant levels in the finished water of community water systems by requiring owners and operators of community water systems to take appropriate action when carcinogenic volatile organic compounds are detected in finished water.
If a carcinogenic volatile organic compound is detected in the finished water of a community water system at a certain level (equal to or more than 50% of the maximum contaminant level), and the Illinois Environmental Protection Agency issues a notice based on the presence of the carcinogenic volatile organic compound, then the owner or operator of that system must submit a response plan that meets certain requirements to the Illinois EPA. The response plan must be designed to (i) prevent an exceedence of the maximum contaminant level in the finished water and (ii) reduce the concentration of the carcinogenic volatile organic compound so that it does not exceed the applicable method detection limit in the finished water. The response plan must also include periodic sampling designed to measure and verify the effectiveness of the response plan.
When approving, modifying, or denying a plan, the Illinois EPA must take into account the technical feasibility and economic reasonableness of the plan and any modification to the plan. The bill makes it a violation of the Environmental Protection Act for a person who is required to do so to fail (i) to submit a response plan, (ii) to implement a response plan, or (iii) to submit certain reports.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
If a carcinogenic volatile organic compound is detected in the finished water of a community water system at a certain level (equal to or more than 50% of the maximum contaminant level), and the Illinois Environmental Protection Agency issues a notice based on the presence of the carcinogenic volatile organic compound, then the owner or operator of that system must submit a response plan that meets certain requirements to the Illinois EPA. The response plan must be designed to (i) prevent an exceedence of the maximum contaminant level in the finished water and (ii) reduce the concentration of the carcinogenic volatile organic compound so that it does not exceed the applicable method detection limit in the finished water. The response plan must also include periodic sampling designed to measure and verify the effectiveness of the response plan.
When approving, modifying, or denying a plan, the Illinois EPA must take into account the technical feasibility and economic reasonableness of the plan and any modification to the plan. The bill makes it a violation of the Environmental Protection Act for a person who is required to do so to fail (i) to submit a response plan, (ii) to implement a response plan, or (iii) to submit certain reports.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Thursday, May 27, 2010
Illinois Federal Court Denies Motion to Dismiss PRPs' Cost-Recovery Claim
On May 12, 2010, the U.S. District Court for the Southern District of Illinois denied a motion to dismiss crossclaims for cost recovery under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" and more commonly known as Superfund) in United States v. Pharmacia Corp., No. 99-cv-63.
Section 107(a) of CERCLA (42 U.S.C. 9607(a)), subjects certain persons or companies, known as potentially-responsible parties (or "PRPs"), to liability when there is a release or threatened release of hazardous substances. In general, PRPs are liable for (1) costs of removing or cleaning-up the hazardous substances incurred by the government, (2) other necessary costs of response incurred by any other person consistent with the national contigency plan, (3) damages to natural resources, and (4) costs of health assessments or health effects studies under certain circumstances.
Section 113(f) of CERCLA (42 U.S.C. 9613(f)) allows any person to seek contribution from any other PRP for costs paid to reimburse another party (such as the government). In theory, this means that each PRP will only be liable to pay its fair share (i.e., each PRP's liability will be based only on how much its conduct contributed to the release).
In United States v. Pharmacia, Pharmacia Corporation, Solutia, Inc. Cerro Flow Products, Inc., and ExxonMobil Oil Corporation were PRPs at the Sauget Area One site, which is located in the Villages of Sauget and Cahokia, in St. Clair County, Illinois. The PRPs were sued by the federal government under Section 107 of CERCLA for the recovery of clean-up costs allegedly incurred by the government at the site. The PRPs filed a contribution claim under Section 113 of CERCLA against Rogers Cartage to allocate responsibility for costs that may have to be paid to the government. The federal government also sued Rogers Cartage under Sections 107 and 113, and the government ultimately lost at trial on those claims.
The PRPs also incurred their own costs while investigating and cleaning up contamination at the site, and filed a claim under Section 107 of CERCLA against Rogers Cartage to recover those costs. Rogers Cartage then filed a motion to dismiss that claim. The Court denied the motion to dismiss:
"Here, [the PRPs] expressly allege that the purpose of their Section 107(a) action is to recover response costs which were neither derivative of, nor co-extensive with the United States costs; in other words, expenses that are allegedly different from those sought by the United States in its trial against Rogers Cartage back in November 2003. Now, [the PRPs] are seeking to recover some of those response costs from Rogers Cartage who, they allege, owned portions of at least three sites within Sauget Area One, and operated a truck terminal and truck washing operation on that property in the 1960's and 1970's. One of CERCLA’s main purposes is to encourage private parties to assume the financial cleanup by allowing them to seek recovery from others. Thus, allowing [the PRPs'] Section 107(a) cost recovery action to proceed neither contravenes the Supreme Court’s current interpretation of CERCLA, nor one of act’s fundamental purposes."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Section 107(a) of CERCLA (42 U.S.C. 9607(a)), subjects certain persons or companies, known as potentially-responsible parties (or "PRPs"), to liability when there is a release or threatened release of hazardous substances. In general, PRPs are liable for (1) costs of removing or cleaning-up the hazardous substances incurred by the government, (2) other necessary costs of response incurred by any other person consistent with the national contigency plan, (3) damages to natural resources, and (4) costs of health assessments or health effects studies under certain circumstances.
