Northern Illinois Gas Company v. City of Evanston, Illinois
Filing
54
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 2/10/16. Modified on 2/10/2016 (ca, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NORTHERN ILLINOIS GAS
COMPANY, d/b/a/ NICOR GAS
COMPANY,
)
)
)
)
Plaintiff,
)
)
v.
)
)
CITY OF EVANSTON, ILLINOIS,
)
)
Defendant.
)
__________________________________________)
CITY OF EVANSTON, an Illinois
)
Municipal Corporation,
)
)
Counter-Plaintiff and
)
Third-Party Plaintiff,
)
v.
)
)
NORTHERN ILLINOIS GAS
)
COMPANY d/b/a NICOR, and
)
COMMONWEALTH
)
EDISON COMPANY,
)
)
Counter-Defendant and
)
Third-Party Defendant.
)
__________________________________________)
14-cv-9227
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
The City of Evanston notified Northern Illinois Gas Company (“Nicor”) and
Commonwealth Edison (“ComEd”) in October 2014 of its intent to sue the
companies under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.
§ 6901 et seq., for improper disposal of “solid waste.” In response, Nicor
preemptively filed suit, requesting a declaratory judgment that the company has no
1
liability to the City under RCRA. Not to be outdone, Evanston then filed “a
counterclaim and third-party complaint” against Nicor and ComEd, respectively—
which the Court will call the “counterclaim” for simplicity’s sake—asserting claims
under RCRA and state law.
Evanston’s RCRA claim centers around two different types of “wastes.” First,
Evanston alleges Nicor and ComEd are responsible for waste oil that was created
years ago as part of a gas production process utilized at the long-defunct Skokie
Manufactured Gas Plant (Skokie MGP). Evanston refers to this gas process as the
“Lowe Process.”
According to the City, the waste oil created by the Lowe Process “is likely to
have leaked into the environment from the above ground storage tanks and other
infrastructure at the Skokie MGP,” as well as from gas pipelines, into the soil and
groundwater. Counterclaim ¶¶ 10, 35, 41. The waste oil in the soil, at least
according to the City, is leading to the creation of methane gas as the oil
biodegrades. Id. ¶¶ 40, 112. Evanston also alleges the existence of a “black crust
coating” at various parts of the water line along Dodge Avenue, the chemical
composition of which is identical to the Lowe Process waste oil. Id. at 42-44.
Second, Evanston asserts that Nicor and ComEd are responsible for the
leakage of natural gas from active gas pipelines and associated infrastructure into
the soil, groundwater, and bedrock in the area of interest. Id. ¶ 114. According to
the City, this has caused “the presence of methane at high pressure and
concentrations” in the area. Id. ¶ 114.
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Nicor and ComEd have filed a motion to dismiss the RCRA counterclaim
under Fed. R. Civ. P. 12(b)(6) and offer two principal arguments. First, the
companies contend that methane gas is not a “solid waste” as that term is defined in
RCRA. Second, the companies argue that the Evanston’s “intent to sue” letter did
not satisfy the requirements of RCRA.
For the reasons set forth below, the Court grants the motion and dismisses
Evanston’s RCRA claim against Nicor and ComEd without prejudice. As a result,
the Court also declines to exercise supplemental jurisdiction over Evanston’s state
claims, and Nicor’s complaint seeking declaratory relief is dismissed as moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
Methane gas was first detected in and around James Park in Evanston,
Illinois, in 2012. Id. ¶ 63. If this methane were to reach concentrations at or
exceeding the gas’s “lower explosive limit” (“LEL”), it could combust when exposed
to an ignition source. Id. ¶ 7. In light of this danger and on the joint advice of
Evanston’s Fire Chief and a retained engineer, David Hendron, Evanston began
monitoring methane levels at various locations in the James Park area, including
around Dawes Elementary School and Levy Senior Center. Id. ¶ 69–70. Methane
has not yet been detected at or near the LEL, id. ¶¶ 70–71, but the Illinois EPA and
other organizations agree with Evanston that continued monitoring is necessary, id.
¶¶ 92–94.
