City Of Evanston v. Northern Illinois Gas Company et al

Filing 247

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 4/9/19.Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CITY OF EVANSTON,
an Illinois municipal corporation,
Plaintiff,
v.
NORTHERN ILLINOIS GAS
COMPANY, an Illinois corporation,
and COMMONWEALTH EDISON
COMPANY, an Illinois corporation,
Defendants.

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16 C 5692
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
After several environmental studies, the City of Evanston (“the City”) found
contaminants known as polycyclic aromatic hydrocarbons (“PAHs”) in the soil in the
area of James Park, as well as on and around a decommissioned water main that
runs along Dodge Avenue (“the Dodge Water Main”). The City also found high levels
of methane gas at certain points around James Park. The City attributes these
contaminants to the operation of a long-abandoned manufactured gas plant that was
owned by predecessors of Defendants Northern Illinois Gas Company (“Nicor”) and
Commonwealth Edison Company (“ComEd”) and located in an area southwest of
McCormick Boulevard and Oakton Street in Skokie (“the Skokie MGP”).
Believing that the PAHs and methane gas pose an imminent and substantial
threat to public safety and the environment, the City has sued Nicor and ComEd,
alleging violations of the Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C. § 6901 et seq, as well as various state and municipal laws. For their part,

Nicor and ComEd (collectively, “the Utilities”) dispute the City’s contention that the
Skokie MGP was the source of the contamination. They also disagree, based upon
their own studies, that the pollutants pose a threat to public health or the
environment.
The City has moved for a preliminary injunction as to its claim under RCRA,
seeking to require the Utilities to investigate and remediate contamination from the
old pipelines used by the Skokie MGP. The parties have submitted voluminous briefs
and presented witness testimony and documentary evidence over the course of an
eight-day hearing.
After a careful review of the record, the Court finds that the City has not
established that it is likely to succeed on the merits of its RCRA claim. In short, the
evidence presented during the hearing does not support the City’s theory that the
Skokie MGP was the source of the contaminants at issue. Furthermore, the City has
not shown that the contaminants may present an imminent and substantial
endangerment to health or the environment as required under RCRA. It is worth
noting, among other things, that the United States Environmental Protection Agency
(“EPA”) sees no need to take action here, and the City has long held that its drinking
water remains safe for public consumption. The Court also finds, based on the
evidence, that the City has not demonstrated that it would suffer irreparable harm
absent an injunction or that the balance of harms rests in its favor. For these reasons,
as will be further explained below, the City’s motion for a preliminary injunction is
denied.

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Procedural Background
The City filed suit in May 2016, alleging that it had 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”). Compl. ¶¶ 2,
10, 41, 49, 51–52, ECF No. 1. It contends that the source of this oil and gas is the
now-defunct Skokie MGP, which was built in 1910 and ceased operations in the early
1950s. Id. ¶¶ 35–50. According to the City, the wastes from the Skokie MGP (“MG
Waste Oils”) have (1) threatened contamination of Evanston’s drinking water by
coating and penetrating the Dodge Water Main, which runs along Dodge Avenue on
the eastern boundary of the Impacted Area, and (2) biodegraded in the soil,
groundwater, and bedrock over time, releasing methane gas as a byproduct that
creates a risk of explosion or asphyxiation. Id. ¶¶ 2–4, 12. The City alleges that the
Utilities, as the corporate successors to the original owners of the Skokie MGP and
its distribution pipelines, are responsible for this contamination. Id. ¶¶ 9–10.
The City’s complaint sets forth claims under RCRA (Count I), Evanston Code
of Ordinances § 9-12-1 et seq. (Count II), and Illinois law for trespass (Count III),
private nuisance (Count IV), public nuisance (Count V), and breach of contract (Count
VI). In January 2017, the Court dismissed Count II and the City’s request for civil
penalties under Count I. See City of Evanston v. N. Ill. Gas Co., 229 F. Supp. 3d 714
(N.D. Ill. 2017). The City has since moved for a preliminary injunction under Count
I, seeking to require the Utilities to investigate and abate the alleged contamination
from the Skokie MGP’s abandoned pipelines. See Pl.’s Mot. Prelim. Inj., ECF No. 216.

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The Court held an evidentiary hearing over the course of eight days. Prior to
the hearing, both sides filed motions to exclude the other’s expert witnesses under
the principles espoused in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). The Court allowed both sides to make proffers as to their respective
experts at the hearing.1
As a result, during the evidentiary hearing, the City and the Utilities each
presented expert witnesses to support their scientific theories regarding the source
of the chemicals and underground methane in the Impacted Area, their respective
positions regarding the risk posed by these substances, and their research regarding
the Skokie MGP and its history of distributing manufactured gas to the Northshore
area. The Court then held oral arguments on January 23, 2019.
Before proceeding to the merits of the preliminary injunction motion, the Court
must decide the parties’ threshold motions, asking the Court to exclude the testimony
of certain experts.
Daubert Motions
The City and the Utilities each seek to exclude certain expert witnesses. The
City moves to bar the testimony of Fred Baldassare, Dr. David Crowe, and Robert

Prior to the evidentiary hearing, the Court issued an order barring the City’s expert,
David Hendron, from offering any testimony regarding risk to human health or the migration
of waste oils to the inside of the Dodge Water Main, but otherwise denying the Utilities’
motion to exclude Hendron as an expert witness. The order also barred the Utilities’ expert,
Dan Fox, from testifying about the gas pipeline found along Dodge Avenue to the extent his
testimony was based on interpretation of historical drawings, but allowed that testimony to
the extent Fox relied on his experience in constructing and maintaining gas distribution
systems. See Order of Aug. 9, 2018, ECF No. 189.
1

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Nixon, as well as to bar any expert from relying on excluded expert testimony.
See Pl.’s Mot. Bar Baldassare, ECF No. 144; Pl.’s Mot. Bar Nixon & Crowe, ECF No.
147; Pl.’s Mot. Bar Reliance on Excluded Opinion Testimony, ECF No. 146. In turn,
the Utilities seek to exclude testimony from Dr. Alan Jeffrey, Dr. Mark LeChevallier,
and Dr. Serap Erdal. See Defs.’ Mot. Bar Jeffrey, ECF No. 151; Defs.’ Mot. Bar
LeChevallier, ECF No. 153; Defs.’ Mot. Bar Erdal, ECF No. 155.
The admissibility of expert testimony is governed by Federal Rule of Evidence
702 and the Supreme Court’s seminal decision in Daubert, 509 U.S. 579. See United
States v. Parra, 402 F.3d 752, 758 (7th Cir. 2005). Rule 702 allows the admission of
testimony by an expert—that is, someone with the requisite “knowledge, skill,
experience, training, or education”—to help the trier of fact “understand the evidence
or [ ] determine a fact in issue.” Fed. R. Evid. 702. An expert witness is permitted to
testify when (1) the testimony is “based on sufficient facts or data,” (2) the testimony
is “the product of reliable principles and methods,” and (3) the witness has “reliably
applied the principles and methods to the facts of the case.” Id. The proponent of an
expert witness bears the burden of demonstrating that the expert’s testimony would
satisfy the Daubert standard by a preponderance of the evidence. Lewis v. CITGO
Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
Under Daubert, the Court must act as the evidentiary gatekeeper, ensuring
that Rule 702’s requirements of reliability and relevance are satisfied before allowing
the finder of fact to hear the testimony of a proffered expert. See Daubert, 509 U.S.
at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–49 (1999). District

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courts have broad discretion in determining the admissibility of expert testimony.
See Lapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012).
In considering whether to admit expert testimony, district courts employ a
three-part framework that inquires whether: (1) the expert is qualified by knowledge,
skill, experience, training, or education; (2) the reasoning or methodology underlying
the expert’s testimony is reliable; and (3) the expert’s testimony will assist the trier
of fact in understanding the evidence or determining a factual issue. See Bielskis v.
Louisville Ladder, Inc., 663 F.3d 887, 893–94 (7th Cir. 2011).
At the same time, evidentiary rules are relaxed at the preliminary injunction
stage, and the Court has substantial discretion to hear and receive evidence intended
to “preserve the relative positions of the parties until a trial on the merits can be
held,” whether or not that evidence complies with formal rules and procedures. Kos
Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 718 (3d Cir. 2004) (quoting Univ. of Texas
v. Camenisch, 451 U.S. 390, 395 (1981)); see also Dexia Crédit Local v. Rogan, 602
F.3d 879, 885 (7th Cir. 2010). As a result, the Court’s ruling on the Daubert motions
at this stage should not be taken to reflect how the Court might rule in the event that
this case were to proceed to trial.
With this in mind, the Court has considered the testimony offered by the
experts at the preliminary injunction hearing and is persuaded that the parties were
able to effectively cross-examine each expert on the perceived weaknesses of his or
her methodologies to permit the Court to weigh their respective probative weight.2

For this reason, the Court rejects any argument by either side regarding the late
disclosure of opinions that were not contained within a particular expert’s report. Each of
2

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Furthermore, some of the material discussed in the Daubert motions did not come up
at the hearing at all. And, as the Court has previously informed the parties, for
purposes of deciding the preliminary injunction motion, the Court will rely solely on
the evidence presented at the hearing, the parties’ post-hearing briefs, and
statements made at oral arguments; thus, it is unnecessary to resolve these
extraneous disputes.
Having considered the testimony from the various experts and exercising its
discretion, the Court is satisfied with its ability to resolve disputes regarding the
sufficiency of various methodologies and the weight to be given particular expert
testimony within the context of its resolution of the preliminary injunction motion.
To the extent a party challenges methodologies employed by a particular expert that
pertain to issues material to the Court’s preliminary injunction decision, the Court
will discuss them as they arise. For present purposes, however, the Court will limit
its discussion of the Daubert motions to threshold disputes regarding the
qualifications of the experts upon which the Court relies. The Court denies the
Daubert motions insofar as they challenge an expert’s methodology or his or her
ability to assist the trier of fact.
I.

