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The City has been aware of methane gas concentrations under and around James Park since at least 2012. Since then it has downplayed the threat that the methane gas poses to the health and safety of Evanston residents. But on Oct. 20, 2014, the City served a Notice of Intent to Sue (NOITS) Northern Illinois Gas Company (Nicor) and three other companies asserting that the methane gas around the perimeter of James Park and in close proximity to Dawes Elementary School and the Levy Senior Center “may present an imminent and substantial endangerment to human health or the environment.”
The City’s NOITS also says, “Leakage from aged gas distribution line(s) in the vicinity of James Park presents an imminent and substantial endangerment to public safety, specifically occupants, visitors, guests, teachers, parents, students and seniors at James Park, Dawes Elementary School and Levy Senior Center.”
The NOITS was served and signed by a lawfirm retained by the City, Jeep & Blazer, L.L.C.
Nicor reacted to the NOITS by filing its own suit in federal court against the City of Evanston, seeking an order declaring that the methane gas under and around James Park has a source other than Nicor’s distribution lines.
Prior Studies and Some Background
According to City records and documents filed with Nicor’s Amended Complaint, at least two prior studies found the James Park gas to be either naturally occurring or resulting from landfill materials. The first study, revealed to the City in November 2012 and commissioned by the Metropolitan Water Reclamation District in connection with their plant at Howard Street and McCormick Boulevard, concluded the gas is “likely related to a landfill source.” Tetra Tech performed the 2012 study and noted the absence of “marker chemicals associated with marketed natural gas.”
In response, the City engaged CS Geologic to examine the Tetra Tech report. In March 2013, CS Geologic concluded the gas was most likely “naturally occurring petroleum” consistent with “more than 100 years of observations of highly biodegraded petroleum occurring in the Niagaran Dolomite throughout the Chicagoland area.” The City commissioned additional work from CS Geologic in early 2014, approving one contract for $32,000, then a second for $58,167.55. The second study included identification of the gas source as a component. The results of the second CS Geologic study have not been made public.
Both studies identified gas at levels 50 feet or more below the surface. The James Park landfill, when active, was at least 40 feet deep. The landfill was formerly a clay mine.
The City then consulted Jeep and Blazer, who in May 2014 wrote Nicor stating, “We do not know the source of the gas,” and, “We are not pointing an accusatory finger at Nicor, but rather desire to work cooperatively with Nicor to get to the bottom of this problem.” Discussions continued through the summer.
In August 2014 City Council authorized a payment of $106,000 to “Jeep and Blazer’s consultant” (so identified on the City Council agenda), SCS Engineers, for a third study of the James Park methane. Payment was made directly to Jeep and Blazer. The results of this study have not been made public.
Many of the Nicor gas transmission lines, according to the lawsuit, are cast iron and are two to three feet below the surface. Nicor has been replacing cast iron pipes, which have been known to leak, with plastic pipes. Under a planned project called “Project 66,” Nicor obtained a permit from the City of Evanston authorizing the replacement of cast iron pipes, including those around James Park. The work was to take place during the fall of 2014.
The City, however, shut down the gas line replacement project. On Oct. 16, 2014, City Attorney Grant Farrar confirmed and extended the stop work order, writing, “the City shall not permit any further work by Nicor in furtherance of its Project 66. The previously issued permit is of no force and effect, and shall remain revoked.”
Mr. Farrar continued: “The City views Project 66 as being relevant and connected to the James Park matter. Nicor’s work in this area lends itself to a reasonable inference regarding possible spoliation of evidence … the City is acting prudently by ensuring all such work remains ceased.”
The City’s NOITS was served on Oct. 20, 2014. Nicor filed its lawsuit in response, amending the Complaint on Dec. 1, 2014. The City has yet to respond to Nicor’s suit but has, according to court records, asked for additional time to answer and counterclaim. “The City’s answer is due Feb. 2.
The City’s Claim of Imminent Danger
The City’s NOITS states the methane gas “may present an imminent and substantial endangerment to human health or the environment.” The NOITS also states, “On May 14, 2014, the City informed Nicor that methane has been detected at high concentrations and pressure at James Park and that a natural gas transmission line may be the source.”
On Nov. 24, 2014, Nicor’s attorney claimed, “Nicor has repeatedly requested that the City provide its sampling results from methane-related testing that the City conducted this summer , and the City has repeatedly refused to provide that basic information.” In response to a Freedom of Information Act Request, Mr. Farrar said the City withheld certain documents including “communication records within Jeep & Blazer, LLC and their consulting experts, all of which are exempt from disclosure …” Testing results would be included within the withheld documents.
