2001 Articles

Citizens Organizing Project v. Department of Natural Resources: Supremes define reasonable litigation expense when administrative rule is invalidated By Robert T. Lawley January 2001 In the recently decided case of Citizens Organizing Project v. Department of Natural Resources, 189 Ill. 2d 593, ...N.E. 2d ..., ... Ill. Dec. ..., 2000 WL 46033 (Jan. 21, 2000) (No. 86878), rehearing denied (Apr. 3, 2000), the Illinois Supreme Court broadly interpreted Section 10-55(c) of the Administrative Procedure Act, ruling that a party who causes an administrative rule to be invalidated by a court is entitled to all of the party's reasonable litigation expenses incurred throughout the action.

Divided Third District panel plainly at odds on plain meanings January 2001 In a decision that Bill Clinton surely would love, a panel of the Third District Appellate Court disputed the plain meaning of "person" as used at subsections (a) and (p)(1) of section 21 of the Illinois Environmental Protection Act (415 ILCS 5/21(a) and (p)(1)). It seems that "person" is as difficult to define as "is" is.

Does size matter in Illinois—The fallacy of the permit exemption By Kevin B. Hynes December 2001 What, you ask, does "size matter in Illinois" mean? Well, you'll ask yourself the same question when the Illinois Environmental Protection Agency ("IEPA") tells you that your on-site disposal operation is too big and requires a permit--even though the Illinois Environmental Protection Act ("Act") allows on-site disposal without a permit.

Does UPL by in-house counsel really waive the attorney-client privilege? By Michael Todd Scott December 2001 In the June 2000 issue of The Corporate Lawyer, we ran an article entitled Unauthorized Practice of Law and In-house Counsel.

Don’t ELUC now, but there’s a new Brownfields institutional control in town By Stephen F. Hedinger March 2001 One of Illinois' most progressive environmental policies instituted in recent the past was an approach to remediation that recognized the potential risk of contamination in relation to a property's use, likely future use, and the potential for humans to come into contact with contamination.

EAB Rules that Tennessee Valley Authority made “modifications” pursuant to NSR regulations By Tina Archer January 2001 In November 1999, the United States Environmental Protection Agency (EPA) launched a major enforcement initiative against electric utilities in the Midwest and the South including American Electric Power, Cinergy, Illinois Power and the Tennessee Valley Authority (TVA).

Environmental insurance rescues the “lawsuit from hell” By Frederick S. Mueller June 2001 Following passage of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) in 1980, a prospective buyer (Buyer) of industrial property may have retained an environmental consulting firm to perform a "due diligence" investigation at the seller's (Seller) property.

First District panel agrees: sometimes, less (costs) more By Phillip R. Van Ness June 2001 A recent opinion of the First District Appellate Court (Second Division) confirms that where contract law and environmental law combine, minimalist environmental remedies purchased at the cost of protracted delay may be disfavored.

Footnote: USEPA reluctantly bows to Eighth Circuit Court of Appeals in Harmon “overfiling” case By Phillip R. Van Ness January 2001 Readers of this newsletter will recall earlier comments regarding a decision by the U.S. District Court for the Western District of Missouri (Smith, J.) in Harmon Industries, Inc. v. Browner, 19 F.Supp.2d 988 (W.D. Mo. 1998), which, inter alia, held that USEPA could not "overfile" where an authorized state had acted, unless it first took steps to pull that state's authorization.

If it walks like a duck … Fifth District upholds State’s position that a person operating a Landfill is the “operator” January 2001 The Fifth District Appellate Court has decided that a person can be held accountable as a landfill operator even if he has never signed a permit application claiming to be the operator.

In this issue December 2001 This month's newsletter covers a few environmental issues and the topic of unauthorized practice of law.

In this issue July 2001 This issue of the Environmental Law Section Council's newsletter features articles that address several water issues of which practitioners should be aware.

In this issue June 2001 This issue starts with additional information from the chair of the Environmental Law Section Council, Diana Jagiella, about the 2001 Illinois Environmental Conference, to be held in Chicago on September, 21 & 22--mark your calendars!

In this issue March 2001 The first and most exciting item in this issue of the Environmental Law Section Council's newsletter is the "View from the chair" by Diana Jagiella, the chair of our section council, providing notice of a May 21 and 22 environmental conference to be held in Chicago.

