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

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

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

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

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

Illinois Appellate Court Affirms Distribution of Class Action Settlement Fund Resulting from Gasoline Release

The Appellate Court of Illinois, Third District, recently issued an opinion in Quick v. Shell Oil Co., No. 3-09-0987, which concerned a class action settlement arising out of a release of thousands of gallons of gasoline from a Shell pipeline onto the Danhausen farm in Limestone Township, Kankakee County, Illinois.

The settlement agreement provided a fund of $26 million to be distributed by a settlement administrator, who in turn consulted a licensed real estate appraiser, Jay M. Heap, to determine the diminution in value of property in the class area resulting from the gasoline release.  The trial court approved the settlement administrator’s recommendation to distribute $120,489 of the settlement fund to the Danhausen estate. 

The Danhausen estate filed an appeal, arguing that an award of $1,172,300 for diminution in value and $3,516,900 for nuisance and interference with quiet enjoyment would be more appropriate.  The estate based its calculations on its own appraiser, Richard F. Hansen.  The appellate court disagreed and affirmed the trial court's order:

"Regarding the award for diminution in value of the Danhausen estate property, the court found Heap’s appraisal to be worthy of greater weight than that of Hansen, due to Heap’s credentials and experience.  We have reviewed both Heap’s and Hansen’s appraisals and cannot find that the trial court’s decision in this regard was arbitrary, fanciful or unreasonable.  In addition, considering the large number of claimants and the lengthy time period that has elapsed since the gasoline spill, we cannot find that the trial court’s decision to approve the Settlement Administrator’s use of a formulaic approach to approximate agricultural property values and the diminution in value of those pieces of property was unfair, unreasonable, or inadequate.  Thus, the trial court’s decision to approve the Settlement Administrator’s award to the Danhausen estate for diminution in value was not an abuse of discretion.

"We also conclude that the trial court did not abuse its discretion by approving the recommended distribution to the Danhausen estate for nuisance and interference with quiet enjoyment of its property.  The Danhausen estate maintains it is entitled to more than $3 million for this claim.  However, it does not provide any legal or factual support for its claim.  On the other hand, the Settlement Administrator’s formula for compensating Core Area property owners for nuisance and interference with quiet enjoyment of their property, taken as a whole, was fair, reasonable and adequate.  While it is undisputed that the gasoline spill occurred on the Danhausen estate’s property, it did not present adequate evidence that it was entitled to a larger distribution of the settlement fund for these damages."

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

U.S. EPA Settles Superfund Claims With Potentially Responsible Parties at Gilberts/Kedzie Site

The U.S. Environmental Protection Agency recently provided notice in the Federal Register of an administrative settlement for recovery of past response costs concerning the Gilberts/Kedzie Site in the Village of Gilberts, Illinois with the following settling parties: Glen J. Kedzie, Big Timber Landscape Company, Inc., and GTCS Corp. 

The site is the location of a former battery cracking and recycling operation.  The main site is located immediately north of the intersection of Railroad and Mill Streets bounded by Galligan Road on the east and the Chicago and Northwestern Railway on the west.  Lead acid batteries were cracked open to recover the lead.  Some of the lead seeped into the ground along with the acid contained in the batteries.  Extensive environmental sampling last summer identified a six-acre area of gross contamination (mainly lead).  Later, a second area of contamination was discovered to the southwest, where the Village of Gilberts Public Works building is now located, west of the railroad tracks - this is known as the Tower Hill Road site.

The settlement requires the settling parties to pay $3,000.00 to the Hazardous Substance Superfund and additional payments when the Site is sold.  The settlement includes a covenant not to sue the settling parties pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9607(a).

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

Federal Court Allows Contribution and Indemnity Claims Against Drainage & Levee District to Proceed

The U.S. District Court for the Central District of Illinois recently issued an opinion in Wilder Corp. v. Thompson Drainage and Levee District, Case No. 09-1322.  I first reported on this case when the Court dismissed the plaintiff's original complaint in May 2010 (click here).

In this case, Wilder seeks contribution and indemnification from Thompson Drainage and Levee District, to the extent that Wilder is found liable in a different case brought by the Nature Conservancy for breaches of various agreements related to the Conservancy's purchase of certain land in Fulton County, Illinois from Wilder.