Hendron also conducted an investigation to determine the source of the
methane. Id. ¶ 69. Although earlier investigations pointed to the closed landfill,
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upon which James Park was constructed, id. ¶¶ 63–67, Hendron drew a different
conclusion and identified two other “likely sources” of the methane gas: (1)
“[l]eakage of petroleum materials (Lowe Process oil waste) from the operational
facilities at, and from the maintenance and operation of the pipeline infrastructure
systems associated with the former Skokie MGP”; and (2) “[l]eakage of natural gas
from existing and abandoned natural gas pipelines in the vicinity of James Park.”
Id. ¶ 73.
The Skokie MGP, Evanston explains, operated from 1910 until sometime in
the early 1950s. Id. ¶¶ 29–30. The plant manufactured gas using the “Lowe
(Williamson)” process. Id. ¶ 31. The Lowe Process utilized oil stored in aboveground tanks that eventually became waste oil. Id. ¶¶ 32–33. The waste oil likely
entered the environment by leaking from the storage tanks and by traveling
through the pipelines that transported gas from the Skokie MGP. Id. ¶¶ 35-37. At
least two of those old distribution lines are located in the vicinity of James Park. Id.
¶ 36. Because of its low viscosity, the waste oil would have taken only a matter of
years to travel down to bedrock. Id. ¶ 34. Once the oil reached bedrock, it would
have started to biodegrade into methane gas. Id. ¶ 40.
In addition, Evanston also alleges that an active natural gas pipeline running
along Dodge Avenue near James Park “contains, or contained, Lowe Process waste
oil.” Id. ¶ 41. Evanston surmises this from a chemical analysis of a “black crust”
that coats a municipal water pipeline located five feet below the Dodge Avenue gas
pipeline. Id. ¶ 44. The analysis of the crust revealed that it “matches identically
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with the compounds known to be present in Lowe Process waste oil.” Id. According
to Evanston, this crust threatens to penetrate the water line, which would
contaminate Evanston’s drinking water. Id. ¶ 111. Further supporting the
conclusion that the crust on the water line comes from the gas line is that the soil
between the two lines “is stained black, similar in appearance to the color of the
black crust.” Id. ¶ 44.
Unrelated to the Lowe Process waste oil, Evanston also alleges that natural
gas is leaking from active gas pipelines and associated infrastructure in the vicinity
of James Park into soil, groundwater and bedrock. Id. ¶ 114. This is causing “the
presence of methane in high pressure and concentrations in and around James
Park.” Id. ¶ 115.
Evanston asserts that it repeatedly has sought the cooperation of Nicor and
ComEd to investigate the source of the methane. Id. ¶¶ 74–107. In Evanston’s eyes,
the companies were generally evasive and dismissive. Id. As a result, Evanston was
forced to resort to administrative orders and Freedom of Information Act requests to
learn about the location of pipelines and other relevant infrastructure. Id.
In the face of Nicor and ComEd’s unwillingness to cooperate, the City
formally notified the companies of its intent to sue them under RCRA. Compl. ¶¶ 8,
117, 121. Evanston’s notice, which is attached to its counterclaim and further
detailed below, identified two separate RCRA “endangerments”: methane leaking
from natural gas pipelines, and “coal tar” in the form of a “black crust” coating the
Dodge Avenue municipal water pipeline. The notice stated that “[t]here is a perfect
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match between the compounds detected in the black crust and compounds know to
be present in coal tar.” Id., Ex. B ¶ 38. Evanston’s notice made no mention of Lowe
Process waste oil, nor did it draw a connection between the “coal tar” and the
methane problem.
II. ANALYSIS
In deciding a motion to dismiss under Rule 12(b)(6) for failure to state a
claim, the Court accepts all well-pleaded facts in the complaint (or counterclaim) as
true and gives the plaintiff the benefit of all reasonable inferences. Tamayo v.
Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). “RCRA is a comprehensive
environmental statute that governs the treatment, storage, and disposal of solid
and hazardous waste,” Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996), and to
state a claim under the citizen-suit provisions of RCRA, a plaintiff must allege
either a “violation,” see 42 U.S.C. § 6972(a)(1)(A), or an “endangerment,” see id.
§ 6972(a)(1)(B). The plaintiff must also have notified the defendant of an alleged
violation 60 days before filing suit and of an alleged endangerment 90 days before
filing suit. 42 U.S.C. § 6972(b)(1)(A), (b)(2)(A). Failure to provide notice requires
dismissal of the complaint. Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31 (1989).
