Artesian Water Co. v. Government of New Castle County

In Artesian Water Co. v. Government of New Castle County, 659 F.Supp. 1269 (D.Del.1987), aff'd, 851 F.2d 643 (3d Cir.1988), a water utility company which provided drinking water to the city, sued the owner of a landfill, seeking to recover response costs as a result of a release or threatened release of hazardous substances from the landfill (the Site), which was located 3,000 feet from the well field. Groundwater pollution had been discovered in the vicinity of the well field, but not in the well field itself, and the state had begun an aquifer monitoring program and concluded that the most likely source of the pollution was the landfill Site. There also existed a second waste disposal facility (DS & G), owned by a different entity, which was located several hundred feet from the well field and which defendant asserted was the source of the contamination. Under these facts, which are virtually identical to those in the instant case, the court held that the plaintiff had made a showing of release or threatened release of hazardous substances from the Site sufficient to satisfy its burden on summary judgment. (Id. at 1281.) The court went on to state: "Most importantly, the policies underlying CERCLA conflict with the defendant's demand that Artesian prove beyond dispute that the contaminants found near the Site actually flow from the Site. From a technological standpoint, Artesian's ability to "fingerprint" the leachate in the groundwater as emanating from either the Site or the DS & G Landfill is exceedingly doubtful. To impose such a requirement might permit the owners and operators of both facilities to avoid financial responsibility for the cleanup, and would thus eviscerate CERCLA." (Id. at 1282.)