United States v. South Carolina Recycling and Disposal, Inc.

No. 80-1274 (653 F. Supp. 984 at 1013, 24 ERC 2015) (D.S.C. August 14, 1986)

The court awards the United States and South Carolina the costs for their surface removal actions at the Bluff Road site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). After adding certain supplemental costs incurred by plaintiffs since the court's November 22, 1985 order, the court determines that defendants are jointly and severally liable to the United States for $1,561,134.55 and to South Carolina for $252,489.46. The court holds that the claims for injunctive relief under CERCLA § 106 are moot because the removal actions have been completed. The court holds that its order is final only for claims arising from the surface removal actions. Plaintiffs may therefore file claims relating to remedial actions in a separate action.

[Other decisions in this litigation are published at 14 ELR 20272 and 20895, and 17 ELR 20843 and 20845.

Counsel are listed at 17 ELR 20843.

[17 ELR 20848]

SIMONS, District Judge.

FINAL ORDER

This action was brought by plaintiff United States of America pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607, to recover costs of removing hazardous substances from the surface of the Bluff Road site, a hazardous waste site located near Columbia, South Carolina. The State of South Carolina entered the action as plaintiff-intervenor and also seeks to recover costs associated with the surface removal action at the Bluff Road site.

On November 22, 1985, this Court entered an order adjudging defendants jointly and severally liable to the United States in the amount of $1,065,910.92 and to the State in the amount of $93,000. The Court further granted the plaintiffs sixty (60) days to file and serve affidavits supplementing the amounts stated in the order. This time was extended to March 10, 1986 by orders dated January 23, 1986 and January 29, 1986.

Plaintiff United States has filed with the Court and served on defendants affidavits and an accounting of the federal government's supplemental costs, amounting to $495,223.63. The final cost figure submitted by the United States is thus $1,561,134.55. The State filed with the Court and served on defendants an affidavit supplementing the State's costs by $159,489.46, which totals a final figure of $252,489.46.

By the Court's order of November 22, 1985, defendants were granted thirty (30) days after the governments' submissions of the supplemental costs in which defendants could conduct discovery relating to such costs and file opposing affidavits. That time has expired and defendants have not filed any challenge to the supplemented costs. Therefore, these supplemental costs associated with the removal action to clean up the surface of the Bluff Road site, being uncontested, are hereby accepted by the court as correct, appropriate, and recoverable. Accordingly, defendants, having heretofore been adjudged liable, jointly and severally, for the costs of the removal actions at the Bluff Road site, must pay to plaintiff and plaintiff-intervenor the amounts of $1,561,134.55 and $252,489.46 respectively.

The award of costs resolves plaintiffs' claims under Section 107 of CERCLA for removal costs associated with the surface cleanup of the Bluff Road site. There remain before the Court claims for injunctive relief relating to the surface of the site under Section 106 of CERCLA, 42 U.S.C. § 9606, and Section 7003 of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6973. These claims are now moot because the removal actions at the surface have been completed. The Court notes that the original complaint included claims which encompassed potential remedial actions at the site, including action associated with sub-surface and groundwater contamination. Because studies were needed to determine the need for remedial action at and around the site, plaintiff andplaintiff-intervenor moved the Court in 1982 to limit the instant claims to costs incurred as a result of removal actions addressing the site's surface, reserving their rights to make further amendments, such as expanding their claims to address site remedial action. This Court sanctioned that approach by entering an order dated August 4, 1982 granting plaintiff's unopposed motion to file the Second Amended and Supplemental Complaint and expressly reserved the plaintiff's and plaintiff-intervenor's rights to make further amendments. Now that litigation of the claims relating to the surface removal actions at the site has concluded, this Court determines that it is appropriate for the plaintiff and plaintiff-intervenor to bring any claims relating to remedial actions in a subsequent civil action. This approach will allow the Court to remove this case from the docket in the interest of judicial economy. Defendants will not be prejudiced if claims for remedial action are litigated in a separate action rather than by way of an amendment to the complaint in the instant case. Furthermore, allowing separate litigation of these claims is consistent with CERCLA's objective of assuring prompt replenishment of the Fund established by CERCLA for use at other hazardous waste sites.

Therefore, this Order is final only with respect to claims for the costs of surface removal actions at the Bluff Road site, and shall be without prejudice to any claims associated with or related to remedial actions at the site.

IT IS SO ORDERED.