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Contractors that often do work for the federal government are likely familiar with the National Environmental Policy Act (“NEPA”).  NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.”   Once an agency issues a final EIS, the federal agency will provide environmental clearance via a Record of Decision (“ROD”).  Environmental and other citizens-organizations can attempt to delay or stop a federal project by challenging the processes under which an EIS and/or a ROD are prepared and issued.  The Eighth Circuit Court of Appeals recently decided a case presenting the question whether citizen groups must wait until an EIS and ROD are finalized and issued prior to filing suit under NEPA.  In Lakes & Parks Alliance of Minneapolis v. Federal Transit Administration, the plaintiff sued under NEPA trying to stop a federal project which included a proposed transit line connecting downtown Minneapolis to the southwestern Twin Cities suburbs.  The plaintiff was a non-profit group of residents who lived in or frequently used the area near the proposed construction site.  Plaintiff did not wait for the EIS or ROD to be finalized; instead, the plaintiff sued during the
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According to a recent news report, local Sierra Club chapters are reactivating programs that support volunteers who inspect construction sites for potential violations of environmental laws.  For many years, the national Sierra Club organization has had programs to “connect people with their waterways” by having them conduct local water quality testing and monitoring.  At times, these programs also involved volunteers inspecting construction sites. This program has not been used as frequently since the Great Recession began in 2008; however, Sierra Club reportedly once again sees the need for the program as there has been more development since the recovery of the economy.  For example, a local Sierra Club Chapter in the suburbs of Chicago had a “Water Sentinel” program that, for the past 10 years, supported volunteers who collected water samples and brought them to the Illinois Math and Science Academy to be tested.  The results would then be shared with the Illinois Environmental Protection Agency.  Since the Great Recession, the Water Sentinel Program morphed into a group that was more involved in advocacy for the Sierra Club.  Now that there has been an increase in development, the Sierra Club is expanding its voluntary programs and will again be using
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The Illinois Pollution Control Board recently published its Environmental Register for January 2019 on its website.  The Board is an independent five-member Board that adopts environmental control regulations and decides enforcement actions and other environmental cases in the State of Illinois.  As usual, the Environmental Register contains an update from the chairperson of the Board, Katie Papadimitriu, a rulemaking update, an appellate update, a summary of actions of the Board, the Board’s upcoming calendar, and lists of restrictive status and crucial review for community water supplies.  The Board has been very active since the last issue of the Environmental Register in October of 2018. For example, the Board held several hearings on rulemaking proceedings, including rules on potentially infectious medical waste, general use water quality standards for chloride, and procedures for a State Prevention of Significant Deterioration (“PSD”) permit program.  The Board has adopted regulations concerning noise pollution, hazardous waste, and site-specific water quality standards for a segment of the Sangamon River.  To view a copy of the Environmental Register for January 2019, click here.
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Recently, the U.S. Fish and Wildlife Service settled a claim filed by the Center for Biological Diversity that forces FWS to take action on issues relating to a critical habitat designation for the western yellow-billed cuckoo. In 2014, FWS listed the western distinct population segment of the yellow-billed cuckoo under the Endangered Species Act but had not yet published a final rule designating critical habitat or made a finding that it would not be prudent to do so.  In 2017, the FWS received a petition to delist and subsequently published a 90-day finding on the petition, concluding that the petition presented substantial scientific or commercial information indicating that the delisting may be warranted.  The FWS was preparing a 12-month finding to determine whether the delisting is warranted at the time that the plaintiff filed the lawsuit.  According to the plaintiff’s complaint, this issue involves 550,000 acres of habitat across nine states.  The cuckoos, which migrate between South American and the United States, usually nest in willow trees, but also use alder, buttonwood, mesquite, box elder, and sycamore trees.  They usually live near rivers but much of the birds’ traditional habitat has been lost due to livestock overgrazing, encroachment from agriculture,
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Last week, Illinois Governor Pritzker announced that John Kim will serve as director of the Illinois Environmental Protection Agency.  He had previously served the Agency in many capacities under both Democratic and Republican administrations, including as director and interim director.  Kim is seen as a solid pick who gets along with both environmental citizens’ groups and industry groups. According to the press release from Gov. Pritzker’s office: “Kim has served in many senior roles during his distinguished 25 years at the department under five governors of both parties.  He currently serves as chief legal counsel, where he supervises a legal staff of approximately 40 employees.  Kim previously served as director, interim director, ethics officer, deputy general counsel, assistant counsel/special assistant attorney general, and project manager for an IEPA-China pollution prevention project.  Kim left the IEPA for just over a year to serve as acting general counsel of the Illinois Department of Agriculture in 2008 and 2009.  Before joining IEPA, Kim was an Assistant Attorney General of Illinois and was the general counsel to the Midwest Environmental Enforcement Association.  He received his Juris Doctor from Southern Illinois University Carbondale and his Bachelor of Science in industrial engineering from the University of Illinois at
