Federal Court Rules Methane Gas Constitutes “Imminent and Substantial Endangerment” Under RCRA 7002

A federal district court ruled that methane migrating from a closed landfill to a residential development project constitutes an imminent and substantial endangerment under section 7002 of the Resource Conservation and Recovery Act in Marcas, L.L.C. v. Bd. of County Comm’rs,2013 U.S. Dist. LEXIS 104380 (D.Md. 7/25/13).  The court also followed an emerging trend and found that knowledge of groundwater contamination did not trigger the statute of limitations for the soil gas pathway.

Following discovery of the methane issue, a dispute subsequently arose about the extent of actions required to mitigate the methane and the VOCs. When the landfill gas collection system became operational in 2007 and elevated levels of methane gas remained in the subsurface soils at the property, the plaintiff filed its lawsuit. After a series of preliminary rulings which we covered in an earlier post, the parties moved for partial summary judgment on a number of issues. We will discuss the statute of limitations, CERCLA and RCRA rulings.

The County argued that plaintiffs were not entitled to summary judgment on their nuisance, trespass and strict liability claims because those claims were barred by Maryland’s three year statute of limitations (SOL). The County contended the plaintiff had actual notice of the groundwater contamination because of a March 2000 letter from the Maryland Department of the Environment (MDE) that advised plaintiff that contamination from the landfill had migrated to the shallow groundwater beneath its property aquifer but not in the drinking water wells and that a cap to be installed on the landfill later that year would greatly reduce rainfall infiltration mitigate the shallow groundwater contamination. However, the court said that the crux of the lawsuit was the migration of methane gas and VOCs from the landfill onto plaintiff’s property, not groundwater contamination. Since the plaintiff did not have notice of the methane gas before September 8, 2004, the court ruled that the County was not entitled to summary judgment on the common law causes of actions.

In a prior ruling, the court had entered judgment on the CERCLA contribution claim but reserved judgment on the amount of the response costs that plaintiff was entitled to be reimbursed. The County asserted that plaintiff had failed to demonstrate substantial compliance with the National Contingency Plan (“NCP”) for its investigative costs. The court agreed that plaintiff had not presented any evidence that it complied with the NCP requirement regarding community relations/public comment of 40 C.F.R. §§ 300.430(c), (f)(3), 300.700(c)(6).

In addition, the County argued that plaintiff’s investigative and monitoring costs were not necessary because the response costs were incurred as part of the commercial development and not in response to any threat to public health. Moreover, the County claimed these costs were duplicative of work already performed by the MDE. The Court said the MDE had not asked plaintiff to perform any response actions and found that the gas monitoring wells plaintiff installed on its property performed the same function as gas monitoring wells that the MDE had required to be installed without cost borne by Marcas. For these reasons, the court concluded that plaintiff had not met its burden of showing its investigative and monitoring costs were substantially compliant with the NCP. Therefore the court not only denied plaintiff’s motion for summary judgment in the amount of $35MM but also vacated its earlier judgment in favor of plaintiff.

In additional to its CERCLA cost recovery and common law damages claims, plaintiff sought injunctive relief under two sections of the Resource Conservation and Recovery Act (RCRA). First, plaintiff sought an order under 42 U.S.C. § 6972(a)(1) for violations of Subtitle D requirements. The County opposed the motion on the grounds that there were no ongoing violations since the landfill was not longer operating and because remediating was underway pursuant to a plan approved by the MES. The court agreed that a prohibitory injunction was not an appropriate remedy because the County ceased all operations in June 2001. However, the court found a mandatory injunction requiring additional remedial measures was warranted and appropriate because methane gas continued to exceed the LEL at the boundary of the landfill in violation of 40 C.F.R. § 258.23(a)(2) more than a decade after operations ceased and six years after a mitigation system had been installed.

The court also found that plaintiff was entitled to injunctive relief under RCRA § 6972(a)(1)(B), finding that the continued migration of methane gas at levels above the LEL beyond the landfill boundary was a present imminent and substantial endangerment to the health or the environment.  In support of this conclusion, the court pointed to correspondence from the MDE in 2005 that advised the County that the migration of methane gas beyond the landfill boundary could cause “potential risks to on-site structures, neighboring homes, pedestrians, businesses and properties, “that the County “must immediately take all necessary steps to protect human health from potentially explosive conditions from the migration of methane gas from the landfill.”

The court directed the parties to submit a jointly propose an injunctive order. If the parties cannot agree on the terms of a proposed injunctive order, the court said each party must submit a proposed injunctive order for court’s consideration.

This case illustrates several trends. First, the willingness of courts to view discovery of a completed soil gas exposure pathway as triggering a separate statute of limitation period even though plaintiffs may have been aware of a groundwater plume years. Second, RCRA 7002 continues to be a powerful tool in vapor intrusion litigation and many courts will allow these actions to proceed where there is evidence that an existing remedy is not mitigating the threat. Third, defendants continue to try to use the primary jurisdiction doctrine to defeat common law claims for site where a cleanup is underway but courts tend to allow common law claims to proceed when the plaintiffs are not seeking response costs or challenging the adequacy of the remedy but seeking compensation for property damage or bodily injury. Finally, it appears that the growing awareness of the vapor intrusion pathway may be contributing to an increase in the number of methane gas lawsuits.