Environmental group brought citizen suit challenging unpermitted discharge of coal ash wastewater via groundwater seeps and thence to navigable surface waters. The U.S. District Court for the Central District of Illinois dismissed the complaint, relying on a 1994 Seventh Circuit Court of Appeals precedent holding that the Clean Water Act (CWA) does not regulate discharges to groundwater, evenwhen that groundwater is unquestionably hydrologically linked to navigable surface waters. [Prairie Rivers Network v. Dynegy Midwest Generation, LLC, ___F.Supp.3d___, Case No. 18-CV-2148 (C.D. Ill. Nov. 14, 2018).]

Background

Dynegy operated a coal-fired power plant in Illinois, the Vermillion Power Station, from the 1950s until 2011. Coal ash from the plant’s operation is stored in three unlined pits containing an approximate total of 3.33 million cubic yards of coal ash:

• Coal ash wastewater such as that in the coal ash pits contains heavy metals and other toxic pollutants that are harmful and at times deadly to people, aquatic life, and animals.

Dynegy and holds a permit that authorizes the company to discharge pollutants from the Vermilion Power Station to the Middle Fork [of the Vermillion River] through nine external outfalls. The plant also discharges pollutants into the Middle Fork “from numerous, discrete, unpermitted seeps on the riverbank.

Coal ash at the VPS has groundwater flowing through it year round. While the thickness of saturated ash varies as groundwater levels rise and fall with the seasons, groundwater has saturated coal ash at depths of more than 21 feet. That groundwater flows laterally through the ash, picking up contaminants in the process, while precipitation leaching down through the top of the coal ash mixes with the groundwater and further adds to the pollutant load contained within the discharge to the Middle Fork. Defendant’s own reports and information have concluded that the coal ash contaminated groundwater flows right into the adjacent Middle Fork.

Prairie Rivers Network (PRN) sued Dynegy under the citizen suit provisions of the federal Clean Water Act, 33 U.S.C. §§ 1311 and 1342, alleging the seeps:

• . . .are not authorized by any permit and are contrary to the limited authorization to discharge within Defendant’s discharge permit.

PRN also alleged Dynegy via the seeps “discharged and is discharging on an ongoing basis, pollutants into the Middle Fork in concentrations, colors, and with characteristics that violate Illinois effluent limits and water quality standards that are incorporated as conditions of the Vermilion [discharge] permit” governing the nine external outfalls.

The District Court’s Decision

Dynegy moved to dismiss, arguing “the CWA does not regulate discharges of contaminants to groundwater, even where that contaminated groundwater reaches navigable waters,” citing Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994). PRN opposed on the basis that Oconomowoc:

• . . .governs discharges into groundwater itself, absent evidence that the groundwater discretely conveys pollution into a navigable water.

Oconomowoc concerned discharges to groundwater from a six-acre retention pond that drained runoff from a warehouse parking lot containing oil and other pollutants. The contaminated groundwater “eventually reached streams, lakes, and oceans,” including water of the United States regulated under the CWA.

The Seventh Circuit affirmatively held that the CWA did not assert authority over groundwaters, just because those waters “may” be hydrologically connected with surface waters. This court’s reading of that passage is that the Seventh Circuit found any hydrological connection between surface waters and groundwater to be irrelevantin terms of whether groundwaters were covered by the CWA. If the discharge is made into groundwater, and the pollutants somehow later find their way to navigable surface waters via a discrete hydrological connection, the CWA is still not implicated, because the offending discharge was made into groundwater, which is not subject to the CWA.

The District Court rejected PRN’s more limited reading of Oconomowoc, by which the Seventh Circuit was:

• . . .distinguishing between discharges of pollutants into groundwater with only the hypothetical possibility of further seepage into navigable waters and discharge of pollutants into groundwater with definiteseepage into navigable waters.

Instead, the District Court found the Oconomowoc Court held that

• . . .even ifthere was a possibility (or reality) of discharged pollutants into groundwater seeping into navigable waters, such a discharge was not covered by the CWA, because the actual dischargefrom the artificial pond was into groundwater, regardless of whether those pollutants later seep into navigable surface waters via discrete groundwater seepage.

The court cited in support of its interpretation a recent U.S. District Court for the Eastern District of North Carolina decision citing Oconomowocas holding that “an NPDES permit is not required for discharges to groundwater even if those discharges eventually migrate to surface waters.” Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., 25 F.Supp.3d 798, 809 (E.D. N.C. 2014).

Applying Oconomowocto the facts in this case, the District Court dismissed the complaint because all of its allegations were premised on discharges via the seeps, rather than the nine external outfalls.

Conclusion and Implications

The effects of the circuit split with respect to Clean Water Act jurisdiction over discharges to groundwater continues to percolate through the District Court, with wildly varying outcomes based on the circuit within which each District Court is located. The court’s decision is available online at: https://will.illinois.edu/nfs/Bruce_-_2018_-_UNITED_STATES_DISTRICT_COURT_CENTRAL_DISTRICT_OF_I.pdf

(Deborah Quick)