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A lawsuit filed by the City of Evanston against Northern Illinois Gas Company and Commonwealth Edison Company (the “Utilities) has now generated more than $2.8 million in legal fees and consultant reports, wrote City Manager Wally Bobkiewicz in an email to the RoundTable. In the litigation, the City argues its water supply pipes, primarily located around James Park but quite possibly elsewhere as well, have been encrusted with Black Crust coming from long-abandoned natural gas pipes left underground.  

The City of Evanston summarized its position in a Memorandum in Support of Motion for Preliminary Injunction (the “City’s Brief”) filed in its federal court case on Dec. 1, 2017. The Utilities have not yet had an opportunity to take the depositions of the City’s experts and have not yet filed their response to the City’s motion, but they have denied liability in the case.  

The City’s Brief alleges that the Utilities (or their predecessors) owned or operated a gas plant in Skokie on the City’s border, and distributed gas via pipelines buried, among other places, very near James Park. The City’s Brief notes that Nicor has refused to admit this allegation. When the gas plant closed, the Utilities allegedly left their defunct Evanston distribution pipelines (the “NIGC Pipelines”) in the ground.  

“As a result, hazardous byproducts of the gas manufacturing process (“MG Waste Oils”) that condensed within the pipelines have leaked from those pipelines, contaminated the soil, traveled down to the City’s municipal water lines, and encrusted those water lines – both inside and out – with a black crust that potentially endangers human health,” says the City’s Brief. “What is more, the hazardous MG Waste Oils that did not encrust the City’s drinking water lines traveled farther down through the soil toward bedrock, where they decomposed and left a hazardous deposit of methane now trapped at high pressure, further potentially endangering human health, should the methane be unexpectedly released or make its way upward.”

The City’s Brief focuses on the area “in and around” James Park. The brief says its experts’ reports have determined, among other things, that: 

• The MG Waste Oils leaked from NIGC Pipelines “in and around the City’s James Park, a community space that includes recreation facilities, a senior center, and an elementary school.” A recent expert report says the leakage is “most evident” at the joints of the NIGC Pipelines. 

• “Leakage of MG Waste Oils from the NIGC Pipelines also extends along Oakton Street (adjacent to James Park) and along Dodge Avenue from Howard Street north to Lee Street, and because the exact location of the NIGC Pipelines throughout the City is unknown, very likely at other unknown locations.”

• “Leakage of MG Waste Oils from the NIGC Pipelines caused a black crust to form around, on and inside the Dodge Avenue Water Line, which is a portion of the City’s drinking water infrastructures.”

The City’s Brief says one expert concludes that the Black Crust inside the Dodge Water Lines is subject to crumbling and washing away; and it is reasonably foreseeable that benzo(a)pyrene constituents will be released into the potable water in the Water Lines at concentrations exceeding the maximum contaminant limits under the Safe Drinking Water Act. The City’s Brief says, “The presence of MG Waste Oils in the form of friable Black Crust, inside a public water supply line is unprecedented.”  

The City also asserts that methane has been documented at high pressure in and around James Park, and asserts that the methane is produced by decomposition of the MG Waste Oils that leaked from the NIGC Pipelines. The City’s Brief says Dawes Elementary School and the Levy Senior Center “are susceptible to methane migration and penetration.”

The City has installed methane monitors at Dawes and the Levy Center that continuously monitor methane levels. The levels are relayed directly to the City’s Fire Department. 

The City’s Brief also says, “utility and construction workers, including employees of the Utilities and City who frequently work in excavations in Dodge Avenue and Oakton Street, may be exposed to dangerous concentrations of the hazardous MG Waste Oils.” 

In its brief, the City argues that it need not allege and prove an already existing harm, but that “any substantial ongoing threat of future harm” is sufficient to obtain relief under the federal Resource Conservation and Recovery Act.

The City asks the Court to enter a preliminary injunction requiring the Utilities to:

1) Investigate and identify the location of the NIGC Pipelines throughout the City;

2) Determine the extent of contamination caused by leakage of MG Waste Oils from the NIGC Pipelines, including identify the locations (a) where MG Waste Oils have penetrated or threaten to penetrate the City’s Dodge Avenue Water Line, (b) where MG Waste Oils have degraded, or threaten to degrade, into methane, and (c) where MG Waste Oils may endanger construction and utility workers who enter excavations in and along Oakton Street, Dodge Avenue and other locations in the City; and

3) Develop a remedial action plan to address the contamination.  

Despite the City’s legal arguments, City officials continue to assure residents the City’s drinking water is safe. Director of Public Works Dave Stoneback told the RoundTable he was unaware of the Dec. 1 memorandum. “I haven’t seen it yet, so you have me at a disadvantage,” he said. The City’s drinking water has always been and remains safe to drink, he said.  

When asked if City water was safe in light of the City’s December court filing, Mr. Bobkiewicz gave a one word reply: “Yes” As of Jan. 10, the City’s James Park litigation website had not been updated since April, 2017. 

Since the City’s law department learned of the problem in 2013, the City has spent more than $2.8 million on outside lawyers and experts. The City spent almost $470,000 in December 2017 alone, wrote Mr. Bobkiewicz. As reported by the RoundTable recently, these fees appear as “casualty loss” on the City’s bills list under the insurance fund.  

In response to the City’s request for injunctive relief, the federal court entered a discovery order setting aside the week on June 25 for a hearing on the City’s motion. Both sides may take up to seven depositions of fact witnesses by Feb. 28, and any expert witness depositions by March 23. As a result, the City’s legal bills will continue to grow.