Plaintiffs in Melton Properties, et al. v. Illinois Central Railroad, 2020 WL 7335018 (N.D. Miss.) recently argued the Supreme Court’s decision in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020), overrules the 5th Circuit’s precedent in Hamker v. Diamond, 756 F.2d 392 (5th Cir. 1995). Plaintiffs are property owners or farmers near the site of a train derailment that caused a toxic spill.  On application for rehearing, Plaintiffs asked the Court to reinstate their previously dismissed claims.

Hamker held that an isolated spill cannot support a CWA citizen suit because the citizen suit provision does not apply to wholly past violations and spills cannot be ongoing violations.  The U.S. District Court for the Northern District of Mississippi reiterated its prior decision to dismiss plaintiffs’ CWA claims, finding Hamker has not been called into question, much less unequivocally overruled, by the Supreme Court” in Maui.

The Court based its decision upon the fact Maui did not address whether the remnants of a toxic spill amounted to an ongoing violation.  Rather, it addressed whether, within the meaning of the CWA, the migration of the remnants to a navigable water could be deemed from the relevant point source (the railcar).  Maui, the Court held, would thus support the conclusion that if there was an ongoing leak from the railcar, there would likely be a violation even if the leak was not directly into a navigable water.

EPA could provide clarity by offering general permits for situations that would be covered by the Maui decision, something the Supreme Court explicitly suggested. To date, EPA has not expressed any interest in doing so.