Village of Bensenville v. City of Chicago (389 Ill. App. 3d 446, 2009)

JUSTICE O’MALLEY

delivered the opinion of the court:

Plaintiffs, the Village of Bensenville, and Bensenville residents Roberta Baird, William Baird, Arlene Benson, Bernardo Flores, Gail Flores, Nelson Marrero, and Robert Rackrow (Residents), appeal the orders of the circuit court of Du Page County dismissing counts I through IV of their five-count second amended complaint against defendant, the City of Chicago (Chicago), and dissolving a preliminary injunction barring Chicago from demolishing structures in Bensenville pursuant to its plan to expand O’Hare International Airport (O’Hare). We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

The following facts set the backdrop of this matter. We will provide additional facts as needed in our discussion of the issues.

In 2001, Chicago, as owner and operator of O’Hare, proposed the O’Hare Modernization Program (OMP), which would reconfigure and expand O’Hare’s facilities, with the purpose of streamlining air traffic and reducing flight delays. The primary measure in the OMP is the installation of parallel runways to replace O’Hare’s existing body of intersecting runways, to which the Federal Aviation Administration (FAA) has attributed much of O’Hare’s inefficiency. The OMP outlines a two-phased “Master Plan” for expansion. Phase 1 calls for the expansion of an existing runway, the reconfiguration of taxiways and a concourse, and the construction of two new runways, a new western satellite terminal, and an underground automated transit system or “people mover” connecting the new satellite terminal with the main terminal. Phase 2 envisions the expansion of another existing runway and the construction of two additional new runways as well as a “world gateway terminal.”

In 2003, the Illinois General Assembly enacted the O’Hare Modernization Act (Act) (620 ILCS 65/1 et seq. (West 2006)). In its prefatory findings, the legislature determined that “O’Hare cannot efficiently perform its role in the State and national air transportation systems unless it is reconfigured with multiple parallel runways.” 620 ILCS 65/5(a)(2) (West 2006). The legislature found it “essential” that the OMP “be completed efficiently and without unnecessary delay” and that “acquisition of property as required for the [OMP] be completed as expeditiously as practicable.” 620 ILCS 65/5(a)(6), (a)(7) (West 2006). To carry out Chicago’s expansion efforts, it is empowered by the Act to “acquire by gift, grant, lease, purchase, [or] condemnation ***, or otherwise any right, title, or interest in any private property,” including property outside Chicago’s boundaries. 620 ILCS 65/15 (West 2006). The Act allows acquisition of property “that [Chicago] reasonably determines will be necessary for future use, regardless of whether final regulatory or funding decisions have been made.” (Emphasis added.) 620 ILCS 65/15 (West 2006). The Act also contains a broad preemption clause providing: “Airport property shall not be subject to the laws of any unit of local government except as provided by ordinance of [Chicago].” 620 ILCS 65/25 (West 2006).

The OMP identifies 615 parcels in Bensenville that Chicago believes it must acquire in order to complete the expansion project at O’Hare. These parcels, situated off the southwest corner of O’Hare, are collectively identified by the OMP as the “Southwest Acquisition Area” (Acquisition Area). The properties in the Acquisition Area are variously improved with residential, commercial, and industrial structures. Plaintiffs all own properties in the Acquisition Area. Chicago has initiated eminent domain proceedings against those properties. This suit, City of Chicago v. Forest Preserve District of Du Page County, No. 06 — ED—111, is pending before Judge Stephen J. Culliton in the circuit court of Du Page County. As for the remaining properties in the Acquisition Area, it appears that Chicago has acquired the great majority of them, though precisely how many is unclear. It also appears that some were acquired through eminent domain proceedings and some through voluntary sales, but again the respective numbers are not clear from the record.

In 2006 and 2007, Chicago drafted plans for demolishing structures it acquired or planned to acquire in the Acquisition Area. Chicago also developed a “Demolition Health and Safety Plan,” which described Chicago’s measures for insuring that the demolition would proceed without risk to public safety.

On June 28, 2007, plaintiffs initiated the present action by filing a two-count complaint against Chicago. Count I sought a declaratory judgment that Chicago’s demolition plans must comply with Bensen-ville’s recently enacted Demolition Ordinance, which provides detailed permit requirements for all demolition within the Bensenville village limits. Bensenville Village Code §9 — 6a—2(F) (eff. February 27, 2008). The Demolition Ordinance provides that any application for a demolition permit must include plans for replacing the structures planned for demolition. Bensenville Village Code §9 — 6a—2(B) (eff. February 27, 2008). The Demolition Ordinance contains a specific exception for Chicago’s demolition of structures in the Acquisition Area, provided Chicago demonstrates that the demolition is “necessary” to accomplish the OME Bensenville Village Code §9 — 6a—2(C)(2) (eff. February 27, 2008).

Count II of plaintiffs’ complaint alleged that demolition under the plans proposed by Chicago would constitute a public nuisance, as it would “expose *** Bensenville residents and their families to toxic or hazardous substances and chemicals released by the demolition.”

Plaintiffs simultaneously moved for an injunction barring Chicago from demolishing any properties in the Acquisition Area during the pendency of the lawsuit. Plaintiffs alleged that Chicago planned to demolish the properties without having quantified all potentially harmful substances in the structures and soils of the properties or designed appropriate measures to control the release of such substances into the air or ground water during demolition. Plaintiffs attached to their motion sworn declarations from Kenneth Mundt and Mark Travers, both employees of Environ, a firm retained by Bensen-ville to assess the health risks posed by demolition of structures in the Acquisition Area.

Mundt, an epidemiologist, averred in his declaration that the demolition as planned by Chicago would “ create [ ] a significant potential endangerment to the health and safety of Bensenville residents and their families.” Mundt stated that he had reviewed Chicago’s plan for controlling emissions of harmful substances during demolition and found it inadequate to protect either demolition workers or Bensenville residents who live in the Acquisition Area or in the vicinity. Mundt identified hazardous substances that are likely present in the structures or soils in the Acquisition Area:

“Based on the mix of industrial, commercial, and residential structures in the Acquisition Area (as well as the historical uses of the area), it is highly likely that the following hazardous or toxic substances are present in the structures to be demolished (or in the surrounding soils and groundwater): lead, mercury, pesticides, insecticides and herbicides, polychlorinated biphenyls (PCBs), chemical wood preservatives such as chromate copper arsenate, pentachlorophenols, creosote, paint and solvent compounds containing volatile organic compounds, petroleum wastes containing benzene and PAHs (polycyclic aromatic hydrocarbons), pathogenic mold spores, and septic system wastes containing bacterial and viral pathogens.”