Section 113(f) of CERCLA (42 U.S.C. 9613(f)) allows any person to seek contribution from any other PRP for costs paid to reimburse another party (such as the government). In theory, this means that each PRP will only be liable to pay its fair share (i.e., each PRP's liability will be based only on how much its conduct contributed to the release).
In United States v. Pharmacia, Pharmacia Corporation, Solutia, Inc. Cerro Flow Products, Inc., and ExxonMobil Oil Corporation were PRPs at the Sauget Area One site, which is located in the Villages of Sauget and Cahokia, in St. Clair County, Illinois. The PRPs were sued by the federal government under Section 107 of CERCLA for the recovery of clean-up costs allegedly incurred by the government at the site. The PRPs filed a contribution claim under Section 113 of CERCLA against Rogers Cartage to allocate responsibility for costs that may have to be paid to the government. The federal government also sued Rogers Cartage under Sections 107 and 113, and the government ultimately lost at trial on those claims.
The PRPs also incurred their own costs while investigating and cleaning up contamination at the site, and filed a claim under Section 107 of CERCLA against Rogers Cartage to recover those costs. Rogers Cartage then filed a motion to dismiss that claim. The Court denied the motion to dismiss:
"Here, [the PRPs] expressly allege that the purpose of their Section 107(a) action is to recover response costs which were neither derivative of, nor co-extensive with the United States costs; in other words, expenses that are allegedly different from those sought by the United States in its trial against Rogers Cartage back in November 2003. Now, [the PRPs] are seeking to recover some of those response costs from Rogers Cartage who, they allege, owned portions of at least three sites within Sauget Area One, and operated a truck terminal and truck washing operation on that property in the 1960's and 1970's. One of CERCLA’s main purposes is to encourage private parties to assume the financial cleanup by allowing them to seek recovery from others. Thus, allowing [the PRPs'] Section 107(a) cost recovery action to proceed neither contravenes the Supreme Court’s current interpretation of CERCLA, nor one of act’s fundamental purposes."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Tuesday, May 25, 2010
Illinois Department of Public Health Recommends Testing of Private Wells in Rock Island
On May 4, 2010, the Illinois Department of Public Health advised residents who obtain their drinking water from private wells in the Coyne Center Co-Op area (Rock Island, south of 106th Avenue, north of 127th Avenue, east of U.S. 67 and west of Mill Creek) to test their water for possible groundwater contamination. Routine testing of Coyne Center Co-Op community water supply wells indicated contaminants could be present in the area’s private wells.
Specifically, the contaminant xylene was detected at levels lower than the Illinois Groundwater Standard. Although the contaminant’s levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells. Therefore, IDPH encouraged residents with private wells located within the area 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, IDPH recommends contacting John Smet (john.smet@illinois.gov), Illinois Department of Public Health Peoria Regional Office, 5415 North University, Peoria, IL 61614, phone (309) 693-5360. You may also contact Paul Guse, Rock Island County Health Department, 2112 25th Ave, Rock Island, IL 61201, phone (309) 793-1955 or pguse@co.rock-island.il.us.
Despite this recommendation, IDPH stated that no violations of State of Illinois or federal drinking water standards have occurred at Coyne Center Co-Op.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Specifically, the contaminant xylene was detected at levels lower than the Illinois Groundwater Standard. Although the contaminant’s levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells. Therefore, IDPH encouraged residents with private wells located within the area 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, IDPH recommends contacting John Smet (john.smet@illinois.gov), Illinois Department of Public Health Peoria Regional Office, 5415 North University, Peoria, IL 61614, phone (309) 693-5360. You may also contact Paul Guse, Rock Island County Health Department, 2112 25th Ave, Rock Island, IL 61201, phone (309) 793-1955 or pguse@co.rock-island.il.us.
