Case: 1:13-cv-2106 As of: 07/31/2018 01:45 PM CDT 1 of 9
COX,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.2.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:13−cv−02106

City Of Evanston v. Chevron U.S.A. Inc. et al Assigned to: Honorable John Robert Blakey Cause: 42:6901 Resource & Recovery Act
Plaintiff City Of Evanston an Illinois municipal corporation

Date Filed: 03/19/2013 Date Terminated: 04/23/2015 Jury Demand: Defendant Nature of Suit: 110 Contract: Insurance Jurisdiction: Federal Question
represented by Michael S. Blazer Invenergy LLC One South Wacker Drive Suite 1800 Chicago, IL 60606 United Sta 312−638−8488 Email: mblazer@invenergyllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffery D. Jeep Jeep & Blazer, L.L.C. 3023 N. Clark Street #214 Chicago, IL 60657 (708) 401−5022 Email: jdjeep@enviroatty.com ATTORNEY TO BE NOTICED
Thomas S Yu Thomas, Mamer & Haughey, LLP Suite 500 30 Main Street Champaign, IL 61824 217−351−1500 Email: tyu@tmh−law.com ATTORNEY TO BE NOTICED

V.
Defendant
Chevron U.S.A. Inc. TERMINATED: 08/06/2013

represented by Joseph A. Girardi Girardi Law LLC U.S. Bank Building 104 N. Oak Park Avenue Suite 200 Oak Park, IL 60301 312−986−6958 Email: jg@girardilaw.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas Michael Grom Greenberg Traurig, LLP 77 W. Wacker Drive Suite 3100 Chicago, IL 60601 312−476−5108 Email: gromd@gtlaw.com

Case: 1:13-cv-2106 As of: 07/31/2018 01:45 PM CDT 2 of 9

ATTORNEY TO BE NOTICED

Robert B. Christie Greenberg Traurig, LLP 77 W. Wacker Drive Suite 3100 Chicago, IL 60601 312−476−5047 Email: christier@gtlaw.com ATTORNEY TO BE NOTICED

Defendant
E−Town Community Ventures, LLC an Ilinois limited liability company

represented by William Joseph Anaya Greensfelder, Hemker & Gale, P.C. 200 W Madison Suite 2700 Chicago, IL 60606 (312) 876−7100 Email: wanaya@greensfelder.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew E Cohn Greensfelder Hemker & Gale PC 200 W Madison Street Suite 2700 Chicago, IL 60606 (312) 345 5003 Email: mcohn@greensfelder.com ATTORNEY TO BE NOTICED

Defendant
Texaco, Inc. a Delaware corporation

represented by Joseph A. Girardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Michael Grom (See above for address) ATTORNEY TO BE NOTICED

Robert B. Christie (See above for address) ATTORNEY TO BE NOTICED

Defendant
Chevron Corporation a Delaware corporation

represented by Joseph A. Girardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas Michael Grom Greenberg Traurig, LLP 77 W. Wacker Drive Suite 3100 Chicago, IL 60601 312−476−5047 Email: gromd@gtlaw.com ATTORNEY TO BE NOTICED

Robert B. Christie (See above for address) ATTORNEY TO BE NOTICED

Case: 1:13-cv-2106 As of: 07/31/2018 01:45 PM CDT 3 of 9

Defendant
Chevron Environmental Management Company a California corporation

represented by Joseph A. Girardi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas Michael Grom (See above for address) ATTORNEY TO BE NOTICED
Robert B. Christie (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/19/2013
03/19/2013 03/19/2013 03/19/2013 03/19/2013 03/19/2013 03/19/2013 03/19/2013 03/27/2013 03/27/2013
04/08/2013 04/08/2013 04/08/2013 04/08/2013 04/19/2013 04/19/2013 04/26/2013

# Docket Text
1 COMPLAINT filed by City Of Evanston; Filing fee $ 350, receipt number 0752−8157143. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Yu, Thomas) (Entered: 03/19/2013)
2 CIVIL Cover Sheet (Yu, Thomas) (Entered: 03/19/2013)
3 ATTORNEY Appearance for Plaintiff City Of Evanston by Thomas S Yu (Yu, Thomas) (Entered: 03/19/2013)
CASE ASSIGNED to the Honorable Gary Feinerman. Designated as Magistrate Judge the Honorable Susan E. Cox. (nsf, ) (Entered: 03/19/2013)
4 CIVIL Cover Sheet (Yu, Thomas) (Entered: 03/19/2013)
5 ATTORNEY Appearance for Plaintiff City Of Evanston by Thomas S Yu (Yu, Thomas) (Entered: 03/19/2013)
SUMMONS Issued as to Defendants Chevron U.S.A. Inc., E−Town Community Ventures, LLC (mmy, ) (Entered: 03/19/2013)
6 ATTORNEY Appearance for Plaintiff City Of Evanston by Michael S. Blazer (Blazer, Michael) (Entered: 03/19/2013)
7 SUMMONS Returned Executed by City Of Evanston as to Chevron U.S.A. Inc. on 3/21/2013, answer due 4/11/2013. (Yu, Thomas) (Entered: 03/27/2013)
8 SUMMONS Returned Executed by City Of Evanston as to E−Town Community Ventures, LLC on 3/21/2013, answer due 4/11/2013. (Yu, Thomas) (Entered: 03/27/2013)
9 ATTORNEY Appearance for Defendant Chevron U.S.A. Inc. by Joseph A. Girardi (Girardi, Joseph) (Entered: 04/08/2013)
10 ATTORNEY Appearance for Defendant Chevron U.S.A. Inc. by Robert B. Christie (Christie, Robert) (Entered: 04/08/2013)
11 ATTORNEY Appearance for Defendant Chevron U.S.A. Inc. by Douglas Michael Grom (Grom, Douglas) (Entered: 04/08/2013)
12 STIPULATION (Girardi, Joseph) (Entered: 04/08/2013)
13 ATTORNEY Appearance for Defendant E−Town Community Ventures, LLC by William Joseph Anaya (Anaya, William) (Entered: 04/19/2013)
14 ATTORNEY Appearance for Defendant E−Town Community Ventures, LLC by Matthew E Cohn (Cohn, Matthew) (Entered: 04/19/2013)
15 MINUTE entry before Honorable Gary Feinerman:Initial status hearing set for 5/14/2013 at 9:30 a.m. Initial Status Report shall be filed by 5/7/2013. Please see Judge Feinerman's web page (http://www.ilnd.uscourts.gov, to "District Judges," to "Judge Gary Feinerman," to "Initial Status Hearings" under Case Management

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04/30/2013 05/02/2013 05/02/2013 05/07/2013
07/15/2013 07/31/2013 07/31/2013 08/02/2013 08/06/2013 08/06/2013
09/30/2013 09/30/2013 10/01/2013
10/07/2013 10/07/2013

Procedures) for details on the initial status hearing and Initial Status Report.Mailed notice. (jlj) (Entered: 04/26/2013)
16 MOTION by Defendant Chevron U.S.A. Inc. for extension of time to file answer (Girardi, Joseph) (Entered: 04/30/2013)
17 MOTION by Defendant Chevron U.S.A. Inc. to continue Status Report and Hearing Dates (Girardi, Joseph) (Entered: 05/02/2013)
18 NOTICE of Motion by Joseph A. Girardi for presentment of motion for extension of time to file answer 16 , motion to continue 17 before Honorable Gary Feinerman on 5/9/2013 at 09:00 AM. (Girardi, Joseph) (Entered: 05/02/2013)
19 MINUTE entry before Honorable Gary Feinerman:Agreed motions to extend time to respond to the complaint 16 and 17 are granted. The time for Defendants to answer or otherwise plead to the complaint is extended to 8/7/2013. Initial status hearing scheduled for 5/14/2013 15 is stricken and re−set for 8/13/2013 at 9:00 a.m. Joint status report shall be filed by 8/9/2013. Motion hearing scheduled for 5/9/2013 18 is stricken.Mailed notice. (jlj) (Entered: 05/07/2013)
20 ATTORNEY Appearance for Plaintiff City Of Evanston by Jeffery Donald Jeep (Jeep, Jeffery) (Entered: 07/15/2013)
21 MOTION by Plaintiff City Of Evanston for leave to file Amended Complaint (Attachments: # 1 Exhibit A through E, # 2 Exhibit F)(Blazer, Michael) (Entered: 07/31/2013)
22 NOTICE of Motion by Michael S. Blazer for presentment of motion for leave to file 21 before Honorable Gary Feinerman on 8/6/2013 at 09:00 AM. (Blazer, Michael) (Entered: 07/31/2013)
23 RESPONSE by Chevron U.S.A. Inc.in Opposition to MOTION by Plaintiff City Of Evanston for leave to file Amended Complaint 21 (Girardi, Joseph) (Entered: 08/02/2013)
24 AMENDED complaint by City Of Evanston against All Defendants and terminating Chevron U.S.A. Inc. (Blazer, Michael) (Entered: 08/06/2013)
25 MINUTE entry before Honorable Gary Feinerman:Motion hearing held. For the reasons stated on the record, Plaintiff's motion for leave to file an amended complaint 21 is granted, without prejudice to Defendants' ability to make any argument in favor of dismissal if a motion to dismiss is filed. Plaintiff shall file amended complaint as a separate docket entry. All Defendants shall answer or otherwise plead to the complaint by 10/7/2013. Status hearing scheduled for 8/13/2013 19 is stricken and re−set for 10/15/2013 at 9:00 a.m. Parties shall file initial status report by 10/10/2013. Plaintiff's oral motion to dismiss defendant Chevron U.S.A., Inc. without prejudice is granted. Defendant Chevron U.S.A. is dismissed without prejudice as a party defendant.Mailed notice. (jlj) (Entered: 08/06/2013)
26 MOTION by Defendants Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. for leave to file excess pages (Girardi, Joseph) (Entered: 09/30/2013)
27 NOTICE of Motion by Joseph A. Girardi for presentment of motion for leave to file excess pages 26 before Honorable Gary Feinerman on 10/3/2013 at 09:00 AM. (Girardi, Joseph) (Entered: 09/30/2013)
28 MINUTE entry before Honorable Gary Feinerman:Motion for leave to file excess pages 26 is granted. Defendant may file a brief in support of its motion to dismiss in excess of 15 pages, not to exceed 20 pages. Plaintiff may file a response brief of up to 20 pages. Motion hearing scheduled for 10/3/2013 27 is stricken.Mailed notice. (jlj) (Entered: 10/01/2013)
29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Girardi, Joseph) (Entered: 10/07/2013)
30 MEMORANDUM by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. in support of Motion to Dismiss for Failure to State a Claim 29 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Girardi,

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10/07/2013 10/07/2013 10/07/2013 10/07/2013 10/15/2013
11/11/2013 11/26/2013 11/26/2013 11/26/2013 01/27/2014 02/21/2014
02/21/2014 02/26/2014 02/26/2014 02/26/2014

Joseph) (Entered: 10/07/2013)
31 NOTICE by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 29 , memorandum in support of motion, 30 (Girardi, Joseph) (Entered: 10/07/2013)
32 MOTION by Defendant E−Town Community Ventures, LLC to join Defendant Texaco Inc.'s Motion to Dismiss and Memorandum in Support of Its Motion to Dismiss for its Abstention Argument (Cohn, Matthew) (Entered: 10/07/2013)
33 NOTICE of Motion by Matthew E Cohn for presentment of motion to join 32 before Honorable Gary Feinerman on 10/15/2013 at 09:00 AM. (Cohn, Matthew) (Entered: 10/07/2013)
34 NOTICE of Motion by Joseph A. Girardi for presentment of Motion to Dismiss for Failure to State a Claim 29 before Honorable Gary Feinerman on 10/15/2013 at 09:00 AM. (Girardi, Joseph) (Entered: 10/07/2013)
35 MINUTE entry before Honorable Gary Feinerman:Status hearing held and continued to 1/28/2014 at 9:00 a.m. Motion hearing held. Motion to dismiss Defendants Texaco Inc., Chevron Corporation and Chevron Environmental Management Company 29 is entered and continued. Motion to join defendant Texaco Inc.'s motion to dismiss and memorandum in support of its motion to dismiss for its abstention argument 32 is granted. Responses to motion to dismiss 29 due by 11/12/2013; replies due by 11/26/2013. Discovery is stayed pending resolution of the motion to dismiss. Mailed notice. (jlj) (Entered: 10/15/2013)
36 MEMORANDUM by City Of Evanston in Opposition to Motion to Dismiss for Failure to State a Claim 29 (Attachments: # 1 Exhibit A−Affidavit of Counsel)(Blazer, Michael) (Entered: 11/11/2013)
37 REPLY by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. to memorandum in opposition to motion 36 (Attachments: # 1 Exhibit 1)(Girardi, Joseph) (Entered: 11/26/2013)
38 NOTICE by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. re reply to response to motion 37 (Girardi, Joseph) (Entered: 11/26/2013)
39 REPLY by Defendant E−Town Community Ventures, LLC to memorandum in opposition to motion 36 (Attachments: # 1 Exhibit)(Cohn, Matthew) (Entered: 11/26/2013)
40 MINUTE entry before the Honorable Gary Feinerman: Status hearing set for 1/28/2014 35 is stricken and re−set for 2/27/2014 at 9:00 a.m.Mailed notice. (jlj) (Entered: 01/27/2014)
41 MINUTE entry before the Honorable Gary Feinerman:For the reasons set forth in the accompanying Memorandum Opinion and Order, Defendants' motion to dismiss 29 is denied. Defendants shall answer the amended complaint 24 by 3/14/2014. The discovery stay 35 is lifted. The parties shall file a joint initial status report, with a proposed discovery and dispositive motion schedule, by 2/26/2014 at noon.Mailed notice. (jlj, ) (Entered: 02/21/2014)
42 MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 2/21/2014.Mailed notice.(jlj, ) (Entered: 02/21/2014)
43 STATUS Report Initial Joint Status Report by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. (Grom, Douglas) (Entered: 02/26/2014)
44 NOTICE by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. re status report 43 (Grom, Douglas) (Entered: 02/26/2014)
45 MINUTE entry before the Honorable Gary Feinerman:In their status report 43 , the parties note that they "have made substantial progress in their efforts to settle this matter" and ask "that the litigation be stayed for 60 days to allow the parties time to attempt to bring the pending settlement negotiations to fruition." Pursuant to the parties' request, this litigation is stayed until 4/28/2014. Also at the parties' request, the time for Defendants to answer the amended complaint is extended to 5/13/2014, and

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05/05/2014 05/05/2014 05/06/2014 05/06/2014
05/07/2014
05/08/2014 05/21/2014
06/11/2014
06/13/2014 06/13/2014 06/16/2014
06/26/2014

the case is referred to Magistrate Judge Cox for the purpose of conducting a settlement conference, with the understanding that the parties may be able to settle the case on their own. The 2/27/2014 status hearing 40 is stricken and re−set for 5/14/2014 at 9:00 a.m. If the case does not settle, the parties should file a revised joint status report, with a revised proposed schedule, by 5/7/2014.Mailed notice. (jlj) (Entered: 02/26/2014)
46 STATUS Report by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. (Grom, Douglas) (Entered: 05/05/2014)
47 NOTICE by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. re status report 46 (Grom, Douglas) (Entered: 05/05/2014)
48 Pursuant to Local Rule 72.1, this case is hereby referred to the calendar of Honorable Susan E. Cox for the purpose of holding proceedings related to: settlement conference.Mailed notice.(jlj, ) (Entered: 05/06/2014)
49 MINUTE entry before the Honorable Gary Feinerman:Pursuant to the parties' joint request 46 , the stay of proceedings is extended to 6/30/2014, and the time for Defendants to answer the amended complaint is extended to 7/15/2014. The 5/14/2014 status hearing 45 is stricken and re−set for 7/16/2014 at 9:00 a.m. If the case does not settle, the parties should file a revised joint status report, with a revised proposed schedule, by 7/9/2014. Mailed notice. (jlj) (Entered: 05/06/2014)
50 MINUTE entry before the Honorable Susan E. Cox: A status hearing is set for 5/13/2014 at 9:45 a.m. for the purpose of scheduling a settlement conference. Counsel that appears for this pre−settlement conference discussion must be counsel who will represent their respective clients at the conference, or are able to discuss the issues of the case and to schedule the conference on behalf of their clients. The Court expects counsel to discuss issues in the case that may affect the settlement process. Mailed notice (np, ) (Entered: 05/07/2014)
51 MINUTE entry before the Honorable Susan E. Cox: Due to a scheduling conflict the status hearing set before Magistrate Judge Cox on 5/13/2014 at 9:45 a.m. to stricken and reset to 5/21/2014 at 9:45 a.m. Mailed notice (np, ) (Entered: 05/08/2014)
52 MINUTE entry before the Honorable Susan E. Cox: Initial status hearing held for the purpose of scheduling a settlement conference. The parties provided the Court with a status of the case. The district judge has stayed the case until June 30, 2014. Parties reported that they are working through an agreement amongst themselves and drafts of a proposed settlement agreement have been exchanged. The parties are unsure whether or not a settlement conference is needed at this point. Status hearing is set for 6/11/2014 at 9:30 a.m. to set a settlement conference date. Mailed notice (np, ) (Entered: 05/22/2014)
53 MINUTE entry before the Honorable Susan E. Cox: Status hearing held. Parties have made significant progress towards reaching a settlement agreement. Parties anticipate filing a status report regarding the progress of the settlement before Judge Feinerman, with the expectation that the discovery stay deadline will be extended. Status set for 7/14/2014 at 9:30 a.m. to report on settlement.Mailed notice (jms, ) (Entered: 06/13/2014)
54 STATUS Report Third Joint Status Report by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. (Grom, Douglas) (Entered: 06/13/2014)
55 NOTICE by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. re status report 54 (Grom, Douglas) (Entered: 06/13/2014)
56 MINUTE entry before the Honorable Gary Feinerman:Pursuant to the parties' joint request 54 , the stay of proceedings is extended to 8/29/2014, and the time for Defendants to answer the amended complaint is extended to 9/15/2014. The 7/16/2014 status hearing 49 is stricken and re−set for 9/30/2014 at 9:00 a.m. If the case does not settle, the parties should file a revised joint status report, with a revised proposed schedule, by 9/23/2014.Mailed notice. (jlj, ) (Entered: 06/16/2014)
57 EXECUTIVE COMMITTEE ORDER: It appearing that, pursuant to the Executive Committee Order entered on June 26, 2014, the civil cases on the attached list have been selected for reassignment to form the initial calendar of the Honorable Manish S.

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06/30/2014 07/02/2014
07/09/2014 07/11/2014 07/16/2014
07/22/2014 07/30/2014
09/15/2014 09/15/2014 09/15/2014 09/15/2014 09/15/2014 09/15/2014

Shah, therefore IT IS HEREBY ORDERED That the attached list of 283 cases be reassigned to the Honorable Manish S. Shah. IT IS FURTHER ORDERED that this order shall become effective on June 27, 2014. Signed by Executive Committee on June 26, 2014. Mailed notices.(rp, ) (Entered: 06/27/2014)
58 MINUTE entry before the Honorable Gary Feinerman:Status hearing scheduled for 9/30/2014 56 is stricken. Parties shall contact Judge Shah for further proceedings.Mailed notice. (jlj, ) (Entered: 06/30/2014)
59 MINUTE entry before the Honorable Manish S. Shah: If the parties are not able to reach a settlement agreement in this matter, counsel for the parties shall confer and then prepare and file a joint Reassignment Status Report, not to exceed five pages, by 9/15/14. A template for the Reassignment Status Report, setting forth the information required, may be found at http://www.ilnd.uscourts.gov/home/JudgeInfo.aspx by clicking on Judge Shah's name and then again on the link entitled 'Cases Reassigned to Judge Shah.' Defendants' answer to the amended complaint remains due on 9/15/14. Notices mailed by Judicial Staff. (psm, ) (Entered: 07/02/2014)
60 MINUTE entry before the Honorable Susan E. Cox: Status hearing set for 7/14/2014 at 9:30 a.m. is reset to 7/14/2014 at 9:00 a.m. Please note the time change only. Mailed notice (np, ) (Entered: 07/09/2014)
61 MINUTE entry before the Honorable Susan E. Cox: At the request of the parties, status hearing set for 7/14/2014 at 9:00 a.m. is stricken and reset to 7/16/2014 at 9:30 a.m. Mailed notice (np, ) (Entered: 07/11/2014)
62 MINUTE entry before the Honorable Susan E. Cox: Status hearing held. Parties are still working through settlement, but have run into a few issues with the proposed agreement. An updated demand has been made by the Defendant and the Plaintiff has presented a counter offer. Parties agree that a settlement conference may be fruitful. Parties were reminded of this Court's standing order. Settlement conference tentatively set for 8/14/2014 at 1:00 p.m. Parties are instructed to lay out the settlement negotiations and case information within the settlement position papers. Parties are to contact the Court by the close of business 7/18/2014 to confirm settlement conference date. Mailed notice (np, ) (Entered: 07/17/2014)
63 MINUTE entry before the Honorable Susan E. Cox: Parties having contacted the Court indicating that none of the dates provided for a possible settlement conference will work for both sides, further status set for 7/30/2014 at 9:30 a.m. Mailed notice (np, ) (Entered: 07/22/2014)
64 MINUTE entry before the Honorable Susan E. Cox: Status hearing held. The parties agreed that a settlement conference would not be fruitful at this time. Settlement conference set for 8/14/2014 is stricken. All matters relating to the referral of this matter have been resolved. Judge Cox is no longer referred to this case. If parties decide that a conference is necessary in the future, they are to inform the Court. Mailed notice (np, ) (Entered: 07/31/2014)
65 Defendant E−Town Community Ventures, LLC's ANSWER to amended complaint by E−Town Community Ventures, LLC(Cohn, Matthew) (Entered: 09/15/2014)
66 ATTORNEY Appearance for Defendants Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. by Douglas Michael Grom (Grom, Douglas) (Entered: 09/15/2014)
67 ATTORNEY Appearance for Defendants Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. by Joseph A. Girardi (Girardi, Joseph) (Entered: 09/15/2014)
68 ATTORNEY Appearance for Defendants Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. by Robert B. Christie (Christie, Robert) (Entered: 09/15/2014)
69 ANSWER to amended complaint by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc.(Grom, Douglas) (Entered: 09/15/2014)
70 STATUS Report upon Reassignment by City Of Evanston (Blazer, Michael) (Entered: 09/15/2014)

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09/15/2014 09/15/2014 09/16/2014 09/23/2014
12/09/2014 12/09/2014 12/10/2014
01/15/2015
01/16/2015 01/22/2015

