A recent Fourth Circuit Court of Appeals decision could have some impact on whether the National Pollutant Discharge Elimination System (NPDES) and related federal Clean Water Act provisions may be invoked if there is a discharge from a pipe to groundwater, and hence to surface waters. In Upstate Forever v. Kinder Morgan Energy Partners, L.P., the Fourth Circuit determined that a citizen’s group could obtain U.S. District Court jurisdiction for a citizen’s suit when it alleged that a burst gasoline pipeline was continuing to contaminate surface waters of the United States, even though the break in the line had been repaired. [Upstate Forever v. Kinder Morgan Energy Partners, L.P., ___F.3d___, Case No. 17-640 (4th Cir. Apr. 12, 2018).]

Background

The pipeline rupture spilled over 350,000 gallons of gasoline into the underground environment and contaminated groundwater that was moving toward open surface waters. The rupture apparently occurred in late 2014, and surface effects including odors and dying vegetation were observed by December of that year. The rupture was repaired, but, according to the complaint, roughly 160,000 gallons remained in the nearby groundwater and migrated to surface waters, primarily the headwaters of the Savannah River.

There were two counts involved in the plaintiffs’ suit, filed in late 2016. One claimed a violation of the NPDES related provisions of the Clean Water Act because there was a continuing discharge without a discharge permit to surface waters that began at a point source and went to those waters. The second count alleged that there was a “discharge of pollutants” that was hydrologically connected to waters of the United States and unlawful. A U.S. District Court in South Carolina ruled that the courts did not have jurisdiction for two reasons: there was no continuing violation (i.e. discharge from the pipeline), and groundwater discharges were not within the scope of the act. (See, https://scholar.google.com/scholar_case?case=9947768716132679049&q=upstate+forever+v.+kinder+morgan&hl=en&as_sdt=2006&as_vis=1

The Fourth Circuit’s Decision

The Court of Appeals noted that its review of a motion to dismiss for lack of jurisdiction is “de novo.” It also noted that dismissal motions on jurisdictional grounds are generally disfavored unless there is no factual dispute and lack of jurisdiction is plain as a legal matter. “To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must:

• . . .provide. . .sufficient detail. . .to show that he has a more-than-conceivable chance of success on the merits. Owens v. Balt. City State’s Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014) (citation omitted).

The court then distinguished the “discharge of pollutants” allegation from an allegation that ground waters are “waters of the United States”. The plaintiffs asserted the former. This is an important factor in understanding the Court’s ruling, because it was not dealing with the groundwater as such, but their involvement factually in the concept of proving a “discharge”.

The Issue of a Continuing Violation and the Gwaltney Decision

The court did give serious consideration to whether there was a “continuing violation” under the allegations made. The inquiry was jurisdictional:

• In the present case, the primary issue we consider is whether an indirect discharge of a pollutant through ground water, which has a direct hydrological connection to navigable waters, can support a theory of liability under the CWA. Because our answer to this question largely depends on our construction of the statutory term “discharge of a pollutant,” the question ordinarily would not be jurisdictional in nature.However, because courts have “jurisdiction” over CWA citizen suits only if the complaint alleges an ongoing violation,Gwaltney,484 U.S. at 64, we must address the question of an ongoing violation before proceeding further in this case.

Citizen suits under the CWA have the “central purpose of permitting citizens to abate pollution when the government cannot or will not command compliance.” The court noted the close parallel of an earlier decision under the Resource Conservation and Recovery Act (RCRA) law, as well.

Like the RCRA, the CWA’s plain language requires only that the citizen allege that the polluter “be in violation of” an “effluent standard or limitation” under the CWA. 33 U.S.C. § 1365(a);see,Goldfarb, 791 F.3d 500 at 512-13. As noted above, an “effluent limitation” of the CWA includes any unpermitted “discharge of a pollutant.” 33 U.S.C. §§ 1365(f), 1311(a). Accordingly, the relevant violation here is “the discharge of a pollutant”, defined in [*18] the CWA as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A).

The Clean Water Act, Pollutants and Point Sources

The court decided that the Clean Water Act’s terms do not require that the point source itself must continue to release a pollutant for a violation to be ongoing:

• The CWA requires only that there be an ongoing ‘addition . . . to navigable waters,’ regardless whether a defendant’s conduct causing the violation is ongoing.

Since there was a mass of gasoline in the ground and groundwater that was continuing to seep into the open waters, this was sufficient for establishing a violation. The court did cite with approval the recent Ninth Circuit decision in Hawai’i Wildlife Fund v. Cty. of Maui,881 F.3d 754, 2018 WL 1569313, at *7-*8 (9th Cir. 2018), indicating it may be leaning toward that court’s rationale that discharges to groundwater can be required to have a permit if it is mechanically inevitable that the pollution will reach a surface water body nearby.

Finally and importantly the court addressed the issue of whether a discharge to groundwater that then pollutes a water body can be the basis for an allegation of “discharge of pollutants” under the CWA. Citing to Justice Scalia’s opinion in the seminal Rapanos v U.S.case, the court accepted the plaintiffs’ allegations in the case before the court:

• [W]hen analyzing the kinds of connected waters that might fall under the CWA, Justice Scalia observed that ‘[t]he CWA does not forbid the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’ Id. at 743 (quoting 33 U.S.C. § 1362(12)(A)).

Accordingly, he observed that federal courts consistently have held that a discharge of a pollutant “that naturally washes downstream likely violates § 1311(a).” Id. (emphasis removed) (citing United States v. Velsicol Chemical Corp.,438 F. Supp. 945, 946-47 (W.D. Tenn. 1976)).

The Fourth Circuit concluded with a holding that:

• . . .a plaintiff must allege a direct hydrological connection between ground water and navigable waters in order to state a claim under the CWA for a discharge of a pollutant that passes through ground water. This determination necessarily is fact-specific.

Conclusion and Implications

Thus reasoning, the Fourth Circuit adds itself to a growing number of circuits that refuse to limit allegations of discharge without a permit to situations where the discharge is immediate and directly into surface waters. It is enough that there is a hydrological connection between a point source and a water body certain and clear enough to seem probable to occur and demonstrably continuing to pollute the surface water, even where the physical discharge from a pipe or other discrete conveyance has stopped. The Fourth Circuit’s decision is available online at: https://scholar.google.com/scholar_case?case=16862415639488993766&q=Upstate+Forever+v.+Kinder+Morgan+Energy+Partners,+L.P.&hl=en&as_sdt=2006&as_vis=1

(Harvey M. Sheldon)