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Newark Group, Inc. v. Dopaco, Inc.

ELR Citation: 41 ELR 20315
Nos. 2:08-cv-02623, (E.D. Cal., 09/26/2011) (Burrell Jr., J.)

A district court held that a property owner may go forward with its RCRA claims against a former tenant that stored toluene in a building on the site. The owner demolished all but the basement floor of the building. High concentrations of methane gas exist under the building due to degrading toluene in the soil, and the owner argued that when it fractures the floor, the methane will present an imminent and substantial endangerment to health or the environment. Because the owner offered evidence that the high levels of methane could asphyxiate workers and cause an explosion, it presented sufficient evidence to create a genuine issue of material fact as to its "imminent and substantial endangerment" claim. The owner also created a material issue of genuine fact regarding the tenant's contribution to the alleged contamination. In addition, the tenant's "bare assertions" of toluene use by other prior owners and tenants were insufficient to satisfy its burden of demonstrating the divisibility of the harm. The tenant's motion for partial summary judgment was therefore denied.