71 MOTION by Defendants Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. for extension of time to file Cross−Claims (Grom, Douglas) (Entered: 09/15/2014)
72 NOTICE of Motion by Douglas Michael Grom for presentment of motion for extension of time to file 71 before Honorable Manish S. Shah on 9/23/2014 at 09:45 AM. (Grom, Douglas) (Entered: 09/15/2014)
73 MINUTE entry before the Honorable Manish S. Shah: The court has reviewed the competing discovery proposals, and will enter a discovery schedule at the noticed motion hearing on defendants' motion for an extension of time to file cross−claims 71 set for 9/23/14 at 9:45 a.m. Notices mailed by Judicial Staff. (psm, ) (Entered: 09/16/2014)
74 MINUTE entry before the Honorable Manish S. Shah: Motion hearing held. Agreed Motion of Defendants to Enlarge Time to File Cross−Claims 71 is granted. All cross−claims shall be filed by 12/17/14. The parties are not able to agree on a discovery schedule, and the court sets the schedule as follows: Rule 26(a)(1) Disclosures shall be exchanged by 10/15/14. All fact discovery shall be noticed in time to be completed by 2/13/15. The parties are directed to work together to schedule interim discovery dates. Continued status hearing is set for 12/15/14 at 9:30 a.m. At the next status hearing the court will set an expert discovery deadline, based on specific proposals as to the experts required. The court anticipates setting a short period of time for expert discovery, and will consider any requests to commence expert discovery prior to the close of fact discovery. Notices mailed by Judicial Staff. (psm, ) (Entered: 09/23/2014)
75 MOTION by Defendants Chevron Corporation, Chevron Environmental Management Company, E−Town Community Ventures, LLC, Texaco, Inc. for extension of time (Grom, Douglas) (Entered: 12/09/2014)
76 NOTICE of Motion by Douglas Michael Grom for presentment of extension of time 75 before Honorable Manish S. Shah on 12/15/2014 at 09:30 AM. (Grom, Douglas) (Entered: 12/09/2014)
77 MINUTE entry before the Honorable Manish S. Shah: Agreed Motion to Extend Time and Continue Status Hearing 75 is granted. All fact discovery shall be noticed in time to be completed by 3/16/15. All cross−claims shall be filed by 3/16/15. Motion hearing previously set for 12/15/14 at 9:30 a.m. is hereby stricken and no appearance is necessary. Status hearing previously set for 12/15/14 at 9:30 a.m. is hereby stricken and reset to 2/4/15 at 9:30 a.m. Notices mailed by Judicial Staff. (psm, ) (Entered: 12/10/2014)
78 EXECUTIVE COMMITTEE ORDER: It appearing that, pursuant to the Executive Committee Order entered on December 30, 2014, the civil cases on the attached list have been selected for reassignment to form the initial calendar of the Honorable John Robert Blakey; therefore IT IS HEREBY ORDERED that the attached list of 306 cases be reassigned to the Honorable John Robert Blakey. IT IS FURTHER ORDERED that this order shall become effective on January 15, 2015. Case reassigned to the Honorable John Robert Blakey for all further proceedings. Signed by Executive Committee on 1/15/15. Mailed notices. (sj) (Entered: 01/15/2015)
79 MINUTE entry before the Honorable Manish S. Shah: Status hearing previously set before Judge Shah on 2/4/15 at 9:30 a.m. is hereby stricken. Notices mailed by Judicial Staff. (psm, ) (Entered: 01/16/2015)
80 MINUTE entry before the Honorable John Robert Blakey:The following case has been reassigned to form the initial calendar of the Honorable John Robert Blakey. Unless otherwise ordered by the court, all previously−set discovery and briefing schedules and deadlines remain intact, and all existing referrals to the assigned magistrate judge remain in place. All previously−set status and motion hearing dates are stricken. The court may, in due course, set the case for a reassignment status conference. The parties are directed not to file or notice any motions, with the exception of emergency motions, prior to appearing at the reassignment status conference. For all emergency motions arising prior to the date scheduled for the reassignment status conference, the parties are directed to contact chambers at (312) 435−6058, or Judge Blakey's courtroom deputy, Gloria Lewis, at (312) 818−6699.To assist the court with its review

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01/23/2015
01/28/2015 01/28/2015 02/23/2015 03/09/2015 03/10/2015 03/10/2015 03/25/2015 03/25/2015 03/26/2015
04/15/2015 04/23/2015
04/23/2015

of the case, the parties are directed, within 10 calendar days of this order's entry, to confer and then prepare and file a joint Reassignment Status Report, not to exceed five pages. A template of the Reassignment Status Report is available on Judge Blakey's homepage at www.ilnd.uscourts.gov. Additional dates will be set in a future order, as needed.Mailed notice (gel, ) (Entered: 01/22/2015)
81 MINUTE entry before the Honorable John Robert Blakey:Minute order dated 1/22/2015 is corrected as follows: This case has been reassigned to form the initial calendar of the Honorable John Robert Blakey. Unless otherwise ordered by the court, all previously set discovery and briefing schedules and deadlines remain intact, and all existing referrals to the assigned magistrate judge remain in place. All previously set status hearing and motion hearing dates are stricken. To assist the court with its initial review of the case, the parties are directed, within 10 calendar days of this order's entry, to confer and then prepare and file a joint Reassignment Status Report, not to exceed five pages. A template of the Reassignment Status Report is available on Judge Blakey's homepage at www.ilnd.uscourts.gov. The parties are directed not to file or notice any motions, with the exception of emergency motions, prior to filing the joint Reassignment Status Report. For all emergency motions arising prior to the due date for the Reassignment Status Report, the parties are directed to contact chambers at (312) 435−6058, or Judge Blakey's courtroom deputy, Gloria Lewis, at (312) 818−6699. Additional dates will be set in a future order, as neededMailed notice (gel, ) (Entered: 01/23/2015)
82 STATUS Report by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. (Girardi, Joseph) (Entered: 01/28/2015)
83 NOTICE by Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. re status report 82 (Girardi, Joseph) (Entered: 01/28/2015)
84 ATTORNEY Appearance for Defendants Chevron Corporation, Chevron Environmental Management Company, Texaco, Inc. by Joseph A. Girardi (Girardi, Joseph) (Entered: 02/23/2015)
85 MINUTE entry before the Honorable John Robert Blakey: The case is set for a status hearing 3/30/15 at 9:45 a.m. in Courtroom 2201. Mailed notice (gel, ) (Entered: 03/09/2015)
86 NOTICE by Robert B. Christie of Change of Address (Christie, Robert) (Entered: 03/10/2015)
87 NOTICE by Douglas Michael Grom of Change of Address (Grom, Douglas) (Entered: 03/10/2015)
88 MOTION by Defendant Chevron Corporation for extension of time continue status hearing (Girardi, Joseph) (Entered: 03/25/2015)
89 NOTICE of Motion by Joseph A. Girardi for presentment of extension of time 88 before Honorable John Robert Blakey on 3/30/2015 at 09:30 AM. (Girardi, Joseph) (Entered: 03/25/2015)
90 MINUTE entry before the Honorable John Robert Blakey: The parties' agreed motion to continue status hearing 88 is granted; the status hearing set for 3/30/15 is stricken and reset to 4/30/15 at 9:45 a.m. in Courtroom 1725. The 3/30/15 Notice of Motion date is stricken; the parties need not appear. Mailed notice (gel, ) (Entered: 03/26/2015)
91 STIPULATION of Dismissal (Girardi, Joseph) (Entered: 04/15/2015)
92 MINUTE entry before the Honorable John Robert Blakey: Pursuant to the parties' stipulation of dismissal 91 , this case is hereby dismissed without prejudice consistent with the terms of the Agreed Dismissal Order. Enter Agreed Dismissal Order. The 4/30/15 status hearing date is stricken. Civil case terminated. Mailed notice (gel, ) (Entered: 04/23/2015)
93 AGREED DISMISSAL ORDER Signed by the Honorable John Robert Blakey on 4/23/2015. Mailed notice(gel, ) (Entered: 04/23/2015)

 
 Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 1 of 14 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

City of Evanston, an Illinois Municipal

)

Corporation,

)

)

Plaintiff,

)

vs.

)

)

Chevron U.S.A. Inc., a California

)

Corporation and E-Town Community

)

Ventures, LLC, an Illinois Limited Liability )

Company,

)

)

Defendants. )

Case No.

COMPLAINT

Now comes Plaintiff, City of Evanston (the “City” or “Evanston”), by its attorneys,

Michael S. Blazer, Thomas S. Yu, and Jeep & Blazer, LLC, and for its Complaint

against Defendants, Chevron U.S.A. Inc. (“Chevron”) and E-Town Community Ventures,

LLC (“E-Town”), states:

Allegations Common To All Counts

Nature of Action

1. This is a civil action for declaratory and injunctive relief, and cost recovery

brought pursuant to: (1) Section 7002 of the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. §6972, et seq.; (2) Title 9, Section 12 of the Evanston Code of

Ordinances (“Hazardous Substances Ordinance”), Evanston, Illinois - Code of

Ordinances, §9-12-1, et seq. (2012); and (3) the Illinois common law of trespass and

nuisance.

2. This Complaint concerns the release and migration of hazardous

substances, specifically petroleum and its byproducts, from leaking underground

1

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 2 of 14 PageID #:2
storage tanks (“USTs”) at a vacant commercial property, formerly owned and operated as a gasoline service station by The Texas Corporation (“Texaco”), which is located at the northeast corner of the intersection of Church Street and Darrow Street, commonly known as 1801-1805 Church Street, in Evanston (the “Texaco Station”).
3. The Darrow Street right-of-way is located adjacent to and immediately east of the Texaco Station. Evanston owns the Darrow Street right-of-way.
4. The Church Street right-of-way is located adjacent to and immediately south of the Texaco Station. Evanston owns the Church Street right-of-way. The Church Street and Darrow Street rights-of-way are hereinafter referred to as the “City Property”.
5. There are commercial and residential properties (the “Neighboring Properties”) east of the Darrow Street right-of-way and south of the Church Street rightof-way, adjacent to the Texaco Station.
6. The locations of the Texaco Station, the City Property and the Neighboring Properties are depicted in an aerial site layout map, a copy of which is attached hereto as Exhibit A.
7. The soil and groundwater at the Texaco Station and the City Property are contaminated with petroleum, gasoline and their byproducts, including, among other things: benzene, toluene, ethylbenzene and xylene (“BTEX”); polynuclear aromatic hydrocarbons (“PNAs”); and lead (collectively the “Contaminants”).
8. On information and belief, the soil and groundwater at the Neighboring Properties is also contaminated with Contaminants.
2

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 3 of 14 PageID #:3
9. Releases of Contaminants from leaking USTs at the Texaco Station have migrated and continue to migrate into the soil and groundwater of the Texaco Station and the City Property.
10. On information and belief, releases of Contaminants from leaking USTs at the Texaco Station have migrated and continue to migrate into the soil and groundwater of the Neighboring Properties.
11. BTEX, PNAs and lead are known or suspected human carcinogens that threaten human health and are identified as solid or hazardous waste pursuant to regulations adopted under Subchapter III of RCRA, 42 U.S.C. §6901, et seq.
12. In general terms, the City seeks to hold Defendants responsible for the presence of contamination in the soil and groundwater at the Texaco Station, the City Property and the Neighboring Properties. More specifically, the City seeks to recover:
a. Investigative and other response costs incurred by the City because of contamination at the Texaco Station and the City Property;
b. Injunctive relief under RCRA and common law restraining and enjoining Defendants from allowing continued contamination of the Texaco Station, the City Property and the Neighboring Properties;
c. Injunctive relief under RCRA and common law compelling Defendants to abate the contamination they caused or contributed to, by their acts and omissions, at the Texaco Station, the City Property and the Neighboring Properties; and
d. Compensatory damages caused by Defendants’ acts and omissions.
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Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 4 of 14 PageID #:4
The Parties 13. On information and belief, Texaco owned and operated the Texaco Station from approximately 1925 through the early 1970’s. 14. On information and belief, on October 8, 2001, Texaco merged with Chevron Corporation to form ChevronTexaco. The present day corporate successor to Texaco and ChevronTexaco is Chevron. 15. On information and belief, Chevron is a California corporation, registered to conduct business and doing business in the State of Illinois, with its principal place of business at 6001 Bollinger Canyon Road, San Ramon, California 94583. 16. On information and belief, E-Town is an Illinois limited liability company with its principal place of business at 1338 Warrington Road, Deerfield, Illinois 60015. 17. On information and belief, on April 2, 2002, E-Town acquired legal title to the Texaco Station and is the current owner. 18. The City is a municipal corporation located in Cook County, Illinois and is a Home Rule unit of government. 19. The City has at all times material hereto owned the City Property.
Jurisdiction and Venue 20. This Court has federal question jurisdiction over this matter pursuant to 28 U.S.C. §1331 because this case arises under the laws of the United States. Specifically, Count I is predicated upon and seeks relief pursuant to RCRA. 21. This Court has supplemental jurisdiction over the State and local law claims herein pursuant to 28 U.S.C. §1367 in that said claims are so related to the RCRA claim that they form part of the same case or controversy under Article III of the
4

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 5 of 14 PageID #:5
U.S. Constitution. The claim in Count II is predicated upon and seeks relief pursuant to the City’s Hazardous Substances Ordinance. The claims in Counts III and IV are predicated upon and seek relief pursuant to the common law of trespass and nuisance.
22. Venue is proper in this Court pursuant to 28 U.S.C. §1391(b) and 42 U.S.C. §6972(a) because the events or omissions giving rise to the claims herein occurred in this judicial district and the properties that are the subject of this action are also situated in this judicial district.
Facts 23. On information and belief, from 1925 to the late 1990’s, a gasoline service and auto repair service station occupied the Texaco Station. On information and belief, from the late 1990’s to the present, the Texaco Station has been vacant. 24. On information and belief, Texaco owned and operated an unknown number of gasoline USTs of 2,000-gallon and 3,000-gallon capacity, gasoline dispenser islands, and associated piping and fill systems at the Texaco Station. 25. On information and belief, an auto lift and grease pit were also located at the Texaco Station. 26. On information and belief, during the period of Texaco’s ownership and operation, at least two USTs of 2,000-gallon and 3,000-gallon capacity, respectively, leaked Contaminants at the Texaco Station. 27. On information and belief, in 1963, during Texaco’s ownership and operation, a 2,000-gallon gasoline UST at the Texaco Station leaked Contaminants and was abandoned in-place.
5

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 6 of 14 PageID #:6
28. On information and belief, in 1967, during Texaco’s ownership and operation, a 3,000-gallon gasoline UST at the Texaco Station leaked Contaminants and was replaced with another 3,000-gallon UST.
29. On information and belief, an unknown number of additional gasoline USTs at the Texaco Station have been abandoned or replaced, and continue to constitute a source of Contaminants.
30. In September 2000, the Office of Illinois State Fire Marshall (“OSFM”) conducted an exploratory excavation of the Texaco Station and issued a Notice of Violation, which identified the following conditions:
a. At least two unregistered USTs were abandoned improperly; b. The USTs contained water and gasoline; and c. The USTs are leaking in close proximity to a sewer. A copy of said Notice is attached hereto as Exhibit B. 31. In April 2001, OFSM issued a progress report stating the following:
NOTHING HAS BEEN DONE TO THIS SITE. THE TANKS ARE LEAKING AND NO CAPS ARE ON THE VENTS, FILLS OR PRODUCT LINES. THEY ARE CONTINUING TO TAKE ON WATER. THIS SITE WAS BOUGHT AT A TAX AUCTION AND THE PREVIOUS OWNER IS NOWHERE TO BE FOUND. A copy of said report is attached hereto as Exhibit C. 32. On information and belief, no investigative or remedial action has been taken by Defendants to address the leaking USTs or resulting contamination. 33. In 2012, the City retained an environmental consultant to investigate the nature and extent of contamination at and from the Texaco Station.
6

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 7 of 14 PageID #:7
34. On March 6, 2012, the City’s consultant issued an environmental report (“Phase II Report”) which stated that:
a. Five of six soil samples which were analyzed have Contaminant concentrations in excess of applicable Illinois Environmental Protection Agency (“Illinois EPA”) regulations; and
b. Recommended that further investigation be conducted to find additional USTs and if additional tanks are located, then that the USTs be removed in accordance with applicable law.
A copy of the Phase II Report is attached hereto as Exhibit D. 35. On July 6, 2012, the City’s consultant issued a follow-up environmental
report (“Site Investigation Report”) which stated that: a. Exploratory excavations located four USTs, including two 2,000-gallon USTs and two 3,000-gallon USTs; b. The two 2,000-gallon USTs were filled with water and gasoline; and c. The two 3,000 gallon USTs were filled with sand.
A copy of the Site Investigation Report is attached hereto as Exhibit E. 36. The Site Investigation Report also concluded that: Contamination from the 1801-05 Church Street property has migrated off-site in the east/southeast direction and is impacting Church Street, Darrow Street, and possibly the commercial property to the east. 37. On information and belief, releases of Contaminants at the Texaco Station
are the source of contamination present at the Texaco Station and the City Property. 38. On information and belief, the contamination extends to the Neighboring
Properties.
7

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 8 of 14 PageID #:8
COUNT I: RCRA INJUNCTION, 42 U.S.C. §6972(a)(l)(B) AGAINST CHEVRON
1-38. The City adopts and re-alleges paragraphs 1 through 38 of the Allegations Common to all Counts as Paragraphs 1 through 38 of this Count I.
39. 42 U.S.C. §6972 confers upon any person the right to file suit: (B) against any person ... or past or present owner or operator of a ... facility ... who has contributed or who is contributing to the past or present handling, storage, treatment ... or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.
40. The City is a “person” under §6903(15) of RCRA. 41. Chevron is a "person" under §6903(15) of RCRA. 42. On information and belief, Contaminants leaked from USTs at the Texaco Station and migrated into the soil and groundwater of the City Property and the Neighboring Properties during the period of time that Chevron, through its corporate predecessor Texaco, owned the USTs. 43. The Contaminants released and migrating from the Texaco Station to the City Property and the Neighboring Properties, and the resulting contaminated soil and groundwater, are solid or hazardous waste as defined in §§6903(5) and (27) of RCRA and regulated by Subchapter III of RCRA and the regulations promulgated or authorized thereunder. 44. In accordance with 42 U.S.C. §6972, on August 22, 2012, the City sent a Notice of Intent to Sue, via registered mail with return receipt requested, to Defendants, the Administrator of the U.S. Environmental Protection Agency (“USEPA”), the USEPA
8

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 9 of 14 PageID #:9
Region 5 Administrator, the U.S. Attorney General and the Director of the Illinois EPA. Copies of the Notice and proof of service are attached hereto as Exhibit F.
45. On information and belief, Chevron, through its corporate predecessor Texaco, has engaged in the handling, treatment, storage and/or disposal of solid or hazardous waste in a manner which has contributed to and is contributing to the contamination of the Texaco Station, the City Property and the Neighboring Properties.
46. On information and belief, Chevron’s handling, treatment, storage, and/or disposal of solid or hazardous waste presents, and will continue to present, an imminent and substantial endangerment to public health and the environment as defined in RCRA, which condition will remain until the solid or hazardous waste is removed and/or remediated from the Texaco Station, the City Property and the Neighboring Properties.
47. On information and belief, Chevron is responsible for the contamination of the Texaco Station, the City Property and the Neighboring Properties by failing to properly handle, dispose, contain and abate the solid or hazardous waste present at and released from the Texaco Station as required by the applicable hazardous waste management regulations promulgated and authorized pursuant to Subchapter III of RCRA.
48. Since the issuance of the Notice of Intent to Sue dated August 22, 2012, no action has been taken by the USEPA Administrator, the USEPA Region 5 Administrator, the U.S. Attorney General or the Illinois EPA Director, which would preclude the City from pursuing a claim under RCRA Section 7002(a)(1)(B).
49. Pursuant to 42 U.S.C. §6972(b)(2)(F), a copy of this Complaint will be served upon the U.S. Attorney General and the USEPA Administrator.
9

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 10 of 14 PageID #:10
50. This Court has jurisdiction pursuant to 42 U.S.C. §6972(a) of RCRA to enter injunctive relief and to impose any appropriate civil penalties, including: restraining and enjoining Chevron from allowing continued contamination of the Texaco Station, the City Property and Neighboring Properties; compelling Chevron to take any and all actions necessary to abate the conditions they have caused or contributed to which present an imminent and substantial endangerment to public health or the environment; and restraining Chevron from taking any actions in violation of RCRA and the regulations promulgated or authorized thereunder.
WHEREFORE, the City prays for judgment in its favor and against Chevron as follows:
A. For a declaration that Chevron is liable for the subject contamination under 42 U.S.C. §6972 of RCRA;
B. For injunctive relief restraining and enjoining Chevron from allowing continued contamination of the Texaco Station, the City Property and Neighboring Properties, and compelling Chevron to take any and all actions necessary to abate the conditions they have caused, which present an imminent and substantial endangerment to public health and the environment;
C. For injunctive relief restraining and enjoining Chevron from taking any actions in violation of RCRA and the regulations promulgated or authorized thereunder;
D. For an award of the City’s attorneys' fees, expert costs and costs of suit, and to impose any appropriate civil penalties; and
E. For such further relief as this Court deems appropriate.
10

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 11 of 14 PageID #:11
COUNT II: VIOLATION OF HAZARDOUS SUBSTANCES ORDINANCE 1-38. The City adopts and re-alleges paragraphs 1 through 38 of the Allegations Common to all Counts as Paragraphs 1 through 38 of this Count II. 39. The Texaco Station, the City Property and the Neighboring Properties are located within the City limits. 40. E-Town and Chevron are “persons” as defined in §9-12-1 of the Hazardous Substances Ordinance. 41. BTEX, PNAs and lead are byproducts of petroleum and are listed as toxic pollutants under 40 C.F.R. 401.15 and therefore qualify as “hazardous substances” as defined in §9-12-1 of the Hazardous Substances Ordinance. 42. E-Town is a person “owning or in control of any real property from which a hazardous substance is or may be released” pursuant to §9-12-2(A)(4) of the Hazardous Substances Ordinance. 43. Chevron is a person “who owned or had custody or control of the container…which held such hazardous substance at the time of, or immediately prior to, such release” pursuant to §9-12-2(A)(3) of the Hazardous Substances Ordinance. 44. As a result of the releases of hazardous substances, the City has incurred and will continue to incur removal and abatement costs under §§9-12-1 and 9-12-3 of the Hazardous Substances Ordinance. These costs include, among other things, the cost of consultants and experts to monitor, assess and evaluate the threat of release of hazardous substances, as well as attorneys’ fees.
11

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 12 of 14 PageID #:12
45. Defendants are jointly and severally liable to the City for all costs incurred and to be incurred by the City for removal and/or abatement activity pursuant to §9-122(A) of the Hazardous Substances Ordinance.
WHEREFORE, the City prays for judgment in its favor and against Defendants as follows:
A. For a declaration that Defendants are liable under §9-12-2 of the Hazardous Substances Ordinance;
B. For an award of all removal and abatement costs incurred in connection with the release of hazardous substances described herein, including prejudgment interest and attorneys' fees through the trial of this matter; and
C. For such further relief as this Court deems appropriate. COUNT III: TRESPASS
1-38. The City adopts and re-alleges paragraphs 1 through 38 of the Allegations Common to all Counts as Paragraphs 1 through 38 of this Count III.
39. Defendants have caused and allowed, and continue to cause and allow, Contaminants to migrate and enter onto the City Property.
40. Defendants did not have permission, authority or right to allow any Contaminants to enter upon the City Property, and the migration of Contaminants onto the City Property is unlawful and without the consent of the City.
41. Notwithstanding Defendants’ knowledge that the Contaminants originated from the Texaco Station and migrated and entered onto the City Property, contaminating the soil and groundwater thereon, and despite demand by the City,
12

Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 13 of 14 PageID #:13
Defendants have failed to remove or otherwise remediate the contamination on the City Property.
42. Defendants' actions and omissions have interfered with and continue to interfere with the City's property rights.
43. Defendants’ actions and omissions have caused and will continue to cause damage to the City, including but not limited to unreimbursed expenses and costs and other violations of the City’s rights as owner of the City Property.
WHEREFORE, the City prays for judgment in its favor and against Defendants as follows:
A. For injunctive relief restraining and enjoining Defendants from allowing continued contamination of the City Property and compelling Defendants to take any and all actions necessary to abate the contamination of the City Property;
B. For an award of compensatory and other appropriate damages in amounts to be determined by the evidence at trial and allowed by law;
C. For an award of punitive damages in an amount deemed appropriate by this Court; and
D. For such further relief as this Court deems appropriate. COUNT IV: PRIVATE NUISANCE
1-43. The City adopts and re-alleges paragraphs 1 through 43 of Count III as Paragraphs 1 through 43 of this Count IV.
44. The actions and omissions of Defendants constitute a nuisance, which has substantially interfered with the City's use and enjoyment of the City Property.
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Case: 1:13-cv-02106 Document #: 1 Filed: 03/19/13 Page 14 of 14 PageID #:14

45. Defendants’ actions have caused and will continue to cause damage to

the City, including but not limited to unreimbursed expenses and costs, and other

violations of the City’s property rights as owner of the City Property.