The District filed a motion to dismiss Wilder's Second Amended Complaint.  The Court denied the motion.

Count I of the Second Amended Complaint alleged a claim for contribution based on the District's contamination of the property, to the extent that Wilder is held liable to the Conservancy for damages related to the contamination.  The Court held that Count I properly "put the District on notice of its allegation that it could have been liable to Wilder for its role in the pollution of the Property according to the Illinois Tortfeasor Act.  Wilder alleges for that at the time of the first suit, the Conservancy could have also claimed that Wilder was liable in tort for negligence and lack of due care in allowing the damage caused by the pollution.  This is marginally sufficient to promote a reasonable inference of a joint tortfeasor relationship at this stage of the proceedings."

Count II contains the more interesting claim.  It alleged a claim for indemnity based on an implied warranty made by the District to Wilder.  Wilder "alleges the existence of a pre-tort relationship based on the District's use of its property daily since 1918 pursuant to a right of way."  Specifically, Wilder claimed that "by running a petroleum pipe across its property, the District impliedly promised to indemnify Wilder from any and all damages that occurred as a result of the District's actions or inactions.  Wilder further alleges that as a result, they should be indemnified and held harmless by the District against the prior judgment [against Wilder] regarding the contamination. . . . Through its Complaint, Wilder has pled sufficient facts to put the District on notice of its allegation that Wilder should be indemnified against the prior judgment."

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

Contamination Claims Against Dry Cleaner Allowed to Proceed in Federal Court

The U.S. District Court for the Northern District of Illinois recently issued an opinion in Tinaglia Family L.P. v. North Shore Cleaners, Inc., No. 09 C 6031, which concerned the Plaintiff's commercial and residential property in Glencoe, Illinois.  The Plaintiff's property is adjacent to property owned by the Defendants, who operate a dry cleaning establishment on site.

According to the complaint, there has been and continues to be a release of hazardous substances on the dry cleaning property and that the hazardous substances have migrated to adjacent properties including the Plaintiff's property.  In 2002, Defendants allegedly hired an environmental consultant to investigate a possible contamination problem.  The Plaintiff allegedly signed an agreement providing consent for Defendants’ consultant to test the Plaintiff's property.  Pursuant to that agreement, Defendants were also required to provide Plaintiff with the results of all tests.  According to Plaintiff, Defendants falsely reported to the Plaintiff both orally and in writing that there was no contamination on the Plaintiff's property.  The Plaintiff allegedly believed the representations, relied on them, and took no further action to investigate the issue.  In February 2008, the Plaintiff allegedly attempted to sell its property, and as part of the sale, the lender required an environmental assessment.  The assessment allegedly showed that the Plaintiff's property was contaminated by the hazardous substances that had migrated from the dry cleaning property.

The Defendants moved to dismiss the complaint, which was based on the Comprehensive Environmental Response, Compensation, and Liability Act (more commonly known as Superfund), the Resource Conservation and Recovery Act, negligence, trespass, private nuisance, breach of contract, intentional misrepresentation, and negligent misrepresentation.  The Court denied the motion to dismiss and ruled that the Plaintiff had alleged enough facts in the complaint to proceed with its claims.
 
There have been several instances where claims have been made against dry cleaners for contamination, because of the use of hazardous chemicals, including perchloroethylene (perc), by those establishments.  As dry cleaners become "greener" and use less hazardous chemicals, we expect less claims to be made against those establishments.

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

Illinois Federal District Court Dismisses Contamination Claim Against Drainage and Levee District

On May 13, 2010, the U.S. District Court for the Central District of Illinois granted a motion to dismiss claims for breach of the Illinois Drainage Code, trespass, and contribution/indemnification, in Wilder Corp. v. Thompson Drainage & Levee District, No. 09-1322.

This case has a complicated procedural history.  In 2006, the Nature Conservancy filed a complaint against Wilder Corp. alleging breaches of various agreements related to the Conservancy’s purchase of certain land in Fulton County, Illinois from Wilder.  In 2008, the Conservancy filed an Amended Complaint in that litigation alleging that there was additional contamination in an area south of the pump house on the property that had been operated by Thompson Drainage and Levee District (the “District”).  In July 2009, Wilder sought leave to file a third-party complaint against the District based on its contention that this contamination was caused by the District, which was denied as untimely.

