Environmental Lawsuit

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Environmental Lawsuit Filed Against Nicor and ComEd

City of Evanston Statement on April 9 U.S. District Court Opinion (April 12, 2019)

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.

U.S. District Court Opinion

(April 9, 2019)

Memorandum in Support of Motion for Preliminary Injunction

(December 1, 2017)

Motion for Preliminary Injunction
(December 1, 2017)

Pipe Investigation Work at Oakton St. and Dodge Ave.

Work Plan for Investigation of 24-inch Diameter Pipelines along Dodge Avenue and Oakton Street.pdf
(April 27, 2017)

Additional Oakton Street and Dodge Avenue Pipe Investigation Work.pdf
(April 17, 2017)

Round Four Testing Report
(January 20, 2017)

SCS Engineers Sampling and Analytical Report for Round 4
(January 20, 2017)
Round 4 Water Quality Sampling Sites Map.pdf

Federal Court Determines Evanston Claims in James Park Case Must Go Forward (January 17, 2017)

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 court indicated that five causes of action against the defendants can continue. One count (Count II) for a local ordinance violation was dismissed, however, the court made it clear that the City could refile that count if it wanted to.

The minute order and the memorandum opinion are provided, below.

The pending claims are:

Count I – RCRA, the federal environmental statute
Count III – Trespass
Count IV – Private Nuisance
Count V – Public Nuisance
Count VI – Breach of Contract (Nicor Franchise)

The potential damages that could be imposed against Nicor and ComEd are 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.

170117 Minute Order

170117 Memorandum Opinion Order

September 1, 2016

City's Response to Motion to Dismiss Filed 8-31-16 w. Exhibits 1 - 2.pdf

August 2, 2016

Executive Summary

(see testing reports section below for more information)

Round 3 Sampling of Drinking Water in South Evanston

The City of Evanston is suing Nicor and ComEd regarding materials found inside and around water lines in south Evanston. While the materials found pose no immediate hazard to drinking water or in any other way to the community, the City believes these materials were brought to the area by now abandoned gas lines used in the early to mid-20th Century.

The City sampled the drinking water from locations near the location where the black crust was found inside the water line. Chemicals were not detected in drinking water above the MCL. In fact, chemicals have not been found above levels that must be reported to USEPA and IEPA. The City recently completed last month a new round (round 3) of water tests and sampling to confirm current conditions at 15 sites.

For background information on the events leading to the City sampling drinking water at locations near where black crust has been found on the outside and inside of the Dodge Avenue Water Line, please refer to “Environmental Lawsuit Filed Against Nicor and ConEd” at http://www.cityofevanston.org/parks-recreation/parks/james-park-testing.

Neither the Illinois Environmental Protection Agency (IEPA) nor the United States Environmental Protection Agency (USEPA) established a maximum contaminant level (MCL) for Fluoranthene or Phenanthrene in public drinking water supply systems. There are Illinois EPA (IEPA) Class I Potable Water Standards, 35 IAC 620.441, for Fluoranthene (280 ppb) and Phenanthrene (210 ppb) that the results of the water testing are compared to. Phenanthrene and Fluoranthene are both constituents of Coal Tar. The water testing results are significantly (99.9%) below the referenced standards. These compounds would not be in the water but for the acts/omissions of ComEd and Nicor.

The locations where Phenanthrene and Fluoranthene were detected in Round 1, 2 and 3 Sampling are depicted on the map entitled, “Map of Round 1, 2 and 3 Sample Result”. The locations where Phenanthrene and Fluoranthene were detected in Round 1, 2 and 3 Sampling are also depicted in the Table entitled, “TABLE 1: Coal Tar SVOC detections in Rounds 1, 2 and 3”. Table 1 summarizes the Round 3 data for semi-volatile organic compounds (SVOCs).

The IEPA established a maximum concentration of 280 parts per billion for Fluoranthene in Class I Groundwater. The standard, Illinois Groundwater Quality Standards for Class I: Potable Resource Groundwater, 35 Illinois Administrative Code § 620.410(b), is available at the website of the Illinois Pollution Control Board at http://www.ipcb.state.il.us/documents/dsweb/Get/Document-33425.

