On April 9, United States District Court Judge John Z. Lee filed a 45 page opinion in which he denied the City of Evanston’s motion for a preliminary injunction against Northern Illinois Gas Company and Commonwealth Edison Company (the Utilities) in the James Park litigation. To date the amount spent by the City on investigation and testing, expert fees and legal fees is $8,148,237.
In its complaint, the City seeks to hold the Utilities responsible for environmental contamination in the James Park area. The City sought a preliminary injunction in the case under the federal Resource Conservation and Recovery Act (RCRA). It asked the Court to appoint a three-member panel to investigate the extent of the environmental contamination, to design (for possible later implementation) plans to remediate the contamination, and to undertake related tasks, all to be paid for by the Utilities.
To obtain a preliminary injunction, Judge Lee said the City was required to show 1) that its environmental claim against the Utilities has a better than negligible likelihood of succeeding on the merits, 2) that there is a reasonable prospect of a near-term threat of serious potential harm due to the environmental contamination, and 3) that the City will suffer irreparable harm if a preliminary injunction is not granted.
Judge Lee held eight days of evidentiary hearings ending on Sept. 7, 2018, then reviewed about 125 pages of legal briefs submitted by the parties, heard four hours of oral argument on the City’s motion on Jan. 23, 2019, and after reviewed another 30 pages of legal briefs.
The Judge found that the City failed to meet its burden of establishing any of the elements needed to obtain a preliminary injunction.
Likelihood of Success on the Merits
The City alleges in its complaint that it discovered oil and methane gas in the area around James Park, Dawes Elementary School, the Levy Senior Center and surrounding properties in Evanston (the “Impacted Area”). It contends that the source of this oil and methane gas is a now-defunct manufactured gas plant (the “Skokie MGP”) that was located on the west side of the North Shore Channel in Skokie. The Skokie MGP distributed gas via 24 inch pipelines running under Oakton Street, Dodge Avenue and elsewhere near James Park (the “Gas Pipelines”). The Skokie MGP ceased operations in the 1950s.
The Utilities are allegedly the corporate successors to the original owners of the Skokie MGP and allegedly responsible for any contamination caused by the Skokie MGP.
When the Skokie MGP closed, the Utilities left the Gas Pipelines in the ground. The City claims that “hazardous byproducts” of the gas manufacturing process condensed within the pipelines, and those byproducts leaked from broken joints in the Gas Pipelines, contaminated the soil, traveled laterally to the City’s Dodge Avenue Water Line (which has since been decommissioned), and encrusted the outside and inside of that water line with a black crust that potentially threatens Evanston’s drinking water.
In addition, the City claims that some of the byproducts that leaked from the Gas Pipelines traveled down through the soil toward bedrock, where they decomposed and left a hazardous deposit of methane now trapped at high pressures, further potentially endangering human health, if the methane was unexpectedly released or traveled upward.
The Utilities hotly contested the City’s claims.
The Court said the City only had to demonstrate that it had a “better than negligible” chance of succeeding on the merits to satisfy the first element needed to justify a preliminary injunction; and the Court held the City failed to meet that burden for four distinct reasons. The Court held that while the City’ theory “sounds plausible,” it was not supported by the weight of the evidence.
First, the Court said that the City’s expert’s “rather simplistic analysis” fell short of proving that the Skokie MGP was the source of the polycyclic aromatic hydrocarbons (PAHs) – the alleged environmental contamination – found in the black crust on the inside or outside the City’s water mains or in the Impacted Area.
The Court found that PAHs are “ubiquitous throughout the environment and come from a variety of sources, such as vehicle emissions, grilling, asphalt, pavement sealer, burning trash, burning oil, gasoline, and so forth.” While the City’s expert sought to rule out several potential sources of the PAHs, the Judge found that the expert failed to rule out others and thus failed to prove that the PAHs came from the Skokie MGP.
Second, the Court cited a chemical analysis done by an expert retained by the Utilities which showed that the Skokie MGP was not the source of the PAHs in the Dodge Water Main or the Impacted Area. Judge Lee said the analysis was “persuasive and largely unrebutted.”
Third, the Court concluded that the City’s theory that the chemicals that leaked from joints in the Gas Lines would have travelled laterally from there to the Dodge Water Main was “not supported by the evidence.” The Court noted that the Gas Line was 20 to 25 feet from the City’s Water Line, and the Water Line was only about 2 to 6 feet deeper than the gas line.