Evanston brings its RCRA claim under the endangerment provision, see
Compl. ¶ 108; Resp. Br. at 3 n.2, ECF 36, which allows suits “against any person, …
including any past or present generator, past or present transporter, or past or
present owner or operator of a treatment, storage, or disposal facility, who has
contributed or who is contributing to the past or present handling, storage,
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treatment, transportation, or disposal of any solid or hazardous waste which may
present an imminent and substantial endangerment to health or the environment.”
42 U.S.C. § 6972(a)(1)(B).
As explained above, Evanston identifies in its counterclaim two distinct
substances that it contends are RCRA solid wastes that present an imminent threat
to public health or the environment. The first is Lowe Process waste oil from the
Skokie MGP. Some of that waste oil coats a water pipe, and some of it has
biodegraded into methane. The second is methane gas leaking from natural gas
pipelines. For reasons that will be apparent, the Court will address them in reverse
order.
A. Pipeline Methane
Nicor and ComEd first argue that methane leaked from pipelines does not
meet RCRA’s definition of “solid waste.” Mem. Supp. at 3–5, ECF 24. 1 That
definition, which explicitly includes certain non-solids, reads in relevant part:
The term “solid waste” means any garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution control
facility and other discarded material, including solid, liquid, semisolid,
or contained gaseous material resulting from industrial, commercial,
mining, and agricultural operations, and from community activities …
42
U.S.C.A.
§
6903(27). Nicor and ComEd contend
that
Congress has
unambiguously excluded “uncontained” gaseous material from that definition by
including “contained gaseous material.” Mem. Supp. at 4. This issue is one of first
impression in this Circuit.
All “Mem. Supp.” references are to Nicor’s Memorandum of Law in Support of Its
Motion to Dismiss, ECF 24. ComEd has adopted Nicor’s RCRA arguments. See ComEd’s
Mem. Supp. at 6–7, ECF 27.
1
7
For its part, Evanston concedes that methane gas that leaks from pipelines
into soil and water is “uncontained” gaseous material. Resp. Br. at 8 (“The
Counterclaim alleges that an uncontained gas (methane) has been discharged … .”).
And, although the definition of “solid waste” in Section 6903(26) does not mention
“uncontained gaseous material,” Evanston points out that the list of examples is
preceded by the word “including.” Accordingly, the City argues, the list is not
exhaustive, and the mere mention of “contained gaseous material” does not
necessarily exclude “uncontained” gaseous material. Id. at 8–9 (citing 2A
Sutherland Statutory Construction, § 47:7 (7th Ed.)).
In interpreting a regulatory statute such as RCRA, the Court first must
consider whether Congress “has directly spoken to the precise question at issue.”
American Mining Congress v. EPA, 824 F.2d 1177, 1182 (D.C. Cir. 1987) (quoting
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). If the
statutory language is silent or ambiguous, the Court then considers whether
“Congress has authorized [an] agency to interpret the statute through rules
carrying the force of law and [whether] the agency’s interpretation is both
reasonable and promulgated through the exercise of the authority given by
Congress.” Brumfield v. City of Chi., 735 F.3d 619, 625–26 (7th Cir. 2013) (citing
United States v. Mead Corp., 533 U.S. 218, 227–29 (2001)). If the Court answers
these questions in the affirmative, the agency’s interpretation is entitled to
deference under Chevron. The purpose of this deference is to respect Congress’s
decision to leave certain interpretive decisions to agencies rather than courts. Nat’l
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Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)
(“Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps.”).
In the Court’s view, the definition of solid waste contained in Section
6903(26) is ambiguous as to whether an uncontained gas, such as methane, is a
RCRA solid waste. The most natural reading of the provision’s language is that a
gas cannot be a “solid waste” because it is not a solid at all. See American Mining,
824 F.2d at 1183 (“In pursuit of Congress’ intent, we start with the assumption that
the legislative purpose is expressed by the ordinary meaning of the words used.”)
(citation omitted). On the other hand, other non-solid materials are explicitly
included within the definition of “solid waste,” such as liquids and “contained
gaseous material.” It does not help matters that the list of what could constitute
“discarded materials” appears to be a non-exhaustive one, at least on its face.
