ELR Citation: ELR 20027
No(s). 3:08-cv-807-M (N.D. Tex. Jan 19, 2010)

A district court denied in part and granted in part motions of a plaintiff insurer and defendant gasoline service station operator for partial summary judgment with respect to claims arising under RCRA and the Texas Solid Waste Disposal Act (SWDA). The insurer alleged that gasoline from a gasoline service station operated by defendant had leaked on to property that it insured. In its suit, plaintiff sought, among other things, (1) an injunction under §7002(a)(1)(B) RCRA requiring defendant to investigate and remediate the waste on the insured property; and (2) reimbursement of its investigation and remediation costs under SWDA. In considering the injunction, because the available evidence indicated that hazardous contaminants exceeded state limits on the insured property at the time of suit, there was a genuine issue of material fact as to whether the contamination presented an imminent and substantial endangerment to health or the environment. Therefore, summary judgment was denied on this claim. With respect to reimbursement costs, the defendant argued that, in order to be reimbursed, plaintiff must show that the response costs were attributable to contamination migrating from the gasoline service station, rather than from existing contamination at the property. The court disagreed, finding that although causation is relevant to apportionment of costs, it is not an element of a SWDA claim. Under Texas law, contamination alone is sufficient to show that cleanup costs are necessary.