Despite this recommendation, IDPH stated that no violations of State of Illinois or federal drinking water standards have occurred at Coyne Center Co-Op.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Monday, May 24, 2010
Sauk Village Sued by State After Vinyl Chloride Found in Groundwater Well
According to this story from the Chicago Tribune, the Illinois Attorney General's office has sued Sauk Village, Illinois "to force cleanup of one of three groundwater wells that serve as the community's primary source of drinking water, following the discovery of vinyl chloride and fecal contamination during routine testing in 2009."
The Tribune reported that "multiple well samples collected in May 2009 showed levels of vinyl chloride –– a byproduct of certain types of manufacturing and a common pollutant in urban communities –– at 3.67 micrograms per liter, exceeding the threshold of 2 micrograms per liter considered safe by the U.S. EPA."
Sauk Village may also face civil penalties: "Sauk Village faces the maximum $50,000 fine for each violation of four separate counts, which include water contamination but also failure to store chemicals properly, drain stagnant water and implement certain control methods. They've also been fined $10,000 per violation per day since May 2009, but likely would pay only a fraction of that amount if the problem is fixed, said Scott Mulford, a spokesman for the attorney general's office."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
The Tribune reported that "multiple well samples collected in May 2009 showed levels of vinyl chloride –– a byproduct of certain types of manufacturing and a common pollutant in urban communities –– at 3.67 micrograms per liter, exceeding the threshold of 2 micrograms per liter considered safe by the U.S. EPA."
Sauk Village may also face civil penalties: "Sauk Village faces the maximum $50,000 fine for each violation of four separate counts, which include water contamination but also failure to store chemicals properly, drain stagnant water and implement certain control methods. They've also been fined $10,000 per violation per day since May 2009, but likely would pay only a fraction of that amount if the problem is fixed, said Scott Mulford, a spokesman for the attorney general's office."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Thursday, April 1, 2010
Environmental Appeals Board Affirms $105,590 Penalty for Violations of Safe Drinking Water Act
On March 30th, the Environmental Appeals Board issued its opinion in In re Rocky Well Service, Inc., SDWA Appeal Nos. 08-03 & 08-04, which concerned defendants' operation of six underground injection wells in Clinton, Effingham, Jefferson and Wayne counties in Illinois. The Appeals Board is the final U.S. EPA decisionmaker on administrative appeals under all major environmental statutes that EPA administers.
In this case, EPA alleged that defendants failed to subject six Class II underground injection wells to mechanical integrity testing and failed to submit annual monitoring reports for the same six wells. An underground injection well is a device that places fluid deep underground into porous rock formations, such as sandstone or limestone, or into or below the shallow soil layer. These fluids may be water, wastewater, brine (salt water), or water mixed with chemicals. Underground injection wells have a range of uses that include waste disposal, enhancing oil production, mining, and preventing salt water intrusion. EPA regulates underground injection wells to prevent endangerment of drinking water sources.
The Regional Judicial Officer for EPA Region 5 assessed a joint civil penalty of $105,590 against both Rocky Well Service, which held the permit for the wells, and Edward Klockenkemper, who served as the President, Secretary, Treasurer, and Agent for, as well as conducting the day-to-day operations of, the corporation. The Appeals Board affirmed the Officer's order assessing the penalty. In particular, the Appeals Board held that "the scope of liability under both the [Safe Drinking Water Act] and the approved Illinois [Underground Injection Control] program is not, as Mr. Klockenkemper asserts, limited to permittees. Indeed . . . the Board finds that the applicable statutory and regulatory provisions unambiguously extend liability beyond permittees to a broad range of individuals, including individuals, such as Mr. Klockenkemper, acting on behalf of a corporation."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
In this case, EPA alleged that defendants failed to subject six Class II underground injection wells to mechanical integrity testing and failed to submit annual monitoring reports for the same six wells. An underground injection well is a device that places fluid deep underground into porous rock formations, such as sandstone or limestone, or into or below the shallow soil layer. These fluids may be water, wastewater, brine (salt water), or water mixed with chemicals. Underground injection wells have a range of uses that include waste disposal, enhancing oil production, mining, and preventing salt water intrusion. EPA regulates underground injection wells to prevent endangerment of drinking water sources.