City’s Motion to Bar Fred Baldassare
The Utilities offer Fred Baldassare as an expert on gas migration and isotopic

analysis of gas. The City first contends that Baldassare is not qualified to opine on

these experts was deposed, and the parties were able to conduct robust cross-examination as
to the opinions at issue.

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these topics, as he holds only a Bachelor of Science in Geology and has “no formal
education or training in molecular biology or microbiology, and no graduate education
in organic chemistry.” Pl.’s Mem. Supp. Mot. Bar Baldassare at 2, ECF No. 145. The
Utilities respond that Baldassare has more than 25 years of experience investigating
incidents of stray gas migration and that he is “recognized as one of the leaders in the
field of isotopic analysis” of gas. Defs.’ Resp. Pl.’s Mot. Bar Baldassare at 1, ECF No.
158. The Utilities have the better argument here.
Neither the Federal Rules of Evidence nor the Daubert standard “require that
expert witnesses be academics or PhDs.” Tuf Racing Prods., Inc. v. Am. Suzuki Motor
Corp., 223 F.3d 585, 591 (7th Cir. 2000). Rather, experts may be qualified based on
experience. See Walker v. Soo Line R. Co., 208 F.3d 581, 591 (7th Cir. 2000). To be
sure, there is testimony—such as from a medical doctor—that would generally
require a certain level of education. But the Court is unaware of any requirement,
nor has the City cited any, that someone who is an expert on isotopic analysis and
migration of gas must have a particular type of education as opposed to learning from
a combination of education and experience.
The City next faults Baldassare for not being aware of certain research papers
it has found on how methane is generated. The Utilities dispute the relevance of
these papers, but in any event, they do not bear on Baldassare’s qualification as an
expert.

Baldassare has relevant experience that can assist the trier of fact in

determining issues related to the methane underneath the Impacted Area. Whether
or not he is aware of certain research has little bearing for the Court’s purposes; in

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fact, if the City believed this research to be determinative of an issue in the case, it
could offer its own expert to present the substance of these matters.
Finally, the City argues that Baldassare is not qualified to draw conclusions
based on Carbon 14 dating, because he ignored an important part of the analysis—
determining whether the Carbon 14 data shows that methane was generated from a
mixture of different sources.

This is really a dispute that goes to Baldassare’s

methodology, not his qualifications. In any event, Baldassare’s report shows that he
did consider the possibility of mixing. See Pl.’s Mem. Supp. Mot. Bar Baldassare, Ex.
A, Baldassare Report, at 5 (describing “mixing” as a “secondary process” that can be
identified by molecular and isotopic compositions), 8 (drawing conclusions about
secondary effects in the various samples).3
The City’s motion to bar Baldassare for lack of qualifications is denied.
II.

Utilities’ Motion to Bar Dr. Mark LeChevallier
The City offers Dr. Mark LeChevallier to opine on the mechanism by which

contaminants found on the outside of the Dodge Water Main could have gotten inside
the water main, as well as how the particles then could enter the water supply.
Dr. LeChevallier is an “expert on intrusion of contaminants into water lines.” Pl.’s
Resp. Defs.’ Mot. Bar LeChevallier at 2, ECF No. 162. The Utilities, however, argue
that Dr. LeChevallier’s experience is limited to the intrusion of microbial

The City also argues that Baldassare is not qualified based on his reliance on incorrect
information about how methane can be generated, otherwise known as “methanogenic
pathways.” See Pl.’s Mem. Supp. Mot. Bar Baldassare at 3–8. This dispute is ultimately
immaterial because Baldassare did not rely upon or discuss methanogenic pathways at the
hearing, other than when the City brought them up. See Hr’g Tr. at 1209, ECF No. 215.
3

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contaminants and that, therefore, he does not have the qualifications to address
intrusion of “petroleum products.” Defs.’ Mem. Supp. Mot. Bar LeChevallier at 1,
ECF No. 154.
But as the City points out, Dr. LeChevallier’s experience includes 32 years of
working for the water utility American Water, where he dealt with “a number of
petroleum and organic contaminant spills that impacted American Water systems.”
Pl.’s Resp. Defs.’ Mot. Bar LeChevallier at 3. Accordingly, although his degree is in
microbiology, Dr. LeChevallier has experience dealing with many different types of
contaminants in water lines. See id. at 6–7. As a result, the Court finds that
Dr. LeChevallier’s experience is sufficient to qualify him for purposes of the hearing
in this case.
The Utilities’ motion to exclude the testimony of Dr. LeChevallier based on a
lack of qualifications is denied.
III.

City’s Motion to Bar Reliance on Excluded Opinions
Because the Court is denying each of the pending Daubert motions except as

described below, the City’s motion to bar experts from relying on the excluded
testimony of other experts is largely moot. Still, because the Court has previously
limited the testimony of certain experts—namely David Hendron and Dan Fox—the
Court will briefly address the City’s motion.
The Court concludes that, although experts on both sides relied on other
experts to provide background information and research, each expert formed his or
her own conclusions based on expertise, further study, or further research. See

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Walker, 208 F.3d at 588 (explaining that experts frequently rely on the opinions of
other experts and that such testimony should be admitted unless speculative or
otherwise faulty). And no expert relied impermissibly on the excluded testimony of
Hendron or Fox, or any other expert. Accordingly, the City’s motion is denied.
Motion for a Preliminary Injunction
Turning to the merits of the motion, the City seeks a preliminary injunction as
to its claim under RCRA. RCRA is a broad remedial environmental statute aimed at
controlling the “disposal of solid and hazardous waste in the United States to protect
public health and the environment.” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 486
(7th Cir. 2011); see Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (“RCRA’s
primary purpose . . . is to reduce the generation of hazardous waste and to ensure the
proper treatment, storage, and disposal of that waste which is nonetheless generated,
‘so as to minimize the present and future threat to human health and the
environment.’”) (quoting 42 U.S.C. § 6902(b)).
RCRA gives the district court the power to “restrain any person” who has failed
to properly dispose of or store such waste, to “order such person to take such other
action as may be necessary,” or both. 42 U.S.C. § 6972(a). And RCRA contemplates
both “mandatory injunction[s], i.e. [those] that order[ ] a responsible party to ‘take
action’ by attending to the cleanup and proper disposal of toxic waste,” or “prohibitory
injunction[s], i.e. [those] that ‘restrain[ ]’ a responsible party from further violating
RCRA.” Meghrig, 516 U.S. at 484.

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The City asks the Court to issue an order (1) appointing a three-member Study
Panel, supervised by the Court, to investigate and identify the location of the Utilities’
remaining abandoned gas pipelines; and (2) requiring the Utilities to (A) investigate
the extent of contamination on and in the water lines, in the subsurface in the form
of methane, and in excavation areas; (B) study exposure to the public; (C) “undertake
a risk assessment as appropriate”; (D) design any remediation plans the Study Panel
deems necessary; and (E) “undertake related tasks.” See Pl.’s Mem. Supp. Mot.
Prelim. Inj. at 37–38, ECF No. 217; see also Pl.’s Mot. Prelim. Inj., Exs. A & B,
Proposed Alternative Implementing Orders. The City also asks that the Utilities be
ordered to fund all of these efforts. See Pl.’s Mem. Supp. Mot. Prelim. Inj. at 38.
I.

