Artesian Water Co. v. Govt. of New Castle County

• Decision Date: 14 February 1985
• Docket Number: Civ. A. No. 83-854-WKS.
• Citation: 605 F. Supp. 1348
• Court: U.S. District Court — District of Delaware
• Parties: ARTESIAN WATER COMPANY, Plaintiff, v. The GOVERNMENT OF NEW CASTLE COUNTY, Defendant, Third-Party Plaintiff, v. LANDFILL, INC., a Delaware corporation, Material Transit, Inc., a Delaware corporation, Edgar Thomas Harvey, Edgar Thomas Harvey, Jr., W. Lawrence Knotts, Henry A. Twardus, William W. Saienni, Elmer D. Saienni, Salvatore J. Saienni, Dominic Cantera, Marian Cantera, Delaware Sand and Gravel Company, a Delaware corporation, Anita Dell Aversano, individually and as Executrix of the Estate of Joseph Dell Aversano, Vincent Dell Aversano, Marcella Dell Aversano, Stauffer Chemical Co., a Delaware corporation, Haveg Industries, Inc., a Delaware corporation, Champlain Cable Corporation, a Delaware corporation, Angelo Terranova, Stanley J. Twardus & Sons, Inc., a Delaware corporation, and SCA Services, Inc., a Delaware corporation, Third-Party Defendants.

605 F. Supp. 1348

ARTESIAN WATER COMPANY, Plaintiff, v. The GOVERNMENT OF NEW CASTLE COUNTY, Defendant, Third-Party Plaintiff, v. LANDFILL, INC., a Delaware corporation, Material Transit, Inc., a Delaware corporation, Edgar Thomas Harvey, Edgar Thomas Harvey, Jr., W. Lawrence Knotts, Henry A. Twardus, William W. Saienni, Elmer D. Saienni, Salvatore J. Saienni, Dominic Cantera, Marian Cantera, Delaware Sand and Gravel Company, a Delaware corporation, Anita Dell Aversano, individually and as Executrix of the Estate of Joseph Dell Aversano, Vincent Dell Aversano, Marcella Dell Aversano, Stauffer Chemical Co., a Delaware corporation, Haveg Industries, Inc., a Delaware corporation, Champlain Cable Corporation, a Delaware corporation, Angelo Terranova, Stanley J. Twardus & Sons, Inc., a Delaware corporation, and SCA Services, Inc., a Delaware corporation, Third-Party Defendants.

Civ. A. No. 83-854-WKS.

United States District Court, D. Delaware.

February 14, 1985.

Thomas D. Whittington, Jr., Whittington & Aulgur, Wilmington, Del., E. Barclay Cale, Jr., Frank M. Thomas, Jr., Annemiek N. Young, Morgan, Lewis & Bockius, Philadelphia, Pa., for plaintiff.

B. Wilson Redfearn, Tybout, Redfearn, Casarino & Pell, Wilmington, Del., Michael A. Brown, George J. Weiner, Schmeltzer, Aptaker & Sheppard, Washington, D.C., and Robert K. Beste, Jr., Charles H. Toliver, IV, Biggs & Battaglia, Wilmington, Del., for New Castle County.

Januar D. Bove, Jr., James M. Mulligan, Jr., Jeffrey B. Bove, Connolly, Bove, Lodge & Hutz, Wilmington, Del., James F. Burger, Westport, Conn., David O. Bickart, Kaye, Scholer, Fierman, Hays & Handler, Washington, D.C., for Stauffer Chemical Co.

Paul H. Spiller, Kimmel & Spiller, Wilmington, Del., for Landfill, Inc., Material Transit, William Saienni, Elmer Saienni and Salvatore Saienni.

Charles S. Crompton, Jr., James F. Burnett, Potter, Anderson & Corroon, Wilmington, Del., for Haveg Industries, Inc. and Champlain Cable Corp.

F. Michael Parkowski, Bonnie M. Benson, Parkowski, Noble & Guerke, Dover, Del., for Delaware Sand & Gravel, and Anita Dell Aversano.

Paul S. Swierzbinski, Wilmington, Del., for Angelo Terranova.

John James Conly, Wilmington, Del., John F. Stoviak, Michael L. Krancer, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., for SCA Services, Inc.

James McC. Geddes, Ashby, McKelvie & Geddes, Wilmington, Del., for E.T. Harvey.

Carl A. Agostini, Agostini & Little, Wilmington, Del., for Stanley Twardus & Sons.

OPINION

STAPLETON, Chief Judge:

This is an action brought by Artesian Water Company ("Artesian") against New Castle County ("County") pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607, to recover costs incurred in providing alternative sources of drinking water for its customers. Artesian claims that since these costs have been and continue to be incurred as a direct result of the release or threatened release of hazardous substances from a landfill owned by the County into an acquifer used as a primary source of supply by Artesian, they are "response costs" as that term is defined by CERCLA, and therefore, properly recoverable from the County. Artesian has moved for summary judgment on the issue of liability and the County has moved to dismiss the complaint for failure to state a claim upon which relief can be granted, to strike portions of the complaint, and for relief pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. For the reasons set forth herein, the County's motion to dismiss will be granted without prejudice.

