A federal court judge dismissed earlier this month Evanston’s lawsuit against two gas companies the city claims were responsible for high levels of methane gas detected around a city park.
U.S. District Judge John Z. Lee ruled Feb. 10 on the case between Evanston and northern Illinois gas companies Nicor Gas and Commonwealth Edison. Lee dismissed the city’s claim that methane gas detected around James Park should be treated as solid waste under a federal statute.
The federal Resource Conservation and Recovery Act allows lawsuits against persons or groups that have disposed of any solid or hazardous waste “which may present an imminent and substantial endangerment to health or the environment,” according to court documents, but Lee ruled that methane gas is not a solid waste.
According to the documents, Lee said although the RCRA sometimes treats contained gases as solid gases, free-flowing gas such as methane does not fall under the statute.
“We are pleased with the court’s ruling and believe that it is correct,” Liz Keating, spokeswoman at ComEd, said in a statement to The Daily.
Evanston officials first detected high levels of methane gas in spring 2014 at several locations in and around James Park, which is located by the corner of Dodge Avenue and Oakton Street. Evanston claimed the methane was coming from the now-defunct Skokie Manufactured Gas Plant, where Nicor and ComEd were conducting a cleanup.
City officials notified Nicor and ComEd in October 2014 of its intent to sue the utility companies for improper disposal of “solid waste,” according to court documents. However, Nicor claimed James Park’s former status as a landfill was the reason for high levels of methane gas detected around the park.
Nicor then quickly sued the city, arguing they had no liability for the high levels of detected methane gas under the RCRA, but Evanston then filed a counterclaim and third-party complaint against Nicor and ComEd, respectively, according to court documents. That counterclaim and third-party complaint were the claims dismissed by Lee earlier this month.
The city also filed a claim against Nicor and ComEd for responsibility of waste oil created by the companies as part of a gas production process at the defunct Skokie Manufactured Gas Plant, which closed in 1932.
The city claimed the waste oil migrated along pipelines and coated city water lines along Dodge Avenue with a black crust identical in nature to the waste oil. As the oil decomposes, the city said it releases methane gas. Evanston claimed the crust threatens to break through the water line and contaminate the city’s drinking water, according to court documents.
Lee, however, ruled this claim was also invalid because the city failed to give the proper 90-days notice to the utilities about this claim. City attorney Grant Farrar told The Daily in an email, however, the city filed Monday an amended notice of its intent to sue Nicor and ComEd under the RCRA with regard to waste oil. According to the court documents, the city filed a new claim because the previous claim did not give Nicor and ComEd 90-days notice.
Nicor and ComEd completed an environmental clean-up of the Skokie Manufactured Gas Plant in October. The city has been monitoring methane gas levels at various locations in the James Park area, including areas around Dawes Elementary School, 440 Dodge Ave., and the Levy Senior Center, 300 Dodge Ave.
The Illinois Environmental Protection Agency has agreed the city’s continuous monitoring of methane levels is needed, especially in light of how high concentration levels of methane could “combust when exposed to an ignition source,” Lee wrote in his ruling.
According to the court documents, Evanston claimed it has “repeatedly sought the cooperation of Nicor and ComEd to investigate the source of the methane,” but the city complains the utilities companies have generally been “evasive and dismissive.”
However, Jae Miller, senior manager of PR and media relations for AGL Resources, which is the parent company of Nicor Gas, told The Daily the company has cooperated with the city.
“When the city of Evanston initially contacted us about its concerns, we fully cooperated,” Miller said. “And our investigation concluded that there was no connection between Nicor Gas and the material the city detected in the area of James Park.”
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