ELR Citation: 44 ELR 20040
No(s). 13 C 2106 (N.D. Ill. Feb 21, 2014) (Feinerman, J.)

A district court held that a town may go forward with its RCRA and common law tort claims against an oil company for soil and groundwater contamination on and around a property formerly occupied by a gasoline service station. The company argued that the town failed to allege an "imminent and substantial" threat to support its RCRA claim. Specifically, the company asserted that the contamination was not imminent because the contamination has existed at the site for 50 years, an ordinance prohibits extracting groundwater from wells, most of the station is covered by asphalt or concrete, and contaminated water has not reached the surface. But case law holds that "imminence does not require an existing harm, only an ongoing threat of future harm." Here, the complaint sufficiently alleges the threat of future harm, as it is plausible that contaminated subsurface water could migrate to the surface through the portions of the station uncovered by asphalt or through adjacent properties to which the contamination has migrated and is migrating. The RCRA claim therefore survived the company's motion for dismissal. The court also denied the company's motion to dismiss the common law claims of trespass and nuisance.