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Artesian Water Co. v. Government of New Castle County

ELR Citation: 18 ELR 21012
Nos. Nos. 87-3622, -3623, 851 F.2d 643/27 ERC 2064/(3d Cir., 06/29/1988) Aff'd

The court holds that a water utility cannot recover damages under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for economic losses resulting from injury to an aquifer where plaintiff's legally authorized water supply was neither contaminated nor reduced. Plaintiff was pumping water from the aquifer in excess of its authorized amount when leachate from a nearby county landfill began to migrate into the aquifer. The county implemented a containment program that created a hydraulic barrier, using water that would otherwise have been withdrawn by plaintiff. The court holds that plaintiff cannot recover for economic losses resulting from the reduction in available water. Plaintiff's own wellfield was not contaminated. Moreover, plaintiff had never been authorized by the state to withdraw more water than it was permitted to pump following implementation by the county of its containment measures. Water in excess of the amount allotted to plaintiff is therefore a natural resource belonging to the state and damages for injury to such resources cannot be recovered under CERCLA by private entities. In addition, plaintiff's claim is based on alleged losses occurring before 1980, and CERCLA's natural resource damage provision bars retroactive liability. The court also holds that plaintiff's costs for alternate water supplies do not constitute remedial costs "as may be necessary." CERCLA's express inclusion of alternative water supplies among appropriate remedial measures does not apply here, since plaintiff is a private corporation and the additional water is not needed to meet its customers' current demand. Finally, the court holds that plaintiff may recover the cost of monitoring its groundwater to ensure that no contamination has occurred.

[District court opinions in this case appear at 15 ELR 20577 and 18 ELR 20785.]

Counsel are listed at 18 ELR 20785.

Before Greenberg and Aldisert, JJ.