Accordingly, one cannot discern from the plain language of Section 6903(26)
whether an uncontained gas, such as methane, qualifies as a RCRA solid waste. 2
Fortunately, Congress has authorized the Environmental Protection Agency
(“EPA”) to oversee the implementation of RCRA and to issue regulations with the
force of law in furtherance of this effort. See 42 U.S.C. § 6912(a)(1); City of Chicago
v. Envtl. Def. Fund, 511 U.S. 328, 330 (1994) (noting that RCRA implementing
regulations come from the EPA); Wyckoff Co. v. E.P.A., 796 F.2d 1197, 1198 (9th
In contrast, the court in American Mining found Section 6903(27) to be
unambiguous. See American Mining, 824 F.2d at 1190. But it was addressing an altogether
different question—whether Congress clearly intended to limit EPA’s regulatory
jurisdiction to materials disposed of or abandoned, as opposed to materials reused within
an ongoing production process. Id., 824 F.2d at 118. The court did not have occasion to
consider whether the provision clearly expressed Congress’ intent to include (or exclude)
uncontained gases from the definition of “solid waste.”
2
9
Cir. 1986) (“The Act confers on the Administrator of the EPA broad powers to
regulate the storage, treatment, transportation, and disposal of potentially
hazardous materials. See 42 U.S.C. § 6912(a).”) And the EPA has concluded in at
least two rulemakings that uncontained gases do not fall within RCRA’s definition
of solid waste. Because these rulemakings were subject to notice and comment and
constitute a reasonable interpretation of the statute, they are entitled to Chevron
deference. See Sierra Club v. E.P.A., 375 F.3d 537, 541 (7th Cir. 2004) (deferring to
EPA’s reasonable interpretation of Clean Air Act because the agency acted within
“the core of Chevron’s domain” by engaging in “notice-and-comment rulemaking
under explicit statutory delegation”); Wisconsin v. E.P.A., 266 F.3d 741, 746 (7th
Cir. 2001) (“[T]he EPA here has interpreted the [Clean Water Act] by promulgating
formal regulations, using plenary notice-and-comment procedures … . Its
regulations and subsequent decision are therefore entitled to [Chevron] deference.”);
see also Owen Elec. Steel Co. of S. Carolina v. Browner, 37 F.3d 146, 148 (4th Cir.
1994) (“[W]e accord the EPA’s interpretation of statutory definition of ‘solid waste’
substantial deference under Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc.”).
The EPA’s clearest statement on the issue was in a 1989 rulemaking that
identified various hazardous wastes. As part of this analysis, the Agency considered
whether “light ends,” such as butane, which are “in the gaseous state but
condensable by currently feasible technology to liquids at ambient temperature and
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pressure,” could be categorized as a hazardous waste. The EPA concluded in the
negative explaining:
Upon reconsideration of this issue (with the benefit of the comments
received on the proposed rulemaking), EPA now believes our authority
to identify or list a waste as hazardous under RCRA is limited to
containerized or condensed gases (i.e., section 1004(27) of RCRA
excludes all other gases from the definition of solid wastes and thus
cannot be considered hazardous wastes).
54 Fed. Reg. 50968, 50972–73 (December 11, 1989) (emphasis added). Although the
precise issue there was whether “light ends” could be classified as a “hazardous
waste,” “hazardous wastes” under RCRA are a subset of “solid wastes,” 42 U.S.C.
6903(5), and the Agency’s determination was predicated on its position that gases,
other than “containerized or condensed gases,” could not be classified as RCRA solid
wastes.
In response, Evanston cites to a more recent rulemaking where the EPA
concluded that streams of CO2 for sequestration qualified as a RCRA solid waste.
But in that instance, the Agency was careful to specify that the CO2 in question was
a “supercritical fluid,” which is neither a gas nor a liquid:
[C]ommenters argued that these carbon dioxide streams are
“uncontained gases” and as such were statutorily excluded from RCRA
by Congress … . As EPA noted in the proposed rule, the CO2 streams
are delivered by pipeline and injected into UIC Class VI wells for GS
[geologic sequestration] in a supercritical state, which EPA stated at
proposal was “… rather unique in that it has properties intermediate
between a liquid and a gas.” The scientific term used to describe or
define this supercritical state (i.e., when a substance is at or above its
critical temperature and critical pressure) is as a “supercritical fluid.”