Legal Standard
A party seeking a preliminary injunction must show (1) that its case has “some

likelihood of success on the merits,” and (2) that it has “no adequate remedy at law
and will suffer irreparable harm if a preliminary injunction is denied.” Ezell v. City
of Chi., 651 F.3d 684, 694 (7th Cir. 2011). If the moving party meets these threshold
requirements, the district court “weighs the factors against one another, assessing
whether the balance of harms favors the moving party or whether the harm to the
nonmoving party or the public is sufficiently weighty that the injunction should be
denied.” Id. The district court’s weighing of the factors is not mathematical in nature;
rather, it is “more properly characterized as subjective and intuitive, one which
permits district courts to weigh the competing considerations and mold appropriate

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relief.” Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895–96 (7th Cir. 2001) (quoting
Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992)).
In the case of mandatory injunctions as opposed to prohibitory injunctions,
courts often require a greater showing of need for preliminary relief. See Liebhart
v. SPX Corp., 917 F.3d 952, 963 (7th Cir. 2019) (explaining that mandatory
injunctions require “careful consideration of the intrusiveness of the ordered act, as
well as the difficulties that may be encountered in supervising the enjoined party’s
compliance”); Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)
(“[M]andatory preliminary writs are ordinarily cautiously viewed and sparingly
issued.”) (quoting Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir. 1978)); ChristieSpencer Corp. v. Hausman Realty Co., 118 F. Supp. 2d 408, 418 (S.D.N.Y. 2000)
(requiring a “clear showing” that plaintiff is entitled to the relief requested). RCRA,
however, specifically envisions the use of mandatory injunctions, see Meghrig, 516
U.S. at 484, and it would be inaccurate to say that such relief is “sparingly issued”
under this particular remedial scheme. Accordingly, although the Court approaches
this matter with the caution commensurate with the “extraordinary” nature of the
remedy, see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008), no burden is
required of the City beyond that typically associated with obtaining preliminary
injunctive relief.4

The Utilities advocate for a standard that would require the City to come forward with
“heavy and compelling” evidence in its favor before receiving a mandatory injunction.
See Defs.’ Resp. Mot. Prelim. Inj. at 3, ECF No. 229. This language, however, comes from a
Tenth Circuit case, SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1097 (10th Cir. 1991),
4

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II.

Likelihood of Success on the Merits
The City’s claim under RCRA is brought under the “citizen-suit” provision of

42 U.S.C. § 6972(a)(1)(B). In order to prevail on such a claim, the City must establish
that (1) “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,” has (2) “contributed or . . . is contributing to the past or present handling,
storage, treatment, transportation, or disposal of any solid or hazardous waste,”
which (3) “may present an imminent and substantial endangerment to health or the
environment.”

Id.

At the preliminary injunction stage, the City need only

demonstrate that it has a “better than negligible” chance of succeeding on the merits
so that preliminary relief is justified. Ty, Inc., 237 F.3d at 897.
The Utilities do not dispute that the PAHs found in the Impacted Area are
“solid or hazardous waste[s].”5 Nor do they dispute their status as a past or present
generator, transporter, or owner of a treatment, storage, or disposal facility. They
argue, however, that they are not the source of either the chemicals found on and
around the Dodge Water Main or the methane gas found underneath the Impacted
Area and, therefore, have not “contributed” to the hazardous waste at issue in this
case. Furthermore, they argue that the City has not made a sufficient showing that

and the Tenth Circuit has since disavowed the standard, see O Centro Espirita Beneficiente
Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc).
The Court has previously held that methane gas is not a “solid waste” subject to RCRA
in and of itself. See N. Ill. Gas Co., 162 F. Supp. 3d at 659–63. Accordingly, the methane
present in the Impacted Area is relevant only insofar as it presents a risk to public health or
the environment as a result of the PAHs in the area.
5

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either the chemicals in and around the water main or the underground methane “may
present an imminent and substantial endangerment to health or the environment.”
42 U.S.C. § 6972(a)(1)(B).
A.

Utilities’ Contribution to Contamination in the Impacted Area

Beginning in approximately 2004, city workers in Evanston began
encountering a “rotting tar” odor associated with a “thick black crust” on the Dodge
Water Main, an old cast-iron pipe that has been in place along Dodge Avenue since
1925. See Hr’g Tr. at 143–48, 744.6 In 2014, Tim Bartus, a Distribution Supervisor
for the City’s Water Department, gave a piece of the black crust to David Hendron,
an environmental consultant who had been hired by the City to investigate claims of
methane and petroleum coming from a former landfill underneath James Park. Id.
at 135, 150–51, 286–87, 289–90. Bartus also told Hendron that an “unidentified 24inch pipeline” had been discovered “all the way along Dodge.” Id. at 290.
These developments prompted Hendron to investigate the 24-inch pipeline
(which will be referred to as the Dodge Gas Line). He opened up a section of the
pipeline at three different points along Dodge Avenue, videotaped inside it, took
samples in and around it, and had chemical testing done on the samples. See id. at
290–91, 338–40; see also PX 1020 (map showing portions of the Dodge Gas Line found
in red). Hendron observed what he described as “condensate droplets” inside the

The transcript of the hearing is consecutively paginated but divided into nine different
volumes on the docket of this case. The page ranges are located as follows: Pages 1–231 at
ECF No. 199; 232–401 at ECF No. 200; 402–482 at ECF No. 201; 483–632 at ECF No. 202;
633–832 at ECF No. 207; 833–1020 at ECF No. 208; 1021–1120 at ECF No. 209; 1121–1178
at ECF No. 214; 1179–1289 at ECF No. 215; 1290–1454 at ECF No. 234.
6

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Dodge Gas Line, along with what he believed was corrosion and separation of the
pipeline’s joints which were joined by old bolts. Hr’g Tr. at 360–63, 374–75. He also
noticed stained soil underneath the broken joints and bolts, which had what he
described as a “petroleum odor.” Id. at 381–82. Based on his research, he determined
that the Dodge Gas Line had been used by the Skokie MGP to distribute
manufactured gas in the early 1900s. Id. at 293–95.
Hendron also was able to view the interior and exterior of the Dodge Water
Main at various points and found what he described as “tubercles” or “crustal
materials” similar to the black crust given to him by Bartus. Id. at 434–35. Hendron
described the crust as “friable,” meaning that it can be broken up with “finger
pressure.” Id. at 434. Hendron soon concluded that the black crust and tubercles in
the Dodge Water Main were the result of “waste oils” from the Skokie MGP that had
migrated from the Dodge Gas Line to the Dodge Water Main. Id. at 442.
The Skokie MGP previously was located in an area bound on the north by
Oakton Street and on the east by McCormick Boulevard. It began operating in 1911,
and, like many MGPs around the country at the time, used the “Lowe Process” to
manufacture gas for distribution to businesses and houses in the area. Hr’g Tr. at
336–37, 949. The parties agree that the Lowe Process (also called the “carbureted
water gas” process) used fuel oil instead of coal to create manufactured gas. See id.
at 336. Accordingly, the Lowe Process resulted in a very thin “carbureted water gas
tar” or “CWG tar,” as opposed to thick “coal tar” that would result from a coal-based
process. See id. at 336–37, 494. The Skokie MGP stopped making manufactured gas

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around 1931 and ceased operations completely in the 1950s. See id. at 948–50; PX
1021 at 608-03–608-05.
In 2012, the Utilities oversaw an environmental remediation of the Skokie
MGP property to deal with contamination commonly associated with former MGP
sites. See Hr’g Tr. at 189–90, 209, 218. The Utilities have since received notice from
the Illinois Environmental Protection Agency (“IEPA”) that “no further remediation”
is needed on the site. PX 1015.
According to the City, the waste oils generated by the Lowe Process at the
Skokie MGP, along with raw fuel oil that was not burned in the manufacturing
process, were released into the distribution infrastructure that was used by the
Skokie MGP—which included the Dodge Gas Line. See Pl.’s Mem. Supp. Mot. Prelim.
Inj. at 8–9 & n.3. Under the City’s theory, the waste oils and raw fuel oil (the City
refers to the combination as “MG Waste Oils”) leaked out of the Dodge Gas Line and
migrated into the surrounding soil and over to the Dodge Water Main. See id. The
chemicals in the MG Waste Oils, according to the City, then created the crust on the
outside of the Dodge Water Main and infiltrated into the water main itself, posing a
risk to the City’s water system. See id. Additionally, the City explains, the MG Waste
Oils have migrated to the bedrock below the Impacted Area and biodegraded into
methane, which has been measured at high-pressure levels 40 feet below the surface
of the Impacted Area. See id. at 9; Hr’g Tr. at 1197–98.7

The Utilities do not dispute that the Dodge Gas Line was at one point connected to
the Skokie MGP. The parties do dispute, however, when the Dodge Gas Line was laid in
relation to the Dodge Water Main, and when the Dodge Gas Line stopped carrying
manufactured gas. This dispute is ultimately immaterial as it is undisputed that the Dodge
7

