Jenner & Block

Contamination in Excess of State Standards Insufficient to Demonstrate RCRA Imminent and Substantial Endangerment

 

Siros_Steven_COLORBy Steven M. Siros

 

A Colorado federal district court recently rejected a plaintiff's efforts to demonstrate RCRA imminent and substantial endangerment based solely on the presence of contamination in excess of applicable state standards and ongoing regulatory oversight of the remediation efforts. In Board of County Commissioners of the County of La Plata v. Brown Group Retail, Inc. et al., the current property owner (the County) asserted a RCRA claim (as well as a CERCLA cost recovery claim) against the corporate successor to a former site owner. In support of its RCRA claim, the County relied upon a health risk assessment that concluded that environmental conditions at the site presented a risk to human health due in large part due to the presence of contaminants in soil, groundwater, and indoor air that exceeded applicable regulatory action levels. The court rejected that argument, noting that "[r]egulatory screening levels, action levels, and standards do not identify real or actual risks to human health. Rather, these regulations are designed to protect the public health by identifying the level of chemical exposure at which there is no threat of harm with a large margin of error. Exceedance of regulatory screening levels, action levels, or standards therefore does not demonstrate a real or actual risk to human health."

TAGS: Cercla, RCRA, Toxic Tort

PEOPLE: Steven M. Siros