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

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

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

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

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

Illinois Environmental News Update

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Under the terms of the settlement, the defendant does not affirmatively admit the alleged violations but agrees to pay a civil penalty of $10,000 and to perform a supplemental environmental project with a settlement value of $30,000, consisting of providing landfill disposal services to the State.

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

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

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

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

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

Parties Settle State Enforcement Action Alleging Landfill Violations

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

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

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

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

Illinois Federal District Court Rules That Plaintiff Does Not Have Standing To Challenge Clean Water Act Permit For Landfill

The U.S. District Court for the Southern District of Illinois recently issued an opinion granting summary judgment for the defendants in American Bottom Conservancy v. U.S. Army Corps of Engineers, Case No. 09-603-GPM, which concerns a permit issued by the U.S. Army Corps of Engineers to Waste Management of Illinois pursuant to Section 404 of the Clean Water Act.

Since 1984, Waste Management has operated a landfill called the Milam Recycling and Disposal Facility ("Milam RDF") in Madison, Illinois.  Milam RDF is estimated to reach capacity in 2012.  During its remaining landfill life, Milam RDF will require approximately 2,000,000 cubic yards of soil for daily, intermediate, and final cover.  Waste Management proposes to develop and operate a 180-acre expansion of the existing Milam RDF, to be referred to as North Milam, to provide 17 years of disposal capacity for general non-hazardous municipal solid waste; demolition, construction, and debris waste; asbestos waste; non-hazardous permitted special waste; and non-hazardous permitted liquid waste for solidification.  Waste Management’s ultimate plan has two phases: immediate excavation of cover soil to be used at the existing Milam RDF and later construction of a landfill at the North Milam site.  Neither phase is dependent on the other; excavation for soil cover is necessary to support the existing Milam RDF regardless of whether the North Milam site is used as a landfill.

Waste Management received a certification under the Clean Water Act from Illinois EPA to allow for "the excavation of wetlands in conjunction with providing soil for daily cover for a landfill."  Waste Management also received a permit from the Army Corps of Engineers to allow for “placement of fill material into waters of the United States in conjunction with the construction of the North Milam Recycling and Disposal Facility (RDF) to be located just north of the existing Milam RDF in wetlands adjacent to Cahokia Canal near Madison, Madison County, Illinois.”
Plaintiff, a nonprofit group, challenged the Corps' issuance of the permit.  Plaintiff alleged that the Corps violated the Clean Water Act by issuing a permit authorizing placement of fill material into navigable waters for the construction of a landfill without the required certification from Illinois EPA.  After reviewing affidavits of three members of Plaintiff, the District Court found that Plaintiff did not have standing to bring the action against the Corps:

"Reviewing each of the affidavits, the Court finds that none of the three members has standing.  Members Andria and Feldworth can be considered together.  Both affidavits address construction of a landfill and the effects that a landfill would have on them, including the risk that the proposed landfill will be subject to a 100-year flood.  As a matter of law, the Corps’ § 404 permit does not authorize the construction of a landfill.  That authority is granted exclusively to the IEPA under Title X of the Illinois Environmental Protection Act.  . . . Because Andria’s and Feldworth’s affidavits establish neither injury in fact nor a causal connection between any purported injury and the issuance of the § 404 permit, these members do not create standing for [Plaintiff].

. . . .

"Member Homeyer’s affidavit requires additional analysis, although she also complains primarily about the effects of constructing a landfill.  She also mentions '[d]estruction of wetlands' and '[h]abitat destruction' – albeit she mentions these in the context of a landfill – and states that there 'are birds and butterflies using the 200 acres in question right now.'  The Court considers whether these concerns constitute actual and imminent injury to Homeyer as a result of the borrow activity permitted to take place at the North Milam site.  It is important to keep in mind that the Corps’ § 404 permit relates to 26.8 acres of wetlands – only 18.4 acres of which will be impacted.  Approximately 8.4 acres of wetlands will be avoided and preserved without impacts.  The wetland mitigation plan includes creating an additional 36.55 acres on adjacent property. . . . Reading her affidavit liberally, Homeyer alleges that the destruction of wetlands will reduce the number and variety of birds, butterflies, other insects, snakes, and amphibians that she frequently observes around Horseshoe Lake.  But this injury is merely speculative.  Her anticipated injury disregards the fact that 31% of the subject wetlands will be avoided and preserved and that nearly twice the amount of affected wetlands will be created in mitigation. . . . Homeyer has not shown a concrete injury. . . . Homeyer has not stated that she will stop visiting Horseshoe Lake if the wetlands are destroyed as proposed, and her concern for the effects on the habitat is too generalized to give rise to standing."

