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Groundwater Polution Liability – Stuck In Place

The Clear Water Act (CWA) is dealing with an id disaster. In the previous yr, conflicting federal courtroom selections have created a circuit cut up as as to if the CWA regulates pollutant releases into groundwater that’s hydrologically related to navigable waters.1 The Ninth and Fourth Circuits interpreted CWA legal responsibility broadly, making use of to oblique releases of pollution into federally protected floor waters by way of groundwater. The Sixth Circuit interpreted CWA legal responsibility narrowly, making use of to solely direct releases of pollution into federally protected floor waters.

The uncertainty leaves regulators and the regulated group in limbo and awaiting a attainable U.S. Supreme Courtroom determination and clarifying motion by the U.S. Environmental Safety Company (EPA). Whereas in limbo, operators in numerous industries – e.g., oil and fuel, wastewater utilities, electrical utilities, water suppliers, mining – are liable to potential company requests for groundwater high quality knowledge, enforcement motion or attainable citizen fits for unlawful discharges based mostly on air pollution releases into groundwater that’s hydrologically related to a navigable water coated by the CWA.

“Discharge of a Pollutant”: Few Phrases, Many Interpretations

The CWA prohibits the “discharge of any pollutant by any person,” and defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.”2 The phrases “to” and “from” emphasised listed here are on the coronary heart of the talk – how a lot time and distance can cross in between these phrases? Clearly, a pipeline that releases pollution immediately and instantaneously into navigable waters satisfies this definition. However what a few pipeline that releases pollution deep underground that percolate via the groundwater over a number of months, and ultimately launch into navigable waters? Complicating the evaluation is the talk over what constitutes a “point source,” which the CWA defines as “any discernible, confined and discrete conveyance” corresponding to a pipe or a nicely.three

Courts have wrestled with the which means of this textual content for many years. Probably the most well-known case was Rapanos v. United States, a 2006 splintered, one-hundred-plus web page U.S. Supreme Courtroom determination that spanned many points and is most recognized for its ruling on the CWA navigable waters (i.e., “waters of the United States”) interpretation challenge.four As related to our situation right here, in Rapanos, Justice Antonin Scalia noticed that the CWA “does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’”5

Circuit Cut up: Groundwater Makes Issues Tough

Quick-ahead to earlier this yr, when the primary of a number of federal circuit courtroom selections was issued, addressing the query of whether or not there’s CWA legal responsibility, as an unlawful discharge, for air pollution that finds its strategy to a navigable water by way of groundwater. In March 2018, the Ninth Circuit in Hawai’i Wildlife Fund held that Maui County was liable beneath the CWA when, with no allow, it launched handled wastewater into injection wells that was traced to the Pacific Ocean three months later.6 The Courtroom discovered there was a “fairly traceable” connection from some extent supply to a navigable waterway, regardless of the delayed migration by way of a groundwater middleman.7 Equally, a month later, the Fourth Circuit in Upstate Endlessly held that Kinder Morgan Power Companions was liable beneath the CWA when one in every of its gasoline pipelines ruptured six to eight ft underground and seeped over years into close by rivers and wetlands.eight The Courtroom discovered there was a “direct hydrological connection.”9

Then, in mid-September 2018, in Virginia Electrical & Energy Firm, additionally within the Fourth Circuit, the Courtroom concluded that whereas there was a direct hydrological connection between a coal-fired energy plant’s coal ash landfill and settling ponds and arsenic in close by rivers, the landfill and settling ponds didn’t represent “point sources” beneath the CWA and subsequently they weren’t topic to CWA legal responsibility.10 The Fourth Circuit reasoned that “point sources,” are outlined as “any discernible, confined and discrete conveyance,” whereas the coal ash landfill and ponds have been “static recipients” of rainwater and groundwater that flowed diffusely via them.11 Moreover, the Courtroom famous that the arsenic contamination would nonetheless be regulated underneath the Useful resource Conservation and Restoration Act (RCRA) and particular laws pertaining to coal combustion residuals (the CCR Rule).12 Thus, whereas the Fourth Circuit has acknowledged the “direct hydrological connection” check for groundwater air pollution, it reined within the which means of “point sources” and acknowledged the position of different authorized authorities in place to guard water assets.