WHEREFORE, the City prays for judgment in its favor and against Defendants

as follows:

A. For injunctive relief restraining and enjoining Defendants from allowing

continued contamination of the City Property and compelling Defendants to take any

and all actions necessary to abate the contamination of the City Property;

B. For an award of compensatory and other appropriate damages in amounts

to be determined by the evidence at trial and allowed by law;

C. For an award of punitive damages in an amount deemed appropriate by

this Court; and

D. For such further relief as this Court deems appropriate.

Dated:

March 18, 2013

Michael S. Blazer Thomas S. Yu Jeep & Blazer, L.L.C. 24 N. Hillside Ave, Suite A Hillside, IL 60162 (708) 236-0830 mblazer@enviroatty.com tsyu@enviroatty.com

The City of Evanston
By: /s/ Thomas S. Yu One of its Attorneys

14

 
 Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 1 of 107 PageID #:292

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

City of Evanston, an Illinois Municipal

)

Corporation,

)

)

Plaintiff,

)

vs.

)

)

Texaco, Inc., a Delaware Corporation,

)

Chevron Corporation, a Delaware

)

Corporation, Chevron Environmental

)

Management Company, a California

)

Corporation, and E-Town Community

)

Ventures, LLC, an Illinois Limited Liability )

Company,

)

)

Defendants. )

Case No. 13 CV 2106
Judge Gary S. Feinerman Magistrate Judge Susan E. Cox

AMENDED COMPLAINT

Now comes Plaintiff, City of Evanston (the “City” or “Evanston”), by its attorneys,

Michael S. Blazer, Jeffery D. Jeep, and Jeep & Blazer, LLC, and for its Amended

Complaint against Defendants, Texaco, Inc. (“Texaco”), Chevron Corporation

(“Chevron”), Chevron Environmental Management Company (“CEMC”) and E-Town

Community Ventures, LLC (“E-Town”), states:

Allegations Common To All Counts

Nature of Action

1. This is a civil action for declaratory and injunctive relief, and cost recovery

brought pursuant to: (1) Section 7002 of the Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. §6972, et seq.; (2) Title 9, Section 12 of the Evanston Code of

Ordinances (“Hazardous Substances Ordinance”), Evanston, Illinois - Code of

1

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 2 of 107 PageID #:293
Ordinances, §9-12-1, et seq. (2012); and (3) the Illinois common law of trespass and nuisance.
2. This Complaint concerns the release and migration of hazardous substances, specifically petroleum and its byproducts, from leaking underground storage tanks (“USTs”) at a vacant commercial property, formerly owned and operated as a gasoline service station by Texaco, which is located at the northeast corner of the intersection of Church Street and Darrow Street, commonly known as 1801-1805 Church Street, in Evanston (the “Texaco Station”).
3. The Darrow Street right-of-way is located adjacent to and immediately east of the Texaco Station. Evanston owns the Darrow Street right-of-way.
4. The Church Street right-of-way is located adjacent to and immediately south of the Texaco Station. Evanston owns the Church Street right-of-way. The Church Street and Darrow Street rights-of-way are hereinafter referred to as the “City Property”.
5. There are commercial and residential properties (the “Neighboring Properties”) east of the Darrow Street right-of-way and south of the Church Street rightof-way, adjacent to the Texaco Station.
6. The locations of the Texaco Station, the City Property and the Neighboring Properties are depicted in an aerial site layout map, a copy of which is attached hereto as Exhibit A.
7. The soil and groundwater at the Texaco Station and the City Property are contaminated with petroleum, gasoline and their byproducts, including, among other things: benzene, toluene, ethylbenzene and xylene (“BTEX”); polynuclear aromatic hydrocarbons (“PNAs”); and lead (collectively the “Contaminants”).
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8. On information and belief, the soil and groundwater at the Neighboring Properties is also contaminated with Contaminants.
9. Releases of Contaminants from leaking USTs at the Texaco Station have migrated and continue to migrate into the soil and groundwater of the Texaco Station and the City Property.
10. On information and belief, releases of Contaminants from leaking USTs at the Texaco Station have migrated and continue to migrate into the soil and groundwater of the Neighboring Properties.
11. BTEX, PNAs and lead are known or suspected human carcinogens that threaten human health and are identified as solid or hazardous waste pursuant to regulations adopted under Subchapter III of RCRA, 42 U.S.C. §6901, et seq.
12. In general terms, the City seeks to hold Defendants responsible for the presence of contamination in the soil and groundwater at the Texaco Station, the City Property and the Neighboring Properties. More specifically, the City seeks to recover:
a. Investigative and other response costs incurred by the City because of contamination at the Texaco Station and the City Property;
b. Injunctive relief under RCRA and common law restraining and enjoining Defendants from allowing continued contamination of the Texaco Station, the City Property and the Neighboring Properties;
c. Injunctive relief under RCRA and common law compelling Defendants to abate the contamination they caused or contributed to, by their acts and omissions, at the Texaco Station, the City Property and the Neighboring Properties; and
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Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 4 of 107 PageID #:295
d. Compensatory damages caused by Defendants’ acts and omissions. The Parties
13. On information and belief, Texaco was at all times material hereto a Delaware corporation that owned and operated the Texaco Station from approximately 1925 through the early 1970’s.
14. On information and belief, on October 9, 2001 Texaco merged with Chevron Corporation to form ChevronTexaco. The present day corporate successor to Texaco and ChevronTexaco is Chevron, although Texaco continues to maintain a separate corporate existence.
15. On information and belief, Chevron is a Delaware corporation, registered to conduct business and doing business in the State of Illinois, with its principal place of business at 6001 Bollinger Canyon Road, San Ramon, California.
16. On information and belief, CEMC is a California corporation, registered to conduct business and doing business in the State of Illinois, with its principal place of business at 6001 Bollinger Canyon Road, San Ramon, California. The City is further informed and believes that CEMC has assumed certain environmental liabilities from, or manages certain environmental liabilities of, Chevron and/or Texaco
17. On information and belief, E-Town is an Illinois limited liability company with its principal place of business at 1338 Warrington Road, Deerfield, Illinois 60015.
18. On information and belief, on April 2, 2002, E-Town acquired legal title to the Texaco Station and is the current owner.
19. The City is a municipal corporation located in Cook County, Illinois and is a Home Rule unit of government.
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20. The City has at all times material hereto owned the City Property. Jurisdiction and Venue
21. This Court has federal question jurisdiction over this matter pursuant to 28 U.S.C. §1331 because this case arises under the laws of the United States. Specifically, Count I is predicated upon and seeks relief pursuant to RCRA.
22. This Court has supplemental jurisdiction over the State and local law claims herein pursuant to 28 U.S.C. §1367, in that said claims are so related to the RCRA claim that they form part of the same case or controversy under Article III of the U.S. Constitution. The claim in Count II is predicated upon and seeks relief pursuant to the City’s Hazardous Substances Ordinance. The claims in Counts III and IV are predicated upon and seek relief pursuant to the common law of trespass and nuisance.
23. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391(b) and 42 U.S.C. §6972(a), because the events or omissions giving rise to the claims herein occurred in this judicial district and the properties that are the subject of this action are also situated in this judicial district.
Facts Relating to Contamination 24. On information and belief, from 1925 to the late 1990’s, a gasoline service and auto repair service station occupied the Texaco Station. On information and belief, the Texaco Station has been vacant from the late 1990’s to the present. 25. On information and belief, Texaco owned and operated an unknown number of 2,000-gallon and 3,000-gallon gasoline USTs, gasoline dispenser islands, and associated piping and fill systems at the Texaco Station.
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26. On information and belief, an auto lift and grease pit were also located at the Texaco Station.
27. On information and belief, during the period of Texaco’s ownership and operation, at least two of the USTs leaked Contaminants at the Texaco Station.
28. On information and belief, in 1963, during Texaco’s ownership and operation of the Texaco Station, a 2,000-gallon gasoline UST leaked Contaminants and was abandoned in-place.
29. On information and belief, in 1967, during Texaco’s ownership and operation of the Texaco Station, a 3,000-gallon gasoline UST leaked Contaminants and was replaced with another 3,000-gallon UST.
30. On information and belief, an unknown number of additional gasoline USTs at the Texaco Station have been abandoned or replaced, and continue to constitute a source of Contaminants.
31. In September 2000, the Office of Illinois State Fire Marshall (“OSFM”) conducted an exploratory excavation of the Texaco Station and issued a Notice of Violation, which identified the following conditions:
a. At least two unregistered USTs were abandoned improperly; b. The USTs contained water and gasoline; and c. The USTs are leaking in close proximity to a sewer. A copy of said Notice is attached hereto as Exhibit B. 32. In April 2001, OFSM issued a progress report stating the following:
NOTHING HAS BEEN DONE TO THIS SITE. THE TANKS ARE STILL LEAKING AND NO CAPS ARE ON THE VENTS, FILLS OR PRODUCT LINES. THEY ARE CONTINUING TO TAKE ON WATER. THIS SITE WAS
6

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 7 of 107 PageID #:298
BOUGHT AT A TAX AUCTION AND THE PREVIOUS OWNER IS NOWHERE TO BE FOUND. A copy of said report is attached hereto as Exhibit C. 33. On information and belief, no investigative or remedial action has been taken by Defendants to address the leaking USTs or resulting contamination. 34. In 2012, the City retained an environmental consultant to investigate the nature and extent of contamination at and from the Texaco Station. 35. On March 6, 2012, the City’s consultant issued an environmental report (“Phase II Report”) that confirmed the presence of Petroleum in concentrations in excess of applicable Illinois Environmental Protection Agency (“Illinois EPA”) regulations. A copy of the Phase II Report is attached hereto as Exhibit D. 36. On July 6, 2012, the City’s consultant issued a follow-up environmental report (“Site Investigation Report”) which noted that: a. Exploratory excavations located four USTs, including two 2,000-gallon USTs and two 3,000-gallon USTs; b. The two 2,000-gallon USTs were filled with water and gasoline; and c. The two 3,000 gallon USTs were filled with sand. A copy of the Site Investigation Report is attached hereto as Exhibit E. 37. The Site Investigation Report also concluded that: Contamination from the 1801-05 Church Street property has migrated off-site in the east/southeast direction and is impacting Church Street, Darrow Street, and possibly the commercial property to the east. 38. On information and belief, releases of Contaminants at the Texaco Station are the source of contamination present at the Texaco Station and the City Property.
7

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 8 of 107 PageID #:299
39. On information and belief, the contamination extends to the Neighboring Properties.
COUNT I RCRA INJUNCTION AGAINST CHEVRON, TEXACO AND CEMC 1-39. The City adopts and re-alleges paragraphs 1 through 39 of the Allegations Common to all Counts as Paragraphs 1 through 39 of this Count I. 40. 42 U.S.C. §6972 confers upon any person the right to file suit:
(B) against any person...or past or present owner or operator of a...facility...who has contributed or who is contributing to the past or present handling, storage, treatment...or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. 41. The City is a “person” under §6903(15) of RCRA. 42. Chevron, Texaco and CEMC are "persons" under §6903(15) of RCRA. 43. On information and belief, Contaminants leaked from USTs at the Texaco Station and migrated into the soil and groundwater of the City Property and the Neighboring Properties during the period of time that Chevron, through its corporate predecessor Texaco, owned and/or operated the USTs and that CEMC has had responsibility for the same. 44. The Contaminants released and migrating from the Texaco Station to the City Property and the Neighboring Properties, and the resulting contaminated soil and groundwater, are solid or hazardous waste as defined in §§6903(5) and (27) of RCRA and regulated by Subchapter III of RCRA and the regulations promulgated or authorized thereunder.
8

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 9 of 107 PageID #:300
45. In accordance with 42 U.S.C. §6972, on April 17, 2013, the City sent a Notice of Intent to Sue, via registered mail with return receipt requested, to Defendants, the Administrator of the U.S. Environmental Protection Agency (“USEPA”), the USEPA Region 5 Administrator, the U.S. Attorney General and the Director of the Illinois EPA. Copies of the Notice and proofs of service are attached hereto as Exhibit F.
46. On information and belief, Chevron, through its corporate predecessor Texaco, and CEMC, through its assumption of environmental liabilities, have engaged in the handling, treatment, storage and/or disposal of solid or hazardous waste in a manner that has contributed to and is contributing to the contamination of the Texaco Station, the City Property and the Neighboring Properties.
47. On information and belief, said Defendants’ handling, treatment, storage, and/or disposal of solid or hazardous waste presents, and will continue to present, an imminent and substantial endangerment to public health and the environment as defined in RCRA, which condition will remain until the solid or hazardous waste is removed and/or remediated from the Texaco Station, the City Property and the Neighboring Properties.
48. On information and belief, Chevron, Texaco and CEMC are responsible for the contamination of the Texaco Station, the City Property and the Neighboring Properties by failing to properly handle, dispose, contain and abate the solid or hazardous waste present at and released from the Texaco Station as required by the applicable hazardous waste management regulations promulgated and authorized pursuant to Subchapter III of RCRA.
9

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 10 of 107 PageID #:301
49. Since the issuance of the Notice of Intent to Sue dated April 17, 2013, no action has been taken by the USEPA Administrator, the USEPA Region 5 Administrator, the U.S. Attorney General or the Illinois EPA Director, which would preclude the City from pursuing a claim under RCRA Section 7002(a)(1)(B).
50. Pursuant to 42 U.S.C. §6972(b)(2)(F), a copy of this Complaint will be served upon the U.S. Attorney General and the USEPA Administrator.
51. This Court has jurisdiction pursuant to 42 U.S.C. §6972(a) of RCRA to enter injunctive relief and to impose any appropriate civil penalties, including: restraining and enjoining Chevron, Texaco and CEMC from allowing continued contamination of the Texaco Station, the City Property and Neighboring Properties; compelling said Defendants to take any and all actions necessary to abate the conditions they have caused or contributed to which present an imminent and substantial endangerment to public health or the environment; and restraining said Defendants from taking any actions in violation of RCRA and the regulations promulgated or authorized thereunder.
WHEREFORE, the City prays for judgment in its favor and against Chevron, Texaco and CEMC as follows:
A. For a declaration that said Defendants are liable for the subject contamination under 42 U.S.C. §6972 of RCRA;
B. For injunctive relief restraining and enjoining said Defendants from allowing continued contamination of the Texaco Station, the City Property and Neighboring Properties, and compelling said Defendants to take any and all actions necessary to abate the conditions they have caused, which present an imminent and substantial endangerment to public health and the environment;
10

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 11 of 107 PageID #:302
C. For injunctive relief restraining and enjoining said Defendants from taking any actions in violation of RCRA and the regulations promulgated or authorized thereunder;
D. For an award of the City’s attorneys' fees, expert costs and costs of suit, and to impose any appropriate civil penalties; and
E. For such further relief as this Court deems appropriate. COUNT II
VIOLATION OF HAZARDOUS SUBSTANCES ORDINANCE 1-39. The City adopts and re-alleges paragraphs 1 through 39 of the Allegations Common to all Counts as Paragraphs 1 through 39 of this Count II. 40. The Texaco Station, the City Property and the Neighboring Properties are located within the City limits. 41. A copy of the City’s Hazardous Substances Ordinance is attached hereto as Exhibit G. All of the Defendants are “persons” as defined in §9-12-1 of the Hazardous Substances Ordinance. 42. BTEX, PNAs and lead are byproducts of petroleum and are listed as toxic pollutants under 40 C.F.R. 401.15 and therefore qualify as “hazardous substances” as defined in §9-12-1 of the Hazardous Substances Ordinance. 43. E-Town is a person “owning or in control of any real property from which a hazardous substance is or may be released” pursuant to §9-12-2(A)(4) of the Hazardous Substances Ordinance. 44. Chevron, Texaco and CEMC are a persons “who owned or had custody or control of the container…which held such hazardous substance at the time of, or
11

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 12 of 107 PageID #:303
immediately prior to, such release” pursuant to §9-12-2(A)(3) of the Hazardous Substances Ordinance.
45. As a result of the releases of hazardous substances, the City has incurred and will continue to incur removal and abatement costs under §§9-12-1 and 9-12-3 of the Hazardous Substances Ordinance. These costs include, among other things, the cost of consultants and experts to monitor, assess and evaluate the threat of release of hazardous substances, as well as attorneys’ fees.
46. Defendants are jointly and severally liable to the City for all costs incurred and to be incurred by the City for removal and/or abatement activity pursuant to §9-122(A) of the Hazardous Substances Ordinance.
WHEREFORE, the City prays for judgment in its favor and against Defendants as follows:
A. For a declaration that Defendants are liable under §9-12-2 of the Hazardous Substances Ordinance;
B. For an award of all removal and abatement costs incurred in connection with the release of hazardous substances described herein, including prejudgment interest and attorneys' fees through the trial of this matter; and
C. For such further relief as this Court deems appropriate. COUNT III TRESPASS
1-39. The City adopts and re-alleges paragraphs 1 through 39 of the Allegations Common to all Counts as Paragraphs 1 through 39 of this Count III.
40. Defendants have caused and allowed, and continue to cause and allow, Contaminants to migrate and enter onto the City Property.
12

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 13 of 107 PageID #:304
41. Defendants did not have permission, authority or right to allow any Contaminants to enter upon the City Property, and the migration of Contaminants onto the City Property is unlawful and without the consent of the City.
42. Notwithstanding Defendants’ knowledge that the Contaminants originated from the Texaco Station and migrated and entered onto the City Property, contaminating the soil and groundwater thereon, and despite demand by the City, Defendants have failed to remove or otherwise remediate the contamination on the City Property.
43. Defendants' actions and omissions have interfered with and continue to interfere with the City's property rights.
44. Defendants’ actions and omissions have caused and will continue to cause damage to the City, including, but not limited to, unreimbursed expenses and costs and other violations of the City’s rights as owner of the City Property.
WHEREFORE, the City prays for judgment in its favor and against Defendants as follows:
A. For injunctive relief restraining and enjoining Defendants from allowing continued contamination of the City Property and compelling Defendants to take any and all actions necessary to abate the contamination of the City Property;
B. For an award of compensatory and other appropriate damages in amounts to be determined by the evidence at trial and allowed by law;
C. For an award of punitive damages in an amount deemed appropriate by this Court; and
D. For such further relief as this Court deems appropriate.
13

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 14 of 107 PageID #:305

COUNT IV PRIVATE NUISANCE

1-44. The City adopts and re-alleges paragraphs 1 through 44 of Count III as

Paragraphs 1 through 44 of this Count IV.

45. The actions and omissions of Defendants constitute a nuisance, which

has substantially interfered with the City's use and enjoyment of the City Property.

46. Defendants’ actions have caused and will continue to cause damage to

the City, including but not limited to unreimbursed expenses and costs, and other

violations of the City’s property rights as owner of the City Property.

WHEREFORE, the City prays for judgment in its favor and against Defendants

as follows:

A. For injunctive relief restraining and enjoining Defendants from allowing

continued contamination of the City Property and compelling Defendants to take any

and all actions necessary to abate the contamination of the City Property;

B. For an award of compensatory and other appropriate damages in amounts

to be determined by the evidence at trial and allowed by law;

C. For an award of punitive damages in an amount deemed appropriate by

this Court; and

D. For such further relief as this Court deems appropriate.

Dated:

July 31, 2013

Michael S. Blazer Jeep & Blazer, L.L.C. 24 N. Hillside Ave, Suite A Hillside, IL 60162 (708) 236-0830 mblazer@enviroatty.com

The City of Evanston
By: /s/ Michael S. Blazer One of its Attorneys

14

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 15 of 107 PageID #:306
EXHIBIT A

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 16 of 107 PageID #:307

Approximate Site Boundary

FIGURE 2 – SITE LAYOUT
ECG Project No.: E121696-52 Location: 1801-1805 Church Street
Evanston, Illinois Source: Google

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 17 of 107 PageID #:308
EXHIBIT B

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 18 of 107 PageID #:309
Office of the Illinois
State Fire Marshal

General Office 217·785·0969
FAX 217-782·1062
Divisions ARSON INVESTIGATION
217·782·9116 BOILER and PRESSURE
VESSEL SAFETY 217·782·2696
FIRE PREVENTION 217-785-4714
MANAGEMENT SERVICES 217·782·9889 INFIRS 217·785·5826
HUMAN RESOURCES 217·785·1026
PERSONNEL STANDARDS and EDUCATION 217.782-4542 PETROLEUM and
CHEMICAL SAFETY 217·785·5878
PUBLIC INFORMATION 217·785·1021 WEB SITE
www.state.iI.us/osfm

January II, 200 I

21 st Century Real Estate 5412 N Clark St. Chicago, IL 60640

In Re:

Inspection No. E00067025 Facility No. 2-040235 Vacant - Gas Station 1801 - 1805 Church St. Evanston, Cook Co., IL

To Whom It May Concern:

This letter is to inform you that on 12118/2000, a representative of our office performed an on-site inspection at the above referenced facility. The violation(s) listed on the attached "Notice of Violation" form were found, and they must be addressed to put your facility into compliance.