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

Owner of Landfill Settles State Enforcement Action Alleging Methane Gas Violations

The Illinois Pollution Control Board recently accepted the parties' stipulation and proposed settlement in People v. Roxana Landfill, Inc., Case No. PCB 11-4, which concerned the defendant's landfill facility at 4601 Cahokia Road in Roxana, Madison County, Illinois.

The State alleged that the defendant violated Illinois environmental laws and regulations by (1) failing to notify the Illinois EPA within two business days of observed exceedances of methane gas limits, (2) conducting a waste-storage, waste-treatment, or waste-disposal operation in violation of regulations or standards adopted by the Pollution Control Board, and (3) conducting a waste-storage, waste-treatment, or waste-disposal operation in violation of a condition within the operating permit by failing to submit an application to the IEPA for significant modification within 180 days of the occurrences.

Under the terms of the settlement, the defendant does not affirmatively admit the alleged violations but agrees to pay a civil penalty of $10,000 and complete a supplemental environmental project
consisting of landfill disposal services with a settlement value of $18,000.

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

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.

Settlement of State Enforcement Action Against Operator of CCDD Facility

On March 18th, the Illinois Pollution Control Board accepted the settlement in People v. Western Sand & Gravel Co., No. PCB 10-022, which concerned the defendant's Clean Construction or Demolition Debris ("CCDD") Facility at the intersection of 178 and I-80 in La Salle County, Illinois.

The State alleged that the defendant violated the Illinois Environmental Protection Act by failing to: (1) conduct visual inspections, inspections with a photo ionization detection ("PID") instrument for each incoming load, and discharge inspections of at least one randomly selected load delivered to the facility each day, (2) failing to retain records evidencing that a load checking program is being used at the facility, (3) failing to properly train its personnel at the facility to identify material that is not CCDD, and (4) failing to keep and maintain a calibrated PID instrument at the facility for checking loads of CCDD.  The State also alleged that the defendant failed to (1) restrict unauthorized vehicular access to the working face of the facility and (2) post a permanent sign at the entrance to the facility stating that only CCDD is accepted for use as fill.  The State also alleged that the defendant failed to maintain an operating record at the facility.

Under the terms of the settlement, the defendant neither admits nor denies the alleged violations but agrees to pay a civil penalty of $3,120.

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

Penalty of $7,500 Against Operator of Open Dump Imposed by IL Pollution Control Board

On March 18th, the Illinois Pollution Control Board imposed a penalty on an administrative citation filed in County of Ogle v. Haan, No. AC 10-16, which dealt with the Mt. Morris Estates Trailer Park in Ogle County, Illinois.

The County alleged that the defendant, who operated the trailer park, violated the Illinois Environmental Protection Act by causing or allowing open dumping resulting in litter, open burning and deposition of construction or demolition debris.

To contest an administrative citation, a defendant must file a petition with the Pollution Control Board no later than 35 days after being served with the administrative citation. If the defendant fails to do so, the Pollution Control Board must find that the defendant committed the violations alleged and impose the corresponding civil penalty.

Because the defendant failed to file a petition with the Pollution Control Board, the Board found that the defendant committed the alleged violations and imposed a $7,500 penalty.

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

$15,000 Settlement of State Enforcement Action Against Construction Debris Landfill

On March 4th, the Illinois Pollution Control Board accepted a settlement in People v. Reliable Sand and Gravel Co., IPCB No. 09-129, which concerned the defendant's clean construction and demolition debris (CCDD) fill operation at 2121 South River Road in McHenry, McHenry County, Illinois.

