Judge: Evanston's 'actions speak louder than words'; Lack of action dooms pollution suit vs Nicor, ComEd

By Scott Holland | Apr 16, 2019

CHICAGO — A Chicago federal judge has refused to allow the city of Evanston to continue with a three-year-old lawsuit demanding Nicor and ComEd be forced to pay to clean up water pollution and replace sections of city water main because the city asserted the utilities' predecessors operated a long-shuttered gas manufacturing plant near the north suburb.

In an opinion issued April 9, Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois denied the city’s motion for a preliminary injunction against Northern Illinois Gas Co. and Commonwealth Edison. The city said the presence of polycyclic aromatic hydrocarbons (PAHs) on and around a decommissioned water main that runs along Dodge Avenue and in the soil near James Park, where it also noted elevated levels of methane, is attributable to an old manufactured gas plant owned by the utilities’ corporate predecessors.

The city moved for a preliminary injunction forcing the utilities to remediate contamination. Nicor and ComEd dispute whether the 1911 plant, southwest of McCormick Boulevard and Oakton Street in Skokie, known as the Skokie MGP, is the source of the contamination and whether the pollutants are threatening the environment or public health.

After rejecting motions from both parties to bar expert witnesses, Lee said the city failed to establish it was likely to succeed in its claim under the Resource Conservation and Recovery Act.

“The parties have submitted voluminous briefs and presented witness testimony and documentary evidence over the course of an eight-day hearing,” Lee wrote, ultimately deciding Evanston’s evidence doesn’t support its theory the plant was the source of the contaminants. He also said the city didn’t show the PAHs and methane are harmful.

“It is worth noting, among other things, that the U.S. Environmental Protection Agency sees no need to take action here, and the city has long held that its drinking water remains safe for public consumption,” Lee wrote.

Nicor and ComEd oversaw remediation of the Skokie MGP property in 2012, after which the Illinois EPA issued a “no further remediation” notice. The city’s expert ruled out other potential sources of PAHs, including a landfill under the park, a gas station, a crude oil tank, a Rust-Oleum plant and coal-tar coating applied to the water main. Lee called that opinion “rather simplistic analysis” that “falls short of proving” the plant was at fault.

Lee said the utilities’ expert went farther by performing chemical analysis, including “analyzing gas chromatography results that show the specific chemical makeups of the PAH-containing compounds in question,” which showed the PAHs in the water main are different from those in the gas line, both of which differed from those in bedrock samples.

Although the city argued solid material containing PAHs coating the water main might already be breaking off and enter the water supply, Lee noted tests of the municipal water system confirmed the supply to be safe. He said the EPA’s preliminary conclusions back this determination and noted Evanston sells its water to other municipalities.

Lee likewise said Evanston failed to prove methane found at 40 feet or more below the surface poses an imminent public health risk. While there is concern about high levels of PAHs in some soil samples, he said the city lacked “probative evidence” that such particulates “are likely to be encountered or cause any actual harm to humans or wildlife.”

Finally, Lee cited a 2019 Seventh Circuit U.S. Court of Appeals opinion in LAJIM LLC v. General Electric Co., which held the likelihood of success of an RCRA claim is intertwined with the concept of irreparable harm to the plaintiff. Since he found no grounds to grant the city its requested injunction, Lee explained, he also couldn’t reach a finding that failing to do so would cause irreversible damage.

Lee underscored that position by pointing to the city’s continued touting of the safety of its water supply, as well as the use of James Park and the surrounding area, complete with methane alarms in the unlikely event something should disturb the buried gas.

“The city’s actions are more telling than its words,” Lee wrote. “If it believed that an imminent and substantial risk may exist, one would think it would begin doing everything in its power to protect its residents, even if that meant funding further investigations itself.”

Defendants in the action were represented by attorneys from the firm of Mayer Brown, of Chicago, including Mark Ter Molen, J. Gregory Deis, Ethan Hastert, Jaimy L. Hamburg, Matthew C. Sostrin and Geoffrey M. Pipoly; and attorneys from the firm of Jenner & Block, of Chicago, including Gabrielle Sigel, Andrew W. Vail, Aaron J. Hersh and Alexander J. Bandza.

Evanston was represented by attorneys Harvey J. Barnett, Eugene J. Frett, Thomas D. Brooks, Trevor K. Scheetz, Matthew H. Rice and Allison G. Margolies, of Sperling & Slater P.C., of Chicago; Michael S. Blazer, of Invenergy LLC, of Chicago; Jeffery D. Jeep, of Jeep & Blazer, of Chicago; and its corporation counsel.

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Organizations in this Story

City of Evanston ComEd Invenergy LLC Jeep & Blazer, LLC Jenner & Block Mayer Brown LP Nicor Sperling and Slater U.S. District Court for the Northern District of Illinois

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