The RCRA statutory definition of solid waste specifically refers to
“other discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial, commercial,
mining, and agricultural operations, and from community activities …”
… and does not speak to materials such as supercritical fluids. Like
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the listed “solid, liquid, semisolid, or contained gaseous material”
specifically referenced, CO2 streams sequestered for purposes of GS are
“other discarded material” from industrial and commercial operations
and, therefore, are of a similar kind to the other types of wastes
specifically referenced by the definition. They are, therefore, RCRA
statutory solid wastes.
79 Fed. Reg. 350-01, 355 (Jan. 3, 2014) (citation and footnote omitted). Indeed,
rather than supporting the City’s position, this statement reaffirms the Agency’s
position that uncontained gases are not solid waste for the purposes of RCRA.
Evanston also looks for support in legislative history and EPA rules and
administrative orders regulating potentially explosive methane under RCRA. But
the methane discussed in those sources is a byproduct of RCRA solid waste—not
solid waste itself. See, e.g., Solid Waste Disposal Facility Criteria, 56 Fed. Reg.
50978-01, 51020 (Oct. 9, 1991); In re Mallard Lake Landfill, USEPA Docket No.
RCRA
7003-5-08-001,
available
at
http://www3.epa.gov/region5/cleanup/mallard/pdfs/aoc_200712.pdf (accessed Jan. 4,
2016) (requiring monitoring of methane produced by landfill waste); H.R. Rep. 941491(I), 11, 37 (Sept. 9, 1976). 3
The EPA’s interpretation in 1989 of the definition of “solid waste” has the
force of law and speaks directly to the question in this case. Furthermore, the
The references to gases in this House Report, the only legislative history Evanston
cites, are to gases produced by traditional solid waste in landfills. The one exception is a
reference to “propane gas” that was discharged into a river, see H.R. Rep. 94-1491(I), 23
(Sept. 9, 1976), but that single reference says much less about Congressional intent than
does a statement near the beginning of the same report: “Not only solid wastes, but also
liquid and contained gaseous wastes, semi-solid wastes and sludges are the subjects of this
legislation.” Id. at 2. If anything, that statement (which does not contemplate any wastes
other than those expressly mentioned) excludes uncontained gases more clearly than the
statutory language.
3
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Agency’s understanding that uncontained gases are excluded from the definition is
a reasonable interpretation of Section 6903(27) and is consistent with the most
natural reading of that provision.
That said, even assuming, for the sake of argument, that the EPA’s 1989
interpretation is not entitled to Chevron deference, the Court believes the
interpretation to be persuasive, and agency interpretations without the force of law
are to be given deference to the extent they are persuasive. Mead, 533 U.S. at 221.
In fact, even in the absence of the two rulemakings, the EPA repeatedly has stated
its view that uncontained gases are not solid wastes. See White House Office Mgmt.
& Budget, Longstanding EPA Precedent that Uncontained Gas Is Not a Solid Waste
at
3–5
(Nov.
16,
2011)
(summarizing
statements),
available
at
https://www.whitehouse.gov/sites/default/files/omb/assets/oira_2060/2060_11162011
-3.pdf (accessed 1/21/16).
Indeed, just last year, the Agency again explained its position in Carbon
Sequestration Council v. E.P.A., 787 F.3d 1129 (D.C. Cir. 2015). In that case, the
petition challenged the Agency’s 2014 classification of CO2 supercritical fluid as a
hazardous waste. 4 In its brief to the court, the EPA argued that a supercritical fluid
can be a solid waste because the list in the definition is instructive and not
exhaustive, but the Agency was careful to explain that,
[b]y specifically including “contained gases” within the illustrative list,
Congress evinced its intent to exclude “uncontained gases.” In that
term only, the maxim of expressio unius est exclusio alterius applies to
indicate the intentional use of one form over the exclusion of another.
The case was ultimately dismissed for lack of standing. See Carbon Sequestration
Council, 787 F.3d at 1133.
4
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In this respect, the reference to “contained” gases is unique among the
physical forms listed.
Resp’ts’ Br. at 21, 57–58, Carbon Sequestration Council v. E.P.A., 787 F.3d 1129
(D.C. Cir. 2015) (Nos. 14-1046, 14-1048), ECF 1521146 (filed Nov. 6, 2014). Both
Evanston and the companies cite to this brief, see Resp. Br at 14–15, Nicor’s Reply
Br. at 3 (ECF 37), but in the end the Agency’s statements support the latter.