Please submit a letter in writing with a copy of the "Notice of Violation" form to our office when said violations are corrected. If you can not correct these violations immediately, please submit a letter of explanation with specific dates stating when said violation(s) will be corrected. .

Please submit your written response within 28 days.

Sincerely,

Shelly Martin Executive Assistant Division of Petroleum and Chemical Safety

1035 Stevenson Drive • Springfield, Illinois 62703-4259

£: Case: 1:13-cv-02106 Document #: 24 Filed: 08/06C/1Z3l)P1a.0g7e01d9::o;-f 107 PageID #:310 .

OFFICE OF THE ILLINOIS STATE FIRE MARSHAL Division of Petroleum and Chemical Safety

Facility # d

~ .

Date LR-/g,.OO

1035 Stevenson Drive
L!'>' (S2p1r7in)7g8fi5e-l1d0, 2I0lolri(no~is~l.~~n.t\3_1-~1"I"f\ 1.

Current Decal # NOAIL
Expiration Date A/(!)/tJ'l

NOTICE OF VIOLATJ,Qtl 0 5 2001

Decal # Removed /IIoAle
e Issued by &leu'"

DIV. OF PETH.OLEUlVl

OWNER OF TANKS
tlJ$Tcet-/ruf,Y Rel+I- €.s71tre

~IDLSAFETY
t/AcAJtJr- artS S714DOAI

N5am'e112 JJ, CU!~~/_ 5T;

Name
lSO/-/gos: CHfAACliSr

n , - Street Address
6uIWS1ON

Zip

re City

State

l/Ac.!ttvT $;

Zip

County

Contact Person

Phone

Contact Person

Phone

Violations of 41 Ill. Adm. Code 170, of the Office of the State Fire Marshal on these·premises are hereby called to your
attention. These violations found, andlor corrections to be made, are marked with an (X), or stated in Remarks below. You have 30 days to correct said violations. Any repairs, modifications or alterations to the tank system must be performed by a contractor licensed by this office for such work. Please submit a letter in writing, with a copy of this Notice, to the office when said violations are corrected.

I. NOTIFICATION Owner Name Owner Address Facility Name Facility Address Tank Status Tank Contents Tank Not Registered
2. LEAK DI!;IJI.;LIIU~ - TANK Not Maintained Records Missing
3. LEAK DETECTION - PIPING Not Maintained
Records Missing 4. CA11IODIC PROTECflON
Not Present Not Maintained Records Missing 5. OverfiU Not Maintained Not Present 6. Spill Prevention Not Maintained Not Present

TankId#
1)( /-2..

7. TANKS SHALL BE REMOVED

Tankld#

Out-of-Service more than 1 year

X j":l

No Leak Detection Provided

K 1- 2.

8. RELEASE INVESTIGATON & CONFIRMATION STEPS - TANK

System Test to be Perfonned

Records Missing

9. RELEASE INVESTIGATON & CONFIRMATION STEPS - PIPING

System Test to be Perfonned

Records Missing

,.

10. SITE ASSESSMENT NEEDS TO BE PERFORMED

11. RELEASE NOT REPORTED·TO lEMA WITHIN 24 HOURS (217)782-7860

K 1-'<'

12. UST NOT VENTED PROPERLY

13. ELECTRICAL DOES NOT COMPLY WITH NATIONAL ELECTRICAL

CODE (NFPA) - SEE REMARKS

14. MISCELLANEOUS

~~'"'

Person Interviewed (Printed)
WHITE-AGENCY

Title (Printed)
CANARY-OWNER

BLUE - STSS

PINK - FACILITY

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 20 of 107 PageID #:311
EXHIBIT C

Case: 1:13-cv-02106 ODfofcicuemoefnthte#S: t2a4teFFiilreedM: 0a8rs/h0a6l/13 Page 21 of 107 PageID #:312

Division of Petroleum & Chemical Safety

Facility# :/-04023S

1035 Stevenson Drive Springfield, Illinois 62703-4259

Inspection # E"QQ04.702S
NOV Date 12-19'-00
Today's Date L{-t, - 01

NOV-PROGRESS REPORT

OWNER LOCATION
Name: ~ 1.s~).}TU~ y tReAt. !;S1l/-JCl
Address: SLlI;2.. tJL C/..4,et sT
City: c.tf, C£t7'0
State: :J;t. .
Zip: faO(;.lfl)

FACILITY LOCATION
Name: IIlie/huT 6lfs STATlou Address: / l?O/· 18'05 cdiutecH sT:
City: £UllttJS70tJ
County: Cc:oK

Compliance

NonCompliance

Rescind

Closed

Compliance

NonCompliance

Rescind

Closed

1. _ __ 2. _ __ 3. _ __ 4. _ __ 5._ __

6. _ __ 7. _ __ 8. _ __ 9. _ __
10. - - -

Remarks: /VOTHJ1Y tll"~ !SeeN DONe To niLS sITe, TIle. mNks /tR.e te/th"(,£

fiND NO cAfJ.s Me ON nk VBpT.s oe I-~L,.LS P~ol:>ucT uAJ~g, T7k_y

1

(

TilJ-Ke QN IAJ/t/~ I T7/;s SITe. wf9-s 8o'{5/~T

f\FR 09100\

Refer to Legal:

Yes x::::.

Person Interviewed.: JItcA-;tJ (

No _ __

~&~
S.T.S.S.'sSignaorre:

NOV progress. doc

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 22 of 107 PageID #:313
EXHIBIT D

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 23 of 107 PageID #:314
Environmental Consulting Group, Inc.
REPORT
Phase II Environmental Site Assessment Vacant Commercial Property 1801-1805 Church Street Evanston, Illinois 60201
Prepared for: The City of Evanston 2100 Ridge Avenue, Suite 3600 Evanston, Illinois 60201
Prepared by: Environmental Consulting Group, Inc.
411 S. Wells Street, Suite 700 Chicago, Illinois 60607 (312) 663-3900 www.ecgmidwest.com
ECG Project Number: E121696-101 Date: March 6, 2012
411 S. Wells St., Suite 700 / Chicago, Illinois 60607 / 312.663.3900 / fax 312.663.3930 / www.ecgmidwest.com

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 24 of 107 PageID #:315
Environmental Consulting Group, Inc.
March 6, 2012 Mr. Paul Zalmezak City of Evanston 2100 Ridge Avenue, Suite 3600 Evanston, Illinois 60201 Re: Phase II Environmental Site Assessment
Vacant Commercial Property 1801-1805 Church Street Evanston, Illinois
Dear Mr. Zalmezak: Environmental Consulting Group, Inc. (ECG) has completed a Phase II Environmental Site Assessment (ESA) for the vacant commercial property located at 1801-1805 Church Street, in Evanston, Illinois. The purpose of the Phase II ESA was to investigate the subsurface soils for potential impact associated with a former gasoline station and a former automobile maintenance facility at the subject property. This report provides a summary of the fieldwork and the analytical results, as well as a discussion of the findings of our investigation. If you have any questions or need additional information, please contact our office. Sincerely, ENVIRONMENTAL CONSULTING GROUP, INC.
Robert Johnson, CHMM Senior Project Manager
411 S. Wells St., Suite 700 / Chicago, Illinois 60607 / 312.663.3900 / fax 312.663.3930 / www.ecgmidwest.com

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 25 of 107 PageID #:316

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

EXECUTIVE SUMMARY
Environmental Consulting Group, Inc. (ECG) has completed a Phase II Environmental Site Assessment (ESA) for the vacant commercial property located at 1801-1805 Church Street (subject property), in Evanston, Illinois. The subject property has been vacant since the late 1990s.
The Phase II ESA was performed in order to investigate the subsurface soils for potential impact associated with Recognized Environmental Conditions (RECs) that were noted during a Phase I ESA completed by ECG on February 10, 2012. (See Section 1.0 of this report for additional information on the RECs that were identified.)
Field Activities On February 20, 2012, ECG oversaw the advancement of 10 environmental soil borings at the subject property. The soil borings were advanced to depths of approximately 12 to 16 feet below grade level (bgl).
Field Observations During ECG’s subsurface investigation, 7 of the 10 soil borings (EB1-EB5, E7, and EB8) exhibited signs (i.e. staining, odors, elevated photo ionization detector (PID) readings, or sheen) of petroleum impact.
During the subsurface investigation, an obstruction was noted at approximately 3′ bgl in soil boring EB6. According to historical records, this is the area were a possible underground storage tank (UST) was located.
Analytical Testing Six soil samples were submitted to a laboratory for benzene, toluene, ethylbenzene, and xylene (BTEX), polynuclear aromatic compounds (PNAs), Total Lead, and pH analysis. These are the indicator contaminants for petroleum products.

Y:\Proj\12\Env\PhIIESA 1801-05 Church Street\PhIIRpt.doc

ES - 1

E111669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 26 of 107 PageID #:317

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

Comparison of Soil Sample Concentrations to Tier 1 SROs ECG compared the soil samples contaminant concentrations to “Soil Remediation Objectives” (SROs). SROs, which are established by the Illinois EPA, are considered protective of human health and the environment. Since the property will be used for industrial/commercial purposes, ECG compared the concentrations to the Illinois EPA’s Tier 1 SROs for Industrial/Commercial Properties; 35 Illinois Administrative Code (IAC) 742, Appendix B, Table B.
The comparison showed that 5 of the 6 soil samples have contaminant concentrations above the applicable Illinois EPA Tier 1 SROs for industrial/commercial properties.
Conclusion The purpose of the Phase II ESA was to investigate the subsurface soils for potential impact associated with RECs noted in ECG’s Phase I ESA.
During ECG’s subsurface investigation, 7 of the 10 soil borings (EB1-EB5, E7, and EB8) exhibited signs (i.e. staining, odors, elevated photo ionization detector (PID) readings, or sheen) of petroleum impact.
The soil analytical testing results did indicate subsurface soil contamination above the applicable Illinois EPA’s Tier 1 SROs at the subject property.
During the subsurface investigation, an obstruction was noted at approximately 3’ bgl in soil boring EB6. According to historical records, this is the area were a possible UST was located.

Y:\Proj\12\Env\PhIIESA 1801-05 Church Street\PhIIRpt.doc

ES - 2

E111669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 27 of 107 PageID #:318

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

TABLE OF CONTENTS

1.0 BACKGROUND ..................................................................................................................... 1
2.0 FIELD ACTIVITIES .............................................................................................................. 2
2.1 SOIL PROBE ADVANCEMENT ................................................................................................ 2 2.1.1 Site and Regional Geology ....................................................................................... 3 2.1.2 Site and Regional Hydrogeology .............................................................................. 3
2.2 FIELD SCREENING ................................................................................................................ 3 2.3 SAMPLE COLLECTION AND LABORATORY ANALYSIS ........................................................... 4
3.0 ANALYTICAL TESTING – SOIL CONCENTRATIONS ................................................ 5
3.1 BTEX .................................................................................................................................. 6 3.2 PNAS ................................................................................................................................... 6 3.3 TOTAL LEAD ........................................................................................................................ 6
4.0 COMPARISON OF SOIL SAMPLE CONCENTRATIONS TO TIER 1 SROS ............. 6
5.0 CONCLUSIONS ..................................................................................................................... 7
6.0 RECOMMENDATIONS........................................................................................................ 7
7.0 QUALIFICATIONS ............................................................................................................... 8

Appendices Appendix A – Figures Appendix B – Photographs Appendix C – Boring Logs Appendix D – Analytical Testing - Laboratory Data Summary Sheets Appendix E – Analytical Tables Appendix F – Qualifications

Y:\Proj\12\Env\PhIIESA 1801-05 Church Street\PhIIRpt.doc

E112669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 28 of 107 PageID #:319

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

1.0 BACKGROUND Environmental Consulting Group, Inc. (ECG) has completed a Phase II Environmental Site Assessment (ESA) for the vacant commercial property located at 1801-1805 Church Street (subject property), in Evanston, Illinois. The subject property has been vacant since the late 1990s.
The rectangular-shaped property is approximately 0.26 acres (11,172 ft2) in land area. The former building foundation occupies approximately 85% of the subject property, with the remaining acreage made up of a landscaped area.
Based on ECG’s research, from the early 1920s to the mid-1940s, the subject property was occupied by two commercial buildings. From the mid-1940s until the late 1990s, a gasoline station and auto repair facility occupied the subject property.
The image below shows the current layout of the subject property.
The following is the current layout of the subject property.
Commercial Property – 1801-1805 Church Street, Evanston, Illinois

Approximate Site Boundary

Y:\Proj\12\Env\PhIIESA 1801-05 Church Street\PhIIRpt.doc

1

E121669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 29 of 107 PageID #:320

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

Figures 1 and 2, located in the Appendix A, illustrate the site location and site layout.
On February 10, 2012, ECG conducted a Phase I ESA for the subject property. The Phase I ESA noted the following recognized environmental condition (REC) associated with the subject property:
 Potential subsurface contamination associated with the historical use of the subject property as a gasoline station and an automobile service station.
In order to check for any potential subsurface contamination associated with the abovementioned RECs, the City of Evanston requested that ECG complete this Phase II ESA.

2.0 FIELD ACTIVITIES
2.1 Soil Probe Advancement On February 20, 2012, ECG oversaw the advancement of 10 environmental soil borings at the subject property. The soil borings were advanced to depths of approximately 12 to 16 feet below grade level (bgl).
Photographs documenting the Phase II ESA activities are provided in Appendix B.
The purpose of this Phase II ESA was to investigate the subsurface soils for potential impact associated with the RECs noted in ECG’s Phase I ESA. Groundwater sampling was not part of this Phase II ESA scope-of-work. Figure 3, located in Appendix A, shows the soil boring locations.
Cabeno Environmental Services of Joliet, Illinois utilized a direct-push sampler system to collect soil samples. Soil was collected by pushing a barrel sampler to the desired sampling depth with the sampler unit. Typically, this method recovers a 4-foot section of undisturbed soil within an acetate liner. The soil samples were collected within 2-foot intervals from each 4-foot section. Discrete samples were collected from grade level and extended to a maximum depth of 16 feet bgl. The soil boring logs are contained in Appendix C.

Y:\Proj\12\Env\PhIIESA 1801-05 Church Street\PhIIRpt.doc

2

E121669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 30 of 107 PageID #:321

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

2.1.1 Site and Regional Geology Based on ECG’s observations, the site appears to be relatively flat. A review of the 1995 Evanston, Illinois Quadrangle, (Township 41N, Range 13E, Section 13) 7.5-minute topographic map published by the United States Geologic Survey (USGS) indicates that the property is approximately 600 feet above mean sea level.
The property was identified on an Illinois Geological Survey map (Berg, et. al.) that rates the underlying geology as “E.” The E rating indicates that the geology is “uniform, relatively impermeable silty or clayey till at least 50 feet thick; no evidence of interbedded sand and gravel.”
ECG’s field observations showed that the subsurface materials consist of concrete and grass cover with gravel backfill material from grade level to approximately 1-foot below grade level (bgl). ECG observed brown and gray silty clay from approximately 1 feet bgl to approximately 10 feet bgl. ECG observed gray silty clay from approximately 10 feet bgl to approximately 16 feet bgl (the deepest boring termination depth).
2.1.2 Site and Regional Hydrogeology Surface water runoff from the site is largely controlled by underground sewer mains located beneath Church Street.
ECG noted moist to wet soils in several of the soil borings; however, ECG did not note a saturated seam in any of the soil borings.
The nearest major surface body of water is Lake Michigan, which is located approximately 1.5 miles east of the subject property.
No suspect wetlands (surface water, cattails, etc.) were identified on the subject property during this inspection.
2.2 Field Screening Field screening consisted of measuring each sample with a MiniRae 2000 Micro Tip® photo ionization detector (PID) with a 10.6 eV lamp. The PID quantifies soil-gas hydrocarbon concentrations, which can indicate the presence of benzene, toluene, ethylbenzene, and xylene

Y:\Proj\12\Env\PhIIESA 1801-05 Church Street\PhIIRpt.doc

3

E121669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 31 of 107 PageID #:322

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

(BTEX). Upon opening the soil-sampling sleeve, the soil core was slit open, and PID readings measured the concentration of airborne gases present in the headspace of the sleeve. PID readings ranged from 0.0 to 1,291 parts per million (ppm).
During ECG’s subsurface investigation, 7 of the 10 soil borings (EB1-EB5, E7, and EB8) exhibited signs (i.e. staining, odors, elevated photo ionization detector (PID) readings, or sheen) of petroleum impact.
During the subsurface investigation, an obstruction was noted at approximately 3’ bgl in soil boring EB6. According to historical records, this is the area were a possible underground storage tank (UST) was located.
Please see the soil boring logs located in Appendix C for further details regarding the PID readings.
2.3 Sample Collection and Laboratory Analysis In order to ensure that no cross-contamination between samples occurred, all non-dedicated sampling equipment was decontaminated after collection of each sample. Sampling equipment was scrubbed with a brush to remove loose material and then washed thoroughly with a laboratory-grade detergent and distilled water to remove all particulate matter and surface film. After washing, each piece and brush was rinsed with distilled water. Dedicated sampling equipment, such as plastic sampling syringes and latex gloves, was properly disposed of after the handling of each sample was completed.
The soil samples were handled in a manner that minimized potential loss of sample due to volatilization. Soil samples collected for BTEX analysis were immediately sampled by USEPA SW846-Method 5035 methodology. Specifically, three 5-gram soil samples designated for laboratory analysis were measured with a laboratory-supplied syringe inserted into three 40milligram glass vials, one preserved with 10 milliliters of methanol and two preserved with 10milliliters of sodium bisulfate, and then sealed with a Teflon-lined laboratory lid. A 4-ounce glass jar was also filled with soil for analysis of polynuclear aromatic compounds (PNAs), Total Lead, and pH.

Y:\Proj\12\Env\PhIIESA 1801-05 Church Street\PhIIRpt.doc

4

E121669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 32 of 107 PageID #:323

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

The samples were placed into an ice-filled cooler, maintained at a temperature near 4 Centigrade, and sent to First Environmental Laboratories (First) located in Naperville, Illinois. ECG and First maintain a strict chain of custody (COC) program. The COC program tracks the possession and handling of each sample from the time of collection to analysis by the laboratory. The COC consists of sample identification, analysis, recording format, and signatures.
According to the Illinois Administrative Code (IAC), Title 35, Subtitle A, Chapter II, Part 186, Accreditation of Environmental Laboratories, the State of Illinois formally recognizes that First is technically competent to perform the environmental analyses. First’s IL ELAP/NELAC accreditation number is 100292.
The soil samples were submitted to the laboratory for several analyses. The analyses were conducted in full accordance with “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods” (SW-846) and “Analytical Quality Assurance Plan for the Illinois Environmental Protection Agency Bureau of Land Site Remediation Program, Revision 2, April 1, 1996.”

3.0 ANALYTICAL TESTING – SOIL CONCENTRATIONS During ECG’s investigation, six soil samples were selected for laboratory analysis based on either: obvious visual/olfactory signs of contamination, PID readings, percent recovered, and/or sample depth. Based on indicator contaminants associated with gasoline/diesel fuel, the samples were analyzed for:
 BTEX – (EPA Method 5035/8260)  PNA – (EPA Method 8270)  Total Lead – (EPA Method 6010B)
The following sections discuss the number of soil samples analyzed for each contaminant and whether the results showed detectable concentrations. Section 4.0 of this report provides more information including a comparison of the site data to the SROs. Section 5.0 of this report includes a discussion concerning the approximate extent of soil contamination, if any.
Table 1, below, summarizes the soil samples chosen, the PID readings, and the type of analysis conducted during the investigation.

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5

E121669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 33 of 107 PageID #:324

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

Table 1. Soil Sample and Analytical Selection

Boring #

Sample Depth (ft)

PID Reading (ppm)

EB1

4-6

EB3

4-6

EB4

4-6

EB5

2-4

EB5

6-8

EB7

10-12

237 203 1,291 337 219 73.4

Analysis
BTEX, PNAs, Lead, pH BTEX, Naphthalene
BTEX, PNAs, Lead, pH BTEX, PNAs
BTEX, Naphthalene BTEX, PNAs

3.1 BTEX Six soil samples were analyzed for BTEX constituents. The analytical results showed that all six of the soil samples submitted for BTEX analysis contained detectable concentrations of BTEX constituents.

3.2 PNAs Four soil samples were analyzed for PNA constituents. The analytical results showed that all four of the soil samples submitted for PNA analysis contained detectable concentrations of PNA constituents.

3.3 Total Lead Two soil samples were analyzed for Total Lead. The analytical results showed that both of the soil samples submitted for Total Lead analysis contained detectable concentrations of Total Lead.

4.0 COMPARISON OF SOIL SAMPLE CONCENTRATIONS TO TIER 1 SROs ECG compared the soil samples contaminant concentrations to the SROs established by the Illinois EPA. The criteria used by the Illinois EPA are found in the TACO Document dated February 2007. Since the subject property will continue to be used for industrial/commercial purposes, ECG compared the concentrations to the following Illinois EPA regulations:
 Illinois EPA’s Tier 1 SROs for Industrial/Commercial Properties; 35 IAC 742, Appendix B, Table B
 Illinois EPA’s Tier 1 SROs for Industrial/Commercial Properties; Non-TACO Chemicals

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6

E121669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 34 of 107 PageID #:325

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

 Illinois EPA’s Tier I SROs for Concentrations of PNAs in Background Soils; 35 IAC 742, Appendix A, Table H.
The analytical data sheets are provided in Appendix D. Tables summarizing the comparison are contained in Appendix E.
The comparison showed that 5 of the 6 soil samples contained contaminant concentrations above the applicable Illinois EPA’s Tier 1 SROs.
Figure 4, located in Appendix A, shows the soil boring locations that have contaminant concentrations that are above the Illinois EPA’s Tier 1 SROs and/or have petroleum odors.

