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Rhodes v. Darlington, County of

ELR Citation: 24 ELR 20379
Nos. No. 4:91-0179-21, 833 F. Supp. 1163/(D.S.C., 08/24/1992)

A district court dismisses claims by property owners against a county for property damage, declaratory judgment, and, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), response costs they incurred in investigating contamination on their property stemming from the county's nearby landfill. The plaintiffs performed extensive soil and groundwater testing after groundwater tests at the landfill indicated possible contamination of the plaintiffs' property. The plaintiffs' tests revealed minimal contamination and indicated that no remediation was necessary. The plaintiffs subsequently brought suit to recover their "response costs" under CERCLA and damages under state law.

The court first holds that by virtue of owning and operating the landfill the county is a "covered person" under CERCLA, that the landfill is a facility," and that plaintiffs' tests revealing benzene in their groundwater demonstrated a release of a hazardous substance from the landfill. The court next holds that plaintiffs' costs do not qualify as "necessary" response costs because the conditions on the site did not meet the National Contingency Plan's (NCP's) requirements for a removal action. The testing did not qualify as a removal action under the NCP because any exposure of life to hazardous substances was minimal, any contamination was below the state safety levels, drinking water was not threatened, there was no bulk storage of hazardous chemicals at the site, there were no high concentrations of hazardous substances at the site, weather conditions did not affect the site, there had been no fires or explosions, and there was no showing that other response mechanisms were unavailable to the plaintiffs. The testing did not qualify as a remedial action under the NCP because there was no risk to the public, the contaminants did not pose a health risk, the site is not near wetlands or centers of population, climate and recycling do not affect the site, the likelihood of further releases is minimal, no migration is anticipated, no government agency has recommended any remedial action, and the air, land, and food chain were not adversely affected. The court notes the lack of government involvement in the plaintiffs' activities and holds that the lack of cohesive, government-authorized action defeats a private-party claim for response costs under CERCLA. Moreover, the court holds that even if the activities did constitute response actions, they failed to meet the requirement of being "necessary." No government authority instructed the plaintiffs to perform testing and the initial tests recommended that remedial action was not necessary.

The court next holds that plaintiffs failed to show that the release caused them to incur costs. Plaintiffs offered no evidence to support their allegations of causation, they did not allege that the landfill was improperly operated or accepted improper waste, and the tests showed that many hazardous substances had not been released into the groundwater. The court finds no causal relationship between any alleged injury and necessary response costs; but rather that plaintiffs incurred expenses only to determine if there was an injury. The court holds that investigative costs can only be recovered if they are part of a plan for cleanup which is consistent with the NCP, which is properly authorized, and which demonstrates the incurred expenses were necessary response costs and causally linked to the defendant's conduct. The court concludes that plaintiffs' actions neither strictly nor substantially complied with the NCP, because the plaintiffs did not demonstrate that their response activities rose to the level of being either a removal or remedial action or that it was necessary.

The court grants summary judgment to the county because plaintiffs failed to meet each and every element of a CERCLA claim. The court dismisses the plaintiffs' associated action for declaratory judgment because it does not provide an independent basis for federal court jurisdiction, the court dismisses it. Similarly, the court dismisses the plaintiffs' pendent state-law claims without prejudice.

Counsel for Plaintiffs
John C. Ormond Jr.
Constangy, Brooks & Smith
Nationsbank Tower
1301 Gervais St., Ste. 810, Columbia SC 29201
(803) 256-3200

Counsel for Defendant
Leon C. Harmon
Nexsen, Pruet, Jacobs & Pollard
1441 Main St., 15th Fl., Columbia SC 29202
(803) 771-8900