Rhodes v. County of Darlington, SC

• Decision Date: 24 August 1992
• Docket Number: Civ. A. No. 4:91-0179-21.
• Citation: 833 F. Supp. 1163
• Parties: Laddie RHODES, Jane Fussell, Nancy Harrison, Emily Rhodes, Plaintiffs, v. COUNTY OF DARLINGTON, SOUTH CAROLINA, Defendant.
• Court: U.S. District Court — District of South Carolina

833 F. Supp. 1163

Laddie RHODES, Jane Fussell, Nancy Harrison, Emily Rhodes, Plaintiffs, v. COUNTY OF DARLINGTON, SOUTH CAROLINA, Defendant.

Civ. A. No. 4:91-0179-21.

United States District Court, D. South Carolina, Florence Division.

August 24, 1992.

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James William Potter, Richard Michael Smith, John Charles Ormond, Jr., Columbia, SC, for plaintiffs.

Paul A. Dominick, Charleston, Leon Carroll Harmon, David A. Savage, Columbia, SC, for defendant.

ORDER

TRAXLER, District Judge.

I. INTRODUCTION

In this suit, the Plaintiffs prosecute a variety of state and federal causes of action. The federal jurisdiction is premised upon an issue of federal statutory law, and the state claims are in this court by virtue of pendant jurisdiction. The federal statute at issue is the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9657 (1988). Specifically, the Complainants claim that they are entitled to recover, pursuant to CERCLA, certain costs incurred because of the Defendant's allegedly improper waste disposal management at its landfill facility. Complimentary to the CERCLA cause of action for damages, the Plaintiffs also pray for a declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202 (1988). The Plaintiffs seek a declaration from this court delineating the duties and obligations of the Defendant arising from the alleged contamination of the landfill. The remaining causes of action, which present issues of pure state law, are the common law claims of negligence, strict liability for hazardous activity, nuisance, trespass, and inverse condemnation. This action presents a case of first impression in this District.¹

Pursuant to Fed.R.Civ.P. 56, the Defendant has moved the court for summary judgment as to all counts of the complaint, with the exception of the claim for physical trespass to Plaintiff Laddie Rhodes' property. The Defendant contends that it is entitled to judgment as a matter of law because there are no genuine issues of material fact. Specifically, the Defendant asserts that the Plaintiffs have failed to plead or satisfy the prima facie elements for a cause of action for recovery of costs under CERCLA. After reading the parties' briefs, holding a hearing on the Motion for Summary Judgment, and reviewing the caselaw and the CERCLA statutory scheme, the court grants the Defendant's Motion for Summary Judgment as to the federal claims, thereby depriving this court of federal statutory jurisdiction,² and dismisses the complaint without prejudice as to the state law causes of action.

II. THE FACTS

Since 1974, the County of Darlington, South Carolina, has operated a municipal sanitary landfill northeast of the City of Darlington. The County owns the property on which the landfill is operated, and the landfill is lawfully permitted by the South Carolina Department of Health and Environmental Control. Since its inception, the landfill has accepted for disposal only waste generated by households, yard debris, and certain industrial wastes that were specifically and expressly approved by the Department of Health and Environmental Control for disposal at the site.

Pursuant to state regulations, groundwater tests were performed on the landfill site in 1985 and 1986. The results of these tests indicated that the upper aquifer below the downgradient edge of the landfill may possibly be contaminated because of the landfill's operations. (See "Darlington County Landfill Phase I Groundwater Assessment," at 2). The County, therefore, ordered that a Groundwater Quality Assessment Plan (the "Plan") be prepared by Soil and Material Engineers, Incorporated, an environmental consulting firm. This Plan was approved by the Department of Health and Environmental Control. Accordingly, pursuant to the Plan, the County solicited Chas. T. Main, Incorporated ("Main"), another environmental consulting firm, to conduct further investigations on the quality of the groundwater. These subsequent series of tests were conducted in three phases: Phase I, Phase II, and Phase III.

The Plaintiffs are landowners of real property situated to the southeast of the landfill. The property of Plaintiffs Nancy Harrison and Emily Rhodes is partially adjacent to the southern boundary of the landfill. The parcels owned by Plaintiffs Laddie Rhodes and Jane Fussell do not border the site, although they are located in the general vicinity.