5.0 CONCLUSIONS The purpose of the Phase II ESA was to investigate the subsurface soils for potential impact associated with RECs noted in ECG’s Phase I ESA.
During ECG’s subsurface investigation, 7 of the 10 soil borings (EB1-EB5, E7, and EB8) exhibited signs (i.e. staining, odors, elevated photo ionization detector (PID) readings, or sheen) of petroleum impact.
The soil analytical testing results did indicate subsurface soil contamination above the applicable Illinois EPA’s Tier 1 SROs at the subject property.
During the subsurface investigation, an obstruction was noted at approximately 3’ bgl in soil boring EB6. According to historical records, this is the area were a possible underground storage tank (UST) was located.

6.0 RECOMMENDATIONS Concerning the possibility that tanks remain at the subject property. ECG recommends that the site be investigated with an excavator to determine if tanks do exist on the subject property. If tanks are found during this investigation, the tanks need to be removed by an Illinois licensed tank removal contractor.

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7

E121669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 35 of 107 PageID #:326

Phase II Environmental Site Assessment Vacant Commercial Property – 1801-1805 Church Street, Evanston, Illinois
Environmental Consulting Group, Inc.

(312) 663-3900

7.0 QUALIFICATIONS ECG believes this study was developed in general accordance with the technical standards of practice for environmental assessments at the time the study was conducted. It should be noted, however, that no investigation could eliminate the possibility of hazardous waste and/or environmental contamination at a particular site. However, the standard of care exercised for this study was in accordance with generally accepted practices, and a reasonable effort was made to ensure that the information presented in this report is materially complete and accurate.
The conclusions presented in this report are professional opinions based solely upon visual observations of the site, analytical data, and other research as described in this report. They are intended for the sole use of our client. The scope of services performed in execution of this investigation may not be appropriate to satisfy the need of other users, and any use or reuse of this document of the findings, conclusions, or recommendations presented herein is at the sole risk of said user. Therefore, we cannot be responsible for independent conclusions, opinions or recommendations of others based on our study. If additional information from the site is generated, it should be provided to us so that we may evaluate its impact on our conclusions.

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8

E121669-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 36 of 107 PageID #:327
Appendix A Figures

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 37 of 107 PageID #:328
SITE
FIGURE 1 – SITE LOCATION
ECG Project No.: E121696-101 Location: 1801-1805 Church Street
Evanston, Illinois Source: Target Quadrangle: Evanston

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 38 of 107 PageID #:329

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 39 of 107 PageID #:330

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 40 of 107 PageID #:331

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 41 of 107 PageID #:332
Appendix B Photographs

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 42 of 107 PageID #:333

Photograph 1 – Soil Boring location EB1 .

Photograph 2 – Soil Boring location EB2.

1801-1805 Church Street Evanston, Illinois ECG Project No. E121696-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 43 of 107 PageID #:334 Photograph 3 – Soil Boring location EB3.

Photograph 4 – Soil Boring location EB4.

1801-1805 Church Street Evanston, Illinois ECG Project No. E121696-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 44 of 107 PageID #:335 Photograph 5 – Soil Boring location EB5.

Photograph 6 – Soil Boring location EB7.

1801-1805 Church Street Evanston, Illinois ECG Project No. E121696-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 45 of 107 PageID #:336 Photograph 7 – Soil Boring location EB8.

Photograph 8 – Soil Boring location EB9.

1801-1805 Church Street Evanston, Illinois ECG Project No. E121696-101

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 46 of 107 PageID #:337
Appendix C Boring Logs

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 47 of 107 PageID #:338

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

10:25

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB1

FILE: E121696-101

PAGE 1 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

Grass into black loam Brown and gray clay 2.5

M.C. M.C.

80

N

90

N

2.4

2.5

173

Odor

5.0

M.C.

X (4-6')

100

N

237

Odor

5.0

7.5

M.C.

100

N

212

Odor

7.5

10.0 12.5 Brown and gray clay, grading into gray clay.

M.C. M.C. M.C.

100

N

100

N

100

M

129 Slight odor 10.0
94.9 Slight odor
12.5 61.3 Slight odor

15.0
End of Boring @ 16' 17.5

M.C.

100

M

30.3 Slight odor

15.0

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 48 of 107 PageID #:339

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

10:40

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB2

FILE: E121696-101

PAGE 2 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

Grass into black loam Brown and gray clay 2.5

M.C.

80

N

0.0

2.5

M.C.

90

N

0.0

5.0

M.C.

90

N

10.8

5.0

7.5 10.0 12.5 End of Boring @ 12'

M.C. M.C. M.C.

100

N

100

N

100

M

9.3

7.5

6.2 Slight odor 10.0
5.8 Slight odor 12.5

15.0

15.0

17.5

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 49 of 107 PageID #:340

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

10:55

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB3

FILE: E121696-101

PAGE 3 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

Grass into black loam Brown and gray clay 2.5

M.C.

80

N

1.6

2.5

M.C.

80

N

9.1

5.0

M.C.

X (4-6')

90

N

203

Odor

5.0

7.5 Brown and gray clay, grading into moist, gray clay.
10.0
12.5

M.C. M.C. M.C. M.C.

100

N

100

M

100

M

100

N

32.1 Slight odor

7.5

28.5 Slight odor 10.0
18.1 Slight odor
12.5 17.9 Slight odor

15.0
End of Boring @ 16' 17.5

M.C.

100

N

17.3 Slight odor

15.0

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 50 of 107 PageID #:341

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

11:05

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB4

FILE: E121696-101

PAGE 4 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

Grass into black loam Brown and gray clay 2.5

M.C.

80

N

1.3

2.5

M.C.

90

N

106

5.0

M.C.

X (4-6')

100

N

1291

Odor

5.0

7.5

M.C.

100

N

341

Odor

7.5

10.0 Brown and gray clay, grading into gray clay.
12.5

M.C. M.C. M.C.

100

N

100

N

100

N

61.3

Odor

10.0

24.6 Slight odor

12.5 3.7

15.0
End of Boring @ 16' 17.5

M.C.

100

M

1.6

15.0

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 51 of 107 PageID #:342

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

11:15

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB5

FILE: E121696-101

PAGE 5 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

Grass into black loam Brown and gray clay 2.5
5.0

M.C.

80

N

M.C.

X (2-4')

80

N

M.C.

90

N

1.6

Odor

2.5

337

Odor

168

Odor

5.0

7.5

M.C.

X (6-8')

100

N

219

Odor

7.5

10.0 12.5 End of Boring @ 12'

M.C. M.C.

100

N

100

N

55.2

Odor

10.0

29.6 Slight odor

12.5

15.0

15.0

17.5

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 52 of 107 PageID #:343

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

11:25

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB6

FILE: E121696-101

PAGE 6 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

Concrete, grading into concrete and gravel.

Obstruction at 3' below grade level.

M.C.

80

N

1.1

2.5

2.5

M.C.

90

N

24.8

End of Boring @ 3'

5.0

5.0

7.5

7.5

10.0

10.0

12.5

12.5

15.0

15.0

17.5

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 53 of 107 PageID #:344

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

11:35

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB7

FILE: E121696-101

PAGE 7 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

Concrete, grading into gravel, grading into

brown and gray clay. Brown and gray clay

M.C.

80

N

0.0

2.5

2.5

M.C.

90

N

0.0

5.0

M.C.

100

N

0.9

5.0

7.5 10.0 12.5 End of Boring @ 12'

M.C.

100

N

M.C.

100

N

M.C.

X (10-12')

100

N

1.3

7.5

21.7 Slight odor 10.0
73.4 Slight odor 12.5

15.0

15.0

17.5

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 54 of 107 PageID #:345

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

11:45

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB8

FILE: E121696-101

PAGE 8 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

Concrete, grading into gravel, grading into brown and gray clay. Brown and gray clay 2.5
Brown and gray clay, grading into moist, gray 5.0 silt.
Gray silt, grading into gray clay 7.5

M.C.

80

N

M.C.

90

N

M.C.

X (4-6')

100

M

M.C.

100

N

0.2
2.5 1.2

7.7 Slight odor

5.0

4.3 Slight odor

7.5

M.C.

100

N

1.7 Slight odor

10.0

10.0

M.C.

100

M

0.5 Slight odor

12.5

12.5

M.C.

100

M

0.0

15.0
End of Boring @ 16' 17.5

M.C.

100

N

0.0

15.0

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 55 of 107 PageID #:346

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

11:55

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB9

FILE: E121696-101

PAGE 9 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

Concrete Brown and gray clay 2.5

M.C.

90

N

0.0

2.5

M.C.

100

N

0.0

Brown and gray clay, grading into moist, gray

5.0 silt.

M.C.

100

N

0.1

5.0

Gray silt, grading into gray clay 7.5

M.C.

100

N

0.0

7.5

10.0 12.5 End of Boring @ 12'

M.C.

100

M

0.0

10.0

M.C.

100

M

0.0

12.5

15.0

15.0

17.5

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 56 of 107 PageID #:347

Environmental Consulting Group, Inc.

411 S. Wells Street, Suite 700 Chicago, Illinois 60607

(312) 663-3900

WATER LEVEL DATA

DATE:

2/20/2012

N.A. FT. WHILE DRILLING TIME:

11:55

N.A. FT. AT COMPLETION DRILLER:

N.A. FT. AT 0 HR. A.D.

LOGGED BY:

GROUND ELEVATION (EST.) = 600 FT.

Cabeno Environmental RAJ

LOG OF SOIL PROBE NO.

EB10

FILE: E121696-101

PAGE 10 OF 10

PROJECT:

Phase II Environmental Site Assessment

1801-1805 Church Street

Evanston, Illinois

SAMPLE DATA

COMMENTS

STRATA ELEVATION/DEPTH SOIL DESCRIPTION GRAPHIC LOG

DEPTH (FT.) LITHOLOGY
TYPE SAMPLE TYPE SAMPLE DEPTH RECOVERY (%)
MOISTURE PENTROMETER
(tons/sq. ft.) PID READING
(ppm units) DEPTH (FT.)

Concrete Brown and gray clay 2.5

M.C.

90

N

0.0

2.5

M.C.

100

N

0.0

Brown and gray clay, grading into moist, gray

5.0 silt.

M.C.

100

N

0.0

5.0

Gray silt, grading into gray clay 7.5

M.C.

100

N

0.0

7.5

10.0 12.5 End of Boring @ 12'

M.C.

100

M

0.0

10.0

M.C.

100

M

0.0

12.5

15.0

15.0

17.5

17.5

20.0

20.0

22.5
OBSERVATIONS

SAMPLE TYPE

COHESIVE COILS

W.D. - WHILE DRILLING A.D. - AFTER DRILLING N.O. - NONE OBSERVED N.A. - NOT AVAILABLE

L.B. - 24'' LARGE BORE SAMPLER M.C. - 48'' MACRO CORE SAMPLER
S.T. - SPLIT SPOON SAMPLE D.T. - DUEL TUBE SAMPLER

PEN READ 0.00-0.25 0.26-0.49 0.51-0.99 1.00-1.99 2.0-3.99
4.00+

CONSISTENCY VERY SOFT SOFT
MEDIUM STIFF STIFF
VERY STIFF HARD

Note: Stratification lines are approximate; in-situ transition between soil types may be gradual

ESTIMATED PROPORTIONS OF
MATERIAL
TRACE = 1 TO 10% LITTLE = 10 TO 20% SOME = 20 TO 35% SAND = 35 TO 50%

22.5
SAMPLE MOISTURE
D = DAMP M = MOIST W = WET S = SLIGHTLY N = NONE

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 57 of 107 PageID #:348
Appendix D Analytical Testing Laboratory Data Summary Sheets

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Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 67 of 107 PageID #:358

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 68 of 107 PageID #:359
Appendix E Analytical Tables

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 69 of 107 PageID #:360

Project Location: Project Number:

1801-1805 Church Street, Evanston, Illinois E121696-101

Table 1. BTEX/PNAs
Chemical Name

Exposure Route-Specific SROs*

Industrial/Commercial

Ingestion

Inhalation

Construction Worker

Ingestion

Inhalation

Soil Component of GW Ingestion Route*

Class I

Class II

BTEX

Benzene

100

1.6

2,300

2.2

0.03

Toluene

410,000

650

410,000

42

12

Ethyl benzene

200,000

400

20,000

58

13

Xylene

410,000

320

41,000

5.6

150

PNAs

Acenaphthene

b

120,000

NRO

120,000

NRO

570

Acenaphthylene

61,000

NRO

61,000

NRO

85

Anthracene

610,000

NRO

610,000

NRO

12,000

Benzo(a)anthracene

a

8

NRO

170

NRO

2

Benzo(a)pyrene

a

0.8

NRO

17

NRO

8

Benzo(b)fluoranthene

a

8

NRO

170

NRO

5

Benzo(k)fluoranthene

a

78

NRO

1,700

NRO

49

Benzo(g,h,i)perylene

61,000

NRO

61,000

NRO

27,000

Chrysene

a

780

NRO

17,000

NRO

160

Dibenzo(a,h)anthracene

a

0.8

NRO

17

NRO

2

Fluoranthene

b

82,000

NRO

82,000

NRO

4,300

Fluorene

b

82,000

NRO

82,000

NRO

560

Indeno(1,2,3-cd)pyrene

a

8

NRO

170

NRO

14

Naphthalene

b

41,000

170

4,100

1.8

12

Phenanthrene

61,000

NRO

61,000

NRO

200

Pyrene

b

61,000

NRO

61,000

NRO

4,200

* Illinois EPA Tier 1 Soil Remediation Objectives (SROs) for Residential Properties; 35 IAC 742, Appendix B, Table A

^ Soil Saturation Limits for Chemicals Whose Melting Point is Less Than 30°C; 35 IAC 742, Appendix A, Table A

** Concentrations of PNAs in Background Soils; 35 IAC 742, Appendix A, Table H - Metro Area

All results in parts per million (mg/Kg) unless noted otherwise

NBL = No Background Level

a = Carcinogenic b = Noncarcinogenic

NA = Not Analyzed

NRO = No Remediation Objective

NSSL = No Soil Saturation Limit

Results in Bold/Shaded indicate concentrations exceeding most stringent Tier 1 SROs

0.17 29 19 150
2,900 120 59,000
8 82 25 250 130,000 800 7.6 21,000 2,800 69 18 1,000 21,000

Soil Saturation Limits^
870 650 400 320
NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL

Background Levels**
Date Sampled
NBL NBL NBL NBL
0.13 0.07 0.4 1.8 2.1 2.1 1.7 1.7 2.7 0.42 4.1 0.18 1.6 0.2 2.5 3.0

EB1 4-6'
2/20/2012
45.9 <0.50 2.62 2.51
<0.050 <0.050 <0.050 0.0101 <0.015 <0.011 <0.011 <0.050 <0.050 <0.020 <0.050 <0.50 <0.029
2.61 <0.050 <0.050

Sample Numbers
EB3 4-6'
2/20/2012
1.08 <0.50 <0.50 <0.50
NA NA NA NA NA NA NA NA NA NA NA NA NA <0.005 NA NA

EB4 4-6'
2/20/2012
42.9 0.625 69.3 235
<0.050 <0.050 <0.050 <0.0087 <0.015 <0.011 <0.011 <0.050 <0.050 <0.020 <0.050 0.106 <0.029
6.31 0.085 <0.050

Y:\Projects\2012\Environmental\Phase II ESA\1801-05 Church Street\Tables\Soil Tables (101).xlsx

Page 1 of 3

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 70 of 107 PageID #:361

Project Location: Project Number:

1801-1805 Church Street, Evanston, Illinois E121696-101

Table 1. BTEX/PNAs
Chemical Name

Exposure Route-Specific SROs*

Industrial/Commercial

Ingestion

Inhalation

Construction Worker

Ingestion

Inhalation

Soil Component of GW Ingestion Route*

Class I

Class II

BTEX

Benzene

100

1.6

2,300

2.2

0.03

Toluene

410,000

650

410,000

42

12

Ethyl benzene

200,000

400

20,000

58

13

Xylene

410,000

320

41,000

5.6

150

PNAs

Acenaphthene

b

120,000

NRO

120,000

NRO

570

Acenaphthylene

61,000

NRO

61,000

NRO

85

Anthracene

610,000

NRO

610,000

NRO

12,000

Benzo(a)anthracene

a

8

NRO

170

NRO

2

Benzo(a)pyrene

a

0.8

NRO

17

NRO

8

Benzo(b)fluoranthene

a

8

NRO

170

NRO

5

Benzo(k)fluoranthene

a

78

NRO

1,700

NRO

49

Benzo(g,h,i)perylene

61,000

NRO

61,000

NRO

27,000

Chrysene

a

780

NRO

17,000

NRO

160

Dibenzo(a,h)anthracene

a

0.8

NRO

17

NRO

2

Fluoranthene

b

82,000

NRO

82,000

NRO

4,300

Fluorene

b

82,000

NRO

82,000

NRO

560

Indeno(1,2,3-cd)pyrene

a

8

NRO

170

NRO

14

Naphthalene

b

41,000

170

4,100

1.8

12

Phenanthrene

61,000

NRO

61,000

NRO

200

Pyrene

b

61,000

NRO

61,000

NRO

4,200

* Illinois EPA Tier 1 Soil Remediation Objectives (SROs) for Residential Properties; 35 IAC 742, Appendix B, Table A

^ Soil Saturation Limits for Chemicals Whose Melting Point is Less Than 30°C; 35 IAC 742, Appendix A, Table A

** Concentrations of PNAs in Background Soils; 35 IAC 742, Appendix A, Table H - Metro Area

All results in parts per million (mg/Kg) unless noted otherwise

NBL = No Background Level

a = Carcinogenic b = Noncarcinogenic

NA = Not Analyzed

NRO = No Remediation Objective

NSSL = No Soil Saturation Limit

Results in Bold/Shaded indicate concentrations exceeding most stringent Tier 1 SROs

0.17 29 19 150
2,900 120 59,000
8 82 25 250 130,000 800 7.6 21,000 2,800 69 18 1,000 21,000

Soil Saturation Limits^
870 650 400 320
NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL NSSL

Background Levels**
Date Sampled
NBL NBL NBL NBL
0.13 0.07 0.4 1.8 2.1 2.1 1.7 1.7 2.7 0.42 4.1 0.18 1.6 0.2 2.5 3.0

EB5 2-4'
2/20/2012
0.0904 <0.50 <0.50 <0.50
<0.050 <0.050 <0.050 0.0122 <0.015 <0.011 0.014 <0.050 <0.050 <0.020 <0.050 0.409 <0.029 <0.025 0.268 <0.050

Sample Numbers
EB5 6-8'
2/20/2012
6.11 <0.50 0.855 0.779
NA NA NA NA NA NA NA NA NA NA NA NA NA <0.50 NA NA

EB7 10-12'
2/20/2012
<0.025 <0.50 <0.50 <0.50
<0.050 <0.050 <0.050 <0.0087 <0.015 <0.011 <0.011 <0.050 <0.050 <0.020 <0.050 <0.050 <0.029 0.556 <0.050 <0.050

Y:\Projects\2012\Environmental\Phase II ESA\1801-05 Church Street\Tables\Soil Tables (101).xlsx

Page 2 of 3

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 71 of 107 PageID #:362

Project Location: 1801-1805 Church Street, Evanston, Illinois Project Number: E121696-101

Table 2. Total Lead

Exposure Route-Specific SROs*

pH Specific SROs for the Soil Component of GW Ingestion Route**

Chemical Name

Industrial/Commercial Ingestion Inhalation

Construction Workerº Ingestion Inhalation

pH 7.25 to 7.74

pH 7.75 to 8.24 pH 8.25 to 8.74

pH 8.75 to 9.0

Date Sampled

Total Lead

Lead

800

NRO

700

NRO

1,420

1,420

1,420

1,420

pH

pH

NRO

NRO

NRO

NRO

NRO

NRO

NRO

NRO

* Illinois EPA Tier 1 Soil Remediation Objectives (SROs) for residential properties; 35 IAC 742, Appendix B, Table A

º Illinois EPA Tier SROs for commercial/industrial properties; 35 IAC 742, Appendix B, Table B

** Illinois EPA Tier 1 Soil Remediation Objectives (SROs) for pH specifc compounds; 35 IAC 742, Appendix B, Table D

All results in parts per million (mg/Kg) unless noted otherwise

NRO = No Remediation Objective

NA = Not Analyzed

Sample ID Numbers

EB1 4-6' 2/20/2012

EB4 4-6' 2/20/2012

6.4

12.9

8.36

8.37

Y:\Projects\2012\Environmental\Phase II ESA\1801-05 Church Street\Tables\Soil Tables (101).xlsx

Page 3 of 3

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 72 of 107 PageID #:363
Appendix F Qualifications

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 73 of 107 PageID #:364

PROJECT MANAGER
Robert Johnson
Professional Experience
Practice Specialization
Mr. Johnson’s client responsibilities include performing Phase I Environmental Site Assessments, Phase II Environmental Site Assessments (subsurface soil/groundwater sampling), Tiered Approach to Corrective Action Objectives (TACO) site closures, Indoor Air Quality Assessments, Water Quality Assessments, Remediation Oversight, and Underground Storage Tank Removal Projects. He is knowledgeable in Computer-Aided Drafting and Design (CADD).
Mr. Johnson is knowledgeable with environmental and safety regulations and is skilled in project coordination. His project management responsibilities include technical editing.
Professional Career Experience
After graduating with a bachelor of science in zoology in 1989, Mr. Johnson spent time with the National Oceanographic and Atmospheric Association (NOAA) as a foreign fisheries observer, representing American fishery interests. Afterwards, Mr. Johnson enlisted in the United States Coast Guard (USCG) and became a marine science technician. His duties included enforcement of federal water pollution regulations, including FWRCA, OPA 90, CERCLA, RCRA and Refuse Act. Also, he oversaw marine cleanup operations as a federal on-scene coordinator’s representative.
After his enlistment was completed, Mr. Johnson spent 15 years with an environmental consulting firm in the Chicago area. Mr. Johnson designed, managed and participated in subsurface soil and groundwater investigations involving petroleum and RCRA pollutants. He conducts Phase I and Phase II site assessments and prepares reports for submission to the Illinois Environmental Protection Agency. Mr. Johnson has obtained many “No Further Remediation” letters for various clients.

Statement of Qualifications

Education  Bachelor of Science, Geology, Northeastern Illinois University,
Chicago, Illinois, 2010.  Bachelor of Science, Zoology, Southern Illinois University,
Carbondale, Illinois, 1989.

Professional Certification and Licenses  8-Hour HAZWOPER Refresher Course.  40-Hour HAZWOPER Course.  24-On-Scene Coordinator Course.  Certified Asbestos Inspector.  Certified Hazardous Materials Manager (CHMM).

