Posted on June 16, 2020 by Patrick A. Parenteau
Despite losing his bid to have the U.S. Supreme Court declare that wastewater discharges through groundwater can never be subject to the permit requirements of the Clean Water Act (CWA), Maui County Mayor Michael Victorino, Law 360 reports, has vowed to keep fighting . The Court did not rule on the merits of whether Maui’s injection wells do in fact require a permit, but instead remanded the case to the Ninth Circuit, which sent it back to the district court, for it to apply a newly announced test–make that determination applying its new test–whether Maui’s indirect discharge to the ocean is the “functional equivalent” of a direct discharge.
Justice Breyer explained that the “functional equivalent” test comprises 7+ factors. After shelling out a reported $4 M in legal fees (with little to show for it), Mayor Victorino might have wanted to spare the taxpayers the additional expense of a trial and further appeals and agreed to the settlement that the County Council had approved last year. But Apparently not. Perhaps cooler heads may prevail at some point but meanwhile attention shifts to the remand to the Fourth Circuit of the other groundwater discharge case– Upstate Forever v Kinder Morgan.
Followers of this blog may recall that this case involved a 2014 incident in which a ruptured pipeline owned by a subsidiary of Kinder Morgan Energy Partners spilled 369,000 gallons of gasoline into the soil and groundwater near Belton, South Carolina. Kinder Morgan repaired the pipeline and managed to recover some of the spill but not before it traveled through the groundwater and was detected in nearby wetlands and streams. The plume of gasoline has continued to contaminate surface waters despite implementation of a cleanup plan ordered by the South Carolina Department of Health and Environmental Control.
The Kinder Morgan litigation involved a federal Clean Water Act citizen suit brought by the plaintiffs–Upstate Forever and Savannah Riverkeeper–alleging that the spill is polluting two tributaries of the Savannah River– Browns Creek and Cupboard Creek– and their adjacent wetlands. The pipeline ruptured less than 1000 feet from Browns Creek and 400 feet from Cupboard Creek. Plaintiffs asserted that the resulting spill constituted the unlawful discharge of pollutants from a point source in violation of section 301 (a) of the act.
In a split decision the Fourth Circuit panel ruled in plaintiffs’ favor. Over a stinging dissent by Judge Floyd the panel majority rejected Kinder Morgan’s argument that since the leak had been fixed there was no “ongoing violation,” a prerequisite to a citizen suit under the Supreme court’s Gwaltney decision.. The panel declined to adopt the Ninth Circuit’s “fairly traceable” test in the Maui case and acknowledged the contrary rulings of the Sixth Circuit in Kentucky Waterways Alliance et al v. Kentucky Utilities Co. and Tennessee Clean Water Network v. Tennessee Valley Authority–that leachate from coal ash pits did not constitute discharges from a point source. Instead the 4th Circuit panel cited EPA’s longstanding position (since disavowed by the Trump administration) that discharges from a point source via ground water having a “direct hydrologic connection” to surface water are subject to CWA permit requirements.
The Fourth Circuit is likely to send the case back to the South Carolina district court, which will have the unenviable task of trying to decipher Justice Breyer’s multi-factor test. Justice Breyer provided this not terribly helpful guidance:
Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases.
If time and distance are controlling, the Belton pipeline leak would presumably qualify as the functional equivalent of a direct discharge. The leak occurred within 400’ of one stream and 1000’ of another. It reached the first one within two months. The gasoline did not undergo any chemical change and was not diluted to any substantial degree. More than half of the spill was not recovered and is continuing to pollute the surface waters So, it clearly meets the test, right?
And yet it does seem odd that an accidental spill from a broken pipeline that has since been plugged and is undergoing cleanup–albeit not at the pace the plaintiffs would prefer– would be the functional equivalent of a direct discharge requiring a permit. Frankly the NPDES program seems a poor fit for a release resulting from an accident rather than one resulting from routine and periodic releases from routine operations.
The Maui injection wells, on the other hand, were used as an alternative to a direct ocean discharge via an outfall, which, legend has it, were opposed by the surfers at Kahekili Beach. The facts of Maui do seem to easily fit within Breyer’s functional equivalent construct. So why didn’t the Court so rule?