In this issue January 2001 This issue of the Environmental Law Newsletter starts off with a private practitioner's reply to an article by USEPA's Galene Vasaturo, published in this newsletter several issues ago, concerning the federal government's attempts to regulate lead based paint in residential housing.

Individual standing to sue to protect the environment By Babette P. Salus & Eric M. Schwing January 2001 Article XI of the Illinois Constitution of 1970, referred to as the environmental article, provides in its entirety:

New procedural rules guide for practitioners appearing before the Pollution Control Board By Elena Z. Kezelis June 2001 Albert Einstein's contributions to our understanding of the universe around us took many forms.

The Northern District rejects a private right of action under the Illinois Environmental Protection Act By Diana M. Jagiella June 2001 Based on a recent decision by the United States District Court for the Northern District of Illinois, Plaintiffs may no longer bring pendant state claims under the Illinois Environmental Protection Act ("Act"), 415 ILCS 5/1 et seq., in federal actions.

A private practitioner’s reply to “Lead paint poisoning law and enforcement: a federal perspective” By Maureen Martin January 2001 An article in the last issue of Environmental Law entitled "Lead paint poisoning law and enforcement: a federal perspective" (hereinafter the "Federal Article") provided an overview of local, state and federal laws and regulations addressing childhood lead exposure, with particular emphasis upon aggressive enforcement activities by the U.S. Environmental Protection Agency ("U.S. EPA") under the federal Residential Lead-Based Paint Hazard Reduction Act of 1992 (the "Act").

Requests for access to municipal right of way in Illinois by private interests: a license to use By Jeffrey D. Lester March 2001 Over the years, most local governments have learned the general legal rule that a government may not lease its rights of way to private persons or organizations for purely private, exclusive uses.

Seventh Circuit rejects USEPA access/remediation order By Charles J. Northrup December 2001 In an interesting opinion that has garnered significant national attention, the United States Court of Appeals for the Seventh Circuit has rejected the United States Environmental Protection's Agency ("USEPA") attempt to obtain a dual access and remediation order pursuant to section 104(e)(5) of CERCLA.

Supreme Court finds “Migratory Bird Rule” exceeds authority of the Federal Clean Water Act By Chuck Gunnarson July 2001 On January 9, 2001 the United States Supreme Court issued an opinion addressing a controversial rule used by the United States Army Corps of Engineers ("Corps") to regulate the use of certain types of wetlands for nearly fifteen years.

Suspended solids trading receives green light from Illinois Pollution Control Board July 2001 As anyone who has seen the Mississippi River will attest, it comes honestly by its nickname, "The Big Muddy."

Third District panel gets the last word By Phillip R. Van Ness June 2001 In an otherwise unremarkable decision, the Third District Appellate Court has held that last-minute public comments by a landfill siting applicant and a biased staff in the employ of the final siting authority do not render the siting proceedings fundamentally unfair.

Total maximum daily loads: a roadmap for water quality By Ivan J. Lieben & Craig A. Melodia July 2001 The goal of the Federal Water Pollution Control Act of 1972, later renamed the Clean Water Act (CWA), is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters."

Total maximum daily loads: Destination Illinois By Margaret P. Howard July 2001 This article briefly discusses the impaired waters found in Illinois, the causes of those impairments, and the Illinois EPA's options for achieving the TMDLs that are presently being developed.

Total maximum daily loads: rolling right along By Margaret P. Howard December 2001 On July 16, 2001, USEPA Administrator Christie Whitman called for further review of a newly adopted federal TMDL rule, published July 13, 2000.

Unauthorized practice of law and in-house counsel By Michael Todd Scott December 2001 There has been a lot of discussion lately on unauthorized practice of law (UPL) by in-house counsel.

View from the chair By Diana M. Jagiella June 2001 In our last issue, we recommended all environmental law practitioners keep September 21 and 22, 2001 open for the upcoming "2001 Illinois Environmental Conference."

View from the chair By Diana M. Jagiella March 2001 Environmental law is in its infancy compared to many other areas of law. While contract and family law has developed over centuries, environmental law dates back mere decades.