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November 2014

Illinois SB 2221 To Eliminate the State’s Statute of Repose for Construction Defects Arising Out of Pollution, Hazardous Substances

Bandza_Alexander_COLORBy Alexander J. Bandza


Under 735 ILCS 5/13-214, Illinois provides for a ten-year statute of repose for any actions in “tort, contract or otherwise” on defects in construction of improvements to real property.  Specifically, subsection (b) provides that:

No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.

State Rep. Nekritz has introduced SB 2221, which would strip the protections afforded by section 5/13-214 for actions “resulting from the discharge into the environment of any pollutant.”  Specifically, the bill adds a new subsection (f), which provides that:

(f) Subsection (b) does not apply to an action that is based on personal injury, disability, disease, or death resulting from the discharge into the environment of any pollutant, including any waste, hazardous substance, irritant, or contaminant (including, but not limited to, smoke, vapor, soot, fumes, acids, alkalis, asbestos, toxic or corrosive chemicals, radioactive waste, or mine tailings). 

While speculating on the Legislature’s intent is always risky business, this proposed bill may have been conceived in the wake of the U.S. Supreme Court’s decision in CTS Corporation v. Waldburger, 134 S. Ct. 2175 (2014), which held that CERCLA § 9658 does not preempt states’ statutes of repose.  As Illinois courts have long recognized, the construction statute of repose was enacted for the express purpose of insulating all participants in the construction process from the onerous task of defending against stale claims.  SB 2221’s broad and unqualified language could have the drastic effect of stripping the protections afforded by section 5/13-214 whenever any “discharge into the environment of any pollutant” was involved.

SB 2221 is available here.

E-Waste Settlement Nets State of California $51.8 Million

Siros_Steven_COLORBy Steven M. Siros


AT&T agreed to pay $51.8 million to resolve allegations that it improperly disposed of hazardous electronic waste at its facilities in California. In one of the first enforcement actions of its kind in California, AT&T has agreed to expend $28 million over the next five years to improve its electronic waste handling practices, as well as pay $18.8 million in civil penalties and $5 million to fund environmental programs in California.

AT&T's alleged unlawful disposal practices were first discovered in 2011 as a result of an inspection that revealed that AT&T was regularly sending electronic wastes to landfills that were not permitted to receive them. Under the settlement agreement, which still requires final court approval, AT&T has agreed to deposit electronic waste into "staging bins" to ensure that its electronic wastes are not combined with normal trash. AT&T also will conduct hundreds of random dumpster inspections on an annual basis.

Click here to see a copy of the proposed Final Judgment and Permanent Injunction on Consent.

Further Asian Carp Barriers Proposed

Grayson_Lynn_COLORBy E. Lynn Grayson


Efforts continue to prevent Asian carp from entering Lake Michigan through the Chicago waterway system. The latest proposal under consideration by the Army Corps of Engineers (ACOE) is to install controls at the Brandon Road Lock and Dam near Joliet, Illinois. The ACOE is seeking public comments on this proposal originally identified as one of eight options outlined in the ACOE Great Lakes and Mississippi River Interbasin Study (GLMRIS) presented to Congress earlier this year.

The assistant secretary of the Army for civil works directed the ACOE to proceed with a formal evaluation of the viability of using the Brandon Road site as a point to prevent the upstream transfer of the carp and other aquatic nuisance species from the Mississippi River basin to the Great Lakes system. The site is downstream of the confluence of the Des Plaines River and the Chicago Sanitary and Ship Canal, which leads into Lake Michigan. A one-way control point at Brandon Road would "minimize the likelihood" of invasive species drifting into the Great Lakes basin during a flood as well as minimize the chances of "adverse impacts to existing waterway uses and users," according to the ACOE.

The public comment period extends through January 17. The Corps will hold public meetings on the plan December 6 near Joliet and December 9 in Chicago, with webcast and call-in options available. Comments can be submitted at the meetings, online through the GLMRIS website or by conventional mail.

