Federal Judge John Z. Lee, on Jan. 17, refused to dismiss five of the six counts of a complaint that the City filed against ComEd and Nicor in a 2016 lawsuit related to water quality and contamination in areas near James Park.
Judge Lee did dismiss one count allegeing a violation of the City’s Hazardous Substances Ordinance, and struck a claim for civil penalties sought under Count I, which is brought under the federal Resource Conservation and Recovery Act (RCRA).
Because the Court was ruling on a motion to dismiss the complaint for failure to state an actionable claim, the Court is required to assume that all well-pleaded allegations in the complaint are true and to draw all possible inferences in favor of the City. As such, the decision does not constitute a decision on whether any of the allegations are true.
The May 31 suit, filed in the Northern District Court of Illinois, alleged that contaminants from old gas lines now belonging to the utility companies penetrated water mains along Dodge Avenue and threaten the drinking water supply in parts of the southwest corner of Evanston.
The City maintained in meetings with residents that only small, benign levels of contaminants were present in the samples they took—so small, they say, that federal and state environmental agencies have been slow to address the issue—but sued Nicor and ComEd for a combination of injunctive and declaratory relief, compensatory damages, and punitive damages.
Judge Lee’s decision means that the suit can now proceed.
Among the City’s pending claims are that ComEd and Nicor violated RCRA, and that their actions constitute Trespass, Public Nuisance and Private Nuisance. The City also has a breach of contract claim against Nicor.
In a Jan. 17 statement on the ruling, City officials said, “Today, the federal court determined that the City of Evanston’s claims against Nicor and ComEd must go forward in the federal environmental lawsuit. Nicor and ComEd spent tremendous energy and money to defeat the City’s Amended Complaint. They failed. Nicor and ComEd must now answer the City’s Complaint.”
The statement added that potential damages against the utilities could be “substantial. The City is entitled under federal law to have all attorneys’ fees and expert consultant fees reimbursed. The City will also seek punitive damages against both entities, which Judge Lee expressly indicated that the City could pursue. This is all in addition to Nicor and ComEd paying for any necessary remediation activities.”
The lines in question emanated from the Skokie Manufactured Gas Plant located just outside of the City of Evanston. The facility, built in 1910, was closed in 1950. According to the complaint, oily waste materials stored at the site condensed in the pipelines used to transport manufactured gas in Evanston. Ultimately that led to the alleged contamination of soil and groundwater at James Park, Dawes Elementary School, Levy Senior Center and surrounding residential areas.
The suit defines the “impacted area” as “bounded by Oakton Street to [the] north, Dodge Avenue to the east, Mulford Street on the south, and the North Shore Canal on the west.” The complaint alleges that among the specific results of the contamination have been trace findings of coal tar—a dark, viscous liquid that is a by-product of coal carbonization—in the water at various locations. The suit also alleges that methane gas was found in high concentration and pressure in the impacted area.
The City carried out extensive water testing in the area in summer 2016 and maintained that, though coal tar was found in some locations, it was in such small amounts that it did not present a health hazard. At a Sept. 1, 2016, meeting with residents, Public Works Director Dave Stoneback said that the water was safe. City officials at that meeting further maintained that the lawsuit primarily serves to compel the utilities to account for the gas lines that they inherited from their corporate predecessors.
James Park Neighbors, on November 14, 2016, submitted a petition, signed by about 150 neighborhood residents, to the City Council stating their concern about the water quality. The petition asked the City to determine the extent of the contamination and replace the impacted water lines. The City Council that same day authorized the City Manager to retain a Madison, Wisconsin engineering firm to conduct further tests.