The Regional Judicial Officer for EPA Region 5 assessed a joint civil penalty of $105,590 against both Rocky Well Service, which held the permit for the wells, and Edward Klockenkemper, who served as the President, Secretary, Treasurer, and Agent for, as well as conducting the day-to-day operations of, the corporation. The Appeals Board affirmed the Officer's order assessing the penalty. In particular, the Appeals Board held that "the scope of liability under both the [Safe Drinking Water Act] and the approved Illinois [Underground Injection Control] program is not, as Mr. Klockenkemper asserts, limited to permittees. Indeed . . . the Board finds that the applicable statutory and regulatory provisions unambiguously extend liability beyond permittees to a broad range of individuals, including individuals, such as Mr. Klockenkemper, acting on behalf of a corporation."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Wednesday, March 24, 2010
IL Department Of Public Health Tells Residents of Rockford Mobile Home Park To Test Their Water
On March 23rd, the Illinois Department of Public Health warned residents who obtain their drinking water from private wells in the GEM Suburban Mobile Home Park (MHP) area in Rockford, Winnebago County, Illinois to test their water for possible groundwater contamination. IDPH stated that "routine testing of the GEM Suburban Mobile Home Park community water supply wells by the Illinois Environmental Protection Agency indicates contaminants could be present in the area’s private wells."
Specifically, "the contaminant trichloroethylene was detected at levels lower than the Illinois Groundwater Standard. Although the contaminant’s levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells."
For more information, including a list of certified testing laboratories, IDPH recommends contacting: (1) Clay Simmonson, clay.simmonson@illinois.gov, Illinois Department of Public Health Rockford Regional Office, 4302 N. Main St, Rockford, IL. 61103, phone (815) 987-7511 or (2) Todd Marshall, tmarshall@wchd.org, Winnebago County Health Department, 401 Division Street, Rockford, IL 61104, phone (815) 720-4118.
Despite its warnings, IDPH states that "no violations of state or federal drinking water standards have occurred at GEM Suburban MHP."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Specifically, "the contaminant trichloroethylene was detected at levels lower than the Illinois Groundwater Standard. Although the contaminant’s levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells."
For more information, including a list of certified testing laboratories, IDPH recommends contacting: (1) Clay Simmonson, clay.simmonson@illinois.gov, Illinois Department of Public Health Rockford Regional Office, 4302 N. Main St, Rockford, IL. 61103, phone (815) 987-7511 or (2) Todd Marshall, tmarshall@wchd.org, Winnebago County Health Department, 401 Division Street, Rockford, IL 61104, phone (815) 720-4118.
Despite its warnings, IDPH states that "no violations of state or federal drinking water standards have occurred at GEM Suburban MHP."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Monday, March 15, 2010
Proposed Legislation Would Ban Perc in Drycleaning
Under a bill proposed by Representative Julie Hamos (HB6115), the State of Illinois would phase out and ultimately ban the use of perchloroethylene ("perc") in drycleaning. The bill would mandate as follows:
1) Beginning January 1, 2011, no person shall install a drycleaning machine that uses perchloroethylene.
2) Beginning January 1, 2013, no person shall use perchloroethylene in drycleaning that is conducted in (i) a building that contains a residence or (ii) a facility that shares a common wall, floor, or ceiling with a residence.
3) Beginning January 1, 2013, no person shall use a drycleaning machine that uses perchloroethylene if the machine is 15 years old or older based on its date of manufacture.
4) Beginning January 1, 2026, no person shall use perchloroethylene in drycleaning.
The bill would impose taxes on perc and require the tax money to be deposited into a grant account to be used, subject to certain limitations, to establish a demonstration program to showcase green solvent drycleaning technologies and provide grants to encourage a transition to use of those technologies.
According to U.S. EPA, perc has been linked to neurological, liver, and kidney problems in humans.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
1) Beginning January 1, 2011, no person shall install a drycleaning machine that uses perchloroethylene.
2) Beginning January 1, 2013, no person shall use perchloroethylene in drycleaning that is conducted in (i) a building that contains a residence or (ii) a facility that shares a common wall, floor, or ceiling with a residence.
3) Beginning January 1, 2013, no person shall use a drycleaning machine that uses perchloroethylene if the machine is 15 years old or older based on its date of manufacture.
4) Beginning January 1, 2026, no person shall use perchloroethylene in drycleaning.
The bill would impose taxes on perc and require the tax money to be deposited into a grant account to be used, subject to certain limitations, to establish a demonstration program to showcase green solvent drycleaning technologies and provide grants to encourage a transition to use of those technologies.
According to U.S. EPA, perc has been linked to neurological, liver, and kidney problems in humans.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Friday, March 12, 2010
IL Department Of Public Health Tells South Elgin Residents To Test Their Water
On March 9th, the Illinois Department of Public Health warned residents who obtain their drinking water from private wells in the South Elgin, Kane County, Illinois area (east of Randall Road, south of the College Green Road, west of the Fox River, and north of Hopps Road) to test their water for possible groundwater contamination. IDPH stated that "routine testing of South Elgin 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 tetrachloroethylene was detected at levels lower than the Illinois Groundwater Standard. Although the contaminant’s levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells.