Much more lately – in late September 2018, the Sixth Circuit in Tennessee Valley Authority and Kentucky Waterways Alliance rejected the hydrological connection principle utilized by the Ninth and Fourth Circuits.13 The Sixth Circuit held that two coal-fired energy crops weren’t liable beneath the CWA when their coal ash settling ponds leaked selenium and different chemical compounds into close by waterbodies.14 The Courtroom relied on the CWA time period “effluent limitation,” which is said to the “discharge of a pollutant” time period mentioned above and outlined as restrictions on pollution “which are discharged from point sources into navigable waters.”15 The Sixth Circuit held that the phrase “into” indicated directness and “leaves no room for intermediary mediums to carry the pollutants.”16 Just like the Fourth Circuit in Virginia Electrical & Energy Firm, the Sixth Circuit held that coal ash air pollution was higher regulated beneath RCRA and the CCR Rule.17 Additionally just like the Fourth Circuit in Virginia Electrical & Energy Firm, the Sixth Circuit appeared to reject that coal ash ponds might represent level sources.18

Notably, in accepting or rejecting the hydrological connection principle, all of those selections relied on the “to” and “from” language within the definition of “discharge of a pollutant” and on Justice Scalia’s quote from Rapanos, however every circuit interpreted these authorized sources in another way. The Ninth and Fourth Circuits held that when a pollutant travels by means of groundwater, it nonetheless initially comes “from” some extent supply.19 However the Sixth Circuit held that when a pollutant travels by means of groundwater, it comes “from” groundwater which isn’t some extent supply.20 The Ninth and Fourth Circuits held that Justice Scalia’s quote acknowledged his help for CWA legal responsibility for oblique releases that aren’t instantly emitted however might cross by means of conveyances in between.21 The Sixth Circuit held that Justice Scalia’s quote was merely meant to elucidate that pollution which journey by way of a number of level sources are nonetheless coated by the CWA.22

Lastly, whereas these selections declined to enterprise into the quagmire of whether or not groundwater constitutes navigable water beneath the CWA, Justice Anthony Kennedy’s “significant nexus” check in Rapanos for wetlands (i.e., the CWA applies to any waterbody that impacts the “chemical, physical, and biological integrity” of a navigable waterway”) might in the future be utilized to groundwater.23 If groundwater certified as navigable water underneath the CWA, that may successfully broaden CWA legal responsibility much more than the hydrological connection principle at difficulty at this time. For now, EPA and the courts view groundwater as excluded from CWA jurisdiction.24

Implications for Regulated Group: Info Requests, Enforcement Actions and Citizen Fits

The Ninth and Fourth Circuit selections may be seen to current a probably vital enlargement of CWA jurisdiction and legal responsibility, whereas the Sixth Circuit selections protect the established order. The Supreme Courtroom is already contemplating a petition for assessment from Hawai’i Wildlife Fund, and whereas it’s all the time onerous to foretell which instances the Supreme Courtroom will settle for, the circuit cut up over groundwater legal responsibility looks like an ideal candidate. The absences of Justice Scalia and Kennedy would give the Supreme Courtroom a recent probability to re-interpret the CWA.

In the meantime, EPA is contemplating whether or not to manage releases to groundwater with a hydrological connection to jurisdictional waters beneath the CWA.25 In early 2018, EPA accepted public feedback on the difficulty and should launch a choice quickly.

Whereas in limbo, the regulated group ought to tread rigorously. The opposite circuits, together with the Tenth Circuit, haven’t instantly weighed in on this problem. Though, earlier opinions from the Second and Fifth Circuits point out attainable settlement with the Fourth and Ninth Circuits’ current opinions relating to the hydrologic connection principle of CWA legal responsibility.26 An operation that’s releasing pollution, even with a Nationwide Pollutant Discharge Elimination System (NPDES) allow or state equal for direct releases to navigable waters, could also be discovered liable underneath CWA for releases into groundwater. Operators additionally ought to concentrate on whether or not publicly obtainable knowledge might help potential citizen fits based on claims of unlawful discharges. Notably, every of the circuit courtroom instances determined this yr have been initially filed as citizen fits underneath the CWA. Whereas EPA and State enforcement actions are attainable, they could be much less probably given the present state of authorized uncertainty, notably in areas outdoors of the Fourth, Sixth and Ninth Circuits.

In case you have an injection nicely, underground storage tank, pipeline, landfill, waste pond, waste impoundment, mine, or another facility that could be releasing contaminated supplies into groundwater, think about whether or not your facility might qualify as some extent supply. For instance, does it function a discrete channel or medium, or slightly, does it act extra like a static or diffuse recipient, alike the coal ash amenities in Virginia Electrical & Energy Firm? Are groundwater high quality knowledge publicly obtainable that might be used to determine a connection between your facility and floor water high quality degradation?

If the power might qualify as some extent supply, chances are you’ll finally be confronted with working with a hydrogeologist to research the danger of potential groundwater air pollution and the potential of a connection to floor water. In Hawai’i Wildlife Fund and Upstate Eternally, in regards to the launch from injection wells traced to the Pacific Ocean months later and the ruptured gasoline pipelines that seeped over years into close by waters, there was thought-about to be overwhelming direct proof of a hydrological connection, however in different conditions, it might be extra attenuated. Such investigative work to show or disprove a direct hydrological connection will probably be pricey, useful resource intensive, and should result in extra questions and even “bad news” and subsequently ought to proceed with warning.

