Turn to the nation's most objective and informative daily environmental news resource to learn how the United States and key players around the world are responding to the environmental...
July 5 — Disposal of pollutants into underground wells does not require a Clean Water Act discharge permit regardless of whether the effluent containing the pollutants reaches the ocean, Maui County, Hawaii, told the U.S. Court of Appeals for the Ninth Circuit ( Haw. Wildlife Fund v. Cnty. of Maui, 9th Cir., 15-17447, brief 7/1/16 ).
A National Pollutant Discharge Elimination System permit is required for “discharge of any pollutant,” but the Hawaiian county clarified that “effluent injection into groundwater via a well is not a discharge of pollutants.” Rather, the Clean Water Act refers to such injections as disposals of pollutants into wells, the county said, citing 33 U.S.C. 1342(b)(1)(D).
Maui County's brief, filed July 1, responded to the Justice Department, which claimed at the end of May that treated wastewater discharges to groundwater with a direct hydrological connection to federally protected surface waters, the Pacific Ocean in this instance, require an NPDES permit.
At issue before the Ninth Circuit is whether the Lahaina Wastewater Reclamation Facility in Maui County needs an NPDES permit to discharge at least 2 million gallons of treated effluent daily into four onsite injection wells, which connect to the nearshore waters of the Pacific Ocean through a shallow groundwater aquifer.
Maui County is appealing a 2015 ruling by the U.S. District Court for the District of Hawaii, which held that the Lahaina Wastewater Reclamation Facility required an NPDES permit because the treated wastewater has been detected in the nearshore waters off the popular Kahekili Beach Park along the Pacific.
The county said the distinction between disposal and discharge is important in this context.
“Congress' deliberate decision to classify well injection as ‘disposal' rather than ‘discharge' means NPDES permits are not required for such injections,” the county said.
Citing the Seventh Circuit's 1970 ruling, the county reminded the court that “ignoring the discharge/disposal distinction wreaks havoc with environmental laws. The words “disposal” and “discharge” cannot be used interchangeably because doing so would create a “senseless regulatory gap” for the Environmental Protection Agency that also has to regulate disposal of hazardous waste under the Resource Conservation and Recovery Act ( Inland Steel Co. v. EPA, 901 F.2d 1419, 31 ERC 1527 (7th Cir. 1990).
The environmental groups and the EPA ignore this fundamental distinction, according to the county brief.
“No case they cite holds that well disposal of pollutants into groundwater is subject to NPDES permits,” the county said.
They said the advocacy groups and the EPA emphasize that the Clean Water Act's purpose is to protect the nation's waters, but the county reminded the Ninth Circuit that “the generalized purpose does not trump the Act's express terms and override the discharge/disposal distinction that Congress enacted.”
The EPA and the groups also ignored the fundamental purpose of the Clean Water Act and that is to leave regulation of groundwater to states, according to the county, which reminded the court that Congress expressly rejected EPA's proposal to regulate groundwater during the 1971 hearings on Clean Water Act amendments.
Maui County attorneys Patrick Wong and Richelle Thompson joined attorneys Michael Shebelskie and Colleen Doyle, of Hunton & Williams LLP, in penning the county's brief.
To contact the reporter on this story: Amena H. Saiyid in Washington at email@example.com
To contact the editor responsible for this story: Larry Pearl at firstname.lastname@example.org
Brief filed by Maui County, Hawaii, in Haw. Wildlife Fund v. Cnty. of Maui in the U.S. Court of Appeals for the Ninth Circuit is available at http://src.bna.com/gvn.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)