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On January 15, 2019, the Joint Committee on Administrative Rules approved rules proposed by the Illinois Department of Public Health that will increase the number of children identified with lead poisoning and trigger earlier intervention.  The rules lower the level at which public health interventions are initiated for children with blood lead levels from 10 micrograms per deciliter to 5 micrograms per deciliter, the same lead reference level used by the Centers for Disease Control and Prevention. Under the new rules, children who test at or below the new intervention level will receive a home visit from a public health nurse who will educate families on ways to lower the blood lead level and reduce lead expose, including proper nutrition, hygiene, and housekeeping.  Public health environmental experts will also begin to inspect residences for all children with an elevated blood lead level of 5 micrograms per deciliter or greater to determine the potential sources of the child’s lead exposure as additional resources become available.  In addition to lowering the blood lead level at which health departments will conduct environmental inspections and case management, the rules reduce other lead environmental benchmarks including lead in dust and water.  The rules also propose
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The U.S. Court of Appeals for the Second Circuit recently decided that contractors that process construction debris and waste for recycling may need to obtain permits under the Clean Water Act (“CWA”) for their stormwater runoff. As the Second Circuit ruled, “not every incident of stormwater runoff is subject to regulation under the CWA.  Only stormwater runoff associated with certain enumerated activities in the Act and its implementing regulations is required to be covered by” a CWA permit.  For example, permits are required for discharges “associated with industrial activity”, which EPA defined in part as work involved in the recycling of materials, including those classified as Standard Industrial Classification (“SIC”) 5015 and 5093.  SIC 5093 encompasses “establishments primarily engaged in assembling, breaking up, sorting, and wholesale distribution of scrap and waste materials.” In this case, the defendant operated a facility that recycles demolished concrete, asphalt, and other construction products that it then processes and resells on the wholesale market for use by the construction industry.  The plaintiff argued that the defendant should have obtained a permit for its activities, which generates a variety of pollutants that are regularly exposed to stormwater. The Second Circuit agreed with the plaintiff and reversed
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Criminal prosecutions of federal environmental laws are rare and are typically limited to situations where the defendant knowingly, intentionally, and willfully violated a particular environmental statute or regulation.  The United States Attorney for the Southern District of Illinois recently announced that a man was charged with the felony offense of failure to notify regulatory authorities prior to removing asbestos material.  The defendant pled guilty to the charge and will be sentenced in June. According to the U.S. Attorney’s press release, the defendant admitted that around February and March of 2015, he was the owner of a building formerly used as an elementary school.  During this time and during a renovation activity, the defendant caused the removal of a combined amount of material containing asbestos greater than 160 square feet.  Under such circumstances, he was required by law to notify regulatory authorities at least 10 working days prior to removing asbestos material. In this instance, the appropriate regulatory authority to have been notified was the Illinois Environmental Protection Agency.  The defendant admitted to knowingly having failed to provide the prior notification to IEPA.  The offense of failure to notify regulatory authorities prior to removing asbestos material carries up to a maximum of five years
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On February 13, 2018, the U.S. Department of Justice announced in a Federal Register notice that it lodged a proposed Second Amendment to Consent Decree with the United States District Court for the Southern District of Illinois in its lawsuit against companies that included the Gateway Energy & Coke Company.  The United States, on behalf of the U.S. Environmental Protection Agency, and the State of Illinois filed a complaint under the Clean Air Act asserting claims relating to two Midwestern heat recovery coking facilities, one of which is located in Granite City, Illinois (the “Gateway Facility”).  The United States and the State of Illinois sought civil penalties and injunctive relief against the owners and operators of the Gateway Facility. On November 10, 2014, the Court entered a Consent Decree that required (1) installation of heat recovery steam generators (“HRSGs”) to provide redundancy that will allow hot coking gases to be routed to a pollution control device instead of vented directly to the atmosphere in the event of equipment downtime, and (2) installation  of continuous emissions monitors for sulfur dioxide at one bypass vent  per process unit (one at the Gateway Facility). The Consent Decree allows Defendants 720 hours of “tie-in” time to complete installation of the Redundant
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A federal judge has ruled that the Trump administration failed to timely designate the areas of the country that have “attainment” (meeting) or “nonattainment” (not meeting) with the ground-level ozone standards established in 2015.  When the U.S. Environmental Protection Agency missed an October 1, 2017 deadline, fourteen states (including Illinois), the District of Columbia, and several environmental organizations sued. The court issued an order on March 12, 2018 that granted the plaintiffs’ motions for summary judgment, ruling that there was no dispute as to liability because EPA admitted that it failed to timely promulgate the initial area air quality designations.  The court also ordered the EPA to promulgate by April 30, 2018 designations for all areas, excluding the San Antonio, Texas area.  The EPA must promulgate final designations for the San Antonio area no later than 127 days from the date of the order. The lesson to be learned here is that the states and environmental organizations will use the court system to correct any inadequacies of the Trump administration that they see when it comes to enforcing or promulgating environmental rules and regulations.  We saw this first in the immigration debate, and we are now seeing the courts being used

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