On Aug. 9, Judge John Z. Lee entered an order ruling on the admissibility of expert testimony in the City of Evanston’s case against Northern Illinois Gas Company and Commonwealth Edison Company, pending in Chicago’s federal court. Defendants moved to exclude expert testimony of David Hendron, one of the City’s experts. The City moved to exclude expert testimony of Dan Fox. The order was entered to determine the admissibility of certain expert opinions at the hearing on the City’s motion for a preliminary injunction that was filed in December 2017. Hearings on the motion have been held on Aug. 15, 16 and 17 and are scheduled to continue on Aug. 28.
The suit alleges that defendants are responsible for environmental contamination in and around James Park. According to the Aug. 9 order, Mr. Hendron “contends that the 24-inch diameter NIGC pipelines located near Dodge Avenue and Oakton Street were connected to the Skokie manufacturing gas plant (“MCP”) in the early 1900s and were a principal element of the distribution infrastructure of the Skokie MGP. In addition, he will testify that the NIGC pipelines contain ‘waste oils’ from the Skokie MGP. He also contends that the waste oils leaked from the NIGC pipes into the soil. The waste oils that leaked from the pipelines then mitigated onto and inside of the City of Evanston’s water lines near Dodge Avenue. … He also seeks to testify … that the waste oils have biodegraded into high-pressure pockets of methane … and the deposits found around James Park pose an imminent risk to human health and that a formal risk assessment is required.”
The Court ruled that Mr. Hendron may offer opinions on these matters, except two. First, the Court held he lacks qualifications to offer his opinion that there is an imminent risk to human health and that a formal risk assessment is required. Second, Mr. Hendron may not testify that the Skokie MCP waste oils have migrated to inside the Dodge water pipes. The Court noted that the City had retained another expert to testify on the second issue.
Mr. Fox, defendants’ expert is a 38-year employee of defendant Nicor. He contends that the “NIGC pipelines never carried manufactured gas from the Skokie MGP, but rather natural gas from non-Defendant People Gas.” The court said Mr. Fox relied on historical drawings of the pipelines to support his opinion. “He observes from historical diagrams that there was a ‘check valve’ installed at a supply point, which, he says would have prevented gas from flowing from the Skokie MGP.” The court held that to the extent that Mr. Fox bases his opinion on the historical drawings, he may offer his opinion.
Mr. Fox’s discovery of historical drawings of the pipelines and his opinion that the NIGC pipelines never carried manufactured gas from the Skokie MGP interjects another key issue into the case, whether the City is suing the right defendants. On July 18, the Court allowed defendants to withdraw their answer to paragraph 42 of the City’s complaint in which they admitted that the NIGC pipelines did carry manufactured gas from the Skokie MGP. On July 24, the Court entered an order permitting the City “to forego any additional discovery into the ownership of the Dodge Ave line or whether the Skokie MGP was the source of the manufactured gas that was transported through that line until after the Court resolves the motion or preliminary injunction.”
In its motion for preliminary injunction, the City asks the Court to order defendants 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, and, 3) develop a remedial action plan to address the contamination.
The RoundTable asked City Manager Wally Bobkiewicz and City Attorney Michelle Masoncup if they would like to comment on the progress of the proceedings. They declined to comment.
The City has repeatedly told James Park neighbors that the drinking water provided in the James Park area is safe, and there is no imminent danger.
As of January 2018, the City had spent $2.8 million on legal and expert consultant fees on the matter. The fees incurred since that time are likely much higher.