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Federal Magistrate John Z. Lee dismissed the City of Evanston’s environmental claims against Nicor and ComEd on Feb. 10. In a 21-page opinion, Judge Lee rejected the City’s argument that “methane gas” that allegedly leaked from natural gas pipelines under James Park and its environs constitutes a “solid” under federal law.

Judge Lee also held that the City’s 90-day notice, a prerequisite to filing a lawsuit under the Resource Conservation and Recovery Act (RCRA), failed to give notice of the City’s claim that “Lowe Process waste oil,” allegedly released from a facility in Skokie between 1910 and the early 1950s, leaked into the soil in and around James Park.

The City’s lawsuit has been dismissed in its entirety, though a window remains open to renotice the Lowe Process oil aspects of the suit. Suing Nicor for leaky pipes has been dismissed finally and completely – unless the City decides to appeal.

The lawsuit stems from concentrations of natural gas underground first identified in 2012. At the time, a consultant for the Metropolitan Water Reclamation District (MWRD) discovered concentrations of methane gas on the Skokie side of the sanitary canal and determined the source to be the former landfill in James Park, now known affectionately as “Mt. Trashmore.”

In response, the City hired its own consultant, who determined the source of the gas to be “naturally occurring crude oil sources.” Later, in 2013, the City retained a law firm specializing in environmental law, Jeep and Blazer, who hired its own consultant who reached yet a third conclusion as to the source of the stray methane gas – ComEd and Nicor.

In fall 2014, the City halted Nicor’s planned replacement of aging gas delivery pipes in the James Park area due to “spoliation of evidence” concerns. “We cannot simply ignore an imminent and substantial endangerment to human health and the environment,” wrote the City’s lawyers in a November 21, 2014, letter. As a result, the City claimed that Nicor must preserve the pipes being replaced for use as evidence in a lawsuit. (The City has repeatedly told residents there is no imminent threat to public safety.)

Nicor initiated the federal lawsuit seeking a declaratory judgment allowing it to replace the aged pipes. The City settled that aspect of the case, and the parties agreed to preserve the old pipes. But the lawsuit continued, and the City of Evanston pursued its counterclaim against Nicor and  ComEd.

The City’s counterclaim mentioned Lowe Process oil for the first time. A natural gas production facility across the canal in Skokie operated between 1910 and sometime in the early 1950s. “The plant manufactured gas using the ‘Lowe (Williamson)’process. The Lowe Process utilized oil stored in above-ground tanks that eventually became waste oil,” according to Judge Lee’s opinion.

This waste oil, argued the City, then traveled under the canal to James Park, then farther along to Dodge Avenue where it coated water pipes, forming a black crust. “According to Evanston, this crust threatened to penetrate the water line, which would contaminate Evanston’s drinking water,” wrote the Judge. (The City has repeatedly told residents their water is safe.)

The City’s counterclaim also alleged that Nicor’s leaky old gas pipes were the source of the stray methane gas in and around James Park and Mt. Trashmore. The City argued the gas constitutes a solid under the RCRA, allowing the City to sue under that law.

“The most natural reading of the [RCRA’s] language is that a gas cannot be a ‘solid waste’ because it is not a solid at all,” wrote Judge Lee. “On the other hand, other non-solid materials are explicitly included within the definition of ‘solid waste,’ such as liquids and ‘contained gaseous materials.” The RCRA, he concluded, is ambiguous on its face.

“Fortunately, Congress has authorized the EPA to oversee the implementation of the RCRA and to issue regulations with the force of law in furtherance of this effort,” the opinion continues. The EPA, he concluded, determined “that gases, other than ‘containerized or condensed gases,’ could not be classified as RCRA solid wastes … Because the Court concludes that methane gas does not meet the definition of RCRA solid waste, Evanston cannot base a RCRA claim on the release of methane gas from natural gas pipelines.”

On to the next argument – the alleged release of Lowe Process waste oil more than 60 years ago, “[T]here is no reason – assuming proper notice – that Evanston may not have a claim on the discharge of a RCCRA solid waste that breaks down into methane gas, thereby endangering public health or the environment,” the opinion continued. The problem: There was not proper notice.

The City’s 90-day notice, from Oct. 20, 2014, does not reference the Lowe Process waste oil. “[T]he Court concludes that Evanston’s notice did not apprise Nicor and ComEd of the endangerment posed by Lowe Process waste oil.” (ComEd is a defendant because its predecessor was an owner of the Skokie natural gas plant in the 50s.)

To date the City has spent well in excess of $500,000, on consultants and preservation of evidence expenses pursuing this case. To continue, the City will have to shift gears and argue that methane gas underground in and around James Park does not come from the landfill as the MWRD consultant found, or from natural sources as the City’s first consultant found, or leaky gas pipes as the second consultant found and the City’s first lawsuit alleged, but instead from Lowe Process oil that migrated under the canal into Evanston and on toward Dodge Avenue.

The City must first serve another 90-day notice, though.