References:

1Tenn. Clear Water Community v. TVA, ___ F.3d ___, 2018 U.S. App. LEXIS 27237 (sixth Cir. Sept. 24, 2018); Ky. Waterways All. v. Ky. Utils. Co., ___ F.3d ___, 2018 U.S. App. LEXIS 27238 (sixth Cir. Sept. 24, 2018); Sierra Membership v. Va. Elec. & Energy Co., ___ F.3d ___, 2018 U.S. App. LEXIS 25831 (4th Cir. Sept. 12, 2018); Upstate Perpetually v. Kinder Morgan Power Companions, L.P., 887 F.3d 637 (4th Cir. Apr. 12, 2018); Hawai’i Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (ninth Cir. Mar. 30, 2018).

233 U.S.C. §§ 1311(a), 1362(12).

333 U.S.C. § 1362(14).

4Rapanos v. United States, 547 U.S. 715 (2006); see 33 U.S.C. § 1362(7).

5Id. at 743 (emphasis in unique).

6Hawai’i Wildlife Fund, 886 F.3d at 749.

7Id. at 749 n.three.

8Upstate Endlessly, 887 F.3d at 643-44, 653.

9Id. at 651.

10Va. Elec. & Energy Co., 2018 U.S. App. LEXIS 25831, at *13.

1133 U.S.C. § 1362(14); Va. Elec. & Energy Co., 2018 U.S. App. LEXIS 25831, at **16-18.

12Va. Elec. & Energy Co., 2018 U.S. App. LEXIS 25831, at **19-20.

13TVA, 2018 U.S. App. LEXIS 27237, at *24; Ky. Waterways All., 2018 U.S. App. LEXIS 27283, at *30.

14TVA, 2018 U.S. App. LEXIS 27237, at **6-9, 28; Ky. Waterways All.., 2018 U.S. App. LEXIS 27283, at **12, 30.

1533 U.S.C. §§ 1362(11) (emphasis added); TVA, 2018 U.S. App. LEXIS 27237, at **18-19; Ky. Waterways All.., 2018 U.S. App. LEXIS 27283, at **19-20.

16TVA, 2018 U.S. App. LEXIS 27237, at *19; Ky. Waterways All.., 2018 U.S. App. LEXIS 27283, at *20.

17TVA, 2018 U.S. App. LEXIS 27237, at **21-24; Ky. Waterways All.., 2018 U.S. App. LEXIS 27283, at **27-29.

18TVA, 2018 U.S. App. LEXIS 27237, at *15 n.6; Ky. Waterways All.., 2018 U.S. App. LEXIS 27283, at **20 n.eight.

19Hawai’i Wildlife Fund, 886 F.3d at 746; Upstate Endlessly, 887 F.3d at 650.

20TVA, 2018 U.S. App. LEXIS 27237, at *19; Ky. Waterways All.., 2018 U.S. App. LEXIS 27283, at *20.

21Hawai’i Wildlife Fund, 886 F.3d at 748; Upstate Endlessly, 887 F.3d at 650.

22TVA, 2018 U.S. App. LEXIS 27237, at **20-21; Ky. Waterways All.., 2018 U.S. App. LEXIS 27283, at *24.

23See Rapanos, 547 U.S. at 779 (Kennedy, J., concurring).

24See 33 CFR § 328.three(b)(5); Hawai’i Wildlife Fund, 886 F.3d at 746 n.2 (“We assume without deciding the groundwater here is neither a point source nor a navigable water under the CWA.”).

25See EPA Request for Feedback, Clear Water Act Protection of “Discharges of Pollutants” by way of a Direct Hydrologic Connection to Floor Water, 83 Fed. Reg. 7126 (Feb. 20, 2018), summarizing EPA’s earlier statements relating to potential CWA legal responsibility for launch to groundwater. For instance, EPA has beforehand acknowledged that ‘‘there are scientific uncertainties and website-particular issues with respect to regulating discharges to floor water by way of groundwater with a direct hydrologic connection to floor water [and] conflicting authorized precedents on this concern.” 83 Fed. Reg. 7126, 7127.

26See Peconic Baykeeper, Inc. v. Suffolk Cty., 600 F.3d 180, 188-89 (second Cir. 2010) (upholding CWA legal responsibility for pollution touring via air); Involved Space Residents for Env’t v. Southview Farm, 34 F.3d 114, 118-19 (second Cir. 1994) (upholding CWA legal responsibility for pollution touring via fields); Sierra Membership v. Abston Development, 620 F.second 41 (fifth Cir. 1980) (upholding CWA legal responsibility for pollution touring by way of mine drainage system).

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