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Although the City’s theory sounds plausible, it is not supported by the weight
of the evidence. First, the City points to the specific chemicals found in the black
crust on the Dodge Water Main, as well as in the soil samples taken around the Dodge
Gas Line and in the rest of the Impacted Area. Hendron testified that PAHs found
in the Dodge Water Main crust were the same as the PAHs found at the Skokie MGP
and at other MGP sites; he further noted that the PAHs were found at levels much
higher than regulatory “background levels.”8 See PX 1003 (table comparing semivolatile PAHs present in the site samples to those present in former MGP sites); Hr’g
Tr. at 349–51, 479. Additionally, Hendron “ruled out” other potential sources of the
PAHs, such as the former landfill underneath James Park, a nearby gas station, a
nearby crude oil tank, a “Rust-oleum plant,” and the possibility of a coal-tar coating
applied to the Dodge Water Main to prevent corrosion. See Hr’g Tr. at 286–88, 291–
93, 437–42, 478–80, 704–06.9

Gas Line did carry manufactured gas for at least part of the time the Dodge Water Main was
operational, and the Court has received no evidence regarding how long it would have taken
for leakage from the Dodge Gas Line to create the conditions seen today.
The parties focus on the PAHs that have been defined as “priority pollutants” by the
IEPA. See Pl.’s Mem. Supp. Mot. Prelim. Inj. at 12 n.5; PX 1059 (table showing maximum
“background levels” of PAHs that can be found in metropolitan-area soil, according to the
IEPA’s “tiered approach to clean-up objectives” or “TACO”).
8

Hendron also relied on a site assessment of a Metropolitan Water Reclamation
District (“MWRD”) treatment facility near the Skokie MGP that had also experienced oil
contamination and methane. From this, Hendron concluded that the “waste oil found in the
James Park area was chemically consistent with” the waste found at the MWRD site,
suggesting that both the Impacted Area and the MWRD site were contaminated by the
Skokie MGP. Pl.’s Mem. Supp. Mot. Prelim. Inj. at 15. But, as the Utilities point out, the
cited study concluded that “[t]he most likely source for the contamination [at the MWRD site]
is the result of degradation of material present in a landfill or similar source or organic
material.” PX 1054 at COE0313780.
9

18

Hendron’s rather simplistic analysis, however, falls short of proving that it was
the Skokie MGP that was the source of the PAHs found in the water main crust or in
the rest of the Impacted Area. 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. Hr’g Tr. at 86, 94, 529–30.
In fact, the PAHs identified by Hendron are found not only at former MGP sites, but
in a number of other sources, such as fireplace emissions and used motor oil. See DX
1020.

Moreover, Hendron acknowledged that he did not analyze the relative

concentration of the PAHs in the water main samples to compare them to samples
found at MGP sites, even though he could have. Hr’g Tr. at 533. Accordingly, merely
pointing out that certain PAHs detected in the samples at issue also appear in wastes
from the MGP manufacturing process, without regard to their relative concentrations
or other indicia that permit a more detailed comparison of the samples, does little to
show that the PAHs found in the water main and park samples actually came from
the Skokie MGP.
Furthermore, as the Utilities explain, Dr. Thomas Gauthier performed
chemical analysis that Hendron did not, analyzing gas chromatography results that
show the specific chemical makeups of the PAH-containing compounds in question.10
According to Dr. Gauthier, this analysis affirmatively shows that the Skokie MGP is

Contrary to the City’s assertion, Dr. Gauthier analyzed both types of gas
chromatography useful for identifying a chemical compound—GC-MS (gas chromatography
– mass spectrometry) and GC-FID (gas chromatography with flame-ion detection). See Defs.’
Resp. Mot. Prelim. Inj. at 7, 12.
10

19

not the source of the PAHs in the Dodge Water Main or the soil in the Impacted Area.
Instead, the PAHs in the Dodge Water Main, the Dodge Gas Line, and the bedrock
samples each showed different chemical compositions. The PAHs on the Dodge Water
Main had a pyrogenic (i.e., made from high-temperature processes) “coal tar”
signature, Hr’g Tr. at 1131–35; the material in the Dodge Gas Line was a petrogenic
(i.e., made from petroleum-related sources at lower temperatures) “fuel oil material,”
id. at 1127; and in the bedrock was a “residual material” or “crude oil material,” id.
at 1141–42.
Dr. Gauthier’s testimony is persuasive and largely unrebutted. Although the
City’s geochemical expert, Dr. Alan Jeffrey, also considered chemical analyses of the
PAHs, he did not testify as to the particular chemical signatures they showed, but
rather characterized the results as simply “pyrogenic” or “petrogenic.” See id. at 56–
67; Defs.’ Mem. Supp. Mot. Bar Jeffrey, Ex. A, Jeffrey Report, ECF No. 152.11 And
even Dr. Jeffrey agreed that this general classification is not, in and of itself,
sufficient to identify a PAH compound. See Hr’g Tr. at 88–90.12

In fact, the only sample Dr. Jeffrey described with more specificity was a sample taken
from the Dodge Gas Line that he characterized as having the petrogenic signature of a “heavy
petroleum fuel oil,” Jeffrey Report at 2; Hr’g Tr. at 71, which is partially consistent with
Dr. Gauthier’s conclusions.
11

The City makes several claims that the PAHs found in the Impacted Area are
“chemically consistent” with waste from MGPs. See Pl.’s Mem. Supp. Mot. Prelim. Inj. at 7,
11–12; Pl.’s Reply at 5, ECF No. 230. The sources the City cites, however, do not describe
any comparison of specific chemical makeups in the samples, or in any other respect rebut
Dr. Gauthier’s conclusions. Rather, the City cites to tables merely showing the amounts of
certain PAHs measured in various samples, gas chromatography results that the Court is
unable to interpret without expert testimony, or the testimony of Hendron, who is not an
expert in analyzing gas chromatography results.
12

20

Not only can the City not explain the different chemical signatures in the
various samples, but its theory as to how the chemicals in the Dodge Gas Line would
have gotten to the Dodge Water Main and to the bedrock also is not supported by the
evidence. The Dodge Gas Line sits about 20 to 25 feet across Dodge Avenue from the
Dodge Water Main, but the water main is only about 2 to 6 feet deeper than the gas
line. See Hr’g Tr. at 691–92; see also PX 1023 (showing Dodge Gas Line samples in
red and Dodge Water Main samples in blue). Accordingly, the MG Waste Oils from
the Dodge Gas Line would have had to migrate mostly laterally to reach the Dodge
Water Main, and also vertically down to reach the bedrock.
Again, the City relies on Hendron, who opined that the MG Waste Oils are thin
and thus can travel through vertical and lateral “pathways,” such as man-made
“laterals and trenches,” electrical and telephone conduits, and cracks and fissures in
the soil. See Hr’g Tr. at 336–37, 668–69, 694–95. But as the Utilities point out—and
despite Hendron’s testimony to the contrary—Hendron did not test for PAHs in any
of these so-called pathways between the Dodge Gas Line and the Dodge Water Main.
See PX 1002A (highlighting samples taken in conduits in green); DX 1131A
(highlighting the corresponding sample locations in relation to the Dodge Gas Line
and Dodge Water Main).
The City’s primary responses to this criticism are that the Utilities “choos[e]
to ignore the many samples on the water lines themselves” and that it “makes no
sense” that “contaminants would have known to stop migrating at the abandoned
water line.” Pl.’s Reply at 14. But as Dr. Gauthier testified, if Hendron’s lateral

21

migration theory were correct, one would expect to see the highest level of PAHs at
the source—i.e., the Dodge Gas Line. See Hr’g Tr. at 1145–46. But here, the reverse
is true—PAHs are highest at the Dodge Water Main. See id.; see also PX 1002
(showing PAH results); PX 1023 (showing sample locations).
Hendron’s lateral migration theory is also refuted in large part by Jay
Vandeven, an environmental consultant whose experience is in investigating and
remediating MGP sites. Vandeven explained that MGPs removed dense non-aqueous
phase liquids (“DNAPL tars”) i.e., tars that have a specific gravity greater than water,
before the finished gas left the plant. Hr’g Tr. at 923–24; see Defs.’ Resp. Mot. Prelim.
Inj. at 14–15. In fact, it was “absolutely crucial” for MGPs to remove all of the DNAPL
tar before distributing the manufactured gas, because the distribution infrastructure
would have “drastically and immediately” become clogged up, and because the tar
itself was valuable. Hr’g Tr. at 924. The City’s theory, however, relies on the presence
of DNAPLs in the Dodge Gas Line, because (as Hendron testified) it is these heavier
oils that could travel down through the soil to the bedrock. See id. at 447–48, 496.
The City’s only response to Vandeven’s testimony is to point to historical documents
suggesting that the process of removing DNAPL tars was difficult and that it might
not have always been successful. The point is true enough—Vandeven cannot prove
that the Skokie MGP successfully removed all of its DNAPL tar—but the Court found
his testimony quite convincing, and the fact that such plants thought it “crucial” to
remove DNAPLs further undercuts Hendron’s theory.