Mundt stated that these substances can, depending on their concentrations, cause “severe adverse health effects including lung diseases, central nervous system damage, learning disabilities in children, cancer, birth defects, liver damage, and damage to reproductive systems.” Mundt cautioned that a full list of the hazardous substances in the Acquisition Area was not possible until the area was comprehensively investigated and tested.

Mundt described a three-step process that he recommended be completed before demolition. The first step is a comprehensive area-wide field investigation and sampling. This step involves identifying “the locations, types, and quantities of hazardous or toxic materials in and around the structures to be demolished.” Mundt contrasted this approach with Chicago’s proposed method of testing, which he criticized as “start-stop” because Chicago intended to test and demolish piecemeal rather than test the site in full before commencing demolition. Mundt opined that Chicago’s method was inadequate because it failed to consider the additive or cumulative effects of releases from multiple parcels or structures.

The second step, according to Mundt, is to develop a baseline risk assessment, which involves using data from the field-testing stage to calculate the degree to which demolition will expose to hazardous substances demolition workers and residents living in the Acquisition Area or its vicinity. If the exposure is likely to exceed “accepted levels of public health protection,” then strict controls are necessary to reduce the exposure to acceptable levels. Mundt averred that, since Chicago did not perform proper field testing, it necessarily could not have performed a proper risk assessment.

The third step, explained Mundt, is to establish “sufficiently strict control measures” to insure that levels of exposure do not exceed “accepted levels of public health protection.” Mundt opined that, since Chicago did not perform proper field testing or prepare a proper risk assessment, Chicago has no basis for claiming that its demolition proposal will adequately protect public health.

In his declaration, Travers, a geologist, noted that Bensenville’s Demolition Ordinance requires an applicant for a demolition permit to submit plans for (in his words): (1) “a comprehensive investigation of the location, type, and quantity of hazardous chemical[s] and materials in the entire area to be demolished”; and (2) demolition controls that “minimiz [e] the public health risk from release of those hazardous chemicals during demolition.” Travers opined that the Demolition Ordinance “is a carefully developed and organized set of requirements designed to protect the public health and safety of Bensenville residents and their families from exposure to hazardous or toxic chemicals and materials that may be released during demolition activities.” Travers averred that Chicago’s compliance with the Demolition Ordinance was “essential” for public protection.

At a July 2007 hearing on the motion for injunctive relief, the trial court held that count I did not provide a basis for an injunction because plaintiffs were not likely to succeed on the merits. The court reasoned that the Demolition Ordinance was preempted by section 25 of the Act, which provides that “[a]irport property shall not be subject to the laws of any unit of local government except as provided by ordinance of [Chicago].” 620 ILCS 65/25 (West 2006). The court did, however, find a basis for injunctive relief in count II, alleging a public nuisance. The court entered a preliminary injunction:

“against [Chicago] on any further demolition of any kind or nature within [the Acquisition Area] until an area-wide field investigation and sampling program is done identifying any location, type and quantities of hazardous or toxic materials in or around the structures to be demolished in the demolition area.”

As for the duration of the injunction, the court said:

“Once that area-wide field investigation and sampling program has been completed, then we will hold an evidentiary hearing in regard to the findings that have been made, any expert testimony that either Bensenville or [Chicago] may wish to put forth in open court, and any other testimony that may be relevant in regard to same for this Court to make a determination whether [the] preliminary injunction [should continue] *** or whether [it] [should] terminate at that point with there being sufficient safeguards and protection for the public health of those residents of Bensenville and the surrounding areas to satisfy this Court.”

The court put the matter over for status.

In October 2007, plaintiffs filed a four-count amended complaint. Count I alleged common-law fraud, in that Chicago knowingly made to property owners in the Acquisition Area false statements that all of their parcels are necessary for completion of the OMR Plaintiffs alleged, without elaboration, that, “[w]ith the exception of one parcel of property owned by [Bensenville],” none of the properties in the Acquisition Area are needed for Phase 1 of the OMR Plaintiffs alleged that only a portion of Phase 1 received the requisite approval from the “Majority-In-Interest Airlines” (Mil Airlines) at O’Hare. Plaintiffs asserted that only Phase 2 could possibly warrant acquisition of plaintiffs’ properties in the Acquisition Area but that Phase 2 was unlikely ever to be completed, because the Mil Airlines probably would not approve Phase 2 given its projected cost. Plaintiffs asserted that Chicago knows that completion of Phase 2 is unlikely and that Phase 2 “is little more than a public relations creation by Chicago to provide a false justification for acquiring and destroying the residential and commercial properties in the Acquisition Area.”

Count II of the complaint pleaded constructive fraud based on the same false statements alleged in count I. Count III reasserted the first complaint’s claim that the Demolition Ordinance governs the demolition of properties in the Acquisition Area. Count IV realleged that the demolition would constitute a public nuisance if it proceeded under the plans proposed by Chicago.

Chicago moved to dismiss counts I through III, pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 615 (West 2006)). The trial court granted the motion as to counts I and II but not count III. The court dismissed count I on the grounds that: (1) Chicago’s statements as to Acquisition Area properties’ necessity for the OMP were legal opinions based on statutory or constitutional criteria for condemnation and therefore were not proper subjects of a fraud action, pursuant to Stern v. Norwest Mortgage, Inc., 284 Ill. App. 3d 506 (1996); (2) Chicago’s statements that it would use the properties for either Phase 1 or Phase 2 were statements of future intent and therefore not actionable as fraud (see People ex rel. Peters v. Murphy-Knight, 248 Ill. App. 3d 382, 387 (1993) (“[statements regarding future events are considered opinions, not statements of fact,” and therefore cannot be fraudulent)); (3) plaintiffs’ alleged damages were “speculative at best” because plaintiffs did not allege that Chicago had no intent to use the properties for Phase 1 or Phase 2; and (4) relatedly, the lack of final approval for Phase 1 or Phase 2 did not vitiate Chicago’s ability to acquire the properties, because the Act allows acquisition of properties that Chicago “reasonably determines will be necessary for future use, regardless of whether final regulatory or funding decisions have been made” (emphasis added) (620 ILCS 65/15 (West 2006)).