Wilder then filed a new lawsuit against the District alleging breach of the Illinois Drainage Code, trespass, and a claim for contribution/indemnification. The District moved to dismiss the complaint as barred by the statute of limitations and for failure to state a claim upon which relief can be granted.

The Court granted the motion to dismiss.  The Court first ruled that the claims under the Drainage Code and trespass were barred by the one-year statute of limitations under the Local Governmental and Governmental Employees Tort Immunity Act.  The Court then ruled that the contribution/indemnity claim should be dismissed because Wilder had not claimed that the District was a joint tortfeasor with the District for purposes of contribution and that there was no express or implied contract between Wilder and the District upon which indemnity could be based.

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

Illinois Federal District Court Dismisses Village's Trespass and Nuisance Action

On May 12, 2010, the U.S. District Court for the Central District of Illinois granted a motion to dismiss a village's nuisance and trespass claims in Village of DePue v. Viacom International, Inc., Nos. 08-cv-1272 and 08-cv-1273.  This case dealt with a zinc smelting facility and a diammonium phosphate fertilizer plant within the Village of DePue, Illinois, which operated from 1903 until 1989.  These operations left the site with elevated levels of cadmium, lead, and other metals. 

The successors of the company that operated the facility (Viacom, CBS Operations, Inc., and Exxon Mobil Corp.) were sued by the Village of DePue based on theories of common law trespass and nuisance.  More specifically, the village claimed that the defendants were liable to it for trespass, by allowing contaminants from the site to flow onto village land, and for both public and private nuisance relating to the contamination of village land. 

The defendants filed a motion to dismiss based on the five-year statute of limitations on nuisance and trespass claims.  The Court granted the motion, finding that the village's claim was "facially barred" by the statute of limitations, because the village's lawsuit was filed on August 10, 2008, and the village did not allege any tortious conduct by the defendants after 1989.

The Court also rejected the village's argument that several exceptions to the statute of limitations applied.  For example, the Court held that the defendants' conduct did not amount to a "continuing tort," because the village did not allege that the defendants or their corporate predecessors engaged in any conduct aside from merely owning the site after 1989.  The Court held that the "discovery rule" did not apply, because fact sheets from the Illinois EPA in 1992 and 1995 put the village "on inquiry to determine whether actionable conduct [was] involved."  Finally, the Court held that the sovereign immunity exception did not apply, because the village's claims were "brought solely to recover damages allegedly incurred because of [the village's] interests as a private landowner. . . ."

However, the defendants are not off the hook completely.  According to the opinion, the defendants were previously sued by the Illinois Attorney General and entered into an interim consent order which mandated a phased investigation of the site and implementation of certain interim remedies.

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.

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.

$7,500 Administrative Penalty Citation Issued by IL Pollution Control Board for Open Dumping

On February 18, 2010, the Illinois Pollution Control Board issued an administrative citation order in County of Jackson v. Clover, IPCB No. AC 10-5, which concerned defendant’s facility located in Jackson County, Illinois and known as the “Murphysboro/Gary Clover site".

Jackson County alleged that the defendant violated the Illinois Environmental Protection Act by allowing litter, open burning, and deposition of general construction or demolition debris or clean construction or demolition debris.  Because the defendant failed to file a proper petition for review of the administrative citation, the Pollution Control Board found that the defendant committed the violations alleged and imposed the civil penalty provided in the regulations. 

The civil penalty for violating the relevant regulation is $1,500 for each violation, except that the penalty amount is $3,000 for each violation that is the person’s second or subsequent adjudicated violation of that provision.  Because there were three violations of the regulation in this case, and the record indicated that two of them are second or subsequent adjudicated violations, the total civil penalty was $7,500.

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

U.S. Adds Two Illinois Sites to National Priorities List

The U.S. Environmental Protection Agency announced that two sites in Illinois--the Chemetco site in Hartford and the Lake Calumet Cluster site in Chicago--to the Superfund National Priorities List ("NPL").  The National Priorities List is a list of the most serious sites identified for possible long-term cleanup.

