Monday, September 27, 2010

Environmental Register for August 2010

The Illinois Pollution Control Board has issued its Environmental Register publication for August 2010.

The Environmental Register features a letter from Chairman Girard, which discusses five environmental bills that Governor Quinn recently signed into law.  The Environmental Register also contains an appellate court update, a rulemaking update, a summary of actions of the Board, a summary of new cases, a list of provisional variances, and the Board's calendar.

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

Thursday, September 23, 2010

Illinois ENERGY STAR® Appliance Rebate Program--Friday, September 24th

On Friday September 24th, Illinois residents can receive a 15% off instant discount at the point of sale, up to $250, on an ENERGY STAR qualified model for washers, dishwashers, freezers, or refrigerators.  This program is sponsored by the Illinois Department of Commerce and Economic Opportunity and the American Recovery and Reinvestment Act of 2009.

Note that this is an appliance replacement program.  Customers must complete a self-certification form attesting that the appliance purchased is for replacement purposes.

For more details on the program, you can click here or call 877-782-7005.

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

Monday, September 20, 2010

Selection to "14 Under 40" List in DePaul Magazine

I would like to announce my selection to the "14 Under 40" list in the Fall 2010 publication of DePaul Magazine.  According to the magazine, "each year, we call on members of the community, including alumni, faculty, staff and friends, to nominate DePaul graduates who distinguish themselves.  We then choose 14 of them, with the goal of representing schools and colleges across the university.  The result is an inspiring, interesting mix of people, professions, and achievements." 

Please click here to view my profile that was published in the magazine.  Thank you DePaul Magazine for this great honor!

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.

Tuesday, September 14, 2010

Federal Appeals Court Upholds Dismissal of Lawsuit Seeking to Prevent Village's Acquisition of Utility Assets

The U.S. Court of Appeals for the Seventh Circuit recently issued an opinion in Rock Energy Cooperative v. Village of Rockton, No. 10-1106, which concerned a dispute over the ownership of assets used by natural gas and electric utilities.

Rock Energy is a consumer-owned utility that provides gas and electricity to its members on a cost-of-service, nonprofit basis.  In 2004, Alliant Energy announced that it would take bids for the sale of assets held by a subsidiary company.  The announcement caught the attention of both Rock Energy and the Village of Rockton, Illinois.  Rock Energy submitted a bid for the Alliant assets, and the Board of Trustees of Rockton passed an ordinance on January 18, 2005, authorizing the Village to acquire the assets by purchase or condemnation.

On June 30, 2005, the Village and Rock Energy entered into a Memorandum of Understanding (the “MOU”), in which they expressed their “mutual intent to explore the feasibility of Rockton[’s] acquiring the local utility assets” from Rock Energy.  In the MOU, Rock Energy agreed to sell the assets to the Village if certain conditions were satisfied, including the completion by the Village of a feasibility analysis addressing topics such as finance, safety, reliability, and operations; the parties also needed to come to an agreement on the price that the Village would pay.  The next day, Rock Energy entered into a contract with Alliant to purchase the assets; for reasons that are not explained, it took another year and a half for that transaction
to close.  After that, the Village told Rock Energy on more than one occasion that it wanted to acquire the assets, as contemplated by the MOU.  The Village has also threatened to condemn the assets, using its power of eminent domain.

On May 11, 2009, Rock Energy filed a complaint in federal court seeking a declaratory judgment stating that “the Village of Rockton has not met the requirements of Illinois law to acquire electric and gas utility assets from Rock Energy Cooperative.”

The trial court dismissed the complaint, and the 7th Circuit appellate court affirmed.  The appellate court held that, although the Village threatened to do certain things, the Village actually took no action to acquire the utility assets.  Therefore, Rock Energy did not have standing to sue:

"We begin with Rock Energy’s eminent-domain theory.  The company would like us to believe that its Alliant assets are likely to be taken by the Village at any moment.  As we held in Shannon, it continues, it is 'no bar to ripeness if the government has only threatened enforcement, rather than actually brought a lawsuit.' . . .  But this record is startlingly devoid of evidence that the Village is waiting to pounce with an eminent domain
action.  The ordinance about which Rock Energy complains was passed five years ago; Rock Energy has
had a contractual right to own the assets for the same five years; and it has actually held them for more than three years.  That does not sound like imminence to us."

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

Sunday, September 12, 2010

Romeoville Oil Leak Update

9/14/10 UPDATE: According to an article in the Chicago Tribune, the Illinois EPA has referred this matter to the Illinois Attorney General's office for a possible enforcement action.

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9/13/10 UPDATE: According to an article in the Chicago Tribune, the leak has been stopped: "Crews on Monday removed a 12-foot section of pipe at the site of an oil spill outside Chicago that led to a spike in regional gasoline prices, but it could take weeks to clean up the contamination."

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For those of you who have not watched the local news lately, an oil leak in Romeoville was discovered on Thursday, September 8th.  The Chicago Sun Times website has a good article providing an updated news account of the story.  This is still a major concern because oil still seems to be leaking, and the source of the leak has not yet been identified.

I drove out to the site yesterday (a short drive because I live in Naperville).  Unfortunately, I could not get very close to the site because police had blocked off the nearby streets.  But there was a lot going on, with police, EPA, and contractor vehicles onsite.

The only thing that seems to be clear is that the company responsible for the leak, Enbridge (which has another major oil incident to contend with in Michigan) has a lot of explaining to do.