More information on GLMRIS is available at

A teleconference for stakeholders to ask questions about efforts at the Brandon Road site is scheduled for November 25 at 11 a.m. EST. Dial-in: 1-888-621-9649 or 1-617-231-2734. Event ID: 417591.

Jenner & Block Leads Presentation on Climate Change Law

Essig_Genevieve_COLORBy Genevieve J. Essig


On Friday, Gabrielle Sigel and Allison Torrence of Jenner & Block, in partnership with the Chicago Bar Association’s Environmental Law Committee, will host a luncheon entitled, “Can a Lame Duck Fly? Climate Change Law at the Sunset of the Obama Administration.”

From the presenters: “The first six years of the Obama Administration’s efforts to address climate change have resulted in regulatory changes, executive branch initiatives, judicial challenges, and Congressional obstacles.  The results of the recent 2014 mid-term elections will allow us to predict how successful the President will be in accomplishing the goals of his Climate Action Plan and his Administration’s effect on climate change law. Please join us as we discuss how the new make-up of Congress, the Administration’s proposed regulations and other executive actions, and recent federal court rulings shape the future of climate change law.”


Friday, November 14, 2014
12:00pm - 1:30pm CST
Lunch will be served at noon followed by the presentation at 12:15pm.
Jenner & Block LLP
353 N. Clark, 45th Floor
Chicago, IL
1 IL MCLE Credit

Click here to register.

Illinois Approves Fracking Rules

Essig_Genevieve_COLORBy Genevieve J. Essig


Following up on a previous post, in which we noted that, nearly a year after filing its first draft, the Illinois Department of Natural Resources (IDNR) had filed revised rules implementing the Hydraulic Fracturing Regulatory Act (225 ILCS 732) with the Illinois’ Joint Committee on Administrative Rules (JCAR), we report that JCAR has approved these proposed regulations.  In September JCAR had extended the Second Notice period for the rulemaking for an additional 45 days, but it finally approved the rules yesterday.  The final version of rules may now be filed with the Secretary of State for publication in the Illinois Register.

Lynn Grayson Comments on U.S. Climate Change Actions

Essig_Genevieve_COLORBy Genevieve J. Essig


A European Union publication Interfax recently published an article titled China and US Will Make or Break Climate Deal by Annemarie Botzki. The article discusses the stance of countries around the world on climate change and greenhouse gas (GHG) emissions and what is likely to happen at the upcoming 2015 Paris climate change talks. Jenner & Block Partner, E. Lynn Grayson, is quoted discussing the U.S. position on climate change and recent activities taken by the Obama Administration.

According to Ms. Botzki, the Conference of Parties 15 summit to be held in Paris next year may be the most important climate change negotiation ever held. It will decide how the remaining carbon space can be emitted globally while staying below a 2 C warming level will be divided among the countries of the world.

International accord on climate change is difficult particularly between developed and less developed nations. At the upcoming Paris summit, it is commonly believed that the U.S. and China will play major roles in deciding whether a binding agreement on GHG can be reached at the UN summit to follow in December.

In her comments, Lynn noted that "The U.S. position on GHG reductions and supporting an international agreement appears stronger than ever. Last month, the U.S. State Department submitted a possible global climate change agreement to the United Nations Framework Convention on Climate Change supporting a five-year time frame to make initial cuts to carbon emissions, beginning in 2020 and ending in 2025."

Another critical decision point for an international agreement is the form that binding document may take. The U.S. appears to be advocating for something other than a treaty which would require two-thirds of the U.S. Senate for ratification. Lynn was quoted as saying "given the workings of Congress these days, it is very unlikely that any treaty could be ratified. It would be virtually impossible to receive the votes needed for approval."

The article provides an overview of recent GHG actions in the EU, U.S. and China and discusses how these actions may impact climate change positions and negotiations at the Conference of Parties 15 summit.