The State alleged that the defendant violated the Illinois Environmental Protection Act by failing to: (1) conduct and maintain records of routine inspections of incoming loads and at least one discharge load by failing to both visually inspect the loads and use a specified PID or other device; (2) demonstrate that site personnel are trained to identify non-CCDD material; (3) conduct field measurements in accordance with permitted operating procedures; (4) keep records of training reports, written procedures for load checking, and load rejection notifications; and (5) obtain an interim authorization for operating the facility.  The State also alleged that the defendant violated the Act by dumping, depositing, or placing approximately 100 cubic yards of non-CCDD landscape waste at the face of the fill area, without a permit, and failing to restrict vehicular access to the working face of the area or post a sign excluding non-CCDD waste.

Under the terms of the settlement, the defendant does not affirmatively admit the alleged violations but agrees to pay a civil penalty of $15,000.

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

IL Pollution Control Board Again Penalizes for Open Dumping

On January 21, 2010, the Illinois Pollution Control Board found that the owner of a facility in Clay County, Illinois violated the Illinois Environmental Protection Act and ordered the owner to pay $3,000 in civil penalties, in Illinois Environmental Protection Agency v. Luttrell, IPCB No. AC 10-09.  This follows on the heels of a $3,000 penalty for a disposal facility in Sangamon County, Illinois.

The penalty resulted from an administrative citation that was filed by the Illinois Environmental Protection Agency concerning a facility located at approximately 800 North Aspen Road, Xenia, Clay County, Illinois and commonly known as the “Xenia/Luttrell, Tony A. and Crystal K. (northeast)” site.  Illinois EPA alleged that the defendant violated the Illinois Environmental Protection Act by causing or allowing the open dumping of waste in a manner resulting in litter and deposition of general construction or demolition debris.

To contest an administrative citation, a defendant must file a petition with the Pollution Control Board no later than 35 days after being served with the administrative citation. If the defendant fails to do so, the Pollution Control Board must find that the defendant committed the violations alleged and impose the corresponding civil penalty.

Because the defendant failed to file a petition with the Pollution Control Board, the Board found that the defendant committed the alleged violations and imposed a $3,000 penalty.

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

IL Pollution Control Board Penalizes Company for Open Dumping

On January 21, 2010, the Illinois Pollution Control Board found that Info Corner Materials, Inc. ("ICM") violated the Illinois Environmental Protection Act and ordered ICM to pay $3,000 in civil penalties.

The penalty resulted from an administrative citation that was filed by the Illinois Environmental Protection Agency concerning ICM’s disposal facility located on Bachmann Drive, just north of the junction of North Dirksen Parkway and Peoria Road, in Springfield Township, Sangamon County, Illinois.  Illinois EPA alleged that ICM violated the Illinois Environmental Protection Act by causing or allowing the open dumping of waste in a manner resulting in litter.  Illinois EPA also alleged that this was ICM's second open dumping violation.

To contest an administrative citation, a defendant must file a petition with the Pollution Control Board no later than 35 days after being served with the administrative citation.  If the defendant fails to do so, the Pollution Control Board must find that the defendant committed the violations alleged and impose the corresponding civil penalty. 

Because ICM failed to file a petition with the Pollution Control Board, the Board found that ICM committed the alleged violations and imposed the $3,000 penalty for a second violation.

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

IPCB Penalizes Owners and Operators of Landfill for Environmental Violations

On November 5, 2009, the Illinois Pollution Control Board issued an opinion penalizing the owners and operators of a landfill located near Sumner, Lawrence County, Illinois. 

In People v. Simmons, PCB No. 06-159, the Board assessed civil penalties of $10,000 against the Disposal Centre, Inc., and $1,000 against Gary Simmons individually.  The Board also ordered the Disposal Centre to pay an additional $32,164, which is the time-use value of $118,421.90 to recoup the economic benefit earned through non-compliance.  The Board also ordered Simmons to pay an additional $3,573, which is the time-use value of $118,421.90 to recoup the economic benefit earned through non-compliance. Finally, the Board assessed attorney fees of $1,540 against both respondents, for which they are jointly and severally liable.

According to the Board's opinion, the "proven violations involve requirements for post closure care, site security and maintenance, and groundwater and gas monitoring violations. Respondents also violated various permit conditions imposing recordkeeping, reporting, and operational requirements. Finally, the respondents also committed air pollution through failure to correctly manage landfill case."

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