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

Decision Date24 April 1987
Docket NumberCiv. A. No. 83-854 MMS.
Citation659 F. Supp. 1269
CourtU.S. District Court — District of Delaware
PartiesARTESIAN WATER COMPANY, Plaintiff, v. The GOVERNMENT OF NEW CASTLE COUNTY, Defendant and 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.

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Thomas D. Whittington, Jr., of Whittington & Aulgur, Wilmington, Del. (E. Barclay Cale, Jr., Frank M. Thomas, Jr. and Lynn A. Clouser, of Morgan, Lewis & Bockius, Philadelphia, Pa.), for Artesian Water Co.

B. Wilson Redfearn, of Tybout, Redfearn, Casarino & Pell, Wilmington, Dela. (Michael A. Brown, George J. Weiner, William Roger Truitt, and Donavee Berger, of Schmeltzer, Aptaker & Sheppard, Washington, D.C.), for New Castle County.

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

Januar D. Bove, James M. Mulligan, Jr. and Jeffrey B. Bove, of Connolly, Bove, Lodge & Hutz, Wilmington, Del., for Stauffer Chemical Co.

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

F. Michael Parkowski and Bonnie M. Benson, of 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 and Michael L. Krancer, of Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa.), for SCA Services, Inc.

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

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

OPINION

MURRAY M. SCHWARTZ, Chief Judge.

Plaintiff Artesian Water Company ("Artesian") seeks to recover costs that it claims have been or will be incurred as a result of a release or threatened release of hazardous substances from a landfill owned by defendant New Castle County ("the County"). Artesian asserts these costs are "response costs" as that term is defined by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. ?? 9601 et seq.

On February 14, 1985, Judge Stapleton granted the County's motion to dismiss Artesian's CERCLA claim. Artesian Water Co. v. New Castle County, 605 F.Supp. 1348 (D.Del.1985) ("Artesian I"). In that decision, the Court rejected the County's assertion of sovereign immunity, id. at 1353-55, and found that CERCLA grants a private right of action. Id. at 1355-56. In granting the County's motion to dismiss, however, the Court held that regulations promulgated by the United States Environmental Protection Agency ("EPA") required prior governmental approval of certain response actions as a prerequisite to the recovery by a private party of the costs of such actions.1 Id. at 1357-62. The dismissal was without prejudice to the filing of a new complaint if Artesian were to obtain governmental approval of some or all of its proposed responses.

Shortly after the decision in Artesian I, plaintiff moved for reargument in light of the publication of proposed amendments to the EPA regulations implementing CERCLA, collectively known as the National Contingency Plan ("NCP").2See 50 Fed.Reg. 5862 et seq. (Feb. 12, 1985). Consequently, the Court ordered a stay of further proceedings pending adoption by the EPA of a final version of the proposed amendments,3 which was ultimately published on November 20, 1985. See 50 Fed.Reg. 47911 et seq. (Nov. 20, 1985). The final revisions to the NCP make it clear that no prior governmental approval is required for the private recovery of response costs.4Id. at 47934. Thus, that part of the decision in Artesian I dealing with the need for governmental approval is no longer controlling in this case.

Currently before the Court is the County's motion to dismiss Artesian's amended complaint or, in the alternative, for summary judgment, and Artesian's motion for partial summary judgment on liability. The Magistrate has written a thoughtful and well-reasoned recommendation that the County's motion be denied in part and that Artesian's motion be denied, and has done much to illuminate the issues before the Court. Although I agree with the majority of the Magistrate's conclusions, I disagree with his resolution of some of the novel and difficult questions of law raised by this case. Consequently, I will deny the County's motion and grant Artesian's motion only with respect to Artesian's claim for recovery of its monitoring and evaluation expenses. In all other respects, the County's motion will be granted and Artesian's motion will be denied.

I. FACTS

Artesian is a water utility that provides drinking water to approximately 130,000 residents of New Castle County, Delaware. The sources of supply for Artesian's public water system are a series of wells situated throughout its service territory of roughly 106 square miles. Since 1946, 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.

By 1969, Artesian had seven wells on line in the Llangollen Wellfield with a production capacity of 4.9 million gallons per day ("MGD"). Following the construction of five replacement wells in 1971, Artesian was able to raise its average daily pumpage from the Llangollen Wellfield to 3.85 MGD and its peak withdrawals to 5.35 MGD.

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 aquifer monitoring program and found the most likely source of the groundwater pollution to be the Army Creek Landfill ("the Site"), a landfill located about 3000 feet north-northwest 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 the present.

The Site comprises roughly 56 acres and was previously used as a sand and gravel pit. From about 1960 until 1968, the Site was used as a solid waste disposal facility. The County has held title to the Site only since 1974, although it had retained various third parties to manage disposal activities at the Site since 1960.5 According to the EPA's September 30, 1986 Record of Decision selecting a remedial alternative for the Site, an estimated 1.9 million cubic yards of refuse was disposed of at the Site, of which 30 percent or 600,000 cubic yards was placed beneath the seasonal water table.

A report prepared for the County in 1972 found that leachate from the Site had entered the Upper Potomac Aquifer. By early 1974, the County had begun to use a groundwater recovery system to prevent further migration and infiltration of leachate into the groundwater beneath the Site. The groundwater recovery system is made up of a network of wells adjacent to the Site that withdraw contaminated water from around and under the Site in order to prevent its movement away from the Site. As a result of the recovery well system, a groundwater divide now exists between the Site and the Llangollen Wellfield. Under the remedial alternative selected by the EPA in its recent Record of Decision for the Site, the recovery well system would continue to operate. In addition, the landfill would be capped to minimize the infiltration of rainwater.

A major complicating factor in the instant case is the presence of the Delaware Sand & Gravel Landfill ("DS & G Landfill"), an inactive, ten-acre waste disposal facility located several hundred feet east of the Site. The DS & G Landfill was also used previously as a sand and gravel pit. Studies have indicated that numerous hazardous substances in the DS & G Landfill pose a threat to the underlying Upper Potomac Aquifer.

Both the Site and the DS & G Landfill are listed on the EPA's National Priorities List ("NPL") as sites posing a substantial risk or danger to the public health and welfare due to the release or threatened release of hazardous substances.6 See 40 C.F.R. part 300, app. B (1986). Out of the 703 sites listed on the NPL, the Site is ranked as the ninth most hazardous in the United States; the DS & G Landfill has a ranking of 227.

Artesian brought this lawsuit pursuant to section 107(a) of CERCLA, 42 U.S.C. ? 9607(a), seeking a monetary recovery from the County of over $10 million. In addition to its private action, Artesian has presented a claim for payment out of the Hazardous Substance Response Fund (commonly known as the "Superfund") pursuant to sections 111 and 112 of CERCLA, 42 U.S.C. ?? 9611-9612. In both proceedings, Artesian's claim is made up 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) $600,000 as compensation for the loss of capacity of Artesian's wells since pumping restrictions were imposed in 1973; (3) $1.0 million...

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