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

Thursday, September 9, 2010

Asian Carp Czar Named by White House

The federal Council on Environmental Quality recently announced the appointment of John Goss as the Asian Carp Director.  According to CEQ's press release, Goss "will serve as the principal advisor to CEQ Chair Nancy Sutley on Asian carp issues, and oversee the coordination of Federal, state, and local efforts to keep Asian carp from establishing in the Great Lakes ecosystems. . . . Goss will also chair the Asian Carp Regional Coordinating Committee (RCC), which is a team of Federal, state and local agencies working together to prevent Asian carp from establishing populations in the Great Lakes."

CEQ's press release also describes Goss's background: "Goss joins CEQ from the Indiana Wildlife Federation, the Indiana State affiliate of the National Wildlife Federation, where he served for four years as the Executive Director.  In his role at the Wildlife Federation, he worked with conservation, business and industry groups to support the Great Lakes Compact.  Goss previously served as Director of the Indiana Department of Natural Resources and as Vice Chair of the Great Lakes Commission. . . . Prior to his position at the Indiana Department of Natural Resources, Goss was Director of Tourism for the State of Indiana and chaired the Great Lakes International Marketing Initiative for the Great Lakes Governors Association. Goss served as Chief of Staff for Lt. Governor Frank O’Bannon, District Director for Congressman Frank McCloskey and Deputy Mayor for the City of Bloomington, Indiana. Goss received his Masters of Public Affairs and his B.A. in Economics from Indiana University."

The question is whether the federal government needs an Asian carp czar now.  Several states have sued to force the closure of Chicago locks to physically prevent Asian carp from entering the Great Lakes.  Apparently, they believe that this is the only solution, because they have criticized everything else the Obama administration is doing.  While the appointment of Mr. Goss shows that the White House is very serious about this issue, will it really do anything to change the mind of those people who think that we must close the locks or else?  I doubt it.

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

Tuesday, September 7, 2010

Deferring to Illinois EPA, Environmental Appeals Board Rules That PSD Permits Are Not Required to Regulate Greenhouse Gas Emissions

U.S. EPA's Environmental Appeals Board recently issued an interesting decision concerning greenhouse gas requirements of air permits in the case of In re: Power Holdings of Illinois, LLC, PSD Appeal No. 09-04.  This case involves a petition for review filed by the Sierra Club challenging certain conditions of a prevention of significant deterioration (“PSD”) permit issued by the Illinois Environmental Protection Agency, under delegated federal authority, to Power Holdings of Illinois, LLC for construction of a synthetic natural gas (“SNG”) manufacturing plant in Jefferson County, Illinois.

The Sierra Club raised three issues on which it sought review.  The first two issues were: (1) the permit fails to include a flare minimization plan as part of the final permit and allows Power Holdings to develop such a plan without full public participation; (2) the permit allows SNG or natural gas to be used to fire “superheaters” at the plant without addressing emissions associated with the manufacture of SNG.  The Appeals Board rejected the Sierra Club's challenge on these two issues.  The Board first held that the flare minimization plan supplements other permit requirements and properly requires Power Holdings to develop methods to reduce emissions from flaring events based on actual operating experience.  The Board then held that Sierra Club failed to demonstrate the presence of collateral environmental impacts that would justify eliminating SNG as a fuel for the superheaters.

The third issue raised by Sierra Club was that the permit failed to regulate greenhouse gases (carbon dioxide and methane), and thus violated a State emissions limitation at Ill. Admin. Code tit. 35 § 201.141 incorporated into Illinois’ approved state implementation plan (“SIP”).  Section 201.141 provides, in part, as follows:

"No person shall cause or threaten or allow the discharge or emission of any contaminant into the environment in any State so as, either alone or in combination with contaminants from other sources, to cause or tend to cause air pollution in Illinois . . . ."

According to Sierra Club, greenhouse gases constitute "contaminants" causing or contributing to "air pollution" under Section 201.141.  However, the Illinois EPA disagreed and made clear to the Board that it does not interpret Section 201.141 as requiring regulation of greenhouse gas emissions.  The Board deferred to Illinois EPA's interpretation and rejected Sierra Club's argument:

"Because the State of Illinois has interpreted the disputed provision of its state SIP as inapplicable to greenhouse gases, and because this interpretation does not strike the Board as so unreasonable as to not be entitled to the substantial deference afforded state interpretations of their own laws, the Board declines to substitute its judgment for that of the IEPA in this instance.  Review is therefore denied on this issue."

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

Monday, September 6, 2010

Federal Court Allows Three Parties to Intervene in Asian Carp Case

A federal judge recently allowed three parties to intervene in the Asian carp case (Michigan v. United States Army Corps of Engineers), currently pending in the U.S. District Court for the Northern District of Illinois.  Click here for more information on the Asian carp case.  The Court granted leave to the following parties to intervene as defendants: (1) the City of Chicago, (2) the Coalition to Save Our Waterways, and (3) Wendella Sightseeing Company, Inc. 

The Court held that the City "has demonstrated that its interests are direct, substantial, and capable of legal protection . . . ."  Those interests included: (1) to ensure that the Chicago police and fire departments' operations are not disrupted and that they are able to fully utilize the navigational locks and/or sluice gates to perform their emergency response, law enforcement, and homeland security duties; (2) to ensure that the sluice gates can continue to be used to maintain water quality and avert flooding; and (3) to ensure that the City's long-term efforts and plans to enhance the waterfront are not disrupted. 

The Coalition is a group of trade associations, whose interest in this case is in preserving the viability of the economic investments in businesses through the continued ability to navigate the Chicago Area Waterway System.  Similarly, Wendella provides boat tours, and its economic livelihood is directly at stake in this lawsuit.  The Court held that both the Coalition and Wendella had sufficient interests to intervene.

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