Groundwater Pollution ‘Spaghetti Jungle’ Tees Up High Court Review (1)

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By Amena H. Saiyid

Conflicting federal court decisions over groundwater pollution liability have created what one law professor calls “a spaghetti jungle” that the Supreme Court must untangle.

Since the start of the year—most recently this week—the U.S. Court of Appeals for the Fourth, Sixth, and Ninth circuits have issued rulings that are at odds over the scope of the Clean Water Act when pollution reaches federally protected waterways via groundwater.

Municipalities, states, manufacturers, and miners are looking to the Supreme Court to decide whether the Clean Water Act is limited to regulating direct pollution releases from discrete and defined pipes, tunnels, and drains into federally protected waters. Alternatively, the law could be extended to indirect releases via groundwater.

Whether the court chooses to deal with that question remains uncertain for now. The Supreme Court already has been asked to weigh in on the Ninth Circuit ruling.

The EPA had taken the stance that the release of pollutants into federally protected waters via a direct link to groundwater can be liable under the act. The agency under the Trump administration is revisiting that position.

The court decisions are “a spaghetti jungle” for the regulated community and the public, Vermont Law School Professor Patrick Parenteau told Bloomberg Environment in an email.

The conflicting court decisions have drawn the attention of trade groups representing the oil and gas, mining, and municipal wastewater sectors.

All could be faced with increased permitting costs and related liabilities if they fail to obtain Clean Water Act permits for indirect discharges of pollution to federally protected waters via groundwater. Fines under the statute can run as high as $53,484 a day for violations.

Sixth Circuit Decisions

The Sixth Circuit issued two separate decisions Sept. 24 in Tenn. Clean Water Act Network v. Tenn. Valley Auth. and in Kentucky Waterways All. v. Kentucky Utils. Co.

Those decisions cleared up some—but not all—of the uncertainty created earlier this year by the Ninth Circuit in its Hawaii Wildlife Fund v. County of Maui and the Fourth Circuit in its decision on Upstate Forever v. Kinder Morgan Energy Partners LP, Neal McAliley, an environmental attorney with Carlton Fields Jorden Burt PA, told Bloomberg Environment.

The Ninth Circuit said Maui County was liable for wastewater it injected underground that migrated through groundwater to the Pacific Ocean. Likewise, the Fourth Circuit held that Kinder Morgan Energy Partners could be sued for a 2014 gasoline spill that polluted the nearby river in South Carolina through groundwater seepage. Both courts used the EPA policy as their rationale to find liability.

The Sixth Circuit, however, disagreed with the conclusions reached in these two cases.

It held that the seepage of pollutants through groundwater to regulated surface waters can’t be the basis of a Clean Water Act claim, and a coal ash pond isn’t a “point source” under the statute because it doesn’t convey pollutants to a surface water, McAliley said.

The Sixth Circuit’s decision closely tracks with the Fourth Circuit’s Sept. 12 decision in Sierra Club v. VEPCO that absolved Dominion Energy Inc. from being held liable for coal ash contamination, McAliley said.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.

The Fourth Circuit said Dominion Energy can’t be held liable under the Clean Water Act because coal ash ponds aren’t clearly defined sources of pollution. Instead, it said, the ponds are diffuse sources from which arsenic was leaching into groundwater.

But attorneys predict the Supreme Court will continue to get more petitions for review dealing with the conflicting interpretations of the Clean Water Act in addition to the one they have received from Maui County.

Because Congress has shown little interest in resolving this issue, “the Supreme Court needs to resolve this one way or another,” Parenteau said.

Coal Ash Ponds a Concern

Attorneys also agree that leaking coal ash ponds, which contain contaminants like mercury, cadmium, and arsenic, pose serious water quality concerns.

The Southern Environmental Law Center pointed to North Carolina, which recently dealt with Hurricane Florence’s catastrophic floods inundating coal ash lagoons.

“It’s a reminder that storing highly toxic coal ash in unlined, leaking pits next to our rivers and lakes is irresponsible,” D.J. Gerken, the law center’s managing attorney, said in a statement.

The Sixth and Fourth circuits made the right decision in holding that coal ash disposal rules issued under the Resource Conservation and Recovery Act—and not Clean Water Act discharge permits—are the appropriate tools for addressing this form of pollution, Brent Fewell, who served as deputy assistant EPA administrator for water under President George W. Bush, told Bloomberg Environment.

The EPA is looking to revise its policy, and may very well use the Sixth Circuit’s dismissal to “buttress its case,” said Fewell, who is the principal and founder of the environmental law firm Earth & Water Law Group.

Not everyone sees the Supreme Court as the final arbiter of the Clean Water Act’s reach. LaJuana Wilcher, who was EPA’s top water official under President George H.W. Bush, said Congress ultimately needs to act.

“It’s astonishing and frustrating for people trying to comply with the law that we can’t explain clearly and with certainty the reach of the Clean Water Act or the definition of a solid waste under RCRA after all these years,” said Wilcher, who now is a partner with Kentucky-based English Lucas Priest & Owsley LLP.

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