22

The only other evidence cited by the City is similarly insufficient to prove that
the Skokie MGP was the source of the contamination in the Impacted Area.
Hendron’s observations of the pipes and dark stains in the soil indicate that there
may be some contamination in them, but these observations themselves, without
more, do not prove the source of the observed conditions.

Neither do historical

documents that discuss the possible ways that materials could have leaked from the
Skokie MGP infrastructure but provide little support for the City’s migration theory.
For their part, the Utilities have offered a plausible alternative explanation for
the black crust found on the Dodge Water Main. 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. Robert Nixon, the owner of a consulting firm that specializes
in pipeline corrosion prevention and repair for industrial facilities and municipal
utilities, observed a section of the Dodge Water Main and explained that the crust
material found on it was “a build-up of corrosion product and scale on the interior,”
which was typical of coal-tar-coated cast-iron water mains. Id. at 1045–48. He based
this opinion on his decades of experience evaluating physical samples of pipes and his
expertise in “pipe construction and coatings, including their long-term corrosion,
failure, and condition.” Defs.’ Resp. Mot. Prelim. Inj. at 10. He also based his opinion
on the industry practice in that era—which, as he explained, required every cast-iron
pipe (such as the Dodge Water Main) to be “coated inside and out with coal tar pitch
varnish.” Hr’g Tr. at 1038.

23

Historical documents from the City corroborate Nixon’s testimony and note
that the Dodge Water Main was to be “coated in accordance with” the industry
standards of the time. Id. at 1040–42. And Nixon spoke with City Manager Wally
Bobkiewicz, who said he believed that the City’s water pipes had some sort of coaltar coating. See id. at 1042–43.
The City takes issue with the Utilities’ theory. For instance, it argues that
Nixon’s visual observation of a pipe is an unreliable method by which to determine if
a coal-tar coating is present, and that the subsequent material testing done by
Nixon’s firm was also unreliable. See generally Pl.’s Mem. Supp. Mot. Bar Nixon &
Crowe, ECF No. 148. But, even putting aside the material testing performed by
Nixon that formed the basis of Dr. David Crowe’s testimony, the Court finds that
Nixon has sufficient experience in the industry to opine as to whether the black crust
on the outside of the water main was indicative of coal-tar coating. See Defs.’ Resp.
Mot. Bar Nixon & Crowe at 2–3, ECF No. 160 (describing Nixon’s over thirty years of
experience evaluating protective coatings on cast-iron pipes from the 1880s to the
1970s); Walker, 208 F.3d at 591 (explaining that experts may be qualified based on
experience in their field). Additionally, Nixon has explained that he routinely has
relied upon visual observation to identify coal-tar coatings on cast-iron pipes. See
Hr’g Tr. at 1060–62. This is sufficient foundation for Nixon to offer opinions based
upon his observation of the Dodge Water Main.
The City offers a number of additional objections to this theory. First, the City
argues that the historical documents cited by Nixon post-date the installation of the

24

Dodge Water Main or discuss a different type of pipe or coating altogether. See Pl.’s
Reply at 9.13 Second, the City contends that the presence of naphthalene in the
samples of the water main disprove the Utilities’ coal-tar coating theory.14 Third, the
City points to the fluoranthene-pyrene ratio of various samples to support its theory
that the PAHs came from the manufactured gas process.15 As noted, the Utilities
have raised responses to these contentions.

The Utilities respond that, although the documents might post-date the installation
of the water main, they indicate that the City generally followed industry practices with
respect to the laying of pipes, and there is nothing in the record that the Dodge Water Main
was an exception. See Hr’g Tr. at 1324–26, 1434–35.
13

In turn, the Utilities point to two studies—one by the Agency for Toxic Substances
and Disease Registry (“ATSDR,” a division of the U.S. Department of Health and Human
Services) and another by researchers in the Netherlands—that identified naphthalene as a
component of coal-tar pitch. See DX 1033 at 218 (ATSDR Study, Table 4-7, “Identity of PAH
Components of Coal-Tar Pitch”); DX 1054 at 602 (“The Dutch Study,” describing naphthalene
as one of the most prevalent PAHs found in the coated cast-iron pipes sampled). The City
disputes the import of the study relied upon by the ATSDR, pointing out that naphthalene
was used as a “standard” in the study; it contends, based on Hendron’s testimony, that such
a standard would have been added to the study as opposed to independently identified. See
Pl.’s Mem. Supp. Mot. Prelim. Inj. at 14 n.7. But Hendron’s testimony was less than clear on
this point. Compare Hr’g Tr. at 679, with id. at 680–81. The City also disputes the Dutch
Study findings, contending that the pipes in this study were coated with bitumen, not coaltar. See Pl.’s Reply at 7–8. But the portion of the study the City cites notes that 20 percent
of the pipes were coated with coal tar. See DX 1054 at 603.
14

According to Dr. Gauthier, a fluoranthene-pyrene ratio of less than one corresponds
to a carbureted water gas tar, while a ratio of greater than one corresponds to a coal tar. Hr’g
Tr. at 1130–31. The City, citing Dr. Jeffrey’s testimony, argues that “about half” of the
samples taken from the Impacted Area have a fluoranthene-pyrene ratio of less than one,
indicating that they are from a carbureted water gas process as opposed to a coal-tar coating.
Pl.’s Mem. Supp. Mot. Prelim. Inj. at 41; see Hr’g Tr. at 64–65. The Utilities counter that the
fluoranthene-pyrene ratio is useful only insofar as the compound being tested is tar, not some
other compound containing PAHs, because many PAHs have fluoranthene-pyrene ratios of
less than one. See Defs.’ Resp. Mot. Prelim. Inj. at 9. Meanwhile, they argue, the
fluoranthene-pyrene ratios for the tar associated with the Dodge Water Main are all greater
than one, indicating the presence of coal tar as opposed to tar from the Lowe Process. See
id.; Hr’g Tr. at 1130–36.
15

25

In the end, while the Court finds that, on balance, the Utilities advance the
better arguments, it must be remembered that it is not the Utilities that bear the
burden of proving that a source other than the Skokie MGP caused the PAHs; rather,
the burden rests with the City to prove that the PAHs came from wastes associated
with the Skokie MGP plant and related infrastructure.

See AM Gen. Corp. v.

DaimlerChrysler Corp., 311 F.3d 796, 803 (7th Cir. 2002) (explaining that the party
seeking a preliminary injunction bears the burden of showing an entitlement to
relief).

At a minimum, the Utilities have presented an appreciable amount of

evidence to support their coal-tar coating theory, and the plausibility of the Utilities’
alternative theory makes the City’s work that much more difficult.
Given the evidence that different chemical compounds are found in the Dodge
Gas Line and Dodge Water Main, the dearth of support in the record for the City’s
migration theory, and the existence of a plausible alternative source, 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 same goes for the City’s theory that the Utilities have contributed to the
below-ground methane, which relies in large part on the same theory of oil migration
already discussed. Not only is it unlikely that the MG Waste Oils traveled from the
Dodge Gas Line down to bedrock, but the City now acknowledges—agreeing in part
with the Utilities’ expert Fred Baldassare—that at least some of the underground
methane is naturally occurring. See Pl.’s Reply at 15–16 (asserting both that the
methane is “not naturally occurring” and that it is made from a “mixture” of the

26

Utilities’ waste and glacial outwash materials (emphasis in original)). But, unlike
Baldassare—who set forth proof in the form of undisputed Carbon 14 data16
indicating that the methane derives from glacial materials—the City points to little
persuasive data indicating that the MG Waste Oils were the source of the methane.17
For these reasons, after considering all of the evidence and evaluating the
credibility of the witnesses, the Court finds that the City has not demonstrated that
it is likely to succeed on its contention that the Skokie MGP was the source of the
contamination found at the Dodge Water Main or in the Impacted Area.
B.

“Imminent and Substantial” Risk to Health or the Environment

The Court thus moves to the third element of the RCRA claim: whether the
contaminants “may present an imminent and substantial endangerment to health or
the environment.” 42 U.S.C. § 6972(a)(1)(B).

The use of the term “may” in this

provision renders it fairly expansive, and the City can succeed on this element by
showing a potential for substantial and imminent harm as opposed to a fully realized
injury. See Liebhart, 917 F.3d at 958–59; Maine People’s All. v. Mallinckrodt, Inc.,
471 F.3d 277, 288 (1st Cir. 2006); United States v. Price, 688 F.2d 204, 213 (3d Cir.