Finally, for good measure, the Court also notes that numerous courts have
concluded that uncontained gases are not RCRA solid wastes. See, e.g., United
States v. Sims Bros. Constr., Inc., 277 F.3d 734, 740 (5th Cir. 2001) (observing that
“[f]or gaseous material to be ‘solid waste’ it must be ‘contained.’”); Helter v. AK Steel
Corp., No. C-1-96-527, 1997 WL 34703718, at *12 (S.D. Ohio Mar. 31, 1997) (“[T]he
Court concludes that the plain language of 42 U.S.C. § 9603(27) excludes the leaked
COG [coke oven gas], in its gaseous form, from the definition of ‘solid waste’ and,
thus, from RCRA’s coverage.”).
In rebuttal, Evanston relies heavily on Ctr. for Cmty. Action & Envtl. Justice
v. BNSF Ry. Co., 764 F.3d 1019 (9th Cir. 2014), but that case dealt with whether
“particulate matter” in exhaust gases could be classified as a solid waste. It did not
involve purely gaseous matter, like methane gas. And the court did not even reach
this question. Id. at 1030 n. 10 (“Because we conclude that Defendants do not
‘dispose’ of solid waste in violation of RCRA, we need not reach the parties’
arguments about whether diesel particulate matter is indeed ‘solid waste’ under 42
U.S.C. § 6903(27).”).
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Like BNSF, the other cases upon which Evanston relies involved particulate
or other materials transported in a gas, and not the gas itself, with perhaps one
exception. In Citizens Against Pollution v. Ohio Power Co., No. C2-04-CV-371, 2006
WL 6870564 (S.D. Ohio July 13, 2006), the court did conclude that “flue gas” that
touched the ground was a RCRA solid waste. Id. at *5. But the court in that case did
not have occasion to consider the EPA’s position on uncontained gases, greatly
undermining its persuasiveness.
Because the Court concludes that methane gas does not meet the definition of
RCRA solid waste, Evanston cannot base a RCRA claim on the release of methane
gas from natural gas pipelines. The next question is whether Evanston’s RCRA
claim can go forward to the extent that it is based on the release of Lowe Process
waste oil.
B. Lowe Process Waste Oil
Although Evanston cannot base a RCRA claim on the release of an
uncontained gas, there is no reason—assuming proper notice—that Evanston may
not base a claim on the discharge of a RCRA solid waste that breaks down into
methane gas, thereby endangering public health or the environment. Nicor and
ComEd concede as much. See Mem. Supp. at 7 n.6.
By identifying Lowe Process waste oil as a potential source of the methane
detected in the James Park area, Evanston seeks to do just that. To recap, Evanston
alleges that Lowe Process waste oil leaked from above ground storage tanks at the
Skokie MGP and migrated to the James Park area. It also moved through gas
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pipelines into the James Park area. Some of this oil has reached bedrock and is
biodegrading into methane, and some of it is in the soil and coating the Dodge
Avenue water pipeline with a black crust.
ComEd and Nicor argue that Evanston’s RCRA claim, to the extent it is
premised on the release of Lowe Process waste oil, must be dismissed because
Evanston’s notice failed to notify them of any endangerment relating to Lowe
Process waste oil. See Mem. Supp. at 6–8. According to the companies, the notice
did not even mention Lowe Process waste oil and did not ascribe the presence of
methane at James Park to any cause other than the leakage of natural gas from
active pipelines.
The applicable notice requirement provides that “[n]o action may be
commenced under subsection (a)(1)(B) of this section prior to ninety days after the
plaintiff has given notice of the endangerment” to the potential defendants, the EPA
Administrator, and the state. 42 U.S.C. § 6972(b)(2)(A). Additionally, no action may
be commenced if the EPA decides to address the endangerment itself. 42 U.S.C.
§ 6972(b)(2)(B). The “endangerment” notice provision corresponds to the notice
provision for RCRA “violations,” except that that the delay period for a violation
claim is only sixty days. Id. § 6972(b)(1)(A).