The IEPA established cleanup objectives for Class I Groundwater, which includes a cleanup objective of 210 parts for Phenanthrene. The groundwater cleanup objectives will be found at IEPA’s website at http://www.epa.illinois.gov/Assets/iepa/cleanup-programs/classI-classII-obj-june2016webprotected.xlsx.

Water Treatment/Disinfection Byproducts

The TestAmerica Laboratory analytical reports include results for Chloroform, Bromoform, Bromodichloromethane and Dibromochloromethane. This group of chemical compounds are classified as Trihalomethanes and part of the United States Environmental Protection Agency (USEPA) Disinfection By-Products Rule (DBPR). The City of Evanston uses chlorine in its water treatment process for disinfection. Using chlorine as a drinking water disinfectant prevented millions of water borne diseases, such as typhoid, cholera, dysentery, and diarrhea. Research shows that when chlorine reacts with organic matter present in source water a series of disinfection by-product compounds (Trihalomethanes) are formed. Since 1991, the City tested quarterly for Trihalomethanes as part of the Stage 2 Disinfection By- Product Rule. The Maximum Contaminant Level (MCL) for Total Trihalomethanes cannot exceed 80 parts per billion (ppb) in drinking water. The Range of detections for Total Trihalomethanes included in both TestAmerica Laboratory analytical reports is 12.1 – 46.2. This range of detection is well below the USEPA DBPR MCL for Total Trihalomethanes of 80ppb and therefore safe for human consumption.

Methodology

The following notes explain Tables 1-4 containing the Round 1, 2 and 3 Sampling Data.

Sample Round 1 was conducted on 9/4/15 and included stations 1, 2, 3, 4, 5, and 6. Sample Round 2 was conducted on 10/6/15 and included stations 1 and 7. Sample Round 3 was conducted on July 12th and 13th and included stations 1 through 15.
All of the concentrations are reported in micrograms per liter (µg/L), parts per billion (ppb).
The Background Sampling Station (Station 6), located at 2603 Sheridan, is not located in the vicinity of James Park. Station 6 is 3.9 miles NNE of James Park.
The letter “J” following the concentration means that the result is less than the reporting limit but greater than or equal to the method detection limit. The method detection limit is the outer limit of the ability of laboratory instrument to detect a compound such as Fluoranthene and Phenanthrene. The report limit is level at which the compound is consistently detected by the laboratory equipment, reflecting a 95% level of confidence the compound is present, and that the concentration is therefore an approximate value.
The letter “H” following the concentration means the sample was prepared or analyzed beyond the specified holding time. For the semi-volatile organic compounds, such as Fluoranthene and Phenanthrene, this should not matter because these SVOC compounds are relatively resistant to bacterial degradation.
Two samples were collected at each station for each sample round; an early sample prior to flushing for 7 minutes, and a late sample after flushing. The VOC analyses shown in this table were taken from the late samples because they best represent the chemical conditions within the city’s water distribution system. The SVOC detections, because there were so few of them, include both the early and late sample analyses. By way of example, sample “Round 3-7E”in Tab 3 of the TestAmerica Reports (Sample Summary) refers to the early sample collected at sample location 7 during Round 3.

Testing Reports (August 2, 2016)

Map of SVOC Detections in the James Park Area Final website

Table 1 Coal Tar SVOCs detected in Rounds 1 2 and 3 website

Table 2 VOCs and SVOCs detected in Rounds 1 2 and 3 website

Table 3 VOCs Detected in Rounds 1 2 and 3 website

Table 4 total trihalomethanes detected in Rounds 1 2 and 3 website

SCS Engineers Sampling and Analytical Report
(Feb. 10, 2016) Note: large file

Water data testing attachments

SCS Engineers Report on Nicor Source of Contamination
(Jan. 30, 2015)

Environmental Lawsuit Filed Against Nicor and ComEd June 6, 2016

On May 31, 2016, the City of Evanston re-filed a lawsuit in the Northern District Court of Illinois against Nicor and ComEd regarding materials found inside and around water lines in south Evanston. While the materials found pose no hazard today to drinking water or in any other way to the community, the City believes these materials were brought to the area by now abandoned gas lines used in the early to mid-20th Century.