The City originally disputed the nature of the Carbon 14 data, claiming that the
Carbon 14 age of the methane was older than the age of the last glacial event and thus
glaciation could not be a source. See Hr’g Tr. at 475. The City now seems to have abandoned
that theory in response to Baldassare’s explanation that a glaciation event “pick[s] up
materials that are older than the actual age of the glaciation.” See id. at 1167–68.
16

For example, take PX 1048 and 1058 that depict testing conducted by Hendron in the
vicinity of James Park along Oakton Avenue, Dodge Avenue, and the rail line. Some samples
do indicate heightened levels of methane (GMP 8, 10, 11), but others, including others along
the gas pipe locations and closer to the MGP site, do not. Hr’g Tr. at 472–74. If the methane
gas was the result of contamination from wastes from the MGP plant, one would expect a
more established pattern consistent with this theory.
17

27

1982). Still, Plaintiff must show a “reasonable prospect of a near-term threat of
serious potential harm” to succeed.

See Maine People’s All., 471 F.3d at 296.

Contamination that does not currently present a possible threat is insufficient. See
Liebhart, 917 F.3d at 960–61 (explaining that plaintiffs must show contamination
that has the current potential to substantially threaten health, even if the harm will
be felt in the future); Avondale Fed. Sav. Bank v. Amoco Oil Co., 170 F.3d 692, 695
(7th Cir. 1999) (concluding that contamination that “may very well present an
imminent and substantial danger at some point, but . . . does not present such a
danger right now” does not violate RCRA); Christie-Spencer Corp., 118 F. Supp. 2d at
419–20 (same). Here, the Court considers the potential of risk (1) to the City’s
drinking water from PAHs in the Dodge Water Main, (2) to the public from methane
exposure, and (3) to construction workers and the environment from PAHs in the soil.
i.

Risk to Evanston’s Drinking Water

The City contends that solid material containing PAHs that coat the inside of
the Dodge Water Main may endanger Evanston residents if it breaks off and enters
the water supply—in fact, it argues, this situation may already be occurring and
causing a current dangerous situation to public health. In support, the City points to
the testimony of Dr. LeChevallier, who explained how contaminants on the outside
of the Dodge Water Main could get inside the water main, reattach to the inside of
the pipe (thus forming a black crust on the inside), and then detach and “desorb” into
the water supply. Hr’g Tr. at 777–87. Dr. LeChevallier explained that common
events such as opening fire hydrants, motor traffic on the roads above the water main,

28

water flowing at high volumes through the water mains, and changes in water
chemistry could all cause this detachment to occur. Id. at 797–98, 801.
According to Dr. LeChevallier, it is “not reasonable” to think that the PAHs in
the interior black crust will never dislodge and enter the water supply at some point
in time, but he also said that “the magnitude of the risk posed by the petroleum
material would have to be evaluated using a risk assessment.” Id. at 796, 801. His
testimony was supported by Dr. Serap Erdal, an environmental and occupational
health sciences professor, who explained that the very existence of the PAHs in the
crust inside the Dodge Water Main indicated that an “active exposure route” was
present. Id. at 875. In other words, she said, “there is a link between” the potential
source of contamination and the potential “receptor,” or in this case, residents of
Evanston. Id. But Dr. Erdal also explained that the possible concentration of PAHs
that could be released from the black crust is unknown, and thus the resulting level
of exposure to citizens is also unknown. Id. at 877. Dr. Erdal stated that she is not
currently capable of assessing the potential risk without obtaining more information,
including the location of all of the water pipes. See id. at 881.
What is notable about their testimony is that neither Dr. LeChevallier nor
Dr. Erdal could testify as to the magnitude of the risk that they believe could be
threatening the water supply—only that a risk assessment should be conducted to
find out.18

Furthermore, all of this testimony was hypothetical; neither

Dr. LeChevallier’s framing of his central opinion is particularly noteworthy: “[O]nce
absorbed to the interior walls of the drinking water pipe, it is not reasonable to assume that
the material would never desorb and pose a public health threat to water customers.” Hr’g
Tr. at 796. Thus, Dr. LeChevallier says nothing about the probability that any material
18

29

Dr. LeChevallier nor Dr. Erdal 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.
Although the level of risk need not be quantified for purposes of a preliminary
injunction, it must present a “reasonable prospect of a near-term threat of serious
potential harm.” Maine People’s All., 471 F.3d at 288. Here, even Dr. Erdal could not
say that such a prospect exists without further analysis. See Hr’g Tr. at 881.
In fact, the tests that have been performed of Evanston’s water system have
confirmed that the City’s drinking water is safe. In 2017, Hendron conducted water
sampling to determine if any of the “crustal material” had been dissolved into the
drinking water. See Hr’g Tr. at 1247–48. He tested during four times of the year and
found only very low levels of seventeen PAHs (the “priority PAHs” as designated by
EPA). See id. at 1248–50; see also DX 1034 (Hendron water sampling report). And
both the EPA and the IEPA have determined that the concentrations of PAHs in
Evanston’s drinking water are at safe levels. Hr’g Tr. at 1250, 1253–54. In fact, the
EPA has preliminarily concluded that the “crustaceous material” in the Dodge Water
Main “does not pose an unacceptable threat to public health under the Safe Drinking
Water Act.” DX 1175. And the fact that the City currently sells its water to other
municipalities underscores this conclusion. See DX 1177; Hr’g Tr. at 845.

would dislodge into the water pipe; rather, his opinion is limited to the rather unsurprising
(and likely untestable) conclusion that such an event is not an impossibility.

30

Furthermore, the Utilities’ risk expert, Dr. Anderson, conducted a risk
assessment and concluded that the black crust inside the Dodge Water Main does not
pose any risk to Evanston’s drinking water supply. Dr. Anderson relied in part on
the testing results confirming low levels of PAHs in the water. But she also calculated
that 1.7 tons of PAH-containing crust would need to break off every day to create an
unsafe level of PAHs in the water supply. Hr’g Tr. at 1260–61, 1277–78, 1280. There
was no evidence that Evanston’s pipes even contain that much crust, much less that
it has ever or will ever dislodge. See id. at 1261. Instead, Dr. Anderson explained,
the level of PAHs found in Evanston’s drinking water is consistent with old, PAHcontaining pipes, possibly from coal-tar coatings. See id. at 1263.
The City responds that neither the testing that has been done to date nor
Dr. Anderson’s risk assessment have accounted for the specific circumstances of the
crust inside the Dodge Water Main. It argues that both Dr. Anderson and the
previous test results improperly assumed a “normal distribution” of PAHs in the
water; proper testing, the City argues, must account for the fact that PAHs might
travel in waves caused by the types of events described by Dr. LeChevallier that could
dislodge entire portions of the crust. See Hr’g Tr. at 802–04. But, as Dr. Anderson
persuasively explained, in a busy municipal area like the vicinity around James Park,
such disruptive events (such as motor traffic, work on water mains, and so forth) are
common occurrences. See id. at 1262. Thus, it is reasonable to believe that the tests
that have been performed to date would have accounted for them in one fashion or
another.

31

The City next contends that a different type of testing is required—that a
simple “grab test” of drinking water will not determine if there are particulates
entering the water in the distribution system. To do an appropriate test, it states,
one would have to flush the water system, potentially sending large amounts of
contaminants into the water supply, thereby further risking public health. See id. at
819–22. But this is another way of saying that the City does not know what the
magnitude of the current risk is, if any. The same can be said for the City’s argument
that Dr. Anderson failed to account for the existence of additional unknown pipes.
Nor does the City explain how simply shifting the burden of this testing onto the
Utilities would in any way lessen the risk to the public.
The City cannot sustain its burden by pointing to the lack of testing and
suggesting that it is this very dearth of information, combined with the theoretical
possibility that PAH-containing materials could dislodge into the water system, that
creates the type of risk that warrants injunctive relief under RCRA. The mere
existence of such substances, without any evidence that they are likely to dislodge
and create a health risk, is not enough. 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 supply.19

Furthermore, counsel for the City has acknowledged that the affected section of the
Dodge Water Main has been out of service since 2015. See Hr’g Tr. at 812. This further
undercuts the City’s assertion of risk, despite Dr. LeChevallier’s speculation that the PAHs
may have traveled elsewhere in the water system. See id. at 806, 820–21.
19

32

ii.

Risk of Methane Exposure

As for methane exposure, the City relies on (1) the capacity of MG Waste Oils
to biodegrade into methane, and (2) Dr. Erdal’s testimony about the risks associated
with methane exposure. In particular, Dr. Erdal stated that when methane mixes
with air, it can explode; furthermore, methane displaces oxygen, creating a
suffocation risk. Hr’g Tr. at 882. The concern with respect to these risks, Dr. Erdal
stated, is that the location of all the methane is unknown. Id. at 882–83.
The problem with this theory is largely the same as discussed above—Dr. Erdal
did not actually conduct a risk assessment and so cannot say with any specificity
what the actual risk is. Additionally, even if the existence of methane does pose a
potential risk, that risk is present only if there is an exposure pathway—in other
words, a way for the methane to actually reach the surface or otherwise come into
contact with an ignition source or the population at large.

