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Ongoing Cleanup Precludes Plaintiff From Establishing RCRA Imminent and Substantial Endangerment

Steven Siros   By Steven M. Siros, Partner, Jenner & Block

A recent decision from the Eastern District of Wisconsin rejected plaintiff's efforts to demonstrate RCRA imminent and substantial endangerment, notwithstanding the presence of benzene in indoor air in the basement of a facility.  In Tilot Oil, LLC v. BP Products North America, Inc., plaintiff brought a RCRA citizen suit against BP, seeking to compel BP to remediate petroleum contamination that had impacted, and continues to impact, plaintiff's property.  According to the plaintiff's allegations, when the water table under its facility rises, groundwater contaminated with petroleum constituents has been observed above the floor slab in the basement.  Indoor air sampling in the basement indicated the presence of petroleum-hydrocarbons (benzene) at levels that, although they did not exceed the OSHA PELs, did exceed applicable NIOSH recommended exposure limits, Wisconsin's vapor action levels, and U.S. EPA screening levels.  As a result of the contamination, plaintiff has been forced to continually maintain and operate a ventilation fan in the basement and plaintiff had voluntarily elected to restrict employee activity in the basement (although there was some dispute as to whether the basement had ever really been used).  Over the past several decades, BP has taken, and continues to take, a number of remedial actions to address the contamination at issue under the oversight of the Wisconsin Department of Natural Resources ("WDNR"), albeit voluntarily and not as a result of any order being entered.  These remedial actions were intended to in part to address the contamination that was present on plaintiff's property, including the contamination that was impacting the basement of plaintiff's facility.

There was no dispute that BP was responsible for the contamination that was impacting plaintiff's property; instead, BP argued that (1) plaintiff had not offered sufficient evidence of potential endangerment and (2) there is no injunctive relief that might be granted because of the ongoing WDNR-approved remedy.  The court rejected BP's argument that there was no injunctive relief that might be granted, noting that plaintiff had presented evidence of potential additional remedial activities that could be taken.  However, according to the court, just because further action could be taken does not mean that it is necessary.  The court noted that testing showed that the levels of benzene present in the basement while the ventilation fans were running did not exceed the OSHA PELs.  The court rejected plaintiff's argument that exceedances of U.S. EPA screening levels equates to substantial endangerment, noting that these merely set the level at which further investigation is required; they are not a determination of actual danger.  As to the Wisconsin vapor action levels, exceedances of these levels again merely indicate that further action is required, which the court noted was occurring (BP's ongoing remediation and the operation of the ventilation fan in the basement).  With respect to the NIOSH exceedances, the court found that to be a relevant factor but not a determinative factor.  According to the court, "when the [ventilation] fan is running, there is no substantial threat.  And, while there may still be some threat of harm, through the possibility of the fan being shut off or losing power, that harm is not substantial or serious in that it necessitates action; it is simply too remote."  The court also found relevant the fact that plaintiff had never really used the basement for any activity in the first instance.

This case is important in that it could be seen as providing some degree of protection from RCRA citizen suits for persons engaged in ongoing remedial activities under the supervision and oversight of a regulatory agency, assuming of course that the case is upheld on appeal.  Typically, parties that are faced with RCRA citizen suit claims in situations where there are ongoing remedial activities will raise abstention and/or primary jurisdiction defenses.  Demonstrating that there is not a threat of imminent or substantial endangerment is typically an uphill battle.  Here, however, the court seemed to go out of its way to reject plaintiff's efforts to claim that the ongoing remediation was insufficient or inadequate.  The decision can really be summed up in footnote 16 in the decision:  "Ultimately, [plaintiff's] argument appears to be that [BP America] is simply not doing enough regarding the speed of cleanup.  However, RCRA is not intended to remedy such a situation as long as there is no potentially imminent and substantial endangerment." A free copy of the Order can be accessed here: Tilot Oil, LLC v. BP Products North America, Inc. subscribers can access the Lexis enhanced version of the Tilot Oil, LLC v. BP Prods. N. Am., Inc., 2012 U.S. Dist. LEXIS 5365 (E.D. Wis. Jan. 17, 2012) decision with case law links, core terms, and Shepard's.

Steven M. Siros is a partner at Jenner & Block and focuses his practice primarily on environmental and toxic tort matters.  Corporations seek his counsel on complex CERCLA and RCRA matters and cases involving toxic tort and natural resource damages.  He counsels policyholders in insurance coverage disputes relating to environmental issues, advises on regulatory compliance issues, and assists clients on a variety of climate change and sustainability issues.  He also manages the environmental aspects of numerous real estate and corporate transactions and helps clients perform environmental compliance audits at facilities around the world.

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