The Supreme Court has explained that RCRA’s notice and delay
requirements are designed to reduce the need for citizen suits in two ways. See
Hallstrom v. Tillamook Cnty., 493 U.S. 20, 29 (1989) (concerning notice under
RCRA’s “violation” provision). “First, notice allows Government agencies to take
16
responsibility for enforcing environmental regulations.” Id. “Second, notice gives the
alleged violator an opportunity to bring itself into complete compliance with the
Act.” Id. (internal quotation marks omitted). Although Hallstrom did not decide
whether RCRA’s notice requirement is jurisdictional, 5 the case did hold that notice
is a prerequisite to suit and that lack of notice requires dismissal. Id. at 31.
Hallstrom, however, did not address what content is required in a RCRA notice.
Evanston responds that its notice was sufficient because it (1) alerted the
companies to the presence of high levels of methane in the vicinity of James Park
and (2) alerted them that “coal tar” from the Skokie MGP was coating a municipal
water pipe and threatening to penetrate it. Resp. Br. at 15–17. Using the term “coal
tar” in the notice, Evanston says, was a way of referring to Lowe Process waste oil.
Id. at 15 (“[T]he City did provide notice of the wide-spread release of Lowe Process
waste oil, referred to as ‘Coal Tar’ in the [notice].”). Evanston further contends that
the companies were on notice that the methane detected could be produced by coal
tar because methane is a natural metabolite of coal tar. Id. at 16. Nicor and ComEd
disagree, arguing that a RCRA notice must identify the specific pollutant at issue
and that “coal tar” and Lowe Process waste oil are not the same substance.
In Brod v. Omya, Inc., 653 F.3d 156 (2d Cir. 2011), the Second Circuit upheld
the district court’s dismissal of a RCRA endangerment claim for lack of notice. The
court explained that the complaint in that case alleged “that Omya’s practice of
dumping its processing waste into unlined pits presents ‘an imminent and
In Adkins v. VIM Recycling, Inc., 644 F.3d 483, 492 n.3 (7th Cir. 2011), the Seventh Circuit
explained in dicta that RCRA’s notice requirement is not jurisdictional.
5
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substantial endangerment’ in violation of § 6972(a)(1)(B) because AEEA, a toxic
chemical in the waste, is seeping into groundwater.” The pre-suit notice, however,
“did not identify AEEA and arsenic as contaminants in Omya’s waste.” Id. at 68.
Under those circumstances, the court concluded, the notice “did not give Omya
adequate notice of the endangerment.” Id. at 168. In reaching its decision, the Brod
court relied in part on a regulation that fleshes out what information a RCRA notice
must contain. That regulation states:
Notice regarding an alleged violation of a permit, standard, regulation,
condition, requirement, or order which has become effective under this
Act shall include sufficient information to permit the recipient to
identify the specific permit, standard, regulation, condition,
requirement, or order which has allegedly been violated, the activity
alleged to constitute a violation, the person or persons responsible for
the alleged violation, the date or dates of the violation, and the full
name, address, and telephone number of the person giving notice.
40 C.F.R. § 254.3(a). 6
A nearly identical regulatory notice provision was at play in Atlantic States
Legal Foundation, Inc. v. Stroh Die Casting Co., 116 F.3d 814, 819 (7th Cir. 1997), a
case in which the Seventh Circuit considered what constitutes sufficient pre-suit
notice under the Clean Water Act (“CWA”), concluding that not every source of
pollution must be identified. Because of the similarities between the notice
provisions of the CWA and RCRA, courts sometimes rely on cases from one context
to decide cases in the other. See, e.g., Brod, 653 F.3d at 166; Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 401 (4th Cir. 2011) (citing
Although, by its terms, this regulation seems to be confined to notices under RCRA’s
“violation” provision, cases like Brod and Evco Associates, Inc. v. C.J. Saporito Plating Co.,
No. 93 C 2038, 1995 WL 571438, at *1 (N.D. Ill. Sept. 25, 1995), make no distinction, nor
does Evanston argue that the regulation is inapplicable here.
6
18
Hallstrom in a Clean Water Act case because the CWA’s notice requirement is
“identical” to RCRA’s). So, although the Seventh Circuit has not considered what
information must be contained in a RCRA notice, Atlantic States is applicable to
this case.
The upshot of Atlantic States is that, “[i]n practical terms, the notice must be
sufficiently specific to inform the alleged violator about what it is doing wrong, so
that it will know what corrective actions will avert a lawsuit.” 116 F.3d at 819.