For more information, including a list of certified testing laboratories, IDPH recommends contacting: (1) Joe O’Connor, IDPH West Chicago Regional Office, 245 West Roosevelt Road, Bldg 5, West Chicago, IL 60185, phone (630) 293-6800 or joe.o’connor@illinois.gov or (2) Tom Schlueter, Kane County Health Department, 1240 North Highland Ave, Suite 26, Aurora, IL 60506, phone (630) 444-3098 or SchlueterTom@co.kane.il.us.
Despite its warnings, IDPH states that "no violations of State of Illinois or federal drinking water standards have occurred in South Elgin."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Specifically, "the contaminant tetrachloroethylene was detected at levels lower than the Illinois Groundwater Standard. Although the contaminant’s levels were lower than the standard, this is the same groundwater that serves private wells and it is possible the levels of the contaminants may be higher in private wells.
For more information, including a list of certified testing laboratories, IDPH recommends contacting: (1) Joe O’Connor, IDPH West Chicago Regional Office, 245 West Roosevelt Road, Bldg 5, West Chicago, IL 60185, phone (630) 293-6800 or joe.o’connor@illinois.gov or (2) Tom Schlueter, Kane County Health Department, 1240 North Highland Ave, Suite 26, Aurora, IL 60506, phone (630) 444-3098 or SchlueterTom@co.kane.il.us.
Despite its warnings, IDPH states that "no violations of State of Illinois or federal drinking water standards have occurred in South Elgin."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Wednesday, March 10, 2010
IL Department of Public Health Says "It Is Possible" That Contaminated Drinking Water In Crestwood Caused Cancer Increase
On March 5th, the Illinois Department of Public Health released a study entitled "Incidence of Cancer in the Village of Crestwood, (Cook County) Illinois 1994-2006."
In response to concerns about cancer incidence in Crestwood related to the contamination of the area's drinking water system with probable or known cancer-causing chemicals, a cancer assessment was initiated by the Illinois State Cancer Registry, Illinois Department of Public Health. "The assessment identified several cancers as significantly elevated in Crestwood: lung cancer in males and females (standardized incidence ratio, SIR=1.34 in males; SIR=1.35 in females), kidney cancer in males (SIR=1.92), and most gastrointestinal (GI) cancers in males: oral cavity and pharynx (SIR=1.73), esophagus (SIR=2.00) and colon-rectum (SIR=1.40). GI cancers, as a combined group that includes oral cavity and pharynx, esophagus, stomach and colorectal cancers, were also significantly elevated among males when assessed collectively (SIR=1.48)."
The Department of Health concludes: "It is possible that the historical presence of PCE and its degradation products in the Crestwood water contributed to the increase of these cancers. Due to methodological and data limitations, however, the assessment could not establish with certainty this relationship, nor rule out such a possibility. Future monitoring of the area's cancer incidence is needed to evaluate possible changes in cancer incidence following the discontinuation of the contaminated drinking water. Without regard to causation, increasing education and intervention programs in the area to promote cancer screening, particularly colorectal cancer screening, is recommended."
According to a Chicago Tribune article, a contaminated well was shut off by an Illinois Environmental Protection Agency order in 2007. An EPA test performed in 2007 found that the well's water was contaminated with twice the legal limit of vinyl chloride, a chemical linked with cancer that is considered dangerous at any level of exposure. The EPA also discovered that Crestwood had been piping the water, untreated, to residents despite claiming that their tap water came exclusively from Lake Michigan.
The Crestwood water problem has apparently spawned a lawsuit by the Illinois Attorney General as well as a class action civil lawsuit.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
In response to concerns about cancer incidence in Crestwood related to the contamination of the area's drinking water system with probable or known cancer-causing chemicals, a cancer assessment was initiated by the Illinois State Cancer Registry, Illinois Department of Public Health. "The assessment identified several cancers as significantly elevated in Crestwood: lung cancer in males and females (standardized incidence ratio, SIR=1.34 in males; SIR=1.35 in females), kidney cancer in males (SIR=1.92), and most gastrointestinal (GI) cancers in males: oral cavity and pharynx (SIR=1.73), esophagus (SIR=2.00) and colon-rectum (SIR=1.40). GI cancers, as a combined group that includes oral cavity and pharynx, esophagus, stomach and colorectal cancers, were also significantly elevated among males when assessed collectively (SIR=1.48)."
