A recent decision by a federal district court in Illinois answered the above question by concluding that the danger does not have to be very imminent.  Indeed, a plaintiff could state a claim by alleging that contamination that had been in the ground for more than 50 years and is not currently threatening anyone, may create an imminent danger.  City of Evanston v Texaco, 2014 WL 683736 (N.D,.Ill, February 2014).

The City instituted a RCRA citizen’s suit against an oil company and the owner of a property that was formerly occupied by a gas station. The oil company moved to dismiss arguing that the contamination was more than 50 years old, no one was permitted to drink the groundwater, the site was paved over and therefore, there could not be an “imminent and substantial endangerment.”  The court denied the motion, noting that the statute allows a suit where “hazardous waste may present an imminent and substantial endangerment.”  By emphasizing the word “may” the court allowed the case to proceed.

The case should probably not be read to mean that an imminent endangerment does not need to be imminent.  Instead, the better read is that courts may be hesitant to resolve such claims on a motion to dismiss.  The decision gives the City the opportunity to prove its case, but leaves open the future finding, after discover, that there is no imminent endangerment in this case.