Attorneys for the City of Evanston, in legal briefs filed with the federal district court for the Northern District of Illinois, have argued that methane gas is actually a solid for the purpose of its lawsuit against Nicor Gas and ComEd over methane trapped under and around the former James Park landfill.
The filing, submitted by Michael Blazer of the law firm Jeep and Blazer on behalf of the City, came in response to a motion to dismiss submitted by Nicor and a separate motion submitted by ComEd. The City is attempting to hold Nicor accountable for what it argues is an “explosive level of methane gas in soil and groundwater in and around James Park, including in front of a school…”
The brief argues further that the public water is threatened with toxic intrusion by “ongoing penetration, or threatened penetration of coal tar into a public water supply.” As a result of the threat of explosive gas and poisoned water supply, the brief alleges, the City has addressed the “ongoing threat of an explosion in front of a public school” by installing “continuous monitoring of the Lower Explosive Limit (LEL) with a communication link to the Fire Department.”
The City has also incurred “costs [that] include, among other things, the cost of consultants and experts to monitor, assess and evaluate the threat of release of hazardous substances, as well as attorneys’ fees.” To date, the City has not alleged incurring any expenses whatsoever for correcting or mitigating the alleged explosive gas under James Park and near the Levy Center and Dawes School or the coal tar threatening to poison its water supply, but only expenses paid to lawyers and consultants. Previous filings detailed the three separate consultants the City has retained in an effort to point the finger at Nicor and ComEd.
As reported by the RoundTable earlier this year, the first consultant hired by the City concluded that the methane gas resulted from natural causes, not a gas leak. The City retained that same consultant again for further study and a more detailed report which again concluded the gas came from natural sources. A third consultant, engaged by Jeep and Blazer but paid for by the City, determined the gas’s source to be leaking Nicor pipes and decomposing oil from a 60-year -old gas plant in Skokie. All told, the City has spent hundreds of thousands of dollars on consultants.
The City’s lawsuit, actually a counterclaim brought in response to Nicor’s suit against the City, was brought under a federal statute, the Resource Conservation and Recovery Act (RCRA) governing the proper disposal of solid waste.
In response to Nicor’s argument that methane gas is in fact a gas and not a solid covered by RCRA, the City argues:
“When construing a statutory definition, the term ‘including’ is a term of enlargement, not limitation. ‘Contained gaseous material’ is an example of a discarded material, not a limitation as to type of discarded gaseous material that is a solid waste. Conversely, had Congress intended to limit the definition of a solid waste to only ‘contained gaseous material,’ the phrase would have been preceded by the word ‘means’, not ‘including’.”
Congress, the City argues, did not mean to exclude methane gas from the definition of solid waste in the RCRA.
According to the filings, there is a black crust of hazardous material coating water pipes along Dodge Avenue and near James Park, and the “ongoing penetration, or threatened penetration of [that] coal tar into a public water.” Further, “leaks routinely appear in the water line, which require repair. City workers regularly encounter, and are therefore exposed to, the ‘black crust’ when repairing the water line.”
City officials seem unaware of the claims made by its retained attorneys. When asked about the black coal tar by the RoundTable, the City’s Director of utilities Dave Stoneback said, “I’m not sure what that’s referring to.”
Speaking at City Council July 13, City Manager Wally Bobkiewicz assured the public that the City’s water supply is safe. The City gets its water from Lake Michigan, he said, and not groundwater. He did not address the possible intrusion of coal tar into City water pipes – an allegation in the Jeep and Blazer filing.
In the midst of the litigation arguing James Park and its environs are peppered with “explosive levels” of methane gas, the City is trying to negotiate an agreement with Smylie Brothers Brewing Company for the adaptive re-use of the former City Recycling Center at 2222 Oakton Street. The location sits squarely in the middle of the alleged danger zone, with water pipes potentially coated with allegedly toxic black tar crust.
Michael Smylie, an owner of Smylie Brothers, told the RoundTable that the City was being tight-lipped about the litigation but that monitoring stations placed around the park to measure methane had not raised any alarms so far. He said if the City plans to mitigate the gas issue by burning it off, he would prefer to tap into the gas to generate electricity for his proposed brewery.
Fire Chief Greg Klaiber told the RoundTable that none of the gas monitor alarms have ever gone off or sounded to indicate gas buildup. He said there were no monitors at the Recycling Center but if requested the City would put a portable monitor there.
As for water supply, Mr. Smylie said given the litigation he would require a new water line to the restaurant and a letter from the Illinois EPA declaring the site safe. “The City said they’d be happy to comply,” he said.
The federal lawsuit is set for a hearing on the motions to dismiss on Aug. 5.