Here's how U.S. EPA described the two sites:

"The Chemetco site is on Illinois Route 3 in Madison County, about two miles south of Hartford.  It was a secondary copper smelter from 1969 to 2001 before filing Chapter 7 bankruptcy.  More than 500,000 cubic yards of processing slag, sludge and other hazardous materials were left on portions of the 41-acre site. Elevated levels of the heavy metals copper, cadmium, lead and zinc have been found in adjacent wetlands and in the sediment of nearby Long Lake.  Chemetco was proposed for addition to the NPL in September 2009.  Now that the site is on the list, Chemetco is eligible for further analysis and development of cleanup options by EPA in partnership with Illinois EPA.

"The 87-acre Lake Calumet Cluster site, on Chicago’s southeast side, is composed of four separate parcels. The Cluster site is bounded by the Land and Lakes Landfill to the west, 122nd Street to the south, the Norfolk Southern Railroad right-of-way and Indian Ridge Marsh to the east, and the Paxton I & II Landfills to the north.  The site was originally a wetland that was used for disposal of steel mill slag and industrial, chemical and municipal waste from the 1940s to 1970s.  Environmental concerns include contaminated soil and contaminated surface water runoff from the site into the adjacent wetland areas.  These wetlands are used by at least 14 federal or state endangered or threatened species.  From 1983 to 1985, and in 1990, EPA performed limited-scope cleanups including drum removals.  The Cluster site was proposed for addition to the NPL in September 2005. In 2007 – 2008, Illinois EPA began construction of a landfill cap. Now that the Cluster site is on the NPL, Illinois EPA can use federal money to complete the cap and investigate the full extent of contaminated groundwater at the site."

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

$14,300 Settlement of State Enforcement Action Alleging Dumping of Pesticides

On February 4, 2010, the Illinois Pollution Control Board accepted a settlement in People v. Buysee, IPCB No. 09-31, which concerned the defendant’s business as a landscape contractor located at Route 6 and Niabi Road approximately two miles north of Coal Valley, Rock Island County, Illinois.

The State alleged that the defendant violated the Illinois Environmental Protection Act by (1) causing or allowing the discharge of a hydroseed mixture; (2) by dumping the hydroseed mixture on the bank of Shaffer Creek; (3) by causing or allowing dumping of leftover hydroseed mixture at the site; (4) by disposing of leftover hydroseed mixture at the site; (5) by spilling the hydroseed mixture onto the bank and into Shaffer Creek; and (6) by discharging the bright green colored hydroseed on to land and into the waters of the state.

The hydroseed mixture contained the pesticides DDT (at a concentration of 17 parts per billion) and DDE (at a concentration of 16 parts per billion).  Both DDT and DDE are banned for use in the United States.  The hydroseed mixture also contained aroclor-1248 (at a concentration of 320 parts per billion).  Aroclor is a polychlorinated biphenyl (PCB) and is listed as a hazardous substance under the federal Superfund law. 

Under the terms of the settlement, the defendant admits the alleged violations and agrees to pay a civil penalty of $14,300.

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

State Enforcement Action Alleging Wastewater Discharge Violations Settled for $84,570

On January 7, 2010, the Illinois Pollution Control Board accepted the settlement of a state enforcement action in People v. Kraft Foods Global, Inc., IPCB No. PCB 07-124.  The action concerned discharges in 2005 of various process wastewaters from the defendant's food processing and production facility, located at 1555 West Ogden Avenue, Naperville, DuPage County, Illinois.

The State alleged that the defendant violated the Illinois Environmental Protection Act by: (1) causing, allowing or threatening to cause water pollution, and (2) depositing process wastewater on the land in such place and manner so as to create a water pollution hazard, (3) discharging process wastewater without a permit under the National Pollutant Discharge Pollution Elimination System, (4) failing to take remedial action to repair its treatment works and associated facilities in a timely manner, (5) to avoid causing violations of applicable standards, including the (6) failing to employ entrapment dikes in sewers or to take other reasonable measures to prevent any spillage of contaminants from causing water pollution, and (7) discharging effluent at levels in excess of the standards for five-day biochemical oxygen demand and total suspended solids.

Under the settlement, the defendant does not admit the alleged violations, but it agrees to pay a civil penalty of $84,570.00.

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

IL Pollution Control Board Accepts Settlement of Action Against Construction Company for Open Dumping

On February 4, 2010, the Illinois Pollution Control Board accepted the settlement of an administrative citation action filed by the Illinois Environmental Protection Agency against Blickhan Family Corporation, Inc. and Blick’s Construction Co. Inc. in Illinois Environmental Protection Agency v. The Blickhan Family Corporation, IPCB No. AC 09-43.

