by Shawn Jones, originally posted on June 4, 2016

A lawsuit filed by the City of Evanston against Nicor and ComEd alleges that dangerous substances penetrated water mains along Dodge Avenue “causing the contamination of, and threatening additional contamination to, the City’s drinking water.”

“Constituents of… Waste Oils, specifically fluoranthene and phenanthrene, are present in the City’s drinking water,” the lawsuit later states.  According to the complaint filed May 31, 2016, the City learned of the contamination after February 10, 2016 when it received a report from Dave Hendron, PE, Senior Project Manager for SCS Engineers. It was Hendron’s second report to the City – the first indicated possible imminent contamination but did not show actual contamination.

Other contaminants may be present in drinking water as well, the lawsuit further alleges. “These released and migrating MG Waste Oils have contaminated the City’s drinking water with fluoranthene and phenanthrene, and, on information and belief, other constituents of MG Waste Oils…”

The lawsuit is a refiling of a case dismissed by the United States District Court on February 10, 2016, coincidentally the same date as the second Hendron study. The second lawsuit, filed in the United States District Court, 2016-cv-5692, alleges different theories than the first.

The first lawsuit argued that natural gas present in concentrations around and under James Park came from leaking natural gas pipes. The gas, the City argued, constituted a solid under federal environmental laws. Further, the lawsuit argued that certain oils (Lowes Process Oil, or MG Waste Oil) produced as a byproduct of the production of natural gas in Skokie leaked and coated Evanston water pipes. The Skokie plant ceased operations sometime in the 1950s.

Under federal environmental laws, anyone wishing to file a lawsuit must first serve the parties to be sued with a “Notice of Intent to Sue,” or NOITS. The federal magistrate dismissed Evanston’s claims in the initial lawsuit by ruling first that natural gas does not constitute a solid under the applicable laws, and second that the City’s NOITS did not reference MG Waste Oil and therefore a lawsuit could not continue on that count. [Evanston technically filed a counterclaim and not a lawsuit, as Nicor filed an action seeking the right to replace its cast iron pipes, a project the City blocked at the time.]

The May 31 lawsuit follows an amended NOITS sent February 22, 2016. Because the federal law cited, the Resources Conservation and Recovery Act, applies only to solid waste, the City’s federal law theory now relies entirely on the MG Waste Oil. Now, however, the lawsuit argues that the waste oil may have become “suspended in the gas distributed through the Skokie Manufactured Gas Plant’s distribution infrastructure.” Once suspended in gas, the oil would “condensate in the transmission lines, which would leak through defective or damaged joints in the distribution line into the surrounding environment.”

When the plant was active, roughly from 1910 to the early 50s, “Evanston is informed and believes that a significant amount of the gas produced by the Skokie MGP was also ‘lost’ during distribution via leakage into the environment.”

The released oils and gas, the lawsuit argues, is the source of “the Black Crust inside of and coating the Dodge Avenue Water Line… [and] of the constituents of MG Waste Oils detected in the City’s drinking water, specifically fluoranthene and phenanthrene.”

The lawsuit continues to seek relief for leaked natural gas, but also under Illinois trespass and nuisance laws and under City of Evanston ordinances.

The City has stated publicly, since the James Park gas issue first arose in 2014, that the City’s drinking water supply is safe. The City’s new complaint has put that in question.

A map attached as Exhibit A-1 to the Complaint indicates a stretch of water main serving Dodge Avenue between Oakton Street and Mulford Street to be the source of water that tested contaminated. The 2016 Hendron report studied only the water main being replaced in 2015 along that particular stretch of Dodge. An analysis of water pipes in the surrounding area have not been tested.

The RoundTable learned of the lawsuit late Friday afternoon, and no one in the City has yet been available for comment.

City Say it Acts Responsibly When Corporate Polluters Refuse to Cooperate

The following is a press release issued by the City of Evanston on June 6:

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.

The City has posted the re-filed lawsuit and other information materials on our website for review: www.cityofevanston.org/June6. For further information please call/text the City at 847-448-4311. For convenience, you may dial 3-1-1 directly while in Evanston.