CHAPTER 12 PREVENTION OF USE OF CONTAMINATED GROUND WATER

• Jurisdiction: United States

Ground Water Contamination
(May 1991)

CHAPTER 12
PREVENTION OF USE OF CONTAMINATED GROUND WATER


Anne J. Castle ^*
Holland & Hart
Denver, Colorado

TABLE OF CONTENTS

SYNOPSIS
Page

I. INTRODUCTION

II. STATE LAW BASED TECHNIQUES TO PREVENT USE OF CONTAMINATED GROUND WATER

A. Consistent Denial Of Well Permit Applications Within The Contaminated Area

B. Withdrawal Or Reservation Of Unappropriated Water By The Authorized State Agency

C. Designation Of Protected Areas

D. Permanent Injunction Against Contaminated Ground Water Use As A Public Nuisance

E. Miscellaneous State Law Provisions

1. Colorado: Designation of Areas of State Interest

2. Utah: Abatement Of A Public Health Hazard

III. FEDERAL LAW BASED TECHNIQUES TO PREVENT USE OF CONTAMINATED GROUND WATER

A. CERCLA

B. Safe Drinking Water Act

C. Resource Conservation and Recovery Act

D. Uranium Mill Tailings Radiation Control Act

1. Regulation of Vicinity Property

2. Acquisition of Vicinity Property

E. Federal Land Policy and Management Act

IV. ACQUISITION AND OWNERSHIP OF OVERLYING LAND AND EXISTING WATER RIGHTS

V. A LEGISLATIVE SOLUTION?

VI. CONCLUSION

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I. INTRODUCTION

A groundswell of concern has arisen in recent years in connection with the widespread discovery of polluted ground water. This contamination problem has arisen from many sources, including facilities utilizing chemical treatment or processing techniques, leakage from underground storage tanks, pipelines, or water impoundments, and seepage from municipal landfills, to name only a few. Contaminated ground water has been the unfortunate side effect of many human industrial activities and we are only now beginning to understand its extent and its impact on underground water supplies.

Considerable attention has also been paid to the cleanup of contaminated ground water. Great sums of money have been expended to map the migration of contaminating chemicals and to design techniques for treatment of the polluted water. Even larger expenditures have funded negotiations and litigation concerning the appropriate method and extent of the required remediation. In most cases, the remediation process has consisted of pumping ground water from a contamination site, treatment on the surface, and either reinjection into the ground water or discharge into a surface stream system.

It now appears, however, that this "pump and treat" technique may not be as effective as had been hoped.¹ Both ground water modeling and further experience with the pump and treat method indicate that restoration of contaminated aquifers to drinking water standards may simply be impossible with current techniques or that continuous pumping for as long as several hundred years may be required.² Active remediation of contaminated ground water sites may also involve significant environmental intrusion as a result of the construction of interceptor trenches and treatment facilities, and the drilling

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of large numbers of wells. The costs of design and operation of these facilities may be quite high, particularly when compared to the resulting public benefit if there are no existing water supply wells in the contaminated area.

In light of the questioned effectiveness and high cost of conventional ground water treatment techniques, other possibilities should also be considered. Containment of the contaminant plume, rather than a technologically impossible cleanup, may be the only realistic alternative.³ In areas where a natural underground flushing mechanism may cause dispersion and eventual disappearance of the contaminating constituents, passive restoration of the ground water by means of the natural processes could also be considered. If a contaminated area is one which is unlikely to be the source of a public water supply during the period of restoration, passive remediation may be the preferred technique in order to avoid the significant cost and environmental interference that the pump and treat method requires.