After the City issued the NOITS, Nicor continued to pursue its Project 66 iron pipe replacement program. The City repeatedly refused to allow the work to proceed, consistently referring to spoliation of evidence as a reason. On Nov. 12 last year, Mr. Farrar wrote Nicor saying, “Instead of engaging in dialogue with the City, Nicor issued yet another FOIA, and redoubled its attempt to spoliate evidence. … Nicor’s purported concern over community safety is squarely contradicted by its irreconcilable desire to conceal the fact that its leaking infrastructure is the source of the James Park situation …”
Nicor responded: “We remain puzzled as to why the City continues to misstate the facts of Nicor’s extensive cooperation in addressing the City’s concerns about the presence of stray methane. … The gas detected by the City in James Park is at depths greater than 40 feet, whereas Nicor’s pipes are at depths of only 2 to 4 feet. … Nicor has repeatedly asked for the City to explain its rationale for continuing to assert that the stray methane is natural gas from Nicor’s pipelines. To date, the City has failed to provide a theory.”
Turning to Project 66, Nicor wrote further, “The continued presence of pressurized gas in cast-iron mains within Project 66 presents a risk, as those mains are older and have been disturbed through the recent installation of the new mains that are now in place and serving area residents. This week, a Class 1 leak requiring immediate repair occurred on the older system that requires replacement. There is no reason for the City to delay issuing a permit to Nicor allowing formal retirement of those former mains.”
According to the Amended Complaint, “The City ultimately agreed to issue Nicor a permit to complete the retirement of the cast-iron main and associated service lines only after Nicor filed its original complaint in this case. The City agreed to issue the permit approximately three hours after Nicor provided a courtesy copy of the complaint to the City.”
The original complaint, filed Nov. 18, 2014, opened with the allegation “This lawsuit arises from the City of Evanston’s unlawful efforts to hold hostage work that Nicor needs to perform on its natural gas pipeline system to comply with federal and state safety regulations and to protect the public. The City is holding this work hostage in an apparent effort to obtain leverage to force Nicor to address stray methane gas from a source other than Nicor’s pipeline system that the City and the neighboring MWRD have found under and in the area of James Park, a former municipal landfill.”
The Nicor Complaint and its attachments total 115 pages.
Is It Safe, or is it a Threat?
Though the City became aware of methane gas concentrations under and around James Park as early as November 2012, the City consistently informed residents that the gas presented no threat to health and safety. Fire Chief Greg Klaiber said tests conducted in May 2014 in and around Dawes School, which abuts the northeast edge of James Park, and the Levy Center, on the southeast end, showed that methane levels were zero in most places, and only in one or two places did methane levels reach 4%.
Methane gas is potentially dangerous at levels as low as 5%.
At lower levels it is not toxic, but if it builds up, it presents a risk of explosion and fire. Methane gas can be ignited at concentrations of about 4.4%. At concentrations, lower than that, even if a flame is held to the source, methane will not ignite.
Naturally occurring methane is odorless. A chemical marker is added to marketed natural gas to allow leaks to be detected.
City Manager Wally Bobkiewicz told the community, also in the spring of 2014, that tests done at James Park were entirely prophylactic and an example of the City’s doing its “due diligence.”
The City’s NOITS served on Oct. 20, 2014, however, cites the United States Code and several media stories from NBC News, USA Today , and the New York Times to state: “Methane gas at concentrations and pressures detected around the perimeter of James Park and in close proximity to Dawes Elementary School and Levy Senior Center may present an imminent and substantial endangerment to human health or the environment.”
To date, the City has not posted or announced any warnings or additional information concerning the alleged health risk cited in the City’s NOITS.
On Jan. 12, Fire Chief Greg Klaiber told the RoundTable that his department installed permanent monitors in the Levy Center and at Dawes School. Those monitors are tied into the fire alarm system, and if levels get within a certain percentage of the lower explosive limit of methane then the alarm goes off and the fire department will respond within 3 to 4 minutes. He said given the monitoring and alarm protocol, the department will respond well before the concentration reaches the lower explosive limit.
Asked if the gas presented an “imminent and substantial endangerment to human health,” he said, “Right now, there isn’t [a danger] as long as these levels stay where they are.” The gas is trapped 50 feet below the surface, he said, and only if it finds an avenue to the surface and into a building will it present a danger.
Chief Klaiber said the monitor alarms have gone off only once since they were installed. That alarm turned out to be a calibration error in the monitoring device, not an actual methane gas concentration issue.