But, as Baldassare

persuasively explained, the methane in this case is “only found at depths of 40 feet or
greater,” and there is “no pathway” for that methane to reach the surface. See id. at
1197–98. The methane is below “confining beds” of clay and is not likely at risk of
being released into the environment. See id. Additionally, the City has methane
detectors in place to alert it if any actionable degree of risk from methane does arise,
and none has been detected to date. See Hr’g Tr. at 661–62, 1198–99.
The City has not offered any evidence that the methane is or will be in any
danger of being released, other than the bare possibility that someone might one day
drill into it. This speculative potential is not enough. See Phoenix Beverages v. Exxon

33

Mobil Corp., No. 12-CV-3771, 2015 WL 588826, at *5–6 (E.D.N.Y. Feb. 11, 2015)
(denying a preliminary injunction under RCRA due to the lack of evidence that
methane below a building was likely to “ignite, or is likely to migrate to an enclosed
space where ignition can occur”). The City’s assertion that it does not know where
all the methane is does not change this conclusion; rather, it merely demonstrates
the lack of evidence in the record to establish the degree of risk. Accordingly, the City
has not shown a likelihood of success on the element of risk with regard to methane
exposure.
iii.

Risk to Construction Workers and the Environment20

The City argues that additional risks may exist from the presence of MG Waste
Oils and PAHs in the soil in the Impacted Area. The evidence is undisputed that
there are high levels of PAHs in some soil samples near the Dodge Gas Line and
Dodge Water Main.

See PX 1002.

Not only are these PAHs above regulatory

“background levels,” see PX 1059 (TACO table for PAH levels in soil)21, but, the City
claims, it is “problematic” for humans to be exposed to these chemicals. See Pl.’s
Mem. Supp. Mot. Prelim. Inj. at 28; Hr’g Tr. at 872–73. In support, Dr. Erdal testified
that workers may be exposed to these chemicals when digging in utility trenches. See

Following oral arguments, the Court requested supplemental briefing on the issue of
the risk of harm to the environment. See Pl.’s Suppl. Br, ECF No. 236; Defs.’ Suppl. Br., ECF
No. 240.
20

The parties dispute whether the City has accurately defined the exceedance of PAH
background levels in the Impacted Area. The Court does not address this dispute because,
even under the City’s view, it has not shown that an imminent and substantial risk of
environmental endangerment exists.
21

34

Hr’g Tr. at 881–82. Furthermore, the PAHs in the soil exceed “worker ingestion and
inhalation standards” set by the IEPA. See Pl.’s Mem. Supp. Mot. Prelim. Inj. at 28;
PX 1043.
Again, the problem with this argument is the lack of probative evidence that
the PAHs in the soil are likely to be encountered or cause any actual harm to humans
or wildlife. See Phoenix Beverages, 2015 WL 588826, at *5–6 (denying a preliminary
injunction due to the lack of evidence of a pathway for methane exposure); Tri-Realty
Co. v. Ursinus Coll., No. 11-5885, 2013 WL 5298469, at *12 (E.D. Pa. Sept. 19, 2013)
(denying a preliminary injunction due to the lack of evidence of an exposure pathway
for weathered oil).

In addition, as the Utilities point out, the City undertakes

precautions to protect workers from such exposures to the extent they could occur.
See Defs.’ Resp. Mot. Prelim. Inj. at 32. There is insufficient evidence in the record
for the Court to find that the mere presence of chemicals, even above background
levels in some places, establishes an imminent and substantial risk in the Impacted
Area without evidence of an exposure pathway.
The City argues that some courts have found that a mere presence of chemicals
in soil and groundwater is sufficient to establish a possible imminent risk of harm.
See, e.g., U.S. v. Apex Oil Co., Inc., No. 05-CV-242-DRH, 2008 WL 2945402, at *79
(S.D. Ill. July 28, 2008) (recognizing the possibility of endangerment through
exposure to groundwater); Raymond K. Hoxsie Real Estate Tr. v. Exxon Educ. Found.,
81 F. Supp. 2d 359, 367 (D.R.I. 2000) (finding that contamination of groundwater that
had the potential to migrate could create an imminent and substantial endangerment

35

under RCRA); Fairway Shoppes Joint Venture v. Dryclean U.S.A. of Fla., Inc., No. 958521-CIV-HURLEY, 1996 WL 924705, at *8 (S.D. Fla. Mar. 7, 1996) (concluding that
groundwater contamination in excess of state standards created the possibility of an
imminent endangerment); Lincoln Props., Ltd. v. Higgins, No. S-91-760DFL/GGH,
1993 WL 217429, at *13–14 (E.D. Cal. Jan. 21, 1993) (same).
But in those cases, the record contained evidence supporting the potential
exposure of the public to the contamination via potable water sources; this type of
evidence is lacking in this case. The City does suggest in passing that the PAHs here
could leach into the water supply, thus providing an exposure pathway. See Pl.’s
Suppl. Br. at 10–11 n.9. But the City offers no evidence (expert or otherwise) that
would allow the Court to assess the magnitude of such a risk.22 And, even assuming
the City could show some negligible likelihood of success on its claim that the PAHs
present in the soil and groundwater near Dodge Avenue create a risk of imminent
harm to the environment, it has not shown a likelihood of success as to the other
requirements of RCRA, as discussed above.
III.

Irreparable Harm
The Court’s finding that the City is unlikely to succeed on the merits of its

RCRA claim has significant consequences for the City’s arguments regarding

Moreover, RCRA requires the possibility of an imminent and substantial
endangerment, not mere exposure. See, e.g., Lewis v. FMC Corp., 786 F. Supp. 2d 690, 710
(W.D.N.Y. 2011) (“Without any evidence linking [contamination in excess of state standards]
to potential imminent and substantial risks to human health or wildlife, reliance on the
standards alone presents merely a speculative prospect of future harm, the seriousness of
which is equally hypothetical.”).
22

36

irreparable harm. The City points out that “[e]nvironmental injury, by its nature,
can seldom be adequately remedied by money damages and is often permanent or at
least of long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S.
531, 545 (1987). The corollary, however, is that irreparable harm will typically be
found only if “such injury is sufficiently likely.” Id.; see Phoenix Beverages, 2015 WL
588826, at *4 (“Courts should decline granting preliminary injunctive relief if, for
instance, the risk of harm is speculative in nature.”).

The Seventh Circuit has

recently clarified that, under RCRA, likelihood of success on the merits and
irreparable harm are intertwined—“A RCRA plaintiff either demonstrates
irreparable harm or fails to prove his or her case on the merits.” LAJIM, LLC v. Gen.
Elec. Co., 917 F.3d 933, 945 (7th Cir. 2019).
Even the cases cited by the City are consistent with this approach. In many,
injunctive relief was ordered only after a trial on the merits or other determination
of liability under RCRA. See, e.g., Maine People’s All., 471 F.3d 277 (upholding an
injunction requiring further study of the scope of contamination, after a trial on the
merits where the evidence established that the defendant had dumped mercury into
a river); EPA v. Envtl. Waste Control, Inc., 917 F.2d 327 (7th Cir. 1990) (upholding a
permanent injunction entered after the defendant’s willfulness had been established).
And even in cases involving preliminary relief, courts have recognized that ordering
a defendant to fund investigation and remediation is appropriate only if “the
traditional balancing process tips decidedly in favor of plaintiff.” Price, 688 F.2d at
213 (emphasis added).