The Department of Health concludes: "It is possible that the historical presence of PCE and its degradation products in the Crestwood water contributed to the increase of these cancers. Due to methodological and data limitations, however, the assessment could not establish with certainty this relationship, nor rule out such a possibility. Future monitoring of the area's cancer incidence is needed to evaluate possible changes in cancer incidence following the discontinuation of the contaminated drinking water. Without regard to causation, increasing education and intervention programs in the area to promote cancer screening, particularly colorectal cancer screening, is recommended."
According to a Chicago Tribune article, a contaminated well was shut off by an Illinois Environmental Protection Agency order in 2007. An EPA test performed in 2007 found that the well's water was contaminated with twice the legal limit of vinyl chloride, a chemical linked with cancer that is considered dangerous at any level of exposure. The EPA also discovered that Crestwood had been piping the water, untreated, to residents despite claiming that their tap water came exclusively from Lake Michigan.
The Crestwood water problem has apparently spawned a lawsuit by the Illinois Attorney General as well as a class action civil lawsuit.
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Tuesday, January 12, 2010
Canadian National Railway to Pay for Environmental Testing After Derailment
According to a recent article in the Southtown Star, Canadian National Railway will pay $25,000 to settle a lawsuit filed by the State of Illinois and Winnebago County over a train derailment in Rockford, Illinois in June 2009.
During the derailment, 18 rail cars, all containing ethanol, left the tracks resulting in an explosion. At the height of the fire, 14 rail cars were ablaze. At least one person died because of this incident.
According to the article, "Canadian National will pay nearly $18,000 to the state's oil spill response fund. More than $7,500 will go to the hazardous waste fund to repay the Illinois Environmental Protection Agency for testing and monitoring." Canadian National has also agreed to "test wells in the area one more time to make sure drinking water is safe."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
During the derailment, 18 rail cars, all containing ethanol, left the tracks resulting in an explosion. At the height of the fire, 14 rail cars were ablaze. At least one person died because of this incident.
According to the article, "Canadian National will pay nearly $18,000 to the state's oil spill response fund. More than $7,500 will go to the hazardous waste fund to repay the Illinois Environmental Protection Agency for testing and monitoring." Canadian National has also agreed to "test wells in the area one more time to make sure drinking water is safe."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Sunday, December 20, 2009
Rejecting Federal Officer Removal, Federal Court Remands Contamination Case to State Court
On December 15, 2009, the U.S. District Court for the Southern District of Illinois remanded the case of Custer v. Cerro Flow Products, Inc., No. 09-514-DRH, to State court, rejecting the defendants' purported removal to Federal court based on the Federal Officer Removal Statute.
The Plaintiffs filed a lawsuit in State court alleging that they suffered serious life-threatening illnesses, including cancer, or that they have suffered property damage, as a result of exposure to hazardous substances, including polychlorinated biphenyls ("PCBs"). The Plaintiffs alleged that those substances were wrongfully disposed at three sites near Sauget, Illinois and released into the environment.
The Defendants attempted to remove the lawsuit to Federal court (i.e., the U.S. District Court for the Southern District of Illinois) based on the Federal Officer Removal Statute, 28 U.S.C. 1442(a)(1), which provides:
"A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue."
The Defendants alleged that the PCBs produced at their facilities were part of a contract with the federal government to produce chemicals for the war effort. However, the Court found that federal officer removal did not apply here and that the case should be remanded back to State Court. Specifically, the Court held that Defendants did not act under the direction of a federal officer:
"[N]one of the evidence submitted by Defendants shows the federal government ordered the Defendants to continue production of PCBs or that the government directed the Defendants in how to handle or dispose of the PCBs that they produced. Once again, the production of PCBs is not at issue in this case, it is the mishandling of PCBs which is the basis of Plaintiffs’ complaint. Therefore, the Defendants have not demonstrated that the government directed Defendants in the handling of PCBs nor have they demonstrated that the production of PCBs forms the basis of the liability alleged in this action."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
The Plaintiffs filed a lawsuit in State court alleging that they suffered serious life-threatening illnesses, including cancer, or that they have suffered property damage, as a result of exposure to hazardous substances, including polychlorinated biphenyls ("PCBs"). The Plaintiffs alleged that those substances were wrongfully disposed at three sites near Sauget, Illinois and released into the environment.
The Defendants attempted to remove the lawsuit to Federal court (i.e., the U.S. District Court for the Southern District of Illinois) based on the Federal Officer Removal Statute, 28 U.S.C. 1442(a)(1), which provides:
"A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue."
