Under the Clean Water Act, any discharge of pollutants from industrial pipes or drains directly into protected waterways requires a permit under the National Pollutant Discharge Elimination System program.
Recently two federal appeals courts ruled that companies and municipalities can be sued for contaminating surface waters if the pollution is traced via groundwater to the source of the spill or release.
The court found that pollution in Savannah River tributaries could be directly traced via groundwater to the Kinder Morgan Plantation Pipeline.
The company could be held responsible because it didn’t obtain a discharge permit for the gasoline that spilled out of its underground pipeline in South Carolina and contaminated the tributaries some 1,000 feet away, the Fourth Circuit ruled.
For instance, she said, a citizen suit would have to prove whether the company tried to obtain a pollution discharge permit, whether there was a direct link “conclusively established” between the groundwater where the spill occurred and the receiving water that was contaminated, and whether the pollutants did reach those receiving waters.
In both rulings, the courts found that groundwater can be regulated under the Clean Water Act when it acts as a conduit through which pollutants from a chemical or oil spill, sewage backup, or wastewater injection can be traced to protected rivers, lakes, and estuaries.
The Fourth Circuit’s ruling is more concerning because it has a broader reach than the Ninth Circuit’s decision, Brent Fewell, founder of the Earth & Water Law Group, told Bloomberg Environment.
For pollutants to be added from the pipeline, Floyd said, the pipeline must convey, transport, or introduce the pollutant to the protected waters, as the law requires.
He pointed to the thousands of contaminated Superfund sites that would require pollution discharge permits when contaminants flow underground to surface waters.
Hunton & William Attorneys Sam Brown and Michael Shebelskie, who represented national industry organizations for the municipal wastewater utilities, counties, and investor-owned utilities, declined to comment on the wider implications of the decision.