News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722

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.





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    The Seventh Circuit Court of Appeals recently upheld the federal government’s ability to criminally prosecute environmental activists who destroy property under the federal Animal Enterprise Terrorism Act (“AETA”).

    In United States v. Johnson, the defendants travelled from Los Angeles, California to a mink farm in Morris, Illinois. The mink farm was in the business of breeding, raising, and selling minks to fur manufacturers. At the mink farm, the defendants released approximately 2000 minks from their cages. They also removed portions of the fence surrounding the mink farm to help the minks escape, and they destroyed the minks’ breeding cards, which were needed to sell the minks to a furrier. In addition, they poured caustic substances on two farm vehicles and spray-painted the words “Liberation is Love” on a barn. The vandalism caused between $120,000 and $200,000 worth of damage. The defendants then began traveling to a fox farm in Roanoke, Illinois, which bred foxes to sell to fur manufacturers. They planned to damage the fox farm as well, but they were arrested by local law enforcement before they arrived at the fox farm. The defendants were charged in state court with possession of burglary tools and were convicted. They were sentenced to 30 months imprisonment.

    Then, the defendants were charged with violating the AETA by the federal government. Count I of the indictment alleged that they conspired to travel in interstate commerce for the purpose of damaging and interfering with the operation of an animal enterprise, and in connection with that purpose, damaged the property of an animal enterprise. Count II alleged that the defendants damaged real and personal property used by an animal enterprise. The defendants moved to dismiss the indictment against them, asserting that the AETA was facially overbroad, was unconstitutionally vague, and violated substantive due process because it labeled persons who committed the act as “terrorists”. The District Court denied the motion to dismiss.

    The Seventh Circuit affirmed the District Court’s ruling that rejected all of the defendants’ arguments. In particular, the defendants suggested that the AETA prohibited advocacy that caused damage to only intangible property such as profits or goodwill. The court rejected that argument and held that the AETA prohibited destruction of or damage to tangible items and property owned by the animal enterprise. In fact, the court looked at the legislative history of the AETA, which reinforced the conclusion that it was not intended to criminalize speech or expressive conduct that caused damage only to the animal enterprise’s profits or goodwill. Several legislators made statements indicating that, while the statute was being passed to combat the violence being perpetrated against animal enterprises as well as people and entities connected to animal enterprises, Congress was aware of the importance of protecting the First Amendment right to engage in lawful protest against animal enterprises. In particular, the court looked at a speech by Senator Feinstein stating: “I fully recognize that peaceful picketing and public demonstrations against animal testing should be recognized as part of our valuable and sacred right to free expression. For this reason, all conduct protected by the First Amendment is expressly excluded from the scope of this legislation. This law effectively protects the actions of the law-abiding protester while carefully distinguishing the criminal activity of extremists.” In summary, the court found that the text of the statute as well as the legislative history made clear that the statute does not criminalize speech or expressive conduct that causes damage only to intangible profits or goodwill of an animal enterprise.

    The Seventh Circuit had an easy task in this case, deciding to interpret the statute to criminalize destructive conduct but keeping the door open to reasonable protests that do not harm private property. Environmental activists need to be aware of this line in the sand that has been drawn by Congress and the courts.
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    1 week ago  ·  

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