Fourth, the Court noted that the Utilities “offered a plausible alternative explanation for the black crust found on the Dodge Water Main.” The Court said, “They assert that the black crust was from a coal-tar coating of the type applied regularly to water mains in the early 20th century to prevent rust.” While the Court noted that the City offered a number of objections to the Utilities’ theory, the Court found “on balance, the Utilities advance the better arguments.”
In summary, the opinion says, “The Court finds that it is unlikely that the City could succeed in proving that the Utilities have ‘contributed’ to the PAHs found in and around the Dodge Water Main.”
The Judge further found that the City failed to show it was likely to succeed on its claim that the Utilities contributed to below-ground methane in the area. The Utilities presented expert testimony that the methane is naturally occurring, and the Judge noted that the City acknowledged that “at least some of the underground methane is naturally occurring.”
Imminent and Substantial Risk to Health and Environment
To show an imminent and substantial endangerment to health or to the environment, the Court held the City was required to show “a reasonable prospect of a near-term threat of serious potential harm.”
The City contended that there was a risk that the PAHs in the black crust on the inside of the Dodge Water Main might break off and create a dangerous condition, and argued that it might already have occurred.
Judge Lee found, though, that the City’s experts did not testify “as to the magnitude of the risk that they believe could be threatening the water supply.” Further “all of the testimony was hypothetical” in that neither of the City’s experts “has actually looked at or studied Evanston’s water system, conducted any testing to determine what the level of risk might be, or even calculated the possibility of the black crust dislodging and entering the water supply.”
In addition, one of the City’s experts tested the City’s water supply and found only very low levels of PAHs, and both the EPA and the IEPA determined that the concentrations of PAHs in Evanston’s water are at safe levels.
In addition, Judge Lee noted that an expert for the Utilities calculated that 1.7 tons of PAH-containing material would need to break off from the inside of a water line every day to create an unsafe level of PAHs in the water supply. The Court noted, “There was no evidence that Evanston’s pipes even contain that much crust, much less that it has ever or will ever dislodge.” The Utilities’ expert also testified, “The level of PAHs found in Evanston’s drinking water is consistent with old, PAH-containing pipes, possibly from coal-tar coatings.
“Accordingly, the Court finds that the City has failed to show a likelihood of success as to the potential for risk to Evanston’s drinking water.”
The Court also found that the City did not offer any evidence that the methane – which was 40 feet underground – is or will be in any danger of being released.
“Given the lack of persuasive evidence of any potential endangerment of the public health or the environment, the Court cannot find that the City will suffer irreparable harm in the absence of an injunction,” said Judge Lee in his opinion.
The Judge listed other factors in finding there would not be irreparable harm. He said, “The lack of effort to begin working toward a solution to address the contamination, even while this litigation is pending, suggests that it is not the emergency the City contends it is.
“What is more, the City’s own actions with respect to the contamination have been inconsistent with the notion of irreparable harm requiring preliminary relief. The City continues to tout the safety of its drinking water to its residents, and even sells its water to other municipalities. … Similarly, the City continues to use James Park and the surrounding public facilities, despite the alleged risk of methane in the area.
“The City’s actions are more telling than its words – if it believed that an imminent and substantial risk may exist, one would think it would begin doing everything in its powers to protect its residents, even if that meant funding further investigations itself.”
The Court has scheduled a status hearing for April 17. The City has listed additional discovery that it wants before a trial of the case, and the Utilities have objected to much of that discovery. Attorneys, fees continue to mount.
On April 12, the City of Evanston issued a prepared statement concerning the decision. It provides in full:
“The City of Evanston is disappointed with the U.S District Court’s April 9 decision denying the City’s motion to hold Nicor and ComEd responsible for environmental conditions in the James Park area.
“The City’s top priority is and has always been the health and safety of the Evanston community. After being notified about the presence of methane in James Park by the Metropolitan Water Reclamation District (MWRD) in late 2012, the City prudently began a thorough investigation to ensure the safety of the City’s drinking water system and to determine the extent, source and environmental impact of the conditions. This investigation, and the subsequent discovery of an unexplained black crust on water pipes in the surrounding area, led the City to file a federal lawsuit after the utilities refused to provide information relating to an abandoned gas distribution system that the City believes caused these environmental conditions to occur. We believe much of the costs associated with this litigation could have been avoided if the utilities had worked with the City during the investigation.
“Extensive testing conducted as part of the City’s investigation and reported on the City’s website has consistently shown that Evanston drinking water is safe and meets all standards of the Safe Drinking Water Act. Although the City disagrees with the Court’s decision to not hold the utilities liable for remediating environmental issues in the James Park area, the City remains steadfastly committed to public health and the safety of our drinking water.
“The City will carefully review the Court’s ruling and weigh its next steps.”