A federal court in Colorado has ruled insufficient to establish imminent and substantial endangerment under RCRA evidence that a site’s contamination exceeds state standards and that a state environmental agency is involved in a cleanup. Bd. of Comm’rs v. Brown Group Retail, Inc., No. 08-855 (D. Colo. 3/3/11). The court therefore dismissed the RCRA claim in a complaint filed by La Plata County against the corporate successor of a company that produced optical lenses at the site, located in a Durango, Colorado, industrial park.

The site was contaminated with trichloroethylene/trichlorethene (TCE), 1,1,1-trichloroethane (TCA) and 1,4 dioxane. Plaintiff sued under both RCRA and CERCLA, alleging that the contamination posed an imminent and substantial endangerment under RCRA and seeking recovery of CERCLA response costs.

According to the court, that the Colorado Department of Public Health and the Environment was providing oversight of the county’s investigation and remediation and that the contamination exceeded state target levels were not sufficient to meet RCRA’s endangerment requirement. The court awarded plaintiff its past CERCLA response costs and 75 percent of its future costs. The court allowed the CERCLA claims to proceed.