Creating Appellate Split, 6th Circuit Rejects CWA Liability For Groundwater

摘要

The U.S. Court of Appeals for the 6th Circuit in two new decisions is rejecting Clean Water Act (CWA) liability for pollution that travels through groundwater to surface waters, breaking with two other circuits that have allowed CWA penalties for groundwater-borne pollution and boosting the odds the Supreme Court might have to resolve the split. In two linked rulings handed down Sept. 24, a panel of 6th Circuit judges split 2-1 in both cases on whether the CWA limits contaminants that are discharged from a "point source" like a pipe but only reach protected waterbodies via groundwater, with the majority finding the law does not apply in such instances. The rulings are available on InsideEPA.com. (Doc. ID: 215433). The decisions mark the first time an appellate court has squarely rejected environmentalists' growing wave of suits invoking CWA liability for groundwater releases, in contrast to rulings from the 4th and 9th Circuits that have found the law can apply to such releases. The fight over whether the law extends to groundwater is central to citizen suits targeting coal ash disposal pond owners for alleged groundwater contamination. "The CWA defines effluent limitations as restrictions on the amount of pollutants that may be 'discharged from point sources into navigable waters.' The term 'into' indicates directness. It refers to a point of entry.... Thus, for a point source to discharge into navigable waters, it must dump directly into those navigable waters-the phrase 'into' leaves no room for intermediary mediums to carry the pollutants," reads the panel majority's decision in Tennessee Clean Water Network (TCWN), et al., v. Tennessee Valley Authority (TVA).