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

New Law Countdown #4: Amendments to the Illinois Pesticide Act

Posted by Dave Scriven-Young on January 3, 2017 1:57 pm
Counting down new Illinois environmental laws that took effect on January 1, 2017 is Public Act 99-0540, which provides that if specified notice is submitted, then an employer may request that the unused portion of a terminated licensee's pesticide applicator or operator license term be transferred to a newly certified or re-certified individual.

EPA Proposes Changing Air Pollution Standards for Nutritional Yeast Manufacturers

Posted by Dave Scriven-Young on December 28, 2016 4:10 pm
The U.S. Environmental Protection Agency recently published a proposed rule that would amend the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Manufacturing of Nutritional Yeast source category.  This category includes any facility engaged in the manufacture of baker's yeast by fermentation (both active dry yeast and compressed yeast).  It also includes the following manufacturing process units: fermentation vessels and the drying and packaging system. The proposed amendments include revising the form of the fermenter volatile organic compounds (VOC) emission limits, changing the testing and monitoring requirements, and updating the reporting and recordkeeping requirements.  Click here to read the proposed rule.

Illinois Attorney General Settles Groundwater Contamination Enforcement Action

Posted by Dave Scriven-Young on December 22, 2016 2:40 pm
The Illinois Attorney General's office recently settled an enforcement action seeking an injunction and civil penalties for alleged water pollution violations.  The case, People v. Inverse Investments LLC, dealt with an owner of property located in McHenry, Illinois, which was formerly used at various times as an automotive repair shop, a dry cleaning operation, and as a tire shop.  The Attorney General alleged that since at least August 2003, chlorinated volatile organic compounds were present in the groundwater at the Site.  Thus, an enforcement action was brought against the defendant alleging that it caused, threatened, or allowed the discharge of contaminants into the environment so as to cause or tend to cause water pollution.  The action sought a civil penalty of $50,000 for each violation plus an additional $10,000 per day of violation, along with an order requiring that the defendant cease and desist from committing any further violations of the Illinois Environmental Protection Act.

Consent Decree Calls for $100,000 Civil Penalty and Continuous Monitoring for Alleged Clean Air Act Violations

Posted by Dave Scriven-Young on December 15, 2016 5:32 pm
U.S. EPA recently announced that a proposed consent decree in United States v. S.H. Bell Co., Case No. 16-cv-07955, was lodged with the U.S. District Court for the Northern District of Illinois.  In a civil action filed in August 2016, the United States sought a civil penalty against the defendant for alleged violations of the Clean Air Act.  These violations were alleged to have occurred at the defendant's bulk material handling facility located at 10218 South Avenue O in Chicago, Illinois.  Click here for a copy of the consent decree.

Environmental Conditions on Business Imposed by Illinois Pollution Control Board Deemed to be Improper

Posted by Dave Scriven-Young on December 7, 2016 4:13 pm
According to a recent court decision, the Illinois Pollution Control Board exceeded its authority and acted arbitrarily and capriciously when it placed several conditions on an adjusted pollution standard in a wastewater discharge permit.  This case is significant because it curbs the ability of the Board to impose requirements on businesses that are unreasonable and not authorized by Illinois law. At issue in Emerald Performance Materials, LLC v. Illinois Pollution Control Board was a wastewater treatment plant that Emerald Performance Materials used to process wastewater from operations that included PVC resin manufacturing and production of accelerators and antioxidants.  After treatment, the wastewater is eventually discharged into the Illinois River, and the discharge exceeds the 3 mg/L total ammonia nitrogen effluent levels allowed by Illinois law.  The ammonia nitrogen that is discharged is formed in the wastewater treatment process and apparently not during the manufacturing processes used by Emerald.

Owner Settles Alleged Clean Water Violations Relating to Construction of Retail Store

Posted by Dave Scriven-Young on August 11, 2016 4:31 pm
The Illinois Attorney General's Office recently settled an environmental enforcement action that serves as a reminder to all construction companies and businesses that plan to build new facilities or stores.  The enforcement action sought civil penalties for alleged violations of the clean water provisions of the Illinois Environmental Protection Act.  In People v. Casey's Retail Co., the State alleged that the defendant violated the water pollution, water pollution hazard, and storm water permit provisions of the IEPA Act during construction of a retail store located in Peru, IL.  More specifically, the State alleged that the defendant failed to properly manage storm water erosion controls and failed to make available proper documentation as required by the storm water permit for the site.  For instance, the State claimed that the defendant failed to maintain and provide adequate documentation of a Storm Water Pollution Prevention Plan ("SWPPP").  The SWPPP failed to include an adequate description of appropriate controls to be implemented at the Site, failed to include a description of the procedures to maintain the erosion and sediment control measures, and failed to comply with ongoing inspection requirements.

EPA Proposes Changes to Toxic Substances Control Act Regulations

Posted by Dave Scriven-Young on July 29, 2016 2:03 pm
The U.S. Environmental Protection Agency recently proposed changes to existing regulations governing significant new uses of chemical substances under the Toxic Substances Control Act to align these regulations with revisions to the Occupational Safety and Health Administration’s Hazard Communications Standard, and with changes to the OSHA Respiratory Protection Standard and the National Institute for Occupational Safety and Health respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals.  Click here to view the proposed rule published in the Federal Register.

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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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