Saying negotiations over the final stages of the Barrie Park cleanup have turned sour to the point of deadlock, the Park District of Oak Park filed a lawsuit on Monday against the utility companies managing the project.
A Commonwealth Edison spokesperson said officials have yet to be served with the suit and declined to comment. But the district's attorneys said this week that litigation is necessary to push the delay-plagued restoration of the park over the finish line.
To that end, the lawsuit asks a judge to order the utilities to submit several documents to the Illinois Environmental Protection Agency (IEPA). The paperwork is necessary for the agency to issue a No Further Remediation Letter (NFR). A signed NFR certifies that the park is safe for public use.
Attorney Nancy Rich said the district's contract with the utilities called for the documentation to have been submitted by Aug. 31, 2002. The cleanup has suffered numerous setbacks that have pushed back the project timeline by years.
Receiving IEPA approval now is especially important, officials said, as the district will lose an insurance policy that protects it from legal damages if the park is opened without an NFR. That policy won't expire until 2010, at which time the utilities will be held liable for any legal damages. In a worst case scenario, the insurance snafu could mean the park, closed since 1999, couldn't open for another five years.
The district has asked the utilities to take over liability early, but ComEd has refused, district officials said.
Also contributing to the decision to sue is a failed attempt to get the utilities to enter into negotiations led by a professional mediator. ComEd has told the district that it does not believe there are any disputes needing to be resolved, attorneys said.
Since a change in the ComEd staff overseeing the project two years ago, discussions between the district and utilities have steadily deteriorated, said park district attorney Russ Selman.
"We are long past the timeline of the contract. While the utilities throw up a lot of confetti about the park district and how we have too many comments, not too many of our comments seemingly matter," he said. "We're having to sue them to get them to pay attention."
Subjects of hoped-for negotiations were documents needed for an NFR, unpaid expenses and testing of the Barrie community center building for contamination.
To resolve those issues, the suit requests that the utilities reimburse the park district for expenses tied to the project, which, just over the last year, total roughly $100,000, said Gary Balling, district director.
In general, the lawsuit states that ComEd has refused to pay for expenses it believes to be unnecessary.
The district is seeking compensation for costs ranging from legal fees, to environmental testing already paid for by the parks. The district funded sampling of water wells uncovered at the park in the late stages of the cleanup, after the utilities refused to pay for testing.
"We're tired of relaxing the contract. They need to follow the contract, and finish the work that's necessary?#34;not leave behind a series of unpaid bills and broken promises," Selman said.
The district is also expected to begin testing soil at Barrie Center this week, after determining that the utilities' sampling plan was insufficient.
The park district and ComEd have had numerous disputes over management of the cleanup project over the last six years, but this week's action marks the first time the district has filed a formal lawsuit against the utilities.
As part of a separate lawsuit, brought by residents near the park, the district filed a counter-claim against ComEd last year. Selman described the claim as "just legal paperwork."
When asked if he was concerned that legal action would further delay completion of work at the park, Balling said the target opening date remains May 21.
"The park district wants the park back as soon as possible. We do not want to revisit this," he said.
A manufactured gas plant operated at Barrie Park until 1928, leaving behind contamination beneath the park.
Toxic material was discovered at the park in 1998. The park district announced that it would block public access to the park in January 1999. An extensive, $100 million, environmental cleanup project subsequently began at the park in 2001.
It is considered to be perhaps the most extensive cleanup of its kind nationwide.