The Defendants alleged that the PCBs produced at their facilities were part of a contract with the federal government to produce chemicals for the war effort. However, the Court found that federal officer removal did not apply here and that the case should be remanded back to State Court. Specifically, the Court held that Defendants did not act under the direction of a federal officer:
"[N]one of the evidence submitted by Defendants shows the federal government ordered the Defendants to continue production of PCBs or that the government directed the Defendants in how to handle or dispose of the PCBs that they produced. Once again, the production of PCBs is not at issue in this case, it is the mishandling of PCBs which is the basis of Plaintiffs’ complaint. Therefore, the Defendants have not demonstrated that the government directed Defendants in the handling of PCBs nor have they demonstrated that the production of PCBs forms the basis of the liability alleged in this action."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Saturday, December 19, 2009
Cleanup at Waukegan Lakefront Superfund Site to Continue
According to a recent article in the Lake County News-Sun, the U.S. EPA and the State of Illinois are set to invest tens of millions of dollars to continue cleanup at the Outboard Marine Corporation ("OMC") Superfund Site.
Here is how U.S. EPA describes the OMC Site: It "is located on Lake Michigan around the northern Waukegan Harbor area in Waukegan, Illinois. The site contains four cleanup parcels, called "operable units" (OU). The Waukegan Harbor (WH) site is OU #1. The Waukegan Manufactured Gas and Coke Plant (WCP) site is OU #2. The PCB containment cells that were created when the harbor was cleaned up in 1990-1993 comprise OU #3, and the OMC Plant 2 site is OU #4.
"Waukegan Harbor is a federally-authorized harbor that was constructed in the late 1800s. . . . From approximately 1948 to 1971, OMC purchased an estimated 8 million gallons of hydraulic fluid that contained PCBs and used it in its OMC Plant 2 building in its die casting process to make outboard motors. The fluids containing PCBs were sometimes discharged through floor drains onto the OMC Plant 2 property and also into Waukegan Harbor. As a result, 700,000 pounds of PCBs were estimated to be present in the soil on the OMC Plant 2 site and 300,000 pounds of PCBs were in the sediment in Waukegan Harbor. OMC cleaned up PCB-contaminated northern harbor sediment and some of the OMC Plant 2 soils in 1990-1993.
"OMC also operated several vapor degreasers at the OMC Plant 2 facility to clean newly made parts with trichloroethylene (TCE). Leaking degreasers and/or TCE storage tanks have created a widespread TCE groundwater contaminant plume and an isolated dense, non-aqueous phase liquid (DNAPL) pool of TCE beneath the OMC Plant 2 site. OMC abandoned the Plant 2 facility in December 2002.
"In the early 1900s, a wood-treating plant operated on the WCP site, followed by a manufactured gas plant in the 1920s and a coke oven gas plant in the 1940s. The plant was purchased and disassembled by OMC in approximately 1972. The WCP site was discovered during OMC's harbor cleanup in 1990. It has arsenic and polyaromatic hydrocarbon (PAH) soil contamination and the groundwater is contaminated with high levels of ammonia, arsenic, benzene, and phenol."
According to the Lake County News-Sun article, the new cleanup work will include dredging of the Waukegan Harbor:
"The harbor will be dredged to reduce PCB levels in sediments to 0.2 parts per million. . . . The dredging will go as deep as 10 to 15 feet, depending on what core samples reveal about PCBs in the sediment. After dredging, a 6-inch layer of sand will cap the harbor floor."
"The sediment will be pumped to the city-owned grounds at OMC Plant No. 2. Eventually, the sediment will be covered with clean fill and could be turned into a park. Water from the sediment will be returned to the harbor after meeting federal clean drinking water standards.
"The federal government is paying 90 percent of the estimated $35 million project, and the state will cover the other 10 percent. The project should be completed by 2012.
"Demolition of the final 600,000 square feet of OMC Plant No. 2 will cost about $21 million, funded by a federal economic stimulus grant. PCBs, trichloroethylene (TCE) and asbestos must be removed before most of that building can be demolished by Tecnica Environmental Services and Brandenburg Industrial Services Co., both minority-owned businesses from Chicago.
"The remnant of Plant No. 2 that houses a decontamination unit, which is cleaning groundwater at the gas and coke plant site, will remain for another two to three years. The project to remove TCE from groundwater at the Plant No. 2 site will begin after building demolition is complete in 2010. That work will take two months, and then the site will be monitored for a year.
"The TCE plume in the groundwater will be treated with iron filings and clay. Iron reacts with trichloroethylene, which was used as a degreaser, rendering it harmless. The clay will bind the sand aquifer to stop groundwater from flowing through the site.