A. Phase I

As provided for under the Plan, a Phase I Groundwater Assessment Test was performed on the landfill by Main. The activities encompassed by Phase I were fairly exhaustive and included: (1) soil test boring to a depth of sixty-five feet with soil samples collected and tested at two-and-one-half — foot (2.5') intervals for the first ten (10) feet and thereafter at five-foot (5') intervals. Quantitative analyses were performed on these samples. (2) Ten (10) earth resistivity soundings and an electromagnetic survey of 130 stations were conducted in areas both up- and downgradient of the site. (3) Two (2) surface water samples were collected from streams downgradient of the landfill and were tested for the presence of selected heavy metal, such as lead or chromium, and for pollutant volatile organic compounds, such as halogenated carbons. (4) Drilling, boring, logging, and analysis of the elements or compounds of the landfill subsurface sediment were also conducted. Additionally, geophysical surveys were performed to determine the geologic and hydrologic conditions at the site. Id. at 4-12. The chemical analyses performed on the collected samples were conducted pursuant to Environmental Protection Agency ("EPA") methods. The purpose of Phase I testing was to identify areas of possible contamination, assess any possible impact on the surrounding drinking water supplies, and determine if further testing was desirable or required.

The results of Phase I revealed that the groundwater under the landfill and the property downgradient from the site had been affected by the landfill's operation. Specifically, the tests indicated high conductivity levels — i.e. — that the soil samples contained a greater degree of metals in them than is normally found. Id. at 21. These high conductivity levels indicated possible groundwater contamination because of the presence of heavy metals in the soil samples. This possibly metal-rich soil formed a "conductivity plume," which extended downgradient from the landfill in a southerly direction a maximum of 1200' feet in length and 2200' feet in width. In addition to the conductivity plume, Phase I testing also indicated that chloride, fluoride, arsenic, and selenium might be present in the groundwater. The ultimate conclusion of Phase I was that further, moredetailed testing needed to be performed on the groundwater surrounding the landfill. Thus, Phase II was implemented, which provided that groundwater sampling and chemical analysis of the samples be conducted. Id. at 21-27.

B. Phase II

Pursuant to the recommendations of Phase I, Phase II testing was instituted by Main at the County's direction. The main thrust of Phase II testing was the installation of six (6) permanent monitoring wells, later increased to nine (9) permanent and four (4) temporary wells, established downgradient from the landfill. (See "Phase II Monitoring Well Locations," at 15). These monitoring wells were to be located both on and off the landfill site. The off-site wells were placed on the property of Plaintiff Emily Rhodes, with her approval, and on other property not the subject of this suit. Like Phase I, Phase II also called for a variety of chemical qualitative and quantitative analyses to be performed on the samples taken from the wells and surrounding environs. The most salient experiments to be conducted involved soil testing and groundwater analysis. The soil testing experiments provided for soil permeability tests, sieve analysis, specific gravity, moisture content, unit weight, void ratio, and porosity determinations. The groundwater analysis contemplated detecting various elements and compounds from the samples collected from the wells, namely arsenic, barium, cadmium, chromium, lead, mercury, selenium, silver, nickel, zinc, chloride, fluoride, nitrate, sulfate, volatile organics (carbon-based compounds), and the pH (acidity or basicity) of the water. (See "Darlington County Landfill Phase I Groundwater Assessment," at 25). This battery of tests was to be conducted in compliance with methods and procedures approved by the Department of Health and Environmental Control.

The test results of Phase II indicated that neither arsenic, cadmium, chromium, nor selenium were present in the groundwater under the landfill, nor in the groundwater on the Plaintiffs' property. Lead, however, was detected at its detection limit in twelve (12) of the monitoring wells. In addition to lead, nitrates, sulfates, and chlorides were also detected in the groundwater samples. Nitrate was detected in each well sampled with the exception of two (2). The levels of nitrate, however, were below the state drinking water standards for consumption and therefore posed no threat to health or safety. As with nitrates, sulfates were detected in all but two (2) of the wells. The study concluded, however, that the concentration of sulfates, like that of the nitrates, was far below the state drinking water standards. Moreover, the analysis noted that the sulfates found were probably the result of naturally occurring sulfate levels in groundwater and that even the higher levels of concentration, which complied with state safety standards, should not be a major concern. Chlorides were also detected in the well. The analysis concluded that the concentration levels of chloride detected indicated a great disparity, from three (3) milligrams per liter to 900 milligrams per liter. The state standard...