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.

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

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

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

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

Gov. Quinn Signs Order Establishing Illinois Coastal Management Program

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

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

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

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

Village of Crestwood Settles Class Action for $500,000

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

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

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

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

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

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

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.

Smart Home at Chicago's Museum of Science and Industry

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

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