"Environmental engineers also will inject sodium lactate, which is food for the naturally occurring bacteria that is already breaking down the TCE. Bioremediation would take about four years."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Here is how U.S. EPA describes the OMC Site: It "is located on Lake Michigan around the northern Waukegan Harbor area in Waukegan, Illinois. The site contains four cleanup parcels, called "operable units" (OU). The Waukegan Harbor (WH) site is OU #1. The Waukegan Manufactured Gas and Coke Plant (WCP) site is OU #2. The PCB containment cells that were created when the harbor was cleaned up in 1990-1993 comprise OU #3, and the OMC Plant 2 site is OU #4.
"Waukegan Harbor is a federally-authorized harbor that was constructed in the late 1800s. . . . From approximately 1948 to 1971, OMC purchased an estimated 8 million gallons of hydraulic fluid that contained PCBs and used it in its OMC Plant 2 building in its die casting process to make outboard motors. The fluids containing PCBs were sometimes discharged through floor drains onto the OMC Plant 2 property and also into Waukegan Harbor. As a result, 700,000 pounds of PCBs were estimated to be present in the soil on the OMC Plant 2 site and 300,000 pounds of PCBs were in the sediment in Waukegan Harbor. OMC cleaned up PCB-contaminated northern harbor sediment and some of the OMC Plant 2 soils in 1990-1993.
"OMC also operated several vapor degreasers at the OMC Plant 2 facility to clean newly made parts with trichloroethylene (TCE). Leaking degreasers and/or TCE storage tanks have created a widespread TCE groundwater contaminant plume and an isolated dense, non-aqueous phase liquid (DNAPL) pool of TCE beneath the OMC Plant 2 site. OMC abandoned the Plant 2 facility in December 2002.
"In the early 1900s, a wood-treating plant operated on the WCP site, followed by a manufactured gas plant in the 1920s and a coke oven gas plant in the 1940s. The plant was purchased and disassembled by OMC in approximately 1972. The WCP site was discovered during OMC's harbor cleanup in 1990. It has arsenic and polyaromatic hydrocarbon (PAH) soil contamination and the groundwater is contaminated with high levels of ammonia, arsenic, benzene, and phenol."
According to the Lake County News-Sun article, the new cleanup work will include dredging of the Waukegan Harbor:
"The harbor will be dredged to reduce PCB levels in sediments to 0.2 parts per million. . . . The dredging will go as deep as 10 to 15 feet, depending on what core samples reveal about PCBs in the sediment. After dredging, a 6-inch layer of sand will cap the harbor floor."
"The sediment will be pumped to the city-owned grounds at OMC Plant No. 2. Eventually, the sediment will be covered with clean fill and could be turned into a park. Water from the sediment will be returned to the harbor after meeting federal clean drinking water standards.
"The federal government is paying 90 percent of the estimated $35 million project, and the state will cover the other 10 percent. The project should be completed by 2012.
"Demolition of the final 600,000 square feet of OMC Plant No. 2 will cost about $21 million, funded by a federal economic stimulus grant. PCBs, trichloroethylene (TCE) and asbestos must be removed before most of that building can be demolished by Tecnica Environmental Services and Brandenburg Industrial Services Co., both minority-owned businesses from Chicago.
"The remnant of Plant No. 2 that houses a decontamination unit, which is cleaning groundwater at the gas and coke plant site, will remain for another two to three years. The project to remove TCE from groundwater at the Plant No. 2 site will begin after building demolition is complete in 2010. That work will take two months, and then the site will be monitored for a year.
"The TCE plume in the groundwater will be treated with iron filings and clay. Iron reacts with trichloroethylene, which was used as a degreaser, rendering it harmless. The clay will bind the sand aquifer to stop groundwater from flowing through the site.
"Environmental engineers also will inject sodium lactate, which is food for the naturally occurring bacteria that is already breaking down the TCE. Bioremediation would take about four years."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Saturday, December 12, 2009
$3 Million Awarded to Install Sewage Treatment and Septic Systems in Ridgewood
According to an Illinois EPA press release, the State of Illinois will award $3 million in federal stimulus money and llinois EPA grants and loans to improve old and ailing sewage and drainage systems in Ridgewood, near Joliet in Will County.
The money will be used to "pay for installing modern sewage treatment and septic systems to more than 180 homes, which now have inadequate or non-existent sewage or septic systems. Improvements will also be made to ensure a safe source of drinking water for 368 residential properties."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
The money will be used to "pay for installing modern sewage treatment and septic systems to more than 180 homes, which now have inadequate or non-existent sewage or septic systems. Improvements will also be made to ensure a safe source of drinking water for 368 residential properties."
Stay tuned to the Illinois Environmental Law Blog for more news and developments.
Subscribe to:
Posts (Atom)
Posts