The Illinois EPA alleged that the defendants violated the Illinois Environmental Protection Act by causing or allowing the open dumping of waste in a manner resulting in litter, open burning, and the deposition of general or clean construction or demolition debris.  These allegations concerned the defendants' facility located at Lock and Dam Road in Quincy, Adams County, Illinois.

Under the terms of the settlement, the defendants admit that they violated the Illinois Environmental Protection Act by causing or allowing the open dumping of waste resulting in open burning, and they agree to pay the statutory civil penalty of $1,500 for this violation.  The settlement further states that the waste that was the subject of the administrative citation has been removed and properly disposed.  In addition, the Illinois EPA agrees not to refer the violations that are the subject of the administrative citation to the Office of the Illinois Attorney General or any other prosecuting authority to initiate a civil enforcement action.

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

Court Finds Owner of Facility's Equipment Liable in Cost-Recovery Case

In United States v. Saporito, Case No. 07 C 3169, the United States District Court for the Northern District of Illinois recently ruled that the federal government could recover its environmental cleanup costs against the current owner of a facility's equipment.

Beginning in the 1970s, Crescent Plating operated a facility on the northwest side of Chicago that plated steel and brass objects with various metals such as zinc, chromium, and copper.  In addition to those metals, the plating process also used, among other potentially hazardous chemicals, sodium cyanide, hexavalent chromium, and trichloroethene.  Very simply explained, the electroplating process involved dipping the item to be plated into a series of chemical baths through which electrical current is run.

In December 2003, U.S. EPA began removal activities at the site and in February 2004, the EPA authorized funding for the removal action based on its determination that the conditions at Crescent Plating presented “an imminent and substantial endangerment to the public health, welfare, and the environment.”  The first EPA site assessment found 58 vats and tanks and 464 containers holding various liquids and sludges as well as a 20-cubic-yard box filled with plating sludge.  Some containers had deteriorated and spilled, the building and equipment were coated with plating sludge, and the building had no heat or electricity.  During the cleanup, the government found two large areas of concrete floor that had corroded to expose the soil below. In all, the EPA spent more than $1.5 million to clean up tens of thousands of gallons of hazardous liquids and sludge.  After cleaning up the site, the government sued to recover the costs incurred.
 
The Court agreed with the government’s motion for summary judgment, which relied on the theory that Saporito was a facility owner at the time of the cleanup based on his undisputed ownership of equipment used in the plating process.  In so doing, the Court held that the government did not need to present evidence showing that any specific piece of equipment he owned was responsible for specific releases of hazardous chemicals or specific cleanup costs.
 
This is another example of the government, with approval of the courts, going after individuals to recover environmental cleanup costs.

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

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.

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.

Illinois EPA Announces Cleanup of Illegal Dump Site

On December 16, 2009, the Illinois EPA announced a plan to cleanup an illegal dump site located at 140 Kohl Street, Creve Coeur, Tazewell County, Illinois.

Illinois EPA "will clean up approximately 200 cubic yards of used and waste tires, white goods, vehicles, general construction or demolition debris, and general household refuse" at the property.

"While all illegally dumped waste presents an environmental and safety problem, improperly disposed tires provide a breeding habitat for the type of mosquito that is the primary carrier of the West Nile Virus.  The Illinois EPA’s Used Tire Program removes waste tires and other materials that provide mosquito habitat.  The Agency’s I-RID (Illinois Removes Illegal Dumps) Program facilitates the removal of waste at orphan dump sites, which prevents future dumping on public and private properties."

The cleanup is expected to be completed by mid-January 2010.

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

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.

U.S. EPA Confirms School Property Not Contaminated By Drycleaner

According to a recent article in the River Forest Leaves newspaper, the U.S. EPA conducted testing to confirm that the soil at St. Luke Parish School in River Forest is environmentally safe.
The school is across the street from River Forest Dry Cleaners, located at 7613 Lake Street.  The dry cleaners is listed on Illinois EPA's Site Remediation Program database, and, according to the article, it is "contaminated with perchloroethylene, commonly used by dry cleaners."  Testing has apparently confirmed, however, that the contamination did not migrate to the school's property.

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