Continued Education  Site Remediation Principles and Technologies, Environmental
Site Evaluations (Phase I) – Northeastern University, Burlington, Massachusetts, 1996.  Treatment and Technologies for Superfund, Environmental Protection Agency, Weymouth, MA, 1994.  Pepsico, Stormwater and SPCC Overview, Chicago, Illinois, 2008.  Amtrak, Contractor Employee Safety Course, Chicago, Illinois, 2008.

Professional Societies  Society of American Military Engineers (SAME)

Y:\resumes\2012\rjohnson

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 74 of 107 PageID #:365
EXHIBIT E

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 75 of 107 PageID #:366
Environmental Consulting Group, Inc. July 6,2012 Mr. Paul Zalmezak City of Evanston 2100 Ridge Avenue, Suite 3600 Evanston, Illinois 60201 Re: Site Investigation Activities
1801-05 Church Street Evanston, Illinois
Dear Mr. Zalmezak:
In response to your request, Environmental Consulting Group, Inc. (ECG) has prepared this brief summary of the site investigation activities completed at the former gasoline service station located at 1801-05 Church Street (subject property), in Evanston, Illinois.
1.0 Background On March 6,2012, ECG completed a limited Phase II ESA for the subject property. The results of the Phase II showed that 7 out of 10 soil borings exhibited signs of petroleum impact. The soil analytical testing results indicated subsurface soil contamination at the subject property above the applicable Illinois EPA Tier 1 Soil Remediation Objectives (SROs). Additionally, possible underground storage tanks (USTs) were encountered during the Phase II field work. The attached Figure 1 shows the soil boring locations.
On March 22, 2012, ECG conducted an investigation to check for USTs on the subject property. Working with an Illinois-licensed tank contractor, ECG completed several test excavations. The excavations revealed four USTs at the site, including two 2,000-gallon USTs and two 3,000-gallon USTs. The attached Figure 1 shows the tank locations.

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 76 of 107 PageID #:367
Mr. Paul Zalmezak July 6,2012 Page 2
The two 2,000-gallon tanks were filled with a mixture of water and gasoline. The two 3,000gallon tanks were filled with sand.
2.0 Off-Site Subsurface Investigation On July 3, 2012 ECG completed an off-site subsurface investigation in an effort to determine what impact, if any, contamination noted on the 1801-05 Church Street property has had on Church Street, Darrow Street, or adjacent properties to the east and south.
Field Activities ECG oversaw the advancement of nine environmental soil borings at the subject property. The soil borings were advanced to depths of approximately 16 feet below grade level (bgl). In addition, ECG installed two temporary monitoring wells in an effort to determine if the groundwater beneath Church Street and' Darrow Street has been impacted. One well was installed in the parkway area on the south side of Church Street and one well was installed in the ' sidewalk area on the east side of Darrow Street. The attached Figure 1 shows the off-site soil boring and monitoring well locations.
Field Observations During ECG's subsurface investigation, 5 of the 9 soil borings (EB13. EB14, EB15, EB16, and EB19) exhibited signs of petroleum impact (i.e. staining, odors, elevated photo ionization detector (PID) readings, or sheen). The majority of these boring locations were in Darrow Street, with one soil boring (EB 13) located on the comer of Church Street and Darrow Street.
Conclusions These field observations indicate to ECG that contamination from the 1801-05 Church Street property has migrated off-site in the east/southeast direction and is impacting Church Street, Darrow Street, and possibly the commercial property to the east.
According to the owner of the east adjacent property, soil borings were completed inside the building and contamination was noted. However, this contamination maybe associated with the historical use ofthe east adjoining property as a factory and laundry facility.
Ten soil samples and two groundwater samples were submitted to a laboratory for benzene, toluene, ethylbenzene, and xylene (BTEX) and polynuclear aromatic compounds (PNAs). ECG

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 77 of 107 PageID #:368
Mr. Paul Zalmezak July 6, 2012 Page 3
anticipates have the analytical testing results by the middle of July and will have a better idea of the extent of off-site contamination.
However, in ECG's opinion, an Illinois EPA No Further Remediation (NFR) letter can still be obtained for the subject property using the environmental remediation project outlined in ECG's Project Cost Estimate report dated April 5, 2012. The difference would be ECG recommends that an NFR letter is obtained through the Illinois EPA's Voluntary Site Remediation Program (SRP) and not the Leaking Underground Storage Tank (LUST) Program.
With sites that have possible off-site contamination, through ECG's experience, we have found it is easier to obtain an NFR letter through the SRP than the LUST program. The NFR letter is still the same and will signifies a release from further responsibilities in performing remedial action and is considered prima facie evidence that the site does not constitute a threat to human health or the environment.
3.0 Remediation Project Summary With either program, the first step in remediation will be to remove the four underground storage tanks at the subject property. Once the tanks are removed the following would be the steps to obtain an NFR letter through the Illinois EPA's SRP:
• Conduct an additional on-site/off-site soil and groundwater investigation in an effort to delineate contamination noted in previous investigation and to obtain the additional information required by the Illinois EPA.
• Complete the forms to enter the subject property into the Illinois EPA's Site Remediation Program (SRP).
• Complete the Focused Site Investigation Report and Remedial Objectives Report and submit the reports to the Illinois EPA for review. The Focused Site Investigation Report will summarize the site characterization conducted to-date. The Remedial Objectives Report will list the soil and groundwater remediation objectives that will be utilized at the subject property.
• Complete the Remedial Action Plan and Remedial Action Completion Report and submit the reports to the Illinois EPA for review. The Redial Action Plan will summarize our prosed remediation technique. The Remedial Action Completion Report will summarize the completed remediation.

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 78 of 107 PageID #:369
Mr. Paul Zalmezak July 6,2012 Page 4
It should also be noted that obtaining a NFR letter for this site would likely take at least 9 to 12 months. Depending on how much remediation work is done (if any); the NFR letter may contain conditions (e.g. use of institutional controls such as no onsite potable groundwater wells or engineered barriers) that must be maintained to ensure the protection of human health and the environment.
As previously indicated, since possible contamination has been noted beneath Darrow Street and Church Street, additional site investigation activities above those recommended in the Project Cost Estimate report would need to be completed. ECG had originally estimated that the remediation project would cost approximately $75,000. Now, ECG estimates that the remediation project would cost approximately $100,000 to $115,000. In addition, there is a fee to obtain an NFR letter through the SRP and typically the fees range from $7,000 to $10,000.
4.0 Qualifications ECG believes these estimates were developed in general accordance with the technical standards of practice for remediation projects at the time the study was conducted. It should be noted, however, that one cannot eliminate the possibility of additional hazardous waste and/or environmental contamination at a particular site. However, the standard of care exercised for this study was in accordance with generally accepted practices and a reasonable effort was made to ensure that the information presented in this report is materially complete and accurate.
The estimates presented in this report are professional opinions based solely upon visual observations of the site, analytical data, and assumptions regarding the extent of contamination and regulatory cleanup requirements. ECG, therefore, cannot be responsible for remediation costs beyond the above estimates.
If you have any questions or comments, please contact our office.
Sincerely, ENVIRONMENTAL CONSULTING GROUP, INC.
W~'_O~~
David S. O'Dea Sr. Project Manager
Attachments: Figure 1

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 79 of 107 PageID #:370

Legend:
• =Approximate Soil Boring Locations • =Approximate Temp Monitoring Well Locations
RED = Approximate Sample Locations that Exceed the Dlinois EPA's Soil Remediation Objectives and/or have a Petroleum Odor
Vacant Property
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Commercial and Residential Properties

Environmental Consulting Group, Inc. Soil Borine:/Monitoring Well

411 S. Wells Street, Suite 700

Location Mao

Chicago, lllinois 60607

Project Location: 1801~5 Church Street, Evanston

www.ecgmidwest.com

Project Number: E121696-183

Figure - 1
Completed on 7/5/12 Drawu by RAI

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 80 of 107 PageID #:371

Project Location: Project Number:

1801-1805 Church Street, Evanston, Illinois - Offsite Investigation E121696-387

Table 1. BTEX/PNAs

Chemical Name

Exposure Route-Specific SROs*

Industrial/Commercial Ingestion Inhalation

Construction Worker Ingestion Inhalation

Soil Component of GW Ingestion Route*

Class I

Class II

Soil Saturation Limits^

Background Levels**

Date Sampled

BTEX

Benzene

100

1.6

2,300

2.2

0.03

0.17

870

NBL

Toluene

410,000

650

410,000

42

12

29

650

NBL

Ethyl benzene

200,000

400

20,000

58

13

19

400

NBL

Xylene

410,000

320

41,000

5.6

150

150

320

NBL

PNAs

Acenaphthene

b 120,000

NRO

120,000

NRO

570

2,900

NSSL

0.13

Acenaphthylene

61,000

NRO

61,000

NRO

85

120

NSSL

0.07

Anthracene

610,000

NRO

610,000

NRO

12,000

59,000

NSSL

0.4

Benzo(a)anthracene

a

8

NRO

170

NRO

2

8

NSSL

1.8

Benzo(a)pyrene

a

0.8

NRO

17

NRO

8

82

NSSL

2.1

Benzo(b)fluoranthene

a

8

NRO

170

NRO

5

25

NSSL

2.1

Benzo(k)fluoranthene

a

78

NRO

1,700

NRO

49

250

NSSL

1.7

Benzo(g,h,i)perylene

61,000

NRO

61,000

NRO

27,000

130,000

NSSL

1.7

Chrysene

a

780

NRO

17,000

NRO

160

800

NSSL

2.7

Dibenzo(a,h)anthracene

a

0.8

NRO

17

NRO

2

7.6

NSSL

0.42

Fluoranthene

b 82,000

NRO

82,000

NRO

4,300

21,000

NSSL

4.1

Fluorene

b 82,000

NRO

82,000

NRO

560

2,800

NSSL

0.18

Indeno(1,2,3-cd)pyrene

a

8

NRO

170

NRO

14

69

NSSL

1.6

Naphthalene

b 41,000

170

4,100

1.8

12

18

NSSL

0.2

Phenanthrene

61,000

NRO

61,000

NRO

200

1,000

NSSL

2.5

Pyrene

b 61,000

NRO

61,000

NRO

4,200

21,000

NSSL

3.0

* Illinois EPA Tier 1 Soil Remediation Objectives (SROs) for Residential Properties; 35 IAC 742, Appendix B, Table A

^ Soil Saturation Limits for Chemicals Whose Melting Point is Less Than 30°C; 35 IAC 742, Appendix A, Table A

** Concentrations of PNAs in Background Soils; 35 IAC 742, Appendix A, Table H - Metro Area

All results in parts per million (mg/Kg) unless noted otherwise

NBL = No Background Level

a = Carcinogenic b = Noncarcinogenic

NA = Not Analyzed

NRO = No Remediation Objective

NSSL = No Soil Saturation Limit

Results in Bold/Shaded indicate concentrations exceeding most stringent Tier 1 SROs

EB11 10-12'
7/3/2012
<0.005 <0.005 <0.005 <0.005
<0.050 <0.050 <0.050 <0.0087 <0.015 <0.011 <0.011 <0.050 <0.050 <0.020 <0.050 <0.050 <0.029 <0.025 <0.050 <0.050

Sample Numbers

EB12 8-10'
7/3/2012
<0.005 <0.005 <0.005 <0.005

EB13 4-6'
7/3/2012
0.0541 <0.500
1.3 1.57

EB14 4-6'
7/3/2012
3.96 <0.500 0.643
1.29

<0.050 <0.050 <0.050 <0.0087 <0.015 <0.011 <0.011 <0.050 <0.050 <0.020 <0.050 <0.050 <0.029 <0.025 <0.050 <0.050

<0.050 <0.050 0.057 0.0326 0.015 0.015 <0.011 <0.050 <0.050 <0.020 0.069 <0.050 <0.029
1.21 0.204 0.097

0.062 <0.050 0.212 0.248 0.189 0.205 0.134 0.095 0.187 0.028 0.542 0.147 0.116 0.275
0.65 0.467

EB15 4-6'
7/3/2012
8.12 <0.500 0.505 0.853
<0.050 <0.050 0.073 0.112 0.095 0.098 0.063
0.05 0.08 <0.020 0.222 <0.050 0.058 1.23 0.209 0.198

Y:\Projects\2012\Environmental\Phase II ESA\1801-05 Church Street\Off Site Investigation\Soil Tables (387).xlsx

Page 1 of 4

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 81 of 107 PageID #:372

Project Location: Project Number:

1801-1805 Church Street, Evanston, Illinois - Offsite Investigation E121696-387

Table 1. BTEX/PNAs

Chemical Name

Exposure Route-Specific SROs*

Industrial/Commercial Ingestion Inhalation

Construction Worker Ingestion Inhalation

Soil Component of GW Ingestion Route*

Class I

Class II

Soil Saturation Limits^

Background Levels**

Date Sampled

BTEX

Benzene

100

1.6

2,300

2.2

0.03

0.17

870

NBL

Toluene

410,000

650

410,000

42

12

29

650

NBL

Ethyl benzene

200,000

400

20,000

58

13

19

400

NBL

Xylene

410,000

320

41,000

5.6

150

150

320

NBL

PNAs

Acenaphthene

b 120,000

NRO

120,000

NRO

570

2,900

NSSL

0.13

Acenaphthylene

61,000

NRO

61,000

NRO

85

120

NSSL

0.07

Anthracene

610,000

NRO

610,000

NRO

12,000

59,000

NSSL

0.4

Benzo(a)anthracene

a

8

NRO

170

NRO

2

8

NSSL

1.8

Benzo(a)pyrene

a

0.8

NRO

17

NRO

8

82

NSSL

2.1

Benzo(b)fluoranthene

a

8

NRO

170

NRO

5

25

NSSL

2.1

Benzo(k)fluoranthene

a

78

NRO

1,700

NRO

49

250

NSSL

1.7

Benzo(g,h,i)perylene

61,000

NRO

61,000

NRO

27,000

130,000

NSSL

1.7

Chrysene

a

780

NRO

17,000

NRO

160

800

NSSL

2.7

Dibenzo(a,h)anthracene

a

0.8

NRO

17

NRO

2

7.6

NSSL

0.42

Fluoranthene

b 82,000

NRO

82,000

NRO

4,300

21,000

NSSL

4.1

Fluorene

b 82,000

NRO

82,000

NRO

560

2,800

NSSL

0.18

Indeno(1,2,3-cd)pyrene

a

8

NRO

170

NRO

14

69

NSSL

1.6

Naphthalene

b 41,000

170

4,100

1.8

12

18

NSSL

0.2

Phenanthrene

61,000

NRO

61,000

NRO

200

1,000

NSSL

2.5

Pyrene

b 61,000

NRO

61,000

NRO

4,200

21,000

NSSL

3.0

* Illinois EPA Tier 1 Soil Remediation Objectives (SROs) for Residential Properties; 35 IAC 742, Appendix B, Table A

^ Soil Saturation Limits for Chemicals Whose Melting Point is Less Than 30°C; 35 IAC 742, Appendix A, Table A

** Concentrations of PNAs in Background Soils; 35 IAC 742, Appendix A, Table H - Metro Area

All results in parts per million (mg/Kg) unless noted otherwise

NBL = No Background Level

a = Carcinogenic b = Noncarcinogenic

NA = Not Analyzed

NRO = No Remediation Objective

NSSL = No Soil Saturation Limit

Results in Bold/Shaded indicate concentrations exceeding most stringent Tier 1 SROs

EB16 6-8'
7/3/2012
8.92 <0.500
4.87 0.743
0.105 <0.050 0.428 0.568 0.458 0.477
0.29 0.21 0.398 0.065 1.44 0.226 0.267 0.149 1.56 1.27

Sample Numbers

EB17 4-6' 7/3/2012

EB18 6-8' 7/3/2012

EB18 14-16' 7/3/2012

EB19 4-6' 7/3/2012

<0.005 <0.005 <0.005 <0.005

0.0137 <0.005 <0.005 <0.005

<0.005 <0.005 <0.005 <0.005

8.99 <0.500
2.31 0.585

<0.050 <0.050 <0.050 <0.0087 <0.015 <0.011 <0.011 <0.050 <0.050 <0.020 <0.050 <0.050 <0.029 <0.025 <0.050 <0.050

<0.050 <0.050 <0.050 <0.0087 <0.015 <0.011 <0.011 <0.050 <0.050 <0.020 <0.050 <0.050 <0.029 <0.025 <0.050 <0.050

<0.050 <0.050 <0.050 <0.0087 <0.015 <0.011 <0.011 <0.050 <0.050 <0.020 <0.050 <0.050 <0.029 <0.025 <0.050 <0.050

<0.050 <0.050 <0.050 <0.0087 <0.015 <0.011 <0.011 <0.050 <0.050 <0.020 <0.050 <0.050 <0.029
0.12 <0.050 <0.050

Y:\Projects\2012\Environmental\Phase II ESA\1801-05 Church Street\Off Site Investigation\Soil Tables (387).xlsx

Page 2 of 4

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 82 of 107 PageID #:373

Project Location: Project Number:

1801-1805 Church Street, Evanston, Illinois - Offsite Investigation E121696-387

Table 1. BTEX/PNAs

Chemical Name

Exposure Route-Specific SROs*

Industrial/Commercial Ingestion Inhalation

Construction Worker Ingestion Inhalation

Soil Component of GW Ingestion Route*

Class I

Class II

BTEX

Benzene

100

1.6

2,300

2.2

0.03

0.17

Toluene

410,000

650

410,000

42

12

29

Ethyl benzene

200,000

400

20,000

58

13

19

Xylene

410,000

320

41,000

5.6

150

150

PNAs

Acenaphthene

b 120,000

NRO

120,000

NRO

570

2,900

Acenaphthylene

61,000

NRO

61,000

NRO

85

120

Anthracene

610,000

NRO

610,000

NRO

12,000

59,000

Benzo(a)anthracene

a

8

NRO

170

NRO

2

8

Benzo(a)pyrene

a

0.8

NRO

17

NRO

8

82

Benzo(b)fluoranthene

a

8

NRO

170

NRO

5

25

Benzo(k)fluoranthene

a

78

NRO

1,700

NRO

49

250

Benzo(g,h,i)perylene

61,000

NRO

61,000

NRO

27,000

130,000

Chrysene

a

780

NRO

17,000

NRO

160

800

Dibenzo(a,h)anthracene

a

0.8

NRO

17

NRO

2

7.6

Fluoranthene

b 82,000

NRO

82,000

NRO

4,300

21,000

Fluorene

b 82,000

NRO

82,000

NRO

560

2,800

Indeno(1,2,3-cd)pyrene

a

8

NRO

170

NRO

14

69

Naphthalene

b 41,000

170

4,100

1.8

12

18

Phenanthrene

61,000

NRO

61,000

NRO

200

1,000

Pyrene

b 61,000

NRO

61,000

NRO

4,200

21,000

* Illinois EPA Tier 1 Soil Remediation Objectives (SROs) for Residential Properties; 35 IAC 742, Appendix B, Table A

^ Soil Saturation Limits for Chemicals Whose Melting Point is Less Than 30°C; 35 IAC 742, Appendix A, Table A

** Concentrations of PNAs in Background Soils; 35 IAC 742, Appendix A, Table H - Metro Area

All results in parts per million (mg/Kg) unless noted otherwise

NBL = No Background Level

a = Carcinogenic b = Noncarcinogenic

NA = Not Analyzed

NRO = No Remediation Objective

NSSL = No Soil Saturation Limit

Results in Bold/Shaded indicate concentrations exceeding most stringent Tier 1 SROs

Y:\Projects\2012\Environmental\Phase II ESA\1801-05 Church Street\Off Site Investigation\Soil Tables (387).xlsx

Page 3 of 4

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 83 of 107 PageID #:374

Project Location: Project Number:

1801-1805 Church Street, Evanston, Illinois - Offsite Investigation E121696-387

Table 1. BTEX/PNAs

Chemical Name

Exposure Route-Specific SROs*

Industrial/Commercial Ingestion Inhalation

Construction Worker Ingestion Inhalation

Soil Component of GW Ingestion Route*

Class I

Class II

BTEX

Benzene

100

1.6

2,300

2.2

0.03

0.17

Toluene

410,000

650

410,000

42

12

29

Ethyl benzene

200,000

400

20,000

58

13

19

Xylene

410,000

320

41,000

5.6

150

150

PNAs

Acenaphthene

b 120,000

NRO

120,000

NRO

570

2,900

Acenaphthylene

61,000

NRO

61,000

NRO

85

120

Anthracene

610,000

NRO

610,000

NRO

12,000

59,000

Benzo(a)anthracene

a

8

NRO

170

NRO

2

8

Benzo(a)pyrene

a

0.8

NRO

17

NRO

8

82

11

Benzo(b)fluoranthene

a

8

NRO

170

NRO

5

25

Benzo(k)fluoranthene

a

78

NRO

1,700

NRO

49

250

Benzo(g,h,i)perylene

61,000

NRO

61,000

NRO

27,000

130,000

Chrysene

a

780

NRO

17,000

NRO

160

800

Dibenzo(a,h)anthracene

a

0.8

NRO

17

NRO

2

7.6

Fluoranthene

b 82,000

NRO

82,000

NRO

4,300

21,000

Fluorene

b 82,000

NRO

82,000

NRO

560

2,800

Indeno(1,2,3-cd)pyrene

a

8

NRO

170

NRO

14

69

Naphthalene

b 41,000

170

4,100

1.8

12

18

Phenanthrene

61,000

NRO

61,000

NRO

200

1,000

Pyrene

b 61,000

NRO

61,000

NRO

4,200

21,000

* Illinois EPA Tier 1 Soil Remediation Objectives (SROs) for Residential Properties; 35 IAC 742, Appendix B, Table A

^ Soil Saturation Limits for Chemicals Whose Melting Point is Less Than 30°C; 35 IAC 742, Appendix A, Table A

** Concentrations of PNAs in Background Soils; 35 IAC 742, Appendix A, Table H - Metro Area

All results in parts per million (mg/Kg) unless noted otherwise

NBL = No Background Level

a = Carcinogenic b = Noncarcinogenic

NA = Not Analyzed

NRO = No Remediation Objective

NSSL = No Soil Saturation Limit

Results in Bold/Shaded indicate concentrations exceeding most stringent Tier 1 SROs

Y:\Projects\2012\Environmental\Phase II ESA\1801-05 Church Street\Off Site Investigation\Soil Tables (387).xlsx

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EXHIBIT F

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 85 of 107 PageID #:376

Jeep & Blazer, L.L.C.
environmental law
Jeffery D. Jeep* Michael S. Blazer**
* Also admitted in Massachusetts ** Also Admitted in New York

24 N. Hillside Avenue Suite A
Hillside, Illinois 60162 (708) 236-0830
(708) 236-0828 Fax
Jeffery D. Jeep email: jdjeep@enviroatty.com
April 17, 2013

Web Site: www.enviroatty.com

DELIVERY VIA REGISTERED MAIL, RETURN RECEIPT REQUESTED

To:

Texaco Inc. c/o The Prentice-Hall Corporation System, Inc. 2711 Centerville Road, Suite 400 Wilmington, DE, 19808

Chevron Corporation c/o The Prentice-Hall Corporation System, Inc. 2710 Gateway Oaks Drive, Suite 150N Sacramento, CA 95833

Chevron Environmental Management Company c/o The Prentice-Hall Corporation System, Inc. 2710 Gateway Oaks Drive, Suite 150N Sacramento, CA 95833

Re:

Notice of Intent to Sue under RCRA, CERCLA, et al.

