Environmental Law
| Publication year | 2018 |
Environmental Law
Travis M. Trimble
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In 2017, district courts decided several issues that the United States Court of Appeals for the Eleventh Circuit had never addressed.1 The United States District Court for the Middle District of Georgia concluded that the Clean Water Act's (CWA)2 prohibition on the discharge of pollutants into waters of the United States without a permit extended to discharges into groundwater with a "direct hydrological connection" to surface waters within the Act's scope.3 The court also concluded that a state-permitted land application system, whereby wastewater is sprayed onto fields as means of treatment and disposal, constituted a "point source" within the meaning of the CWA.4 Finally, the court concluded that the Burford v. Sun Oil Co.5 abstention does not apply to citizen-suits brought under the CWA.6 The United States District Court for the Northern District of Alabama concluded that the Comprehensive Environmental Response Compensation and Liability Act (CERCLA)7 discovery rule for statutes of limitations did not preempt Alabama's discovery rule, where the plaintiff did not produce facts in his state law based tort claim for exposure to hazardous substances that would support a claim under CERCLA.8 In a case that raised no novel issues of law, the United States District Court for the Middle District of Florida upheld the National Park Service's finding of no significant impact in favor of a
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private mineral rights holder's plan to survey for oil and gas reserves in the Big Cypress National Preserve in Southern Florida.9
In Flint Riverkeeper, Inc. v. Southern Mills, Inc.,10 the United States District Court for the Middle District of Georgia ruled that the plaintiffs successfully stated a claim under the Clean Water Act's11 citizen-suit provision12 that defendant's land application system (LAS) of its industrial wastewater violated the Clean Water Act (CWA). The court answered several questions that the Eleventh Circuit had not decided. First, the court concluded that the CWA applied to a discharge of pollutants from a point source into groundwater with a direct hydrologic connection to surface water that is a jurisdictional water of the United States.13 Second, the court concluded that a permitted LAS is a point source within the meaning of the CWA.14 Third, the court concluded that the Burford v. Sun Oil Co. abstention does not apply to citizen-suits brought under the CWA.15
The defendant operates a protective fabrics mill in Molena, Georgia. It treats its industrial wastewater by discharging it onto land via a LAS. The defendant's LAS involves spraying the wastewater onto three fields via a series of spray heads.16 The defendant has two water permits issued by the State of Georgia: a National Pollution Discharge Elimination System (NPDES) permit,17 allowing the discharge of storm water mixed with "certain pollutants from its LAS fields;"18 and a LAS permit allowing it to operate its LAS subject to "various effluent limitations and monitoring requirements."19 The plaintiffs, a group organized to protect the Flint River corridor and several individual landowners along Flint tributaries, filed suit against the defendant for violating its NPDES permit under the CWA, and for trespass, nuisance, and negligence under state law. The complaