White v. County of Newberry, S.C.

• Decision Date: 05 February 1993
• Docket Number: Nos. 92-1430,92-1503,s. 92-1430
• Citation: 985 F.2d 168
• Parties: , 23 Envtl. L. Rep. 21,215 William WHITE; Frances White; Bill White Enterprises, Inc., Plaintiffs-Appellees, v. COUNTY OF NEWBERRY, SOUTH CAROLINA, Defendant-Appellant. William WHITE; Frances White; Bill White Enterprises, Inc., Plaintiffs-Appellants, v. COUNTY OF NEWBERRY, SOUTH CAROLINA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 168

985 F.2d 168

61 USLW 2547, 23 Envtl. L. Rep. 21,215

William WHITE; Frances White; Bill White Enterprises, Inc., Plaintiffs-Appellees, v. COUNTY OF NEWBERRY, SOUTH CAROLINA, Defendant-Appellant.

William WHITE; Frances White; Bill White Enterprises, Inc., Plaintiffs-Appellants, v. COUNTY OF NEWBERRY, SOUTH CAROLINA, Defendant-Appellee.

Nos. 92-1430, 92-1503.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 27, 1992.

Decided Feb. 5, 1993.

Bradford N. Wyche, Wyche, Burgess, Freeman & Parham, P.A., Greenville, SC (J. Theodore Gentry, Greenville, SC, Gary T. Pope, Pope & Hudgens, Newberry, SC, on brief), for plaintiffs-appellants.

John Charles Ormond, Jr., McNair Law Firm, P.A., Columbia, SC (Richard M. Smith, on brief), for plaintiffs-appellees.

Before ERVIN, Chief Judge, and RUSSELL and WILKINS, Circuit Judges.

OPINION

ERVIN, Chief Judge:

William White, Mary Frances White, and Bill White Enterprises, Inc. ("Whites") brought an action against the County of Newberry, South Carolina ("County"), alleging claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") and state law claims of inverse condemnation, negligence, strict liability, and trespass, all to recover response costs and monetary damages resulting from the County's alleged discharge of contaminants into the Whites' ground water and well. A jury awarded the Whites $172,000.00 in damages under the theory of inverse condemnation. The district court dismissed the negligence, trespass, and strict liability actions under state law, and entered a judgment in the County's favor on the federal CERCLA claim.

The County appeals the denial of its renewed motion for judgment as a matter of law despite the adverse judgment of the district court, ¹ and the Whites cross-appeal only the adverse outcome on their CERCLA claim. We reverse the denial of the County's motion for judgment as a matter of law, but affirm the district court's holding concerning the Whites' CERCLA claim.

I

William and Mary Frances White own ² and operate Bill and Fran's Restaurant at the intersection of Interstate 26 and South Carolina Highway 34 in Newberry County, South Carolina. The County owns the adjacent property and operates there the Newberry County Public Works Maintenance Facility ("maintenance facility"), where the County services and performs routine maintenance on county-owned vehicles. The site also houses facilities for a jail, a nursing home, a hog farm, and an animal shelter, all of which have been abandoned for many years. The Newberry County Water and Sewer Authority ("Authority") owns a small parcel of land circumscribed by the County's property, but situated close to the Whites' property. The Authority's property contains a 510-foot deep well, which provides the public water supply for county residents in the area. The County itself is not affiliated with the Authority. Neighboring landowners include the Newberry Inn and a Phillips 66 self-service gas station.

In March 1989 the South Carolina Department of Health and Environmental Control ("DHEC") began analyzing public water supplies throughout the state for volatile organic compounds ("VOCs"). When DHEC detected high levels of VOCs in the Authority's public well, it began an investigation of the surrounding area to determine the source of the VOCs. In July 1989 DHEC sampled the Whites' well and detected the VOC trichloroethylene (TCE) in levels exceeding safe drinking water standards. DHEC then recommended that the Whites discontinue use of their well and transfer to the public water supply system. The Whites first added a filtering system to their well at a cost of $500.00, but when DHEC tests in August 1989 revealed that TCE levels remained unacceptable, the Whites ceased using their well altogether and connected to the public water supply at a cost of $6,000.00. ³

After detecting the high VOC levels in the Authority's well, the DHEC investigated the County's maintenance facility as a possible source. The investigation culminated in an independent environmental assessment of the maintenance facility, which concluded that any evidence of TCE at the County's facility was inadvertent and not due to County activities. The report stated that [i]t is likely that this [TCE] contamination is the result of off site sources for the following reasons: (1) the general topography indicates that the well is upgradient of the facility, (2) no known use of TCE at the County facility, (3) the detection of TCE in the Newberry Inn well on July 31, 1987, and (4) the influence from the County Home Well during pumping.