THIS IS TO NOTIFY YOU THAT:

1. The undersigned is counsel for, and serves this notice on behalf of:

City of Evanston 2100 Ridge Avenue Evanston, IL 60201 (the “City”)

2. This Notice concerns property located in Evanston, Illinois. The property is a closed gasoline service station formerly owned and operated by The Texas Corporation, a Delaware Corporation (“Texaco Inc.”), located at 1801-05 Church Street, Evanston, Illinois, commonly known as the northeast corner of the Church and Darrow Streets (the "Texaco Station"). On October 9, 2001 Texaco, Inc. and Chevron merged to form ChevronTexaco Corporation, now Chevron Corporation, a Delaware Corporation (“Chevron”). On information and belief, Chevron Environmental Management Company, a California Corporation, has assumed certain environmental

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liabilities from, or manages certain environmental liabilities of, Chevron and\or Texaco Inc.
3. The general location of the Texaco Station is depicted on the Site Location Map and Site Layout enclosed as Figures 1 and 2, respectively. The Texaco Station has a Cook County property index number (PIN) of 10-13-220-035-0000.
4. On information and belief, Texaco, Inc. owned and operated the Texaco Station from approximately 1925 until the early 1970’s. The Texaco Station is currently owned by E-Town Community Ventures, LLC, an Illinois limited liability company.
5. The Texaco Station is located immediately west of, and shares a property boundary with, Darrow Street, a City owned right-of-way. The Texaco Station is located immediately north of, and shares a property boundary with, Church Street, a City owned right-of-way.
6. On information and belief, Texaco, Inc. owned and operated at least two (2) three thousand (3000) gallon underground storage tanks, dispenser islands, and associated piping systems for the sale of retail grade gasoline (hereafter collectively “USTs”) at the Texaco Station. On information and belief, an automobile repair (service) station, automobile lift and grease pit were also located at the Texaco Station.
7. On information and belief, in 1963 a two thousand (2000) gallon gasoline UST at the former Texas Service Station leaked and was abandoned in-place.
8. On information and belief, in 1967 a three thousand (3000) gallon gasoline UST at the former Texas Service Station leaked and was replaced.
9. In September 2000 the Office of State Fire Marshall (OSFM) conducted an exploratory excavation at the Texaco Station and determined the following:
a. USTs were present and had not been properly abandoned;
b. The USTs contained water and gasoline; and
c. The USTs were leaking in close proximity to a sewer line.
10. In April 2001 the OFSM determined the following:
a. The USTs on the Texaco Station continued to leak;
b. There were no caps on the vents, fills or product lines of the USTs; and
c. The USTs continued to take on water.
11. On February 10, 2012, Environmental Consulting Group, Inc. (“ECG”), an environmental consulting firm retained by the City, issued a report entitled “Phase I Environmental Site Assessment” of the Texaco Station (“Phase I Report”). The Phase I Report concluded that the historical use of the Texaco Station property as a gasoline
2

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 87 of 107 PageID #:378
station and an automobile service station constituted a recognized environmental condition.
12. On March 6, 2012, ECG issued a report entitled “Phase II Environmental Site Assessment” of the Texaco Station (“Phase II Report”). The Phase II Report determined the following:
a. Seven out of ten soil borings exhibited signs of petroleum contamination above applicable Illinois Environmental Protection Agency Tier 1 Soil Remediation Objectives.
b. Excavations revealed four USTs at the site, including two 2,000-gallon USTs and two 3,000-gallon USTs. The two 2,000-gallon tanks were filled with a mixture of water and gasoline. The two 3,000-gallon tanks were filled with sand.
13. On July 6, 2012, ECG issued a letter report concerning an off-site subsurface investigation of the Texaco Station (“Off-Site Investigation”). The Off-Site Investigation determined the following:
a. A release of petroleum products at the Texaco Station was the source of petroleum contamination in the Darrow and Church Street right-of-ways.
b. The petroleum contamination could extend to commercial property located east of Darrow Street (the “East Property”). (The East Property, Darrow Street right-of-way and Church Street right-of-way are hereafter referred to collectively as “Off-Site Locations.”)
14. On one or more occasions, the particulars of which are not presently known to the City, but occurring as early as 1925 and as recently as the present, one or more of the persons or entities to whom this Notice is directed has caused or allowed the release of a solid or hazardous waste or hazardous substances within the meaning of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq. (“RCRA”) and the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. (“CERCLA”), respectively, into the soil, groundwater, sediments, and surface waters of the Texas Station and Off-Site Locations.
15. As a result of such release, soils, groundwater, sediment, and surface water at the Texaco Station and Off-Site Locations have become contaminated by, or are threatened to be contaminated by, solid or hazardous wastes or hazardous substances.
16. Texaco Inc. and\or Chevron, to whom this Notice is directed, have contributed or are contributing to the past or present handling, storage or disposal at the Texaco Station and Off-Site Locations of substances which are solid waste or hazardous waste, within the meaning of RCRA.
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17. Texaco Inc. and\or Chevron have disposed of solid or hazardous waste at the Texaco Station and Off-Site Locations through leaks, spills, and overfills of petroleum products, including gasoline and waste, at the Texaco Station.
18. Texaco Inc. and\or Chevron may have disposed of solid or hazardous waste at the Texaco Station and Off-Site Locations through leaks, spills, and overfills of oil, solvents, chemicals, waste, and used oil at the Texaco Station.
19. The presence of the described unconfined waste disposal site, and the contamination of the soils and groundwater at the Texaco Station and Off-Site Locations, may present an imminent and substantial endangerment to human health or the environment, within the meaning of 42 U.S.C. § 6972(a)(1)(B).
20. The City, owner of the Darrow and Church Street right-of-ways, intends to file suit against each of the persons and entities to whom this Notice of Intent to Sue is directed pursuant to Section 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B), as well as under applicable common law and equity.
21. The City has incurred necessary response costs, within the meaning of CERCLA, including, but not limited to, the cost of the Phase I Report, Phase II Report, Off-Site Investigation and its costs of assessing and evaluating historical records regarding the release or threat of release of hazardous substances at the Texaco Station.
22. Please contact the undersigned if you wish to be provided a copy of the referenced environmental reports.
City of Evanston
J By:
Jeffery D. Jeep One of Its Attorneys
Jeffery D. Jeep Jeep & Blazer, L.L.C. 24 N. Hillside Avenue Suite A Hillside, IL 60162 (708) 236-0830 jdjeep@enviroatty.com
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Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 89 of 107 PageID #:380
cc: REGISTERED MAIL, RETURN RECEIPT REQUESTED Bob Perciasepe Acting Administrator United States Environmental Protection Agency USEPA Headquarters Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Mail Code: 1101A Washington, DC 20460 Susan Hedman Regional Administrator USEPA Region 5 Mail Code: R-19J 77 West Jackson Boulevard Chicago, IL 60604-3507 Eric H. Holder, Jr. Attorney General of the United States United States Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Lisa Bonnett Director Illinois Environmental Protection Agency 1021 N. Grand Avenue East P.O. Box 19276 Springfield, IL 62794-9276
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SITE
FIGURE 1 – SITE LOCATION
ECG Project No.: E121696-52 Location: 1801-1805 Church Street
Evanston, Illinois Source: Target Quadrangle: Evanston
: Chicago

Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 91 of 107 PageID #:382

Approximate Site Boundary

FIGURE 2 – SITE LAYOUT
ECG Project No.: E121696-52 Location: 1801-1805 Church Street
Evanston, Illinois Source: Google

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Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 103 of 107 PageID #:394
EXHIBIT G

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Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 104 of 107 PageID #:395 7/30/13 8:24 PM

Evanston, Illinois, Code of Ordinances >> TITLE 9 - PUBLIC SAFETY >> CHAPTER 12 HAZARDOUS SUBSTANCES REMOVAL AND ABATEMENT COSTS >>
CHAPTER 12 HAZARDOUS SUBSTANCES REMOVAL AND ABATEMENT COSTS
SECTION:
9-12-1. DEFINITIONS: 9-12-2. LIABILITY FOR HAZARDOUS SUBSTANCE INCIDENT REMOVAL OR ABATEMENT COSTS. 9-12-3. REMOVAL OR ABATEMENT COSTS. 9-12-4. LIBERAL CONSTRUCTION. 9-12-5. SEVERABILITY.

9-12-1. DEFINITIONS:

ABANDONMENT: The act of leaving a thing with the intent not to retain possession of or assert ownership or control over it. The intent need not coincide with the act of leaving. It is prima facie evidence of the necessary intent to abandon a vehicle containing a hazardous substance that: (A) The vehicle has been left for more than two (2) days unattended and unmoved; or (B) License plates or other identifying marks have been removed from the vehicle; or (C) The vehicle has been damaged or is deteriorated so extensively that it has value only for junk or salvage; or (D) The owner or operator has been notified by a law enforcement agency to remove the vehicle, and it has not been removed within twenty four (24) hours after notification.
FIRE CHIEF: The Fire Chief of the City of Evanston, or his/her authorized representative. HAZARDOUS (A) Any material as designated pursuant to the Federal Comprehensive Environmental Response, SUBSTANCES: Compensation, and Liability Act of 1980, 42 USC 9601(14), as amended; or
(B) Any substance, material, waste, or mixture designated as a hazardous material, waste, or substance according to 49 Code of Federal Regulations (CFR) or according to 415 ILCS 5/3.215 and 5/3.220, as amended, excluding highway route-controlled quantities of radioactive materials as defined in 49 CFR 173.403(1), and excluding ores, the products from mining, milling, smelting, and similar processing of ores, and the wastes and tailings therefrom, and excluding special fireworks as defined in 49 CFR 173.88(d) when the aggregate amount of flash powder does not exceed fifty (50) pounds. (C) Any material which is listed on the list of Environmental Protection Agency pollutants, 40 CFR 401.15, as amended; or (D) Any material which is classified by the National Fire Protection Association (NFPA) as either a flammable liquid, a Class II combustible liquid, or a Class III combustible liquid; or (E) Any material which has been determined by the party storing it, or having control of it, through testing or other objective means, to be likely to create a significant potential or actual hazard to public health, safety, or welfare or to the environment. This definition shall not establish a requirement to test for the purposes of this Chapter; or (F) Any material which has been determined by the Fire Chief, through information based on appraisal and assessment from reliable resources, to be likely to create a significant potential or actual hazard to public health, safety, or welfare or to the environment. The fact that the material in question is not designated as a hazardous substance pursuant to paragraphs (A) through (E) of this definition or is excluded by the legislation or NFPA classifications of paragraphs (A) through (D) of this definition, does not preclude the Fire Chief from determining that the material is a hazard, given the totality of the particular facts and circumstances.

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HAZARDOUS SUBSTANCE INCIDENT:
PERSON: RELEASE:
REMOVE or REMOVAL:
VEHICLE: VESSEL:

Any emergency circumstance involving the sudden release or threatened release of a hazardous substance which, in the judgment of an emergency response authority, whether said emergency response authority be the City, a MABAS agreement member unit, or a Federal or State agency or other local agency, threatens immediate and irreparable harm to the environment or the health, safety, or welfare of any individual other than individuals exposed to the risks associated with hazardous substances in the normal course of their employment. "Hazardous substance incident" includes those incidents of releasing or abandoning of a hazardous substance, whether or not such releasing or abandoning is found to threaten immediate and irreparable harm, but such term does not include any release of a hazardous substance authorized pursuant to any Federal, State, or local law or regulation.
Any individual, public or private corporation, partnership, association, firm, trust, or estate, the State or any department, institution, or agency thereof, any municipal corporation, county, City and county, or other political subdivision of the State, or any other legal entity whatsoever which is recognized by law as the subject of rights and duties. Any actual or threatened spilling, leaking pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, but excludes a) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons; b) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; c) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in Atomic Energy Act of 1954, if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under Section 1870 of such Act; and d) the normal application of fertilizer. The cleanup or removal of released hazardous substances from the environment, such actions as may be necessary to be taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water suppliers, temporary evacuation and housing of threatened individuals, and any emergency assistance which may be provided under The Illinois Emergency Management Agency Act, 20 ILCS 3305/ et seq., as amended, pursuant to the MABAS agreement. Any device which is capable of moving itself, or of being moved, from place to place upon wheels or endless tracks. The term includes, but is not limited to, any motor vehicle, trailer, or semi-trailer. A ship or other craft used in navigation; any structure which is made to float upon the water or which does float upon the water.

(Ord. No. 8-0-12, (49-0-11(exh. B, § 9-12-1)), 1-23-2012)

9-12-2. LIABILITY FOR HAZARDOUS SUBSTANCE INCIDENT REMOVAL OR ABATEMENT
COSTS.
(A) The Fire and Life Safety Services Department is authorized to remove or abate the effects of any hazardous substance incident involving the actual or threatened release of a hazardous material 1) upon or into property or facilities in the City or along its lakefront or 2) pursuant to any mutual aid box alarm system (MABAS) agreement in effect, it being understood that such aid will be rendered outside the City limits. The following described persons shall be jointly and severally liable a) to the City for the payment of all costs incurred by the City as a result of such removal and/or abatement activity, and b) to any member unit of the MABAS agreement rendering aid to the City pursuant to said agreement. 1. The person or persons whose negligent, reckless, or willful act or omission proximately caused such release; and

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Case: 1:13-cv-02106 Document #: 24 Filed: 08/06/13 Page 106 of 107 PageID #:397 7/30/13 8:24 PM

2. The person or persons who owned or had custody or control of the hazardous substance at the time of such release, without regard to fault or proximate cause; and
3. The person or persons who owned or had custody or control of the container, transport vehicle, or transport vessel which held such hazardous substance at the time of, or immediately prior to, such release, without regard to fault or proximate cause; and
4. Any person owning or in control of any real property from which a hazardous substance is or may be released.
(B) In the event that any person undertakes, voluntarily or upon order of the Fire Chief, to remove or abate the effects of any actual or threatened hazardous substance release upon or into any property or facility in the City, or along its lakefront, the Fire Chief may take such action as is necessary to supervise or verify the adequacy of the removal or abatement. The person(s) described in subsections (A)1 through (A)4 of this Section shall be liable to the City for all costs incurred as a result of such supervision or verification.
(Ord. No. 8-0-12, (49-0-11(exh. B, § 9-12-2)), 1-23-2012)

9-12-3. REMOVAL OR ABATEMENT COSTS.
(A) For purposes of this Chapter, costs incurred by the City shall include, but shall not be limited to, the following, whether incurred within the City, along its lakeshore or outside the City limits as a result of rendering mutual aid pursuant to the MABAS agreement: actual labor cost of City personnel, including benefits and administrative overhead; costs of consultants whose expertise is required to remove or abate the incident or to assess the nature and extent of damage done; cost of equipment operation; replacement cost of vehicles or equipment which, in the determination of the Fire Chief, is contaminated beyond reuse or repair; laboratory costs; cost of materials or equipment obtained directly by the City; cost of any contract or mutual aid labor and materials; attorney fees incurred in collecting monies owed to the City by liable parties.
(B) When the action to remove or abate the effects of a hazardous substance includes extinguishing a fire, the costs may only include the expenses, such as those set forth in Subsection 9-13-3(A) of this Section, related to the hazardous substance and not any expense related to extinguishing the fire.
(C) Nothing contained in this Chapter shall be construed to change or impair any right of recovery or subrogation arising under any mutual aid agreement or any other ordinance, statute, or provision of law. No criminal quasi-criminal remedy for any wrongful action shall be excluded or impaired by this Chapter.
(D) The City Manager or his/her designee shall allow for a reasonable time for payment of the reimbursement amount and shall consider any written objections on the type and amount of expense. In the event that no payment or response to the request for reimbursement has been received within thirty (30) days from the date of the invoice, the City Manager or his/her designee is hereby authorized to direct the corporation counsel to take appropriate legal action.
(E) A MABAS member unit rendering aid to the City in a hazardous substances incident pursuant to the MABAS agreement shall have its own right of action under this Chapter for recovery of costs.
(Ord. No. 65-0-89; Ord. No. 8-0-12, (49-0-11(exh. B, § 9-12-3)), 1-23-2012)

9-12-4. LIBERAL CONSTRUCTION.
This Chapter shall be liberally construed to give effect to its purpose, which is to shift the burden of liability for the aforesaid removal or abatement costs from the citizens of Evanston to those responsible for the incident.

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(Ord. No. 65-0-89; Ord. No. 8-0-12, (49-0-11(exh. B, § 9-12-4)), 1-23-2012)

9-12-5. SEVERABILITY.
If any provision, clause, sentence, paragraph, Section or part of this Chapter, or application thereof to any person or circumstance, shall for any reason be adjudged by a court of competent jurisdiction to be unconstitutional or invalid, said judgment shall not affect, impair or invalidate the remainder of this Chapter and the application of such provision to other persons or circumstances, but shall be confined in its operation to the provision, clause, sentence, paragraph, Section or part thereof directly involved in the controversy in which such judgment shall have been rendered and to the person or circumstances involved. It is hereby declared to be the legislative intent of the City Council that this Chapter would have been adopted had such unconstitutional or invalid provisions, clause, sentence, paragraph, Section or part thereof not been included.
(Ord. No. 65-0-89; Ord. No. 8-0-12, (49-0-11(exh. B, § 9-12-5)), 1-23-2012)

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 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CITY OF EVANSTON, an Illinois municipal

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corporation,

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Plaintiff,

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vs.

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TEXACO, INC, a Delaware corporation, CHEVRON )

CORPORATION, a Delaware corporation, CHEVRON )

ENVIRONMENTAL MANAGEMENT COMPANY, a )

California corporation, and E-TOWN COMMUNITY )

VENUTRES, LLC, an Illinois limited liability

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company,

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Defendants.

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13 C 2106 Judge Feinerman

MEMORANDUM OPINION AND ORDER

The City of Evanston, Illinois, filed this suit initially against Chevron U.S.A. Inc. and E-

Town Community Ventures, alleging that they are responsible for contamination on and around a

property in Evanston formerly occupied by a gasoline service station. Doc. 1. After questions

were raised as to whether Chevron U.S.A. was a proper defendant, Evanston filed an amended

complaint that kept E-Town as a defendant, dropped Chevron U.S.A. as a defendant, and added

Chevron Corporation, Texaco, Inc., and Chevron Environmental Management Company

(“Chevron EMC”) as defendants. Doc. 24. The three new defendants—which are affiliated and

represented by the same lawyers, and which have filed joint pleadings—will be referred to

collectively as “Chevron” unless the context requires otherwise. Count I of the amended

complaint is a citizens suit under 42 U.S.C. § 6972(a) that seeks declaratory, injunctive, and

other ancillary relief against Chevron for alleged violations of the Resource Conservation and

Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. Doc. 24 at pp. 8-10. Counts II- IV allege