37

The City points to Sanchez v. Esso Standard Oil Co., where the First Circuit
concluded that it was inappropriate at the preliminary stage to summarily establish
the defendant’s liability, but kept in place a portion of an injunction requiring the
defendant to fund a site assessment. 572 F.3d 1 (1st Cir. 2009). But the First Circuit
did not eliminate the requirement that liability be likely. See id. at 19. Moreover,
the defendant in Sanchez took no issue with funding a site assessment, in contrast
with the Utilities in this case. See id. at 8.
Accordingly, 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. See LAJIM,
LLC, 917 F.3d at 945. The City, however, seems to argue that it need not show a
likelihood of harm since the relief it seeks—a risk assessment—is aimed at that very
question. This argument is circular: further investigation might reveal that the
contaminants in the Impacted Area might present a harm; so, according to the City,
it will suffer irreparable harm by virtue of not knowing what that possible harm
might be. This approach ignores the City’s obligation to prove that irreparable harm
is likely in the absence of injunctive relief. See Winter, 555 U.S. at 22.
Compounding this problem are the circumstances under which the City seeks
its preliminary injunction. As an initial matter, it is not clear why this preliminary
injunction is needed now as opposed to three years ago when the case was filed, five
years ago when Hendron discovered the black crust on the Dodge Water Main, fifteen
years ago when city employees began encountering the black crust, or fifty years ago

38

when the Dodge Gas Line was abandoned in place. The City argues that it needed
time to investigate its claims, but that argument falls flat when all it has done so far
is conduct a preliminary investigation, while refusing to begin the process of
investigating or cleaning up any further. This is not to say that the City should have
foregone the opportunity to assert its rights under RCRA. But 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. See DX 1177; Hr’g Tr. at 845. The City
responds that “water can be considered safe based on routine monitoring under the
Safe Drinking Water Act, while [black crust particles containing PAHs] can still
present an imminent and substantial endangerment under RCRA.” Pl.’s Reply at 18.
But this then begs the question: when would this supposed imminent and substantial
endangerment cause the City to stop providing water to its residents? If the City is
concerned that there is a current, appreciable risk that its water may be carrying
harmful and even carcinogenic chemicals, it is difficult to understand how it can
consider that same water safe enough for public consumption.
Similarly, the City continues to use James Park and the surrounding public
facilities, despite the alleged risk of methane in the area. The City responds that the
methane is far below ground, and therefore does not pose a risk to surface-level

39

activities; furthermore, it has installed methane alarms to avoid any possible risk.
But if the City believes that the methane will not pose a risk to its surface-level
activities—and it does not contend that any activities are planned that would reach
the methane underground—it cannot seriously contend that it will suffer irreparable
harm if an injunction is not granted.
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 power to protect its residents, even if that meant funding further
investigations itself. Based on this record, the Court concludes that the City has not
established a likelihood of irreparable harm in the absence of a preliminary
injunction.
IV.

Adequate Remedy at Law
The City contends that, if a preliminary injunction is not issued, it will have

no remedy at law for the costs it will have to expend investigating and remediating
the Impacted Area. The Utilities disagree.
As an initial matter, even if preliminary relief is not awarded, the Court may
order permanent relief in the form of remediation and, if necessary, further
investigation after a finding of liability. See, e.g., Maine People’s All., 471 F.3d 277.
As for a damages remedy, however, Plaintiffs correctly note that RCRA does not
provide for recovery of past clean-up or investigation costs. See Meghrig, 516 U.S. at
484–85; Albany Bank & Tr. Co. v. Exxon Mobil Corp., 310 F.3d 969, 974 (7th Cir.

40

2002); Avondale Fed. Sav. Bank, 170 F.3d at 694–95. But that does not mean the
City may not have other avenues to recover such costs.
A common alternative source of damages would be under the Comprehensive
Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C.
§ 9601 et seq. Although the City did not state a claim under CERCLA in its complaint,
it did allege violations of CERCLA in its pre-suit notice. See Compl., Ex. B, ¶ 58.
CERCLA explicitly provides for recovery of “all costs of removal or remedial action,”
including obtaining any “necessary costs of response” from “any other person who is
liable or potentially liable” for the costs. 42 U.S.C. §§ 9607(a)(4), 9613(f)(1). The City,
however, now states that CERCLA does not apply, because the act’s definition of
“hazardous substances” excludes “petroleum” as well as “synthetic gas usable for
fuel,” such as the manufactured gas made at the Skokie MGP. Id. § 9601(14).
The Court is surprised, and not entirely persuaded, by the City’s interpretation
of the “petroleum exclusion” as it applies to this case. The City cites to a 1997 case
from Ohio, in which the district court held that coke oven gas and its condensate were
not “hazardous substances” based on the petroleum exclusion. Helter v. AK Steel
Corp., No. C-1-96-527, 1997 WL 34703718 (S.D. Ohio Mar. 31, 1997). In particular,
that court concluded that a “condensate form” of the coke gas—which was a synthetic
gas—was indistinguishable from the gas itself. Id. at *9. The City likens this
analysis to the case at hand, in which it alleges that a “condensate” from the Dodge
Gas Line is the source of the contamination in the Impacted Area. By contrast, the
Utilities cite to several cases in which waste from MGPs was treated as a hazardous

41

substance under CERCLA. See, e.g., Yankee Gas Servs. Co. v. UGI Utils., Inc., 852 F.
Supp. 2d 229 (D. Conn. 2012); N.Y. State Elec. & Gas Corp. v. FirstEnergy Corp., 808
F. Supp. 2d 417 (N.D.N.Y. 2011), vacated in part on unrelated grounds, 766 F. 3d 212
(2d Cir. 2014). The City retorts that these cases are inapposite because they address
contamination from “byproducts from the manufacture of gas, not contamination
caused by . . . synthetic gas or synthetic gas condensate itself.” Pl.’s Reply at 21.
This argument signifies a significant shift from the City’s position in the rest
of this litigation. All along, the City has contended that the MG Waste Oils are
byproducts of the manufactured gas made at the Skokie MGP; “DNAPL” tars that
should have been, but were not completely, removed from the finished product. See
Pl.’s Mem. Supp. Mot. Prelim. Inj. at 8–10; Pl.’s Reply at 10–11. Although the City
has spoken of a “condensate” in the Dodge Gas Line, its theory seems to be that the
condensate is formed from the wastes that it believes were not entirely removed from
the manufacturing process—not that the condensate is formed from manufactured
gas “usable for fuel” itself. See id. Accordingly, it would seem that the “waste oils”
in question are consistent with the wastes at issue in Yankee Gas Services and New
York State Electric & Gas.

Accordingly, as a preliminary matter, the Court is

skeptical that the City would have no remedy at law under CERCLA.
Even taking the City at its word, though, it has not addressed the matter of its
state law claims. The City’s complaint seeks (1) compensatory and punitive damages
for trespass, (2) compensatory and punitive damages for private nuisance,
(3) compensatory and punitive damages for public nuisance, and (4) compensatory

42

damages for breach of contract. The City has offered no argument why these damages
remedies would be insufficient to cover the harm suffered by the City in having to
bear the cost of investigating the contamination and performing any necessary
remediation. See Christie-Spencer, 118 F. Supp. 2d at 425 (concluding that plaintiffs
had an adequate remedy at law under the common law as well as CERCLA).
Of course, this is not to say definitively that the City will be able to recover its
investigation costs; many other considerations apply. See, e.g., Albany Bank & Tr.
Co., 310 F.3d at 975. It is sufficient for present purposes that the City would have a
remedy with respect to the remediation of the site, as well as for damages under its
state-law claims. The mere possibility that the City may not be able to recoup its
investigative costs is insufficient to warrant preliminary injunctive relief given this
factual record.
V.

Balancing of Equities
The final consideration in the preliminary injunction framework is the

balancing of harms as between the City and the Utilities. As an initial matter, the
parties dispute whether this analysis is even necessary. The City argues that, since
it is a government acting on behalf of its citizens, balancing is not necessary. See
Envtl. Waste Control, 917 F.2d at 333 (explaining that in injunctions involving
governmental plaintiffs or “private attorneys general,” “injunctive relief is proper,
without resort to balancing”). Alternatively, the City argues, the Utilities’ conduct
has been willful with respect to the contamination, eliminating the need for
balancing. See id. at 332. But the Court is not inclined to find that the Utilities’

43

conduct was willful, where the City’s likelihood of success on the merits has not been
established. And in the Utilities’ favor is the principle that the balancing of harms
generally comes after the moving party meets the threshold requirements for an
injunction. See Ezell, 651 F.3d at 694.
For the sake of completeness, however, the Court will address briefly the
balance of harms. The City asserts that harm to its citizens and the environment is
likely without an injunction, and that it also has been prevented from making full
use of its property since it does not know where all of the contamination may be
located. But, as discussed above, the record does not establish that harm to the
residents of Evanston or the environment is at all likely.
By contrast, the relief requested by the City is oppressive in scope and is not
truly “preliminary” in any reasonable understanding of the term. The City seeks as
preliminary relief a full-scale risk assessment that, by its own projections, could take
upwards of one to three years to complete. Furthermore, the City appears to be
interested in expanding the scope of the investigation beyond the “Impacted Area”
that is the focus of its complaint; the City seeks the location of all of the Utilities’ old
gas pipelines and has argued that the contamination may have traveled outside of
the Impacted Area. Finally, the City asks the Utilities not just to investigate, but to
design a remediation plan for later implementation.

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Accordingly, based on this record, the Court finds that the balancing of harms
favors the Utilities.23
Conclusion
For the foregoing reasons, the City’s motion for a preliminary injunction is
denied. The City’s and the Utilities’ motions to exclude expert witness testimony are
also denied. The City’s motion to bar reliance on excluded expert testimony is denied
as moot.

IT IS SO ORDERED.

ENTERED

4/9/19

__________________________________
John Z. Lee
United States District Judge

Because the Court concludes that a preliminary injunction is not warranted, the Court
does not address the parties’ arguments regarding the propriety of an injunction bond.
23

45