ELR Citation: ELR 20785
No(s). 83-854 MMS (D. Del. Apr 24, 1987)

The court holds a county that owns a solid waste disposal site liable under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 to a water utility for its expenses to monitor groundwater contamination from the site, ruling that causation is determined under a "substantial factor" test rather than "but for" causation. The court first holds that, as the current owner of the Army Creek Landfill disposal site, the county is a covered person under CERCLA §107. The court next finds that there was a release or threatened release of hazardous substances from the site. Since the site is a landfill, it is a "facility" under CERCLA §101(9)(A) regardless of whether hazardous substances were deposited there; all that must be shown is that contaminants were released from the site. Plaintiff need not prove whether the groundwater contamination was caused by releases from the site or a nearby industrial landfill. The court next holds that the release or threatened release caused the water utility to incur costs. "But for" causation is not required; it is sufficient if the defendant's conduct was a material element and a substantial factor in bringing the result about. Moreover, the water utility had a protectable interest taking steps to ensure its water withdrawal abilities, since the county's interfering use of the water to control the spread of groundwater contamination directly resulted from the release or threatened release of hazardous substances, and so cannot be considered a reasonable competing use for purposes of this CERCLA action.

The court next holds that the water utility's monitoring and evaluation costs are recoverable under CERCLA, but not its costs related to the loss of capacity from its groundwater wells and its costs of obtaining alternate water supplies. CERCLA requires a distinction between response costs, which are recoverable, and economic losses, which are not recoverable under CERCLA. Monitoring and evaluation costs are response costs under CERCLA and are recoverable even if no further response action has taken place. However, losses resulting from the idling of property and equipment when groundwater pumping restrictions were imposed are economic losses and hence not recoverable. Moreover, the costs to obtain temporary and permanent alternate water supplies are recoverable under CERCLA only where the existing water supply is contaminated or is threatened with contamination. The possibility that damage to groundwater could be the basis for a claim of natural resource damages by the state government does not preclude a claim for response costs arising out of the same damage. However, in this case the water utility's supply of water is not threatened by the site's contamination, so costs of alternate water supplies are not recoverable.

The court next rules that consistency with the National Contingency Plan (NCP) is an element of the water utility's prima facie case under CERCLA §107. The NCP is a standard of the appropriateness of particular actions, not merely a limit on the amount of damages recoverable. The court also must evaluate NCP consistency to determine that some recoverable damages exist and avoid the risk of a pointless trial on damages later. Moreover, this conclusion is implicit in an earlier opinion in this case. NCP consistency will be evaluated in light of the NCP in effect when costs are incurred, rather than the version of the NCP in effect when the response actions are initiated or when the claims are evaluated.

The court holds that the monitoring and evaluation expenses were incurred consistent with the NCP, but other response actions were not. The water utility did not first prepare a Remedial Investigation and Feasibility Study, did not provide a public comment period, did not select responses that would bring the site into compliance with applicable regulatory requirements, and did not demonstrate that its responses are cost effective. However, these detailed NCP requirements cannot reasonably be applied to preliminary monitoring and evaluation.

Finally, the court holds that CERCLA §112(a), amended in 1986, does not provide a bar to commencing a cost recovery suit against a potentially responsible party while a claim is pending for administrative reimbursement from the Superfund.

[A related opinion is published at 15 ELR 20577.]

Counsel for Plaintiff
Thomas D. Whittington Jr.
Whittington & Aulgur
1703 Mellon Bank Center, Wilmington DE 19808
(302) 655-6142

Counsel for Defendant
B. Wilson Redfearn
Tybout, Redfearn, Casarino & Pell
Suite 1110, 300 Delaware Ave., Wilmington DE 19801
(302) 658-6901