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claims against Chevron and E-Town under the Illinois common law of trespass and private nuisance and the Evanston Hazardous Substances Ordinance. Doc. 24 at pp. 11-14.
Chevron has moved to dismiss Counts I-IV under Federal Rule of Civil Procedure 12(b)(6). Doc. 29. E-Town has joined Chevron’s motion with respect to Counts II-IV. Docs. 32, 35. The motion is denied in its entirety.
Background In considering the motion to dismiss, the court assumes the truth of the amended complaint’s factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court must also consider “documents attached to the [amended] complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice,” along with additional facts set forth in Evanston’s brief opposing dismissal, so long as those facts “are consistent with the pleadings.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The following facts are set forth as favorably to Evanston as those materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012). From 1925 to the late 1990s, a gasoline and auto repair service station, most recently operated by Texaco, occupied the northeast corner of the intersection of Church Street and Darrow Street in Evanston (the “Texaco Station”). Doc. 24 at ¶¶ 2, 24-25. Texaco used underground storage tanks (“USTs”), “gasoline dispenser islands,” and piping under the station, as well as an “auto lift and grease pit.” Id. at ¶¶ 25-26. In the 1960s, during Texaco’s operation of the station, contaminants were leaked from at least two USTs. Id. at ¶¶ 27-30. The Texaco Station has been vacant since the late 1990s. Id. at ¶ 24. E-Town acquired legal title to the property in April 2002. Id. at ¶ 18.
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In the meantime, in 2000, the Illinois State Fire Marshal conducted an “exploratory excavation” of the Texaco Station. Id. at ¶ 31. The Fire Marshal issued a Notice of Violation, concluding that “[a]t least two unregistered USTs were abandoned improperly” and that the “USTs contained water and gasoline” and were “leaking in close proximity to a sewer.” Id. at ¶ 31 & pp. 18-19. In April 2001, the Fire Marshal issued a report stating: “[N]othing has been done to this site. The tanks are still leaking and no caps are on the vents, fills[,] or product lines. They are continuing to take on water.” Id. at ¶ 32.
In March 2012, an environmental consultant hired by Evanston issued a report noting the presence of petroleum exceeding the amounts allowed by state regulations. Id. at ¶ 35 & pp. 2373. A subsequent report issued in July 2012 noted the presence of two 2,000-gallon USTs filled with water and gasoline and two 3,000-gallon USTs filled with sand. Id. at ¶ 36; see id. at pp. 75-83. That second report concluded that contamination was migrating from the Texaco Station to Church and Darrow Streets and could possibly affect commercial and residential properties to the east. Id. at ¶ 37.
As a result of Texaco’s conduct, the soil and groundwater at the Texaco Station and adjacent city-owned and privately-owned property are contaminated with petroleum, gasoline, and their byproducts, including benzene, toluene, ethylbenzene, xylene, polynuclear aromatic hydrocarbons, and lead. Id. at ¶¶ 5, 7-8. The contamination contains carcinogens. Id. at ¶ 11.
Discussion I. Count I: RCRA Claim
A. Whether Count I Adequately Pleads a RCRA Claim RCRA allows any person to file a citizen suit “against any person … who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or
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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); see generally Adkins v. VIM Recycling, Inc., 644 F.3d 483, 486-87 (7th Cir. 2011). A § 6972(a) claim requires the plaintiff to show: “(1) that the defendant has generated solid or hazardous waste, (2) that the defendant is contributing or has contributed to the handling of this waste, and (3) that this waste may present an imminent and substantial danger to health or the environment.” Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 972 (7th Cir. 2002). Chevron challenges only the third element, arguing that Evanston has not adequately alleged that the contamination at the Texaco Station presents an “imminent and substantial” threat because it has existed for fifty years, an ordinance prohibits extracting groundwater from wells, “most” of the station is covered by asphalt or concrete, and contaminated water has not reached the surface. Doc. 30 at 6-8.
Chevron’s argument cannot be resolved in its favor at the pleading stage. Precedent holds that “[i]mminence does not require an existing harm, only an ongoing threat of future harm.” Albany Bank & Trust, 310 F.3d at 972 (citation omitted). The amended complaint sufficiently alleges the threat of future harm, as it is plausible that contaminated subsurface water could migrate to the surface through the portions of the Texaco Station uncovered by asphalt or through adjacent properties to which the contamination has migrated and is migrating. It follows that the RCRA claim survives dismissal. See Forest Park Nat’l Bank & Trust v. Ditchfield, 881 F. Supp. 2d 949, 975-76 (N.D. Ill. 2012) (holding that even though no “traditional ‘exposure pathways’” existed—an ordinance banned drinking groundwater, the surface residence was unoccupied, and the property was “largely covered in pavement”—imminence presented a question of fact where the plaintiff alleged that a dry cleaner left a contaminant underground).
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B. Burford Abstention
Chevron argues in the alternative that the court should abstain under the doctrine
established by Burford v. Sun Oil Co., 319 U.S. 315 (1943), from adjudicating the RCRA claim.
Doc. 30 at 8-11. There are “two narrow situations in which federal courts may abstain under
Burford.” Adkins, 644 F.3d at 504. The first is when “a federal court … is faced with ‘difficult
questions of state law’ that implicate significant state policies.” Ibid. The second is “when
concurrent federal jurisdiction would ‘be disruptive of state efforts to establish a coherent policy
with respect to a matter of substantial public concern.’” Ibid. (quoting New Orleans Pub. Serv.,
Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989)).
Chevron argues that the second basis of Burford abstention applies here because state
regulations promulgated pursuant to the Illinois Environmental Protection Act (“IEPA”), 415
ILCS 5/1 et seq., “provide for the same relief that could be obtained under RCRA.” Doc. 30 at
9-10. To support its submission, Chevron notes the IEPA “allows an aggrieved person to file a
citizen’s action … before the Illinois Pollution Control Board and may seek to require the
responsible party to remediate the release … and to recover any investigation and cleanup costs.”
Id. at 10 (citing 415 ILCS 5/31(d)-(e), 5/33(b)).
Chevron’s argument fails to persuade. As the Seventh Circuit has explained:
[F]or this second basis of Burford abstention to apply, the mere existence of a statewide regulatory regime is not sufficient. The state must “offer some forum in which claims may be litigated,” and this forum must “stand in a special relationship of technical oversight or concentrated review to the evaluation of those claims.” Property & Casualty Insurance Ltd. [v. Cent. Nat’l Ins. Co. of Omaha], 936 F.2d [319,] 323 [(7th Cir. 1991)]. In other words, judicial review by state courts with specialized expertise is a prerequisite to Burford abstention. See International College of Surgeons [v. City of Chicago], 153 F.3d [356,] 364 [(7th Cir. 1998)] (Burford abstention was not appropriate because any court of general jurisdiction could review final administrative decisions).
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Adkins, 644 F.3d at 504. Thus, the fact that Illinois allows environmental claims to be pursued before a specialized administrative body, the Illinois Pollution Control Board, is not sufficient to warrant Burford abstention. Rather, Burford abstention is appropriate only if a state court “with specialized expertise,” as opposed to a state court “of general jurisdiction,” is available to review the administrative body’s decisions. Ibid.; see also Int’l Coll. of Surgeons, 153 F.3d at 364 (holding Burford abstention inappropriate where a local landmarks commission’s decisions were reviewed by a state court of general jurisdiction, the Circuit Court of Cook County, Illinois). The IEPA provides for judicial review of the Board’s decisions in the Appellate Court of Illinois, see 415 ILCS 5/41(a), which is a court of general appellate jurisdiction, see Buckley v. Ill. Judicial Inquiry Bd., 997 F.3d 224, 225 (7th Cir. 1993). It follows that Burford abstention is inappropriate here. See Adkins, 644 F.3d at 505 (“[Burford] teaches that judicial review must, by state legislative design, be concentrated in a few particular courts for its narrow abstention doctrine to be applicable. The Indiana courts of general jurisdiction do not satisfy this essential condition of Burford abstention. The mere existence of a state regulatory regime, even one providing an option for special masters and specific relief, does not permit federal courts to abstain.”) (footnote and citation omitted).
C. Civil Penalties and Expert Costs Chevron next argues that the court should strike Count I’s request for “appropriate civil penalties.” Doc. 30 at 11-12. RCRA’s citizen suit provision authorizes district courts to “apply any appropriate civil penalties under section 6928(a) and (g) of this title.” 42 U.S.C. § 6972(a); see 42 U.S.C. § 6928(a) (allowing for a civil penalty “not [to] exceed $25,000 per day of noncompliance for each violation”), (g) (“Any person who violates any requirement of this subchapter shall be liable to the United States for a civil penalty in an amount not to exceed
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$25,000 for each such violation. Each day of such violation shall, for purposes of this subsection, constitute a separate violation.”). Chevron maintains that civil penalties are available only in RCRA enforcement suits brought by the Administrator of the U.S. Environmental Protection Agency (“EPA”) given that § 6928 is the section that authorizes such suits.
Although supported by Village of Riverdale v. 138th Street Joint Venture, 527 F. Supp. 2d 760, 768 (N.D. Ill. 2007), Chevron’s reading of § 6972(a) is incorrect. By providing that the court in a RCRA citizen suit may “apply any appropriate civil penalties under sections 6298(a) and (g),” Congress made clear that such civil penalties may be awarded not only in enforcement suits brought by the EPA Administrator, but also in citizen suits. This conclusion follows from U.S. Department of Energy v. Ohio, 503 U.S. 607 (1992), where the Supreme Court addressed whether the United States had waived its sovereign immunity from civil penalties in citizen suits under RCRA and the Clean Water Act (“CWA”). The Court held that the United States had not waived its sovereign immunity; for present purposes, it is significant that the Court recognized that the “[RCRA and CWA citizen suit] sections’ incorporation of their respective statutes’ civil-penalties sections will have the effect of authorizing punitive fines when a polluter other than the United States is brought to a court by a citizen.” Id. at 619. Here, Chevron allegedly is “a polluter other than the United States … brought to court by a citizen.” It follows that Chevron is potentially liable for civil penalties authorized by § 6928(a) and (g). See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 58-59 (1987) (holding that the CWA citizen suit provision, which cross-references the civil penalty provision in the section authorizing CWA enforcement actions by the EPA Administrator, see 33 U.S.C. § 1365(a), “supports … our conclusion that citizens … may seek civil penalties … in a suit brought to enjoin or otherwise abate an ongoing violation”); Chico Serv. Station, Inc. v. Sol
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Puerto Rico Ltd., 633 F.3d 20, 28 (1st Cir. 2011) (“In hearing suits under [§ 6972(a)], district courts have statutory authority to … impose civil penalties.”); City of N. Chicago v. Hanovnikian, 2006 WL 1519578, at *4 (N.D. Ill. May 30, 2006) (same); see also Supporters to Oppose Pollution, Inc. v. Heritage Grp., 973 F.2d 1320, 1324 (7th Cir. 1992) (holding that § 6972(b)(1)(B) prohibits a RCRA citizen suit when the EPA is diligently prosecuting a RCRA action because, otherwise, a citizen suit “seek[ing] … civil penalties that the Administrator chose to forgo” would undermine the “federal agency[’s] [role] as principal enforcer”).
Chevron also argues that the court should strike in part Count I’s request for expert fees. The RCRA citizen suit provision states that “[t]he court, in issuing any final order in any action brought pursuant to this section, … may award costs of litigation (including reasonable … expert witness fees) to the prevailing or substantially prevailing party.” 42 U.S.C. § 6972(e). Chevron maintains the court should strike Evanston’s request for the expert fees “relate[d] to the investigation that Evanston voluntarily undertook to attempt to delineate the nature of the waste.” Doc. 30 at 11-12. Chevron is right that some expert costs, including those incurred in past voluntary cleanup efforts, are unrecoverable under RCRA. See Meghrig v. KFC W., Inc., 516 U.S. 479, 484-85 (1996) (“It is apparent from the two remedies described in § 6972(a) that RCRA’s citizen suit provision is not directed at providing compensation for past cleanup efforts.”). However, the precise nature of the expert costs sought by Evanston is unclear at this stage of the litigation. Once Evanston delineates the expert costs it seeks to recover, Chevron may renew its argument that some or all of those costs may not be recovered under RCRA.
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II. Counts II-IV: Municipal and State Law Claims A. Supplemental Jurisdiction Because the RCRA claim survives dismissal, the court has supplemental jurisdiction over
Evanston’s municipal and state law claims pursuant to 28 U.S.C. § 1367(a). Relying on Dublin Scarborough Improvement Association v. Harford County, 678 F. Supp. 129 (D. Md. 1988), Defendants argue that the court should relinquish its supplement jurisdiction because the “primary goal of RCRA is best served if all state law claims are dismissed.” Doc. 30 at 13; see also Doc. 39 at 6-7. It is true that Dublin Scarborough Improvement Association declined to exercise what was then called pendent jurisdiction over state law nuisance and trespass claims in a RCRA suit, primarily on the ground that the state law claims would be tried to a jury and the RCRA claims to the bench. 678 F. Supp. at 132. However, Dublin Scarborough Improvement Association was decided before Congress enacted the supplemental jurisdiction statute, 28 U.S.C. § 1367, and the court will apply that statute in deciding whether to retain supplemental jurisdiction over the non-federal claims.
Section 1367(c) permits the court to decline or relinquish supplemental jurisdiction if: (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). Defendants barely acknowledge § 1367(c), let alone show that any of its four grounds apply here, and no such grounds are apparent in any event. All Defendants argue is that because Evanston’s non-federal claims allow for a jury trial, adjudicating those claims
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together with the RCRA claims, which are tried to the bench, will frustrate RCRA’s goal of “the prompt abatement of imminent endangerment.” Doc. 30 at 13; Doc. 37 at 10. The argument is without merit. Because Evanston’s RCRA, state law, and municipal claims arise from the same facts, discovery can proceed simultaneously on them all. And the trial on all claims can proceed simultaneously as well, with the RCRA claims tried to the bench and the other claims to the jury. See, e.g., Artis v. Hitachi Zosen Clearing, Inc., 967 F.2d 1132, 1137 (7th Cir. 1992).
B. Nuisance and Trespass Claims Chevron alternatively argues that the amended complaint fails to plead viable nuisance and trespass claims. Doc. 30 at 14-15. Chevron is wrong on both counts. “A private nuisance is a substantial invasion of another’s interest in the use and enjoyment of his or her land.” In re Chi. Flood Litig., 680 N.E.2d 265, 277 (Ill. 1997); see also Muscarello v. Ogle Cnty. Bd. of Comm’rs, 610 F.3d 416, 425 (7th Cir. 2010); Helping Others Maintain Envtl. Standard v. Bos, 941 N.E.2d 347, 367 (Ill. App. 2010). Under Illinois law, allegations that the defendant’s conduct threatens the plaintiff’s land with environmental contamination are sufficiently state a nuisance claim. Vill. of Wilsonville v. SCA Servs., Inc., 426 N.E.2d 824, 836-37 (Ill. 1981) (holding that a chemical waste disposal site constituted a nuisance because it was “highly probable” that, “through migration” or other events, “highly toxic chemical wastes deposited at the site [could] escape and contaminate the air, water, or ground around the site”); City of Chicago v. Latronica Asphalt & Grading, Inc., 805 N.E.2d 281, 288-89 (Ill. App. 2004) (holding that a waste dump constituted a nuisance because “[w]aste disposed of on the site could migrate onto adjacent properties through runoff from the site”); People ex rel. Burris v. C.J.R. Processing, Inc., 647 N.E.2d 1035, 1039 (Ill. App. 1995) (holding a waste storage facility to be a nuisance because the plaintiff alleged that “unsealed waste material could
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infiltrate nearby sewer systems and public water supplies in the event of a fire at [the defendant’s] facility”); Echternach v. D.H. Martin Petroleum Co., 1997 WL 627646, at *4 (N.D. Ill. Sept. 30, 1997) (finding a nuisance where petroleum leaked from the defendant’s USTs “infiltrated the soil, sewer system, groundwater, surface water, and air”); Dominick’s Finer Foods Inc. v. Amoco Oil Co., 1993 WL 524808, at *1, *8 (N.D. Ill. Dec. 15, 1993) (finding a nuisance where gasoline, oil, and their byproducts leaked from the defendant’s USTs into the plaintiff’s land); see also Willmschen v. Trinity Lakes Improvement Ass’n, 840 N.E.2d 1275, 1282-83 (Ill. App. 2005) (holding that public nuisances also constitute private nuisances “[w]hen the nuisance, in addition to interfering with the public right, also interferes with the use and enjoyment of the plaintiff’s land”) (quoting Restatement (Second) Torts § 821C, cmt. e). By alleging that petroleum, gasoline, and their carcinogenic byproducts migrated and continue to migrate from the Texaco Station to Evanston’s adjacent property, Doc. 24 at ¶¶ 7, 9-11, 30, 3738, 45-46, the amended complaint states a viable nuisance claim.
Chevron responds that the interference necessary to state a nuisance claim under Illinois must be “something perceptible to the senses.” In re Chicago Flood Litig., 680 N.E.2d at 278. This argument fails for two reasons. First, the cases cited above make clear that groundwater pollution is a nuisance due to the possibility of its migrating to the plaintiff’s land. Second, the gasoline and other substances allegedly migrating from the Texaco Station are perceptible to the senses. Although the substances remain underground, the City is alleged to own part of the affected property, Doc. 24 at ¶¶ 3-4, and Illinois law holds that “the owner in fee owns to the center of the earth.” Jilek v. Chi., Wilmington & Franklin Coal Co., 47 N.E.2d 96, 100 (Ill. 1943); see also Kankakee Cnty. Bd. of Review v. Prop. Tax Appeal Bd., 871 N.E.2d 38, 47 (Ill. App. 2007) (same). The substances are perceptible at the place to which they have migrated.
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Evanston’s trespass claim also survives dismissal. “A trespass is an invasion in the exclusive possession and physical condition of land.” Lyons v. State Farm Fire & Cas. Co., 811 N.E.2d 718, 725 (Ill. App. 2004); see also Muscarello, 610 F.3d at 425; Helping Others Maintain Envtl. Standards, 941 N.E.2d at 367. Chevron argues that the amended complaint does not state a viable trespass claim because it fails to allege the alleged environmental contamination completely deprived Evanston the use of its land. Doc. 30 at 14 (arguing that the amended complaint “does not allege that the streets are not usable by Evanston or the public”). But a trespass claim does not require the plaintiff to allege and show total deprivation of the use of its land. See Millers Mut. Ins. Ass’n of Ill. v. Graham Oil Co., 668 N.E.2d 223, 230 (Ill. App. 1996) (“Thus, as the Pipefitters [Welfare Education Fund v. Westchester Fire Insurance Co., 976 F.2d 1037, 1041 (7th Cir. 1992),] court recognized, one need not intend to take possession of the encroached-upon premises or deprive occupants of their right to possess those premises to have committed a trespass under Illinois law.”). Instead, a trespass claim may be premised on the defendant having caused “a thing … to enter the land of another … through a negligent act.” Ibid. As the amended complaint alleges, the negligently leaked contaminants entered Evanston’s property, interfering with its otherwise exclusive possession thereof. See Zimmer v. Vill. of Willowbrook, 610 N.E.2d 709, 714-15 (Ill. App. 1993) (citing cases) (holding that water flowing onto adjacent land constitutes trespass); Vill. of Roxana v. Shell Oil Co., 2013 WL 4510164, at *5 (C.D. Ill. Aug. 26, 2013) (holding that pollution flowing onto the plaintiff’s land is a trespass). That is all the amended complaint needs to do to plead a trespass claim.
C. Statute of Limitations Chevron next argues the non-federal claims are barred by the statute of limitations. Doc. 30 at 13. A five-year limitations period applies under Illinois law to claims seeking “to recover
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damages for an injury done to property, real or personal … and all civil actions not otherwise provided for.” 735 ILCS 5/13-205. The limitations period applies to the municipal ordinance claim as well as to the state law claims. See Landis v. Marc Realty, L.L.C., 919 N.E.2d 300, 303307 (Ill. 2009) (applying statutes of limitation in the Illinois Code of Civil Procedure to ordinance violation claims). The period does not run “until the injured party knows or should have known of [the] injury.” Knox Coll. v. Celotex Corp., 430 N.E.2d 976, 979 (Ill. 1981); see also In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009) (Illinois law).
Evanston alleges that it did not learn of its alleged injuries until March 2012, when its consultant issued the first report. Doc. 24 at ¶ 35; Doc. 36 at 14. Chevron presents evidence to the contrary, Doc. 37-1, but that evidence adduces facts not referenced in the complaint and not subject to judicial notice, and thus not subject to consideration on a Rule 12(b)(6) motion. See Geinosky, 675 F.3d at 745 n.1 (“A motion under Rule 12(b)(6) can be based only on the complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice. If a moving party relies on additional materials, the motion must be converted to one for summary judgment under Rule 56.”) (citations omitted). Given the amended complaint’s allegation regarding when Evanston learned of its alleged injuries, the non-federal claims survive dismissal.
In any event, regardless of when Evanston became aware of its alleged injuries, the continuing violation doctrine would save its non-federal claims, at least in part, from dismissal on limitations grounds. “Under the ‘continuing violation rule,’ … where a tort involves a continuing or repeated injury, the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease.” Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 770 N.E.2d 177, 190 (Ill. 2002); see also Northfield Ins. Co. v. City of Waukegan,
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701 F.3d 1124, 1132 (7th Cir. 2012) (Illinois law). Chevron argues Evanston’s claims accrued fifty years ago, when contaminants leaked from two USTs, and that the continued release of contaminants onto city property “is a re-injury from past tortious conduct.” Doc. 30 at 13; Doc. 37 at 12. It is true that “[a] continuing violation … is occasioned by continuing unlawful acts and conduct, not by continual ill effects from an initial violation.” Bank of Ravenswood v. City of Chicago, 717 N.E.2d 478, 484 (Ill. App. 1999); see also Hukic v. Aurora Loan Servs., 588 F.3d 420, 435 (7th Cir. 2009) (Illinois law). But that principle is inapposite here because each discharge of contaminants onto the city’s property constitutes a separate instance of nuisance and trespass. See Meyers v. Kissner, 594 N.E.2d 336, 340 (Ill. 1992) (holding that the defendant’s levees, which continually washed onto the plaintiff’s land, fell “within the ordinary rules applicable to continuing nuisances and continuing trespasses and [the] plaintiff is not barred from recovering monetary damages for the five-year period preceding the filing of the complaint”); Raabe v. Messiah Evangelical Lutheran Church of Port Byron, 615 N.E.2d 15, 1819 (Ill. App. 1993) (“plaintiffs’ cause of action arises each time flooding occurs, and plaintiffs may select their own time for bringing suit”). Given that the amended complaint alleges that contaminants continue to leak from the Texaco Station onto Evanston’s property, Doc. 24 at ¶ 9, the continuing violation doctrine applies, at least at the pleadings stage.
D. Punitive Damages Chevron asks the court to strike Evanston’s request for punitive damages. Doc. 30 at 15. “Generally, punitive damages are awarded when the underlying tort is accompanied by aggravating circumstances such as willful, wanton, malicious, or oppressive conduct.” Chi. Title Land Trust Co. v. JS II, LLC, 977 N.E.2d 198, 219 (Ill. App. 2012); see also Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936, 947 (7th Cir. 2002) (Illinois law).
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Evanston has plausibly alleged Chevron has knowingly allowed carcinogens to leak into the groundwater. Doc. 24 at ¶¶ 7, 9-10; Doc. 36 at 16-17. By permitting an inference that Chevron wantonly ignored a duty to control the contamination, the allegations are sufficient to ground Evanston’s punitive damages request at the pleading stage. See Rodria v. Seiber, 551 N.E.2d 772, 775 (Ill. App. 1990) (holding that a willful and wanton trespass supports punitive damages); First Nat’l Bank of Des Plaines v. Amco Eng’g Co., 335 N.E.2d 591, 593-94 (Ill. App. 1975) (recognizing that punitive damages may be awarded for an intentional trespass). III. Chevron Corporation and Chevron EMC
Finally, Chevron argues Chevron Corporation and Chevron EMC are not proper defendants. Chevron submits that because Texaco maintained a separate corporate existence as “a wholly-owned, indirect subsidiary of Chevron Corporation” after it merged with a Chevron subsidiary in 2001, Texaco is the only proper defendant for the alleged misconduct at the Texaco Station. Doc. 30 at 16-17 & n.4. Chevron may turn out to be right; a 2001 Securities and Exchange Commission filing shows that Texaco, Inc. was the “name of the surviving corporation” after the merger. Doc. 30-4 at 6.
However, Evanston counters with the plausible allegation that the merger produced ChevronTexaco, which changed its name to Chevron Corporation in 2005. Doc. 24 at ¶ 14; Doc. 36 at 18. Additionally, Evanston notes that Chevron EMC’s “corporate purpose is to manage Chevron’s environmental remediation activities and associated liabilities.” Doc. 36 at 19; see also Doc. 36-1 at 39, 43, 45. Evanston supports its argument with materials attached to its response brief, which can be considered on a Rule 12(b)(6) motion because Evanston is the nonmovant. See Geinosky, 675 F.3d at 745 n.1. Those materials include a statement from Chevron’s website stating that on “Oct. 9, 2001, the shareholders of Chevron and Texaco voted
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to approve the merger, and ChevronTexaco Corp. began doing business that same day,” and another stating that “[i]n 2001, our two companies [Chevron and Texaco] merged to form ChevronTexaco. The name was changed to Chevron in 2005 to convey a clearer, stronger and more unified presence around the world.” Doc. 36-1 at 8, 10.
Evanston’s allegations and supplemental materials make it plausible that Chevron Corporation and Chevron EMC are proper defendants, which means that the court cannot determine on the pleadings whether Texaco is the only appropriate defendant in the corporate family. It bears mention that keeping the three Chevron entity defendants in the case at this stage will cause little additional cost, as all three are sharing counsel and filing joint briefs.
Conclusion For the foregoing reasons, Defendants’ motion to dismiss is denied. Defendants shall answer the amended complaint by March 14, 2014.

February 21, 2014

United States District Judge

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