BACKGROUND

Artesian is a corporation organized and existing under the laws of the State of Delaware with its principal place of business in Newark, Delaware. Artesian provides drinking water to approximately 130,000 residents of New Castle County, and as a water utility, is regulated by the Delaware Public Service Commission.

The sources of supply for Artesian's public water system are a series of wells located throughout its service territory of roughly 106 square miles. Historically, one of Artesian's primary sources of supply has been its Llangollen Wellfield, located approximately seven miles south of Wilmington, Delaware. The Llangollen Wellfield draws water from the Upper Potomac Aquifer, one of the most productive groundwater zones in New Castle County.¹

Artesian began to develop its Llangollen Wellfield in 1946, and by mid-1969, it had seven wells on line with a production capacity of 4.9 million gallons per day ("MGD"). Shortly thereafter, Artesian began to replace the existing facilities and to increase the design capacity of the Llangollen Wellfield.² Following the construction of five replacement wells in 1971, Artesian was able to raise its average daily pumpage to 3.85 MGD and its peak withdrawals to 5.35 MGD.³

In 1972, the Delaware Department of Natural Resources and Environmental Control ("DNREC") informed Artesian that groundwater pollution had been discovered in the vicinity of the Llangollen Wellfield. DNREC established an acquifer monitoring program and found the most likely source of the groundwater pollution to be the Army Creek Landfill ("Site"), a landfill owned by the County and located approximately 3000 feet north-northeast of the Llangollen Wellfield. Thereafter, in 1973, DNREC directed Artesian to limit its withdrawals from the Llangollen Wellfield to 2.0 MGD, a restriction that has continued to present.

The County is a political subdivision organized and existing under the laws of the State of Delaware with its principal offices in Wilmington, Delaware. From September, 1960 to September, 1962, the County rented the Site, and in September, 1962, the County purchased the Site.

The Site comprises approximately 56 acres and was previously used as a sand and gravel pit. During the time period in which the County rented the Site and thereafter until sometime in 1968, the Site was utilized as a solid waste disposal facility.⁴ The County itself did not directly maintain control of the day-to-day disposal activities at the Site but instead retained Landfill, Inc. and later Material Transit, Inc. to assume responsibility for managing such activities. According to the Remedial Action Master Plan for the Site prepared for the United States Environmental Protection Agency ("EPA") in 1983, an estimated 1.9 million cubic yards of refuse was disposed of at the Site, of which 30% or 600,000 cubic yards was placed beneath the seasonal water table.

In 1972, in response to concern over reports of pollutants emanating from the Site, the County retained a consulting firm to investigate the conditions at the Site. The report submitted pursuant to this investigation noted the poor condition of the Site⁵ as well as the fact that leachate from the Site had entered the Upper Potomac Acquifer.⁶ It recommended, inter alia, that a program be instituted to prevent further migration and infiltration of leachate into the groundwaters underlying the Site.

By early 1974, the County had begun to utilize a groundwater recovery system to control the migration of pollutants from the Site. In general terms, this system is comprised of a network of wells adjacent to the Site which withdraw contaminated water from around and under the Site to prevent its movement away from the Site. The contaminated water apparently is then discharged into Army Creek, a nearby stream.⁷ Although this program was viewed at its inception as an emergency, contaminant control program, it continues to be used as a stop-gap measure more than a decade later.

As a further complicating factor, located several hundred feet east of the Site is the Delaware Sand & Gravel Landfill ("DS&G Landfill"), an inactive, ten acre disposal site containing both industrial and municipal wastes. As with the Site, the DS & G Landfill was used previously as a sand and gravel pit. Studies have indicated that numerous hazardous substances are present at the DS & G Landfill which pose a threat to the underlying Upper Potomac Aquifer.

Both the Site and the DS & G Landfill have been listed on the National Priorities List ("NPL") by EPA as sites posing a substantial risk or danger to the public health and welfare due to the release or threatened release of hazardous substances.⁸ 49 Fed.Reg. 37070, 37085-87 (Sept. 21, 1984). Indeed, the Site has been designated a "Group One" site classifying it as one of the fifty worst hazardous waste disposal sites in the United States.

Artesian has brought this action seeking a monetary recovery from the County of over $10,000,000. As set forth in an October 6, 1983 demand letter from Ellis Taylor, President of Artesian, to Richard T. Collins, County Executive, Artesian's claim is comprised of the following elements: (1) $60,000 for monitoring and evaluating the impact on the Llangollen Wellfield of the release of hazardous substances from the Site, (2) $591,000 as compensation for property and equipment which has been idled by the restrictions on pumping imposed since 1972, (3) $1,082,000 representing the differential cost of temporary replacement water supplies between 1978 and 1985, (4) $3,458,000 for construction of an interconnection with the Chester Water Authority to provide permanent replacement water supplies, and (5) $4,938,000 representing the present value of the differential cost of purchasing permanent replacement water supplies from the Chester Water Authority until the year 2008 (the end of the estimated useful life of the facilities at the Llangollen Wellfield). In short, Artesian seeks recovery of all the costs it has incurred and expects to incur as a consequence of the pumpage restrictions imposed as a result of the release of contaminants from the Site into the Upper Potomac Aquifer. Artesian asserts that these costs are necessary "response" costs as that term is defined by Section 101(25) of CERCLA, 42 U.S.C. § 9601(25), and that since the...