This new filing included results from an independent testing laboratory that confirmed the presence of materials associated with “coal tar” that has been found on City water mains along Dodge Avenue near James Park. The report indicates all materials found are well below measurements required for reporting to the U.S. and Illinois Environmental Protection Agencies and pose no hazards to the community.

The City provided this information to the United States Environmental Protection Agency (USEPA) and asked for its review. In an April 14, 2016 letter, the Acting Regional Administrator indicated that his review of the report indicated that the “crustaceous material that may be present in and around the Dodge Avenue Water Line does not pose an unacceptable threat to public health under the Safe Drinking Water Act.”

The City sampled the drinking water from locations near the location where the black crust was found inside the water line. Chemicals have not been detected in drinking water above the Maximum Contaminant Level standards (MCL) set by the USEPA for drinking water quality. In fact, chemicals have not been found above levels that must be reported to USEPA and Illinois EPA. The City continues to test and sample water supplies to confirm current conditions.

In 2014 and the Summer of 2015, the City found a black crust on the outside of a 24” Pipe and the Dodge Avenue Water Line. The black crust on the Water Line and 24” Pipe have the same “chemical fingerprint” – that is, the black crust on both pipes contain the same chemicals. The black crust on both pipes also matches the “coal tar” found at the Skokie Manufactured Gas Plant Site (Skokie MGP) located at Oakton Street and McCormick Blvd. Nicor and ComEd are the corporate successors to Northwestern Gas Light & Coke Company, which operated manufactured gas plants, and associated pipelines, in the City of Evanston from approximately 1871 until 1950.

In the summer of 2015, the black crust was discovered inside the Dodge Avenue Water Line. The chemical fingerprint of the black crust found inside the pipe matches that of the coal tar found at the Skokie MGP and the black crust found on the outside of the unidentified 24” pipe and the Dodge Avenue Water Line.

The presence of any coal tar inside the City’s water line is unacceptable. Therefore, the lawsuit is prudent to address Nicor and ComEd’s inaction and to force the corporations to address the present subsurface conditions in and around the James Park neighborhood. The City believes but for the actions of Nicor and ComEd, none of this material would be below ground. Since Nicor and ComEd refuse to provide information, refuse to cooperate, and take no responsibility whatsoever for this matter, the City has no choice but to prudently exercise its rights under applicable environmental statutes to determine the extent of this situation and identify appropriate means to remediate it to ensure the long-term health and safety of the community.

Historical documents

COE Answer to Amended Complaint

Evanston Counterclaim and 3PC

City of Evanston Official Statement Regarding Nicor

Update to News Story Below (May 29, 2014)

The City of Evanston reviewed and shared the testing of underground sites in James Park with the community at the Tuesday, May 27, 2014 City Council meeting. A community meeting to further share the information will be held at 7pm on Wednesday, June 4, 2014 at the Levy Senior Center in the Linden Room, 300 Dodge Avenue, Evanston. Alderman Rainey and City of Evanston staff will be present.

News Story (May 27, 2014)

James Park Testing to be Reviewed at May 27 City Council Meeting

The City of Evanston began testing of underground sites in James Park beginning in March 2014. This testing continued through May 2014, and ongoing testing and monitoring is in place. The City continues to work with the Metropolitan Water Reclamation District of Chicago, the Illinois Environmental Protection Agency, School District 65, and community partners regarding this matter.

This work will be reviewed and shared with the community at the Tuesday, May 27, 2014 City Council meeting, which will take place in the Council Chambers of the Morton Civic Center, 2100 Ridge Avenue, Evanston. The Council meeting will begin after the Planning & Development Committee Meeting, which begins at 7:15 p.m.

For those unable to attend in person, the meeting may be viewed on television via Comcast's Channel 16 or on AT&T U-verse at the "Local Government Education and Public Access" channel. The live stream of Council video is available at City Television web page. Council videos are usually posted within 24 hours of the meeting at www.youtube.com/user/CityofEvanstonIL or via video links at the City Council web page.

The following/attached documents are information related to this work. This information will be supplemented as needed.

Utility maps of City utilities: