A federal court in California has determined that evidence that demolition of a contaminated property could release high levels of methane is sufficient to establish an imminent and substantial endangerment under the Resource Conservation and Recovery Act (RCR A). The Newark Group, Inc. v. Dopaco, Inc., No. 08-2623 (E.D. Cal. 9/27/11) . In 1985, the owner of a Stockton, California, industrial site conducted soil sampling that revealed toluene at a level below state action levels. In 1989, plaintiff purchased the property. In 2005, testing conducted by a prospective purchaser revealed that toluene levels in the soil beneath toluene storage tanks on the site far exceeded state and federal cleanup standards.
Plaintiff sued defendant, a former tenant that stored toluene on the site, under RCR A’s citizen suit provision, seeking contribution for cleanup costs. Defendant filed a motion for partial summary judgment, arguing that plaintiff could not show the property presented an imminent and substantial endangerment. Plaintiff countered that the site’s demolition plan included fracturing of a basement floor in an area with higher concentrations of toluene and methane gas.
The court agreed with plaintiff, ruling that the anticipated release of dangerous levels of methane as a result of fracturing the floor poses a substantial endangerment to the cleanup contractors. The court cited plaintiff’s expert who testified that the floor’s fracturing could release methane which could mix with the surrounding atmosphere and create an “exceedingly dangerous explosive condition and a threat of asphyxiation, because methane displaces oxygen.”