Oil and Gas Update
South Carolina Federal Court Upholds Distinction Between Point Source and Non-Point Source Pollution
April 26, 2017
On April 20, 2017, a South Carolina federal district court dismissed an environmental group’s Clean Water Act (“CWA”) citizen suit against Plantation Pipe Line Company, Inc. (“PPL”) and its parent company, Kinder Morgan Energy Partner, L.P., which own a 3,100 mile petroleum pipeline. The pipeline leaked 369,000 gallons in December 2014. The leak was repaired within a few days of discovery, and the South Carolina Department of Health and Environmental Control (“DHEC”) quickly engaged to oversee and enforce remediation efforts. Although 209,000 gallons of gasoline and petroleum products were removed from the site, a significant plume remained in the soil and groundwater system.
In spite of DHEC’s oversight and enforcement efforts on the cleanup, Upstate Forever and Savannah Riverkeeper (“Plaintiffs”), filed a citizen suit under the CWA, claiming that petroleum in the groundwater and soil continued to make its way into “waters of the U.S.” They argued that Kinder was discharging pollutants to waters of the U.S. from a point source without an NPDES permit. The CWA defines “point source” as any discernible, confined and discrete conveyance. 33 U.S.C. § 1362(14). The full definition of “point source” is as follows:
[T]he term ‘‘point source’’ means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.
33 U.S.C. § 1362(14) (emphasis added).
Plaintiffs argued first that the pipeline itself is an unpermitted point source because pollution released from it continues to reach waters of the U.S. The Court noted that there is no continuing discharge from the pipeline and cited a number of cases holding that continuing effects of a past discharge are an insufficient basis for subject matter jurisdiction over a claim for an unpermitted discharge.
Plaintiffs argued, however, that the seeps, flows, and fissures from the spill site are point sources. Essentially, Plaintiffs argued that the ground was the ongoing conveyance mechanism of the spilled petroleum products to nearby streams and wetlands. The Court, though, pointed out that the conveyance must be “discernible, confined, and discrete” in accordance with 33 U.S.C. § 1362(14). Most cases finding unpermitted discharges involve the flow of pollutants through ditches, pipes, holding ponds, spoil piles, or some other man-made conveyance. Here, though, Plaintiffs did not allege that Defendants took any action to collect, channel, or direct pollutants. Instead, Defendants’ only activity at the site was related to remediating the residual effects of the spill. According to the Court, to find that Defendants’ efforts to remediate the site somehow created a point source conveyance for which it could be liable for daily civil penalties under the CWA would discourage remediation of contaminated sites. The Court rejected Plaintiffs’ argument that seeps are point sources, instead holding that “[t]he migration of pollutants through soil and groundwater is nonpoint source pollution that is not within the purview of the CWA.” Id. at 8.
Next, the Court considered whether the CWA regulates the discharge of pollutants from a point source when the “discharge” is transmitted via ground water that is hydrologically connected to surface waters. We have written about this issue previously. The U.S. Environmental Protection Agency has stated that the CWA “requires NPDES permits for discharges to groundwater where there is a direct hydrological connection between groundwater and surface water.” See p. 21, citing 56 Fed. Reg. 64876, 64892 (Dec. 12, 1991) (emphasis added). Within the Fourth Circuit, district courts have reached different conclusions in deciding whether groundwater seeps may constitute a point source discharge subject to the CWA. In Sierra Club v. Old Dominion Va. Power, the Eastern District of Virginia relied on EPA’s statement regarding hydrologically connected groundwater to impose liability where it found a direct hydrological connection between coal ash impoundments and surface waters where the evidence suggested groundwater was moving outwards from the ponds toward surface waters where the hydraulic head/pressure was lower. On the other hand, the Eastern District of North Carolina has held “that Congress did not intend for the CWA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow ‘hydrologically connected’ to navigable surface waters.” See Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., 25 F. Supp. 3d 798 (E.D.N.C. 2014).
The District Court concluded that the language of the CWA supports the conclusion that “navigable waters” and “ground waters” are distinct concepts in the CWA and should be regulated accordingly. Plaintiffs’ complaint only alleged that petroleum leaked from the pipeline into the groundwater at the spill site and thereafter slowly migrated toward two creeks and two wetlands. The Court sided with previous decisions holding that “the CWA does not apply to claims involving discharge of pollution to groundwater that is hydrologically connected to surface waters.” Op., p. 16. Accordingly, it dismissed Plaintiffs Complaint.
With its decision, the Court joins a number of others in recognizing that the CWA does not regulate groundwater pollution. The idea that the ground can be a conduit for point source discharges threatens the interplay between ground and surface water regulation. Generally speaking, groundwater systems are hydrologically connected to surface water; however, not all groundwater makes its way to nearby surface waters. But if any seep or spill on the ground is now potentially a point source conveyance by virtue of some vague notion of a hydrological connection to nearby surface waters, then the ground has effectively become “waters of the United States,” subject to regulation under the CWA. Most states have laws already governing groundwater pollution, so hydrological connection claims threaten to create conflicts between state groundwater pollution control programs and the CWA. For this and other reasons, the better approach is to view the addition of pollutants into navigable waters through migration of groundwater and un-channeled runoff as “nonpoint source” pollution, which is not subject to CWA regulation. The South Carolina District Court’s decision is a welcome addition to the line of cases upholding the clear distinction between point source and nonpoint source pollution.
This article was authored by Christopher M. Hunter.