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."
Although the court acknowledged that other courts have recognized that proof of contamination in excess of state standards may be sufficient to support a claim of imminent and substantial endangerment, the court noted that in those other cases, there was evidence of present and continuing exposure pathways and the contamination was present at levels hundreds and sometimes thousands of times higher than the applicable state standards. See Interfaith Cmty. Org. v. Honeywell Int'l., Inc., 399 F.3d 248 (3d Cir. 2005). The Colorado district court found that even though certain contaminants at the site exceeded applicable state regulatory standards, the County had failed to demonstrate that those exceedances presented an imminent and substantial endangerment. The court also rejected the County's argument that the regulatory agency's oversight of the ongoing remediation was sufficient evidence to demonstrate that site conditions presented an imminent and substantial endangerment. Rather, the court noted that the fact that the state agency was aware of the contamination and still allowed remediation to proceed at a deliberative pace suggested that the state agency had reached an opposite conclusion.