The court dismissed count II because plaintiffs set forth no facts that would prove “the existence of a fiduciary relationship between Chicago and Bensenville.” In denying the motion to dismiss with respect to count III, the court reasoned that Chicago’s sole contention was that the ordinance was preempted by the Act, an affirmative matter not properly claimed in a section 2 — 615 motion. The court noted that the dismissal of counts I and II was without prejudice.

In November 2007, Chicago filed with the court a status report regarding its plans for surveying and sampling the Acquisition Area as previously ordered by the court. Chicago informed the court that it had retained the firm of Conestoga-Rovers and Associates (CRA) to conduct the investigation. The court set July 7, 2008, for an evidentiary hearing on whether the preliminary injunction should continue.

On March 11, 2008, plaintiffs filed a five-count, second amended complaint. Count I of the second amended complaint was entitled “Declaration and Injunctive Relief as to the Constitutionality of the O’Hare Modernization Act.” In their foundational allegations, plaintiffs averred that Chicago “has acquired — either through eminent domain or threat of eminent domain — several hundred *** residential and commercial properties in Bensenville in the Acquisition Area.” Plaintiffs further alleged that Chicago is currently seeking to acquire through eminent domain plaintiffs’ own properties.

Plaintiffs pleaded for two declarations. First, plaintiffs sought a declaration that the Act does not override the requirement of article I, section 15, of the Illinois Constitution, the takings clause, that “the courts *** decide after an evidentiary hearing whether any particular parcel is necessary” for a public purpose. See Ill. Const. 1970, art. I, §15 (“Private property shall not be taken *** for public use without just compensation as provided by law”); People ex rel. Director of Finance v. Young Women’s Christian Ass’n, 86 Ill. 2d 219, 232 (1981) (YWCA) (the takings clause of the Illinois Constitution “ ‘is a restraint and limitation placed upon the exercise of [the condemnation power] as against the right of the private citizen except in those cases where public necessity requires the taking of private property for public use’ ”), quoting Department of Public Works & Buildings v. Ryan, 357 Ill. 150, 154 (1934).

Second, plaintiffs sought a declaration that Chicago did not satisfy the constitutional requirement of necessity in “taking” properties in the Acquisition Area. In support, plaintiffs alleged that only a portion of the OMP’s Phase 1, i.e., the “Phase 1 Airfield Project,” was currently in progress. Plaintiffs further alleged that, “[w]ith the exception of a small number of properties on the north end of the so-called ‘Acquisition Area,’ Chicago has no need for any properties in Bensen-ville for [Phase 1] — or the Phase 1 Airfield Project.” With respect to Phase 2, plaintiffs averred that “there is no certainty that [Phase 2] will be constructed within any reasonable period of time as required by the necessity limitations of the Illinois Constitution.” Plaintiffs alleged that, “despite this lack of necessity for property in Bensenville, Chicago has acquired — through eminent domain proceedings or the threat of eminent domain — several hundred residential and commercial properties in Bensenville on the false assertion that these properties are necessary” for the OMR

In addition to declaratory relief, plaintiffs asked that Chicago be ordered to restore “to their prior state and condition” the properties it “acquired” from the Acquisition Area. Plaintiffs also asked that Chicago be enjoined from “further acquisitions” of property in Bens-enville “under any claim that the properties are necessary” for the OMP, until Chicago proves its compliance with the constitutional necessity requirement.

Count II pleaded common-law fraud. Plaintiffs made the following core allegations:

“(A) False statement of material fact. Here the false statements of material fact are Chicago’s false factual allegations made to meet the necessity requirement of the Illinois Constitution.

i. That all of the properties in the Acquisition Area are needed for [Phase 1] when at most only a few parcels are needed; the vast majority of Plaintiffs’ properties are not needed; and the vast majority of parcels in the Acquisition Area are not needed for the ‘Phase 1 Airfield Project’ or any portion of [Phase 1].

ii. That all of the properties in [the] Acquisition Area are needed for the future [Phase 2] and that the necessity requirement of the Illinois Constitution is met because [Phase 2] will be constructed by 2014. This statement of future need is false because Chicago has no basis in fact to assert that [Phase 2] will be constructed by 2014 or any future date, if ever.

(B) Defendant’s knowledge that the statement is false. Chicago knows that its factual assertions as set forth in paragraph (A) are false.

(C) Defendant’s intent that the false statement induce the Plaintiffs to act. *** Here Chicago knew and intended its false factual statements as to necessity would cause many property owners to sell their homes and businesses under threat of eminent domain. The false statements by Chicago as to the facts — i.e., that Chicago had demonstrated a factual basis of constitutional necessity in accordance with the Illinois Constitution’s limitations on the power of eminent domain — were made to property owners who sold their homes and businesses under threat of eminent domain and to the DuPage [sic] County Circuit Court which unwittingly accepted these assertions as the truth.

(D) Plaintiffs’ reliance on the truth of the false statement. Here many — indeed hundreds of property owners — sold their homes to Chicago under threat of eminent domain in reliance on the truth of Chicago’s false statements as to necessity to take their properties. In turn by selling their homes in response to these false statements as to necessity, these property owners (with the assistance and encouragement of Chicago) left the neighborhood a deserted wasteland.”

Plaintiffs alleged as injuries that: (1) parts of the Acquisition Area have been turned into “a virtual wasteland” in that the acquired properties are uninhabited, and plaintiffs have suffered a resulting “[Hack of community”; and (2) the loss of neighboring properties has diminished plaintiffs’ property values and the reduction in the tax base has led to higher taxes.

Count III alleged unjust enrichment. Plaintiffs pleaded that “Chicago has improperly and unjustly obtained and continue[s] to retain the use of the properties in the Acquisition Area by violating the necessity limits of the Illinois Constitution and by false statements as to necessity.”

