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June 1st, 2018
environmental
FOURTH CIRCUIT HOLDS INDIRECT DISCHARGES ACTIONABLE UNDER CWA AS ONGOING VIOLATION

The Fourth Circuit reversed a District Court’s dismissal of a lawsuit over a Kinder Morgan Energy Partners LP subsidiary’s gasoline pipeline spill in South Carolina, holding the Clean Water Act covers claims that the spill contaminated nearby creeks and wetlands after traveling through groundwater.  Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018). In a split panel decision, the Appeals Court held that citizens may bring suit alleging a violation of the CWA when the point source of pollution is no longer releasing the pollutant, but the pollutant continues to be discharged into surface waterways via groundwater.

The case arises from a 2014 gasoline spill from an underground pipeline in South Carolina.  Plaintiffs alleged that even though the pipeline was repaired and remediation was proceeding under state agency oversight, the gasoline which had already leaked migrated into creeks through groundwater.  The District Court held it lacked subject matter jurisdiction and that plaintiffs failed to state a claim. The Court concluded that because the pipeline was no longer releasing gasoline, plaintiffs could not allege an ongoing violation of the CWA necessary to sustain a citizen suit under Gwaltney v. Chesapeake Bay Found., 484 U.S. 49 (1987).  It also held that NPDES liability under the CWA could not be premised on allegations of pollutants indirectly reaching surface waters via groundwater.  

The Fourth Circuit reversed, finding plaintiffs adequately pled a claim for an ongoing violation under the CWA.  The Court held the CWA does not require that the point source continue to release a pollutant in order for a discharge to be ongoing.  Rather, the Court found the CWA only requires that the point source be the starting point or cause of a discharge.  The majority also held a release from a point source and pollutants reaching navigable waters must only be sufficiently connected in order for a discharge to be subject to the CWA.  Under this standard, “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 that passes through ground water.” 

The decision is significant.  It indicates a clear expansion of the scope of CWA liability.  It will be interesting to see if this case makes it up to the United States Supreme Court.

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