Considering this relatively generous understanding of notice in the Seventh Circuit,
the mere absence of the term “Lowe Process waste oil” in Evanston’s notice would
not render that notice insufficient if the notice otherwise provided “sufficient
information to permit the recipient to identify” the endangerment alleged in the
complaint.
But the Court concludes that Evanston’s notice did not apprise Nicor and
ComEd of the endangerment posed by Lowe Process waste oil. The allegations in
the notice about “coal tar” emanating from a gas pipeline onto a municipal water
pipeline would not have alerted the companies to the widespread release of Lowe
Process waste oil alleged in the complaint. The notice said nothing about leakage of
anything from above ground storage tanks, and it said nothing about migration of a
pollutant down to bedrock. Moreover, the two substances are not, in fact, the same,
which may explain why Evanston stops short of affirmatively stating that they are
and why it left the term “coal tar” entirely out of its complaint. 7
Coal tar, as its name suggests, is made from coal, see Cosmetic Ingredient Review
Expert Panel, Final Safety Assessment of Coal Tar as Used in Cosmetics, 27 Intl. J.
7
19
More importantly—even if “coal tar” and “Lowe Process waste oil” were to
refer to the same substance and the substance is commonly known to break down
into methane—Nicor and ComEd are correct that nowhere in Evanston’s notice is
the presence of coal tar connected to the increased levels of methane gas detected in
the James Park area.
In response, Evanston argues that it did not have to identify every possible
source of the methane in its notice, citing The Newark Group, Inc. v. Dopaco, Inc.,
No. 08-cv-02623, 2012 Wl 899250 (E.D. Cal. Mar. 15, 2012). But, here, Evanston’s
notice, in an effort to rebut any argument that the nearby landfill was the source of
the methane, goes to great lengths to affirmatively attribute the release of methane
gas to the underground pipelines in the area. See Resp. Br., Ex. B, Notice of Intent
to Sue, at ¶¶ 21–31 (citing radiocarbon dating of the methane and other evidence).
Given this, neither Nicor nor ComEd would have had any reason to believe from the
notice that the coal tar was a potential source of the methane.
In short, the City’s notice to Nicor and ComEd failed to satisfy the purposes
of a RCRA notice explained in Hallstrom and the standard set in Atlantic States.
The only element linking the notice to the extensive allegations about Lowe Process
waste oil in the counterclaim—that is, the “black crust” found on the municipal
water line and attributed to the Skokie MGP—is simply too tenuous a connection to
apprise Nicor and ComEd of the Lowe Process waste oil problem. To be clear, the
Toxicology 2008, abstract available at http://www.ncbi.nlm.nih.gov/pubmed/18830861
(“Coal Tar is a semisolid by-product obtained in the destructive distillation of bituminous
coal.”), while Lowe Process waste oil, as the City acknowledges, is a petroleum product, see
Compl. ¶ 73.
20
Court is by no means suggesting that a RCRA notice must identify all aspects of an
endangerment and the full extent of the endangerment, but the City’s notice
directed the companies’ attention to the pipelines in the vicinity of James Park as
the source of the methane gas and did not attribute any of the methane to the coal
tar. This is very different from the City’s present theory that the coal tar itself was
a source of the methane gas. For this reason, the portion of Evanston’s RCRA claim
premised on Lowe Process waste oil must be dismissed. Evanston may refile its
claim after providing proper notice to Nicor and ComEd, assuming that the other
requirements are satisfied.
III. CONCLUSION
For the reasons stated above, Evanston’s RCRA claim is dismissed. To the
extent that the City’s claim is based on alleged endangerments caused by the
disposal of Lowe Process waste oil, the dismissal is without prejudice. To the extent
that the claim is based upon the classification of methane gas in and of itself as a
RCRA solid waste, it is dismissed with prejudice. Because Evanston’s only federal
claim is dismissed, the Court declines to retain supplemental jurisdiction over the
remaining state claims. Furthermore, because the City’s claims against Nicor have
been dismissed, Nicor’s complaint for declaratory relief is dismissed as moot.
IT IS SO ORDERED
ENTER: 2/10/16
___________________________________
JOHN Z. LEE
United States District Judge
21
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