The Whites conducted their own investigation of the most likely source of TCE. At the investigation's conclusion, they admitted that they have no evidence or personal knowledge that the County ever had used TCE. Their expert, however, testified:

[W]e know that trichloroethylene is used in a Safety Clean [sic] washing apparatus. The fact that we have not established that it was used in Safety Clean [sic] apparatus, washing apparatus at this facility, you know, is beyond my expertise.... I feel in my expertise, the data that has been presented to me, and my evaluation is [the TCE] is coming from the Newberry maintenance facility.

Although the Whites suggested that the use of Safety Kleen at the maintenance facility represented the most likely source of the TCE, they produced evidence that the County might have used degreasing components in its shop and received refrigerators and air conditioning units at its landfill, also possible sources of TCE.

Based on the Whites' beliefs that the County had caused the contamination of their well, the Whites brought a CERCLA recovery action and an action for compensatory damages based on various state law claims against the County. On December 13, 1991, a jury returned a general verdict in the Whites' favor for $172,000.00 on the inverse condemnation claim. Because the parties stipulated that the CERCLA claim involved non-jury matters, the district court reviewed the claim independently and entered an order in favor of the County on the CERCLA cause of action. The district court found that the Whites had failed to prove one element necessary to a successful CERCLA action. In a separate order, the district court denied the County's motion for judgment as a matter of law on the inverse condemnation action.

II

Before turning to the substantive legal issues this case raises, we must address the County's challenge to the district court's subject matter jurisdiction over the Whites' state law claims. The Whites brought numerous state law claims in conjunction with their CERCLA claim, all of which have been dismissed and are not at issue except for the inverse condemnation claim. The Whites availed themselves of a federal forum for these claims under 28 U.S.C. § 1367(a), which provides that

in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

28 U.S.C. § 1367(a).

The County asserts that the district court lacked jurisdiction over the inverse condemnation claim as a matter of law because the CERCLA claim and the inverse condemnation claim do not represent the same case or controversy. In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court determined that once a district court had valid jurisdiction over a federal claim, it could, in its discretion, exercise supplemental jurisdiction over additional state claims if they arose out of "a common nucleus of operative fact" such that the plaintiff would ordinarily be expected to try the claims in one judicial proceeding. Id. at 725, 86 S.Ct. at 1138; see also Hales v. Winn-Dixie Stores, Inc., 500 F.2d 836, 848 & n. 12 (4th Cir.1974) (stating that supplemental jurisdiction does not encompass claims when one count is "separately maintainable and determinable without any reference to the facts alleged or contentions stated in or with regard to the other count").

To prevail in a cost-recovery action under CERCLA, the Whites must establish a release or threatened release of a hazardous substance from the County's maintenance facility that caused the Whites to incur response costs that are consistent with the national contingency plan. 42 U.S.C. § 9607(a). To prevail under South Carolina law on their inverse condemnation claim, the Whites must show

(1) an affirmative, positive, aggressive act on the part of the governmental agency; (2) a taking; (3) the taking is for a public use; and (4) the taking has some degree of permanence.

Rolandi v. City of Spartanburg, 294 S.C. 161, 363 S.E.2d 385, 387 (1987). Both claims share the common element of showing that the County engaged in an act--a release or an affirmative, positive, aggressive act--that in this case would be the dumping or disposal of TCE in a manner that caused contamination to the Whites' well.

Admittedly, the Whites seek two different types of relief--reimbursement through the CERCLA action and monetary damages under the theory of inverse condemnation--but supplemental jurisdiction is not limited to restatements of the same basic ground for recovery. Supplemental claims "may be separate claims, or they may merely be different 'counts' or 'grounds' or 'theories' in support of what is essentially a single claim." 28 U.S.C. § 1367 Practice Commentary (emphasis added). The claims need only revolve around a central fact pattern. Here the Whites have presented two claims that revolve around alleged hazardous waste contamination caused by the County. Regardless of the outcome of the case, the two claims' proof will rest on the central issue of whether the County released TCE into the area groundwater....