Count IV realleged the claim from the prior complaints that demolition in the Acquisition Area was governed by the Demolition Ordinance. Count V realleged the public nuisance claim from the prior complaints.

Plaintiffs also filed a motion for injunctive relief under counts I through III of the second amended complaint. Also, under count V plaintiffs sought the same injunctive relief that was currently in place. Plaintiffs did so to preserve the status quo in the event the court dissolved the injunction at the July 2008 evidentiary hearing.

On April 11, 2008, Chicago moved to dismiss counts I and I\( pursuant to section 2 — 619 of the Code (735 ILCS 5/2 — 619 (West 2006)), and counts II and III pursuant to section 2 — 615 of the Code. Plaintiffs filed a response to the motion. To particularize their allegations of fraud in count II, plaintiffs attached an affidavit from Joseph Del Balzo, former acting administrator of the FAA. Del Balzo averred that he reviewed documents relating to the OMP and found that Phase 1 requires only 33 properties in the Acquisition Area, not 615 properties as Chicago claimed. Del Balzo further determined that none of the documents indicates an estimated completion date for Phase 2.

On June 26, 2008, the trial court dismissed counts I and IV under section 2 — 619 and counts II and III under section 2 — 615. The court first addressed the grounds for dismissing counts I and IV The court construed count I as alleging “that Chicago’s acquisition of properties in Bensenville is unconstitutional because those properties are not necessary, as required by the Illinois Constitution.” The court proceeded from the premise that, “[if] property is not necessary for [a] public project, there is no constitutional authority to take the property — despite what the Legislature has asserted in the authorizing statute.” The court distinguished between properties owned by plaintiffs, which Chicago is presently attempting to acquire in the proceedings before Judge Culliton, and all other properties in the Acquisition Area, which the court noted were “owned by individuals who contracted with Chicago for the sale of those properties.”

The trial court held that plaintiffs’ claims respecting their own properties were barred on the ground that there is “another action pending between the same parties for the same cause” (735 ILCS 5/2 — 619(a)(3) (West 2006)), namely, the eminent domain action before Judge Culliton. The trial court found that the proceedings before Judge Culliton could provide plaintiffs “complete relief’ with respect to their own properties. As for the remaining properties, the trial court held that plaintiffs lacked standing to challenge their acquisition by Chicago. The court noted plaintiffs’ reliance on two cases, People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164 (2002), and Yusuf v. Village of Villa Park, 120 Ill. App. 3d 533 (1983), to establish standing, but the court found that plaintiffs alleged injuries unlike those in Yusuf or Klaeren.

As for count FV[ the court held that, in light of section 25 of the Act (620 ILCS 65/25 (West 2006)) (“Airport property shall not be subject to the laws of any unit of local government except as provided by ordinance of [Chicago]”), it is “clear *** that any property acquired by the City of Chicago for the purposes of OMP is not subject to the Bensenville Demolition Ordinance.”

The court then turned to counts II and III, which alleged fraud and unjust enrichment, respectively. On count II, the court reasoned:

“This court reaches the same conclusion it reached the last time plaintiffs presented a fraud claim — the alleged damages are speculative at best. The acquired properties are to be used for the benefit of the State of Illinois, and there is no evidence that Chicago plans to use them for anything else. Assurance as to future events is generally not considered misrepresentation of fact. [Citation.] As such, Chicago’s stated intention to use the acquired properties for the [OMP] cannot be considered fraud. In addition, a legal position, even if alleged to be wrong, is not fraud. [Citation.] Therefore, Chicago’s legal position that it has discretion (granted by the Illinois legislature) to determine what parcels of land it requires for completion of the [OMP] cannot be considered a fraudulent statement.”

On count III, the court said:

“ ‘To state a cause of action for unjust enrichment, a plaintiff must allege the defendant unjustly retained a benefit to the plaintiffs detriment, and the defendant’s retention violated the fundamental principles of justice, equity, and good conscience.’ [Citation.] *** [T]here is no fact pleading that supports the proposition that Chicago intends to use the acquired properties for anything other than expansion of O’Hare. The properties are not for the benefit of the City of Chicago. In addition, Chicago paid for each of the acquired properties in real estate contracts with former owners of those properties. ‘Where there is a specific contract which governs the relationship of the parties, the doctrine of unjust enrichment has no application.’ [Citation.]”

The court also denied, as moot, plaintiffs’ motion for injunctive relief under counts I through III. On June 30, 2008, plaintiffs petitioned this court for leave to take an interlocutory appeal from the denial of their motion. This court denied the petition.

On July 7-10, 2008, the trial court held an evidentiary hearing on whether its injunction should continue against demolition of the properties in the Acquisition Area. Chicago presented its case first, and its first witness was Fred Blickle, an environmental engineer with CRA and an expert in developing and evaluating plans for the decommissioning and demolition of residential, commercial, or industrial structures. Blickle explained that “decommissioning” is the process of removing potentially hazardous material from a structure before demolishing it. Blickle testified that CRA was hired to perform an area-wide testing and investigation program in the Acquisition Area, to evaluate the results of the program, and to develop a decommissioning and demolition program that would protect public health.

Blickle first explained the nature and scope of the testing and investigation. CRA inspected and sampled both structures and soils in the Acquisition Area. With respect to structures, CRA inspected “600 plus” parcels in the Acquisition Area and looked for any “materials] of concern that should be decommissioned prior to demolition.” CRA inspected the structures for lead and asbestos and for “waste,” subdivided by the United States Environmental Protection Agency (USEPA) into universal waste (fluorescent bulbs, batteries), household waste (cooking oils, cleaning agents, pesticides), and hazardous waste (determined by a specialized test). CRA found materials containing asbestos. CRA did not test for lead in applied paint on the structures but, rather, assumed that there was lead in all applied paint and planned to decommission the structures accordingly.

Blickle testified that CRA’s inspection for waste included testing areas of concern, like stained concrete. This sampling was guided by the Toxic Substances Control Act (15 U.S.C. §2601 et seq. (2000)), which Blickle described as “the only procedure prescribed by the [USEPA] for sampling solid materials.” CRA gathered 4,400 samples in all and sent them to an independent lab to be tested for the presence of hazardous waste according to the criteria of the Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C. §6901 et seq. (2000)). Blickle testified that CRA found household and universal waste but no hazardous waste in the Acquisition Area.

Blickle then explained CRA’s methodology for soil sampling. CRA conducted two types of sampling: (1) sampling in areas of potential environmental concern (PECs); and (2) grid sampling. CRA identified PEC sites based on historical data showing the likely presence of contaminants in the soil. Grid sampling consisted of random testing within a grid of acre-sized lots imposed on a map of the Acquisition Area (with no overlap with PEC testing). Blickle testified that grid sampling was not required by the USEPA but that CRA did it as an extra precaution. Blickle testified that CRA took samples at approximately 170 PEC sites and approximately 200 grid sites. About 400 discrete samples were taken in all. CRA took samples at depths recommended by a document entitled “Soil Screening Guidance: User’s Guide,” promulgated by the USEPA. CRA was not able to complete testing at 21 of the PEC sites because of “access issues.” Blickle testified that he was confident that nothing was present at these 21 PEC sites that CRA had not already encountered elsewhere in the Acquisition Area. Blickle testified that CRA selected the chemicals for which to test a PEC sample based on the contaminants, e.g., petroleum, that the usage history of the site indicated would likely be present in the soil. Blickle testified that grid samples were tested for substances listed on the Priority Pollutant List established by the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (33 U.S.C. §1317 (2000)).

Blickle testified that the test results for each chemical were compared against the soil screening level for that chemical. Blickle used soil screening levels developed by Dr. Elizabeth Anderson of Exponent Corporation. Blickle testified that Dr. Anderson’s screening levels are conservative and that an exceedance does not necessarily indicate that disturbance of the soil will be a risk to public health. Blickle testified that 99% of the PEC samples and 99% of the grid samples were below the screening levels. Blickle testified that the ex-ceedances that were found would not preclude demolition, because CRA had measures to control emission of contaminants within levels acceptable for public safety.

Blickle then described CRA’s planned decommissioning procedures. Blickle testified that CRA intends to remove all waste that can be “practically” taken from the structures. As for asbestos, Blickle noted that the handling and disposition of materials containing asbestos is controlled by the National Emissions Standards for Hazardous Air Pollutants (NESHAP) (40 C.F.R. §61 et seq. (2008)), a series of federal regulations. Blickle explained that asbestos is of two types: “Regulated Asbestos Containing Material” (RACM) and non-RACM. The USEPA and the Illinois Environmental Protection Agency (IEPA) both must be notified of the presence of RACM in a structure designated for demolition. Prior to demolition, RACM must be entirely removed from the structure by a demolition contractor licensed in asbestos abatement. Non-RACM need not be removed prior to demolition. Blickle explained that, though such a measure is not required by law, CRA will dismantle rather than crush or implode structures containing non-RACM. As for lead, CRA will assume that all applied paint contains lead and will remove all flaked or flaking paint.

Blickle next described the demolition controls that CRA developed to keep emissions of contaminants to safe levels during demolition. CRA will enclose the demolition area to exclude the public and will maintain a “buffer zone” between the demolition area and occupied properties. CRA will apply water to all structures to control release of dust and will use silk screens to filter the water running off the structures. Blickle characterized the wetting of structures as CRA’s “primary” control on dust. CRA will also vacuum around the structures with a device designed to catch particles down to .3 microns in size. In addition, CRA will implement a “real time” air monitoring program in an effort to confine “visible dust” to the demolition area, per the dictates of the NESHAP CRA will monitor airborne asbestos according to the standards of the Asbestos Hazard Emergency Response Act of 1986 (AHERA) (15 U.S.C. §2461 et seq. (2000)) and lead levels according to the National Primary & Secondary Ambient Air Quality Standards (NAAQS) (40 C.F.R. §50.1 et seq. (2008)). CRA derived from the AHERA and the NAAQS certain “action” and “trigger” levels for lead and asbestos. If an action level is exceeded, CRA will take corrective measures while continuing demolition. If a trigger is exceeded, CRA will cease demolition altogether until it achieves compliance with the emission standards. In addition to the foregoing, CRA will monitor the air for volatile organic compounds. Blickle admitted that CRA will not monitor for substances other than lead, asbestos, and volatile organic compounds. Blickle explained that demolition teams “never monitor for every constituent that’s present, no matter what the site.” The custom rather is to “select target compounds, indicator parameters to gauge your monitoring program.”

Blickle testified that CRA will further minimize soil disturbance by demolishing just to the “pad” or slab of a structure and by filling basements with concrete rather than digging out the walls. Blickle opined that CRA’s demolition controls will insure that no “appreciable” deposition of chemicals will occur in residential areas inside or outside the demolition area. Blickle admitted that CRA made no quantitative estimate of “what would come off the site during demolition.” CRA saw no need to make that calculation, because its controls “are protective of any type of generation of that material” and it did not believe “anything is going to come off” the site during demolition.

Blickle acknowledged an October 31, 1997, letter from the IEPA to Nelson Steel & Wire, which had occupied in the Acquisition Area a parcel that is now the site of Pro Logis. The letter implies that at the site there had been some environmental issue for which remediation had been required. The letter refers to presently contaminated soil at the site but states that “no further remediation” is required at the site as long as certain terms are followed. The letter states in pertinent part:

“PREVENTIVE, ENGINEERING, AND INSTITUTIONAL CONTROLS

3 Preventive: a) A Site Health and Safety Plan for this remediation site is to be implemented in accordance with the Occupational Safety and Health Administration requirements to address possible worker exposure, should any further excavation and construction activities occure [sic] within the contaminated soil, b) The area of the northeastern retention basin, as identified on the Site Base Map, is prohibited from recreational use. Additionally, any future activity which would expose contaminated sediments within the northeastern retention basin will require implementation of an engineered barrier meeting the requirements of 35 Illinois Administrative Codes 742.1100 and 742.1105.

Engineering: As delineated on the Site Base Map, a six (6) inch asphalt or equivalent material cap must remain in place over the contaminated soil. The cap must be properly maintained in the future as an engineered barrier to inhibit inhalation and ingestion of the contaminated media below the cap, as well as impede contaminant migration to groundwater.

Institutional: Within the boundaries of the site, no person shall construct, install, maintain or utilize a water system or well other than the water supply and water services available from the nearest Public Water Supply. The provisions of this institutional control shall be applicable to all water usage including, but not limited to, domestic, commercial and industrial uses and water for outdoor purposes.”

The letter also states that the conditions specified may be revised if “(a) Further investigation or remedial action has been conducted that documents the attainment of objectives appropriate for the new land use; and (b) A new letter is obtained and recorded in accordance with Title XVII of the [Illinois Environmental Protection Act] and regulations adopted thereunder.” Blickle testified that the demolition of structures at the Pro Logis site will not disturb the cap that now sits over the contaminated soil at that site.

Blickle testified that, in his professional opinion, CRA’s decommissioning program and demolition controls will insure that the demolition of structures in the Acquisition Area is “clean” and not a threat to public health.

Chicago’s other witness was Dr. Elizabeth Anderson, a toxicologist at Exponent and an expert in assessing risks to public health from contaminants and pollutants. Dr. Anderson testified that a proper assessment of the risk posed by a proposed demolition has three steps: (1) characterizing the demolition site, which involves identifying chemicals of potential concern; (2) identifying potential receptors of emissions and pathways of exposure, such as inhalation and ingestion; and (3) determining the overall risk on the basis of the qualitative and quantitative data. The aim of the risk assessment approach is to insure that contaminants are not released in levels that can threaten public health.

Dr. Anderson testified that, in her professional opinion, Blickle’s plan for decommissioning the structures, controlling dust, and monitoring for lead and asbestos was suitably protective of public health. To evaluate the risk posed by soil disturbance, Dr. Anderson used a specialized risk assessment paradigm called the “screening level approach,” which is approved by both the USEPA and the IEPA. Dr. Anderson explained that the aim of the screening level approach is to calculate the maximum soil concentration at which a substance, if released during a soil disturbance, will not endanger public health. Dr. Anderson drew her soil screening levels from the baseline values provided in the “Tiered Approach to Corrective Action Objectives” (TACO) (35 Ill. Adm. Code §742.100 et seq., adopted at 21 Ill. Reg. 7942, eff. July 1, 1997, as amended) promulgated by the IEPA. Dr. Anderson explained that TACO assumes that there has been both “a hazardous release” and “an enforcement action” and, accordingly, prescribes soil screening levels by which to plan appropriate corrective action. TACO may also be used “voluntarily,” as she did here, where the issue is the risk involved in a prospective soil disturbance. Dr. Anderson testified that TACO soil screening levels are calculated differently for carcinogenic substances than for noncarcinogenic substances. Under TACO, exposure to carcinogenic substances must not cause greater than a 1 in 1 million (1 x 10"6) chance of developing cancer over one’s lifetime. Risk associated with noncarcinogenic substances, however, is measured not as a probability but as a hazard quotient, or “the ratio of the expected exposure to the regulatory limit.” Under TACO, the hazard quotient for noncarcinogenic substances must not exceed one.

Dr. Anderson testified that TACO considers the risk that demolition poses to both demolition workers and adjacent residents. TACO provides three tiers of screening values. Tier 1 provides screening values for a certain baseline scenario, and Tiers 2 and 3 allow for modification of those values if the circumstances of a chemical release from soils differ materially from the Tier 1 scenario. Dr. Anderson explained that Tier 1 presupposes a release of contaminants due to a “very gentle soil disturbance.” Tier 1 also presupposes an exposure duration of 30 years for adjacent residents and 30 days for demolition workers. Dr. Anderson modified the Tier 1 scenario in several ways. First, she assumed, commensurate with the length of the planned demolition, that both residents and demolition workers in the Acquisition Area would be exposed to released chemicals for 260 days. Dr. Anderson testified that the baseline 30-year exposure for residents was not realistic in this case because contaminants were found at “very low levels” in the Acquisition Area and Blickle’s demolition controls would forestall any “large depositions that would then cause long term risk.”

Second, Dr. Anderson assumed a greater soil disturbance than the baseline Tier 1 scenario and in fact employed a “Particulate Emission Factor” (PEF) 10 times more conservative than the Tier 1 default factor.

Third, as a precautionary measure, Dr. Anderson assumed that residents in the Acquisition Area would inhale released contaminants to the same degree as demolition workers. Dr. Anderson did not, however, assume any ingestion of contaminants by residents as she did for demolition workers, because ingestion by residents was unlikely given the degree of Blickle’s controls.

The fourth manner in which Dr. Anderson departed from Tier 1 was to use an additive risk analysis according to the guidelines of Tier 3. Dr. Anderson explained that an additive risk analysis considers the combined effect of exposure to multiple contaminants. Dr. Anderson emphasized that the additive risk analysis considers “contaminants detected — not suspected, not possibilities.” Dr. Anderson also emphasized that the additive risk analysis considers separately the effects of noncarcinogenic and carcinogenic substances; TACO does not permit the combining of carcinogenic and noncarcinogenic effects into a single risk value. Finally, the additive risk analysis segregates effects to different parts of the body. Dr. Anderson testified that the screening levels resulting from her adjustments were more rigorous overall than even the conservative Tier 1 levels.

Dr. Anderson then described Blickle’s test results and his comparison of them to her screening levels. Dr. Anderson noted that Blickle’s test results showed “very, very low” concentrations of contaminants in the Acquisition Area. Blickle took these concentrations and did a “chemical by chemical” analysis, comparing each chemical to its screening level. Blickle found exceedances at 41 of the 370 locations he sampled. When Dr. Anderson did her own comparison using the additive risk model, she found exceedances at only 11 locations sampled. Dr. Anderson attributed this somewhat counterintui-tive disparity to the specialized nature of additive risk analysis under TACO. For one, additive risk separates effects peculiar to discrete body parts; there is no “mixing of body parts.” Furthermore, under TACO, “the cumulative risk of carcinogens [sic] contaminants attacking the same target must not exceed 1 x 10"4,” not the standard benchmark of 1 x 10"6.

Dr. Anderson testified that, in an effort to be “more public health protective,” Blickle designed his controls based on the 41 site-exceedances derived from his chemical-by-chemical analysis, not on the lower number of exceedances reached in Dr. Anderson’s additive risk analysis. Dr. Anderson noted that, of the 41 exceedance sites, no soil disturbance causing a release would occur at 25 of the sites because either there are no structures at all on those sites or the soil that is contaminated is located below asphalt or concrete that will be undisturbed during demolition. Dr. Anderson testified that another 12 of the 41 locations showed exceedances only for arsenic and benzo-(a)pyrene, and these were in concentrations at acceptable background levels that TACO sets for chemicals found “frequently in the environment.” On yet another site, “the limits of detection were above the risk-base soil concentration levels,” and Blickle “had very generally just included [it] as a positive sample even though it was never detected.” Thus, there remained just three sampling locations with unmitigated exceedances.

Asked if CRA had taken enough samples at each sampling location to be confident that it had measured the highest concentration of each contaminant found at the location, Dr. Anderson answered:

“I suppose Mr. Blickle could have sampled every square inch. But that’s not the point of a sampling program.

The point of [a] sampling program is to capture the representative samples in a location.”

Dr. Anderson further defended CRA’s sampling program:

“If you’re doing a focus sampling plan and you’re trying to sample particularly the point where you think the concentration is going to be the highest and you don’t really find anything that is of enormous concern — we did not find huge levels of contamination at this site — and then to proceed further to establish protective measures, I don’t think you necessarily need to establish sampling plans that just continue to sample and to sample and to sample, when at this site, as I said ***, we really don’t find that many enormous concerns.

We found very, very, few samples that exceeded the screening levels.”

Dr. Anderson testified that CRA did not intend to remove the protective barrier in place at the Nelson Wire/Pro Logis site, but, if there were a soil disturbance, “it would need to be addressed with the [IEPA].”

Dr. Anderson testified that, in her professional opinion, the demolition planned by CRA will not threaten public health because CRA’s plan for decommissioning the Acquisition Area is comprehensive and sound, the soil in the Acquisition Area has low concentrations of contaminants, and the demolition controls designed by CRA will adequately control emission of contaminants from the structures and soils.

Plaintiffs’ first witness was Stanley Popelar, a geologist and expert in site assessment employed by Environ. Popelar’s testimony was focused primarily on CRA’s soil sampling program, which he found inadequate. Popelar emphasized first that soil samples were taken at a relatively small number of legal parcels in the Acquisition Area. Popelar noted that CRA took samples at only 147 of the 615 parcels in the Acquisition Area. Moreover, CRA identified 61 PEC parcels but took samples at only 37.

Popelar criticized CRA’s general sampling methodology. Popelar testified that CRA’s PEC sampling concentrated almost exclusively on commercial and industrial properties even though residential properties regularly contain such contaminants as lead from paint, pesticides, chemicals for treating lumber, heating oil residue, and household wastes. Popelar asserted that this deficiency in the PEC sampling was not remedied by the grid sampling, which also did not cover all residential properties in the Acquisition Area.

Popelar also criticized CRA’s methodology with respect to the sites it did sample. Popelar noted that, once CRA found a sample in a given location that tested positive for a contaminant, CRA did not “step out” from the point of the sample, i.e., take further samples to determine the total quantity of that contaminant at the sampling location. Popelar testified that, without knowing the total quantity of a contaminant in an area, one cannot know what quantity of that contaminant will be released during a soil disturbance, and, without knowing emission levels, one cannot design appropriate emission controls. Popelar also opined that CRA did not bore deeply enough when taking samples. Additionally, in the residential properties that were grid-sampled, CRA “typically put the soil borings out in the middle of the yard in areas [where CRA was] least likely to find contamination, not near the structures, not near [the] sources of residential contaminants.”

Popelar maintained that, though underground septic and heating oil tanks are common in residential properties in the Acquisition Area, CRA did not search for such tanks in many of the residential areas. Popelar identified specifically a residential area north of Irving Park Road in Bensenville that CRA had not surveyed for septic or heating oil tanks.

Popelar concluded that CRA’s sampling was “not area-wide” or “comprehensive” and that CRA failed to “identify the maximum concentrations present and/or the quantities they might be dealing with.” Popelar admitted that Environ did not take its own samples from the Acquisition Area.

Robert Adams, also employed by Environ, testified that he has experience in developing and evaluating decommissioning and demolition plans. Adams testified that the basic shortcoming in CRA’s demolition controls is that they are based on incomplete data. Adams observed that a large number of residential properties have not been sampled by CRA. Even with respect to the properties it has sampled, CRA has “done no assessment or review to determine what kinds of emissions will be coming off the site during the demolition process.” Because “you need to know what is going to come off of the site [during demolition] to determine what the necessary controls are,” CRA has no basis for claiming that its controls will limit emissions within levels consistent with public health.

Adams also questioned aspects of CRA’s air monitoring program. Adams asserted that CRA’s monitoring system was not sufficiently comprehensive because asbestos, lead, and volatile compounds are not reliable proxies for other contaminants, contrary to CRA’s position. Adams also claimed that CRA’s lead monitoring instruments are not sensitive enough to detect emissions at CRA’s proposed action and trigger levels.

Adams admitted that he has not taken samples from, or otherwise investigated or examined, the Acquisition Area. He also admitted that he himself has made no estimate of the emission levels for any contaminant that could be released during demolition.

Dr. Frank Jones, a toxicologist at Environ and an expert in risk assessment, testified to the multiple points on which he disagreed with Dr. Anderson’s screening level approach. First, Dr. Jones disagreed with Dr. Anderson’s rejection of ingestion as a possible pathway of exposure for residents inside or outside the Acquisition Area. Second, Dr. Jones challenged Dr. Anderson’s PEE Dr. Jones stated that TACO’s baseline PEF is the “Cowherd factor,” which assumes “just bare exposed soil with wind blowing across the soil.” Dr. Jones noted that Dr. Anderson, to account for the greater soil agitation caused by demolition, simply multiplied the Cowherd factor by 10. Dr. Jones opined that, though TACO mandates multiplying the baseline factor by 10, there is no scientific basis for choosing 10 as the multiplier. Dr. Jones dismissed TACO’s enhanced PEF as “simplistic” and noted that the USEPA has developed more sophisticated emissions factors.

Third, Dr. Jones asserted that Dr. Anderson was mistaken in substituting an exposure duration of 260 days for the 30-year default duration in TACO Tier 1. Dr. Jones explained that the default standard assumes that contaminants will travel from a demolition area into adjoining residential areas and, once deposited, will cause continual exposure until dissipated or transported elsewhere. Dr. Anderson made the substitution because she believed there would be no deposition of material that could have long-term ill effects. Dr. Jones criticized this belief as unfounded because CEA had not measured the quantity of each contaminant in the soil and therefore had an incomplete picture of emission levels or deposition amounts. Dr. Jones cited a body of literature finding that, even with “dust suppression” controls in place, demolition of structures causes “significant levels of deposition of dust” outside the demolition area. Dr. Jones concluded that Dr. Anderson had no cause for departing from the default exposure duration in TACO Tier 1. Dr. Jones admitted, however, that the prevailing winds in the vicinity of the Acquisition Area blow from the southwest. Thus, the Acquisition Area, situated between O’Hare to the northeast and the remaining sections of Bensenville to the west and southwest, is mostly downwind from the other areas of Bensenville.

Dr. Jones testified that, though he disagreed with Dr. Anderson’s screening levels, he did not calculate his own screening levels but used Dr. Anderson’s to perform an additive risk analysis that considers the combined effect of multiple agents. Dr. Jones employed the additive risk approach of a USEPA document entitled “Risk Assessment Guidance for Superfund, Volume I, Human Health Evaluation Manual” (RAGS). The method of the RAGS involves dividing “your acceptable risk level by the number of potential chemicals that your — that you may have present at the site.” Dr. Jones stressed that he considered the additive effects of carcinogens separately from the additive effects of noncarcinogens; he agreed that the RAGS does not allow one “to take the noncancer risk and add it to the cancer risk to determine the total risk.” Dr. Jones testified that he calculated the respective additive risks for carcinogens and noncarcinogens by first adding together all screening levels Dr. Anderson provided, which yielded a total screening level. He then divided this figure, in the case of noncarcino-gens, by 120 (the total number of chemicals for which Dr. Anderson provided screening levels), and, in the case of carcinogens, by 50 (the total number of carcinogenic chemicals for which Dr. Anderson provided screening levels). The higher divisor for noncarcinogens was necessary because “all chemicals have a noncarcinogenic effect, whether they are a carcinogen or a noncarcinogen.” Dr. Jones acknowledged that he divided the total screening value not “by the chemicals actually detected” but by “the total number of chemicals for which [Dr. Anderson] provided a screening level.” He noted that, “even if it was nondetected, [a] chemical might still have been of concern.” He explained in the following colloquy:

“Q. You used *** the substances that were Usted in Dr. Anderson’s table [of screening values] did you not?

A. That is correct.

Q. And you mentioned that some of the chemicals she had listed came back as nondetect; isn’t that right?

A. That is what I’ve been told this morning.

Q. Okay. And one of the problems with nondetect is that the sensitivity level of the chemistry may be above the level of health concern; isn’t that right?

A. That is — in the field of risk assessment, if you have a detection Umit that is higher than your health-based concern, you would assume that the chemical might still be there at half the detection level.

Q. Because the limits of the chemical lab may be, you have the chemical there and a health risk, but the laboratory isn’t able to analyze it; is that correct?

A. Exactly.”

Dr. Jones claimed that TACO dictates the same divisors as the RAGS for an additive risk analysis.

Dr. Jones testified that, under the additive risk analysis of the RAGS, he found exceedances at 52 of CRA’s sampling locations, compared to Blickle’s 41 exceedances. If he had used the unmodified TACO Tier 1 values (a risk limit of 1 x 10"6, exposure through both ingestion and inhalation, and an exposure duration of 30 years), he would have found exceedances at “most” of CRA’s sampling locations. Dr. Jones noted that, under TACO, if an additive risk analysis yields screening values more rigorous than the Tier 1 values, “the number[s] would default back to the Tier 1 number[s].” Dr. Jones considered this proviso in TACO “policy-based” not “health-based.” If not for it, an additive risk analysis using the strict Tier 1 values would yield ex-ceedances at every sampling location in the Acquisition Area. Dr. Jones admitted that he was “supposed to calculate additive risk by target organ” but did not do so.

Dr. Jones testified that there were “too many gaps” in CRA’s data for Chicago to conclude that the demolition would not endanger public health. Particularly, CRA failed to calculate the total quantities of contaminants found at each sampling location. Without this knowledge, CRA could not develop appropriate demolition controls because, “if you don’t know what’s there, you can’t control for it.” Dr. Jones acknowledged that it is acceptable to obtain the average concentration of a contaminant at a sampling location as long as the range of sampling is broad enough. CRA, however, did not attempt to find the average concentration at any sampling location.

Michael Paige, a Bensenville official responsible for insuring compliance with the village’s codes, testified that he met with Chicago officials to discuss the proposed demolition. During these meetings, he informed Chicago officials about the likelihood of underground storage tanks and septic fields in the residential areas north of Irving Park Road. Paige also testified that, as of the hearing, 13 residential parcels in the Acquisition Area were still occupied.

Kenneth Mundt, who had submitted a sworn declaration in support of plaintiffs’ original motion for injunctive relief, testified that he was the leader of the team of Environ employees who evaluated CRA’s proposed decommissioning and demolition procedures. Mundt and his team tested CRA’s work against the risk assessment framework Mundt had laid out in his sworn declaration. This three-stage method consists of: (1) conducting a “comprehensive area-wide sampling plan,” which involves measuring the “concentration, quantity!,] and type of contaminants” in the area designated for demolition and calculating the extent to which the demolition will expose demolition workers, and residents in the vicinity, to contaminants; (2) determining whether the likely exposure, if any, is consistent with acceptable levels of public health protection; and (3) developing measures to limit exposure to within acceptable levels. Mundt testified that step one is “critical” for the others because if “good scientific data” is lacking, “whatever controls are based on [the] improper risk assessment might not be adequately protective.”

Mundt opined that CRA did not conduct step one properly. Mundt asserted that CRA’s survey of the demolition site was deficient because CRA did not take PEC samples at all residential properties, where the soils likely contained pesticides and lead from exterior paint. Mundt also noted that CRA did not test for pesticides in any grid or PEC sample even though they were likely present in the Acquis