The remedies of passive remediation and containment are both, however, necessarily based on the assumption that use of the contaminated ground water will not occur. While, at first blush, it might appear that simple common sense and instincts of self preservation would eliminate any risk of use of the polluted water, this may not necessarily prove to be the case. For example, there may be legitimate differences of opinion on the actual risk involved in the use of the ground water. Particularly because containment or passive remediation may be required for decades, or even centuries, the fear of health risks may dissipate and increased competition for water supplies at the subject location may make use of the contaminated water highly desirable. The parties legally responsible for the ground water contamination may desire or be required to insure that use of the contaminated ground water during the passive remediation period is prohibited in order to avoid future liability. Governmental entities will also obviously have an interest in assuring protection of the public health and safety. Finally, simple ignorance of the risks could result in utilization of contaminated ground water unless proscriptions are in place.

As a result, legal controls to prevent the use of contaminated ground water will be essential, whether in conjunction with a containment procedure or during a passive remediation period. While such controls have not been utilized in the past, there are indications that prevention of use of poor quality ground water will be considered more seriously in the future. For example, under the Comprehensive Environmental

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Response, Compensation and Liability Act of 1980 (CERCLA)⁴ , EPA has proposed the utilization of prevention techniques under certain circumstances. In the revised National Oil and Hazardous Substances Pollution Contingency Plan (NCP),⁵ which was promulgated on March 8, 1990 and contains the regulations implementing CERCLA's cleanup provisions, EPA proposes to use "institutional controls" to prevent or limit exposure to contaminated ground water for a substantial period of time as an alternative to active treatment remedies in some circumstances.⁶ This procedure would allow passive restoration of the contaminated ground water to occur through natural flushing mechanisms. The NCP includes "water use and deed restrictions" as examples of acceptable institutional controls.⁷ In discussing this approach to remediation in the context of another statutory program, EPA has suggested additional institutional controls for effectively preventing access to contaminated ground water including legal use restrictions enforceable by permanent government entities, or other measures with a high degree of permanence, such as federal or state ownership of the land overlying the contaminated water.⁸

This paper will examine existing legal mechanisms which could be utilized to prevent the use of contaminated ground water in various locations. They range from simple acquisition of the land overlying the contaminated ground water and any existing water rights to the novel application of state and federal statutory schemes. State law based legal controls vary from one state to another, but there are many areas of similarity. Controls

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based on federal law are, of course, applicable in every state. Both the strengths and weaknesses of the legal control mechanisms are discussed, so that an appropriate evaluation can be made in light of the particular circumstances of each case. Finally, a recommendation for legislation has been made to deal specifically with this problem.

It should be recognized that prevention of use of contaminated ground water for an extended period is a relatively new concept and one which, for the most part, is not directly addressed by existing statutory schemes. As a result, this paper does not contain a conservative interpretation of existing statutes and regulations. Rather, potentially applicable laws have been examined with a view toward how they might be used to address the problem, regardless of the manner in which they have been utilized in the past. Novel uses and untested interpretations of various statutory provisions have been suggested and, of course, may be subject to challenge.

The greatest single obstacle to utilization of legal controls to prevent the use of contaminated ground water results from the conflict between the concept of water use as a property right, which is prevalent in the western states, and governmental authority to regulate in connection with potential hazards to the public health and safety. In many western states, rights to the use of water are regarded as equivalent to real property and are protected by the state constitution. Interference with this property right, even for the purpose of preventing a health risk to the owner, may be highly controversial and stoutly resisted. While the elevation of water rights to the realm of private property does not preclude federal or state regulation, it does suggest that restrictions on the use of water will receive strict scrutiny and that payment of compensation is more likely to be required. Prevention of use is also at odds with the concept of maximum utilization of water which permeates and shapes western water law.

II. STATE LAW BASED TECHNIQUES TO PREVENT USE OF CONTAMINATED GROUND WATER

Many states exercise several different methods of control over the withdrawal and use of ground water. State health departments focus on the quality of water used for particular purposes, most notably in connection with public water supplies. The branch of state government dealing with utilization of water resources generally regulates the actual withdrawal and use of ground water, usually with the aim of protecting other water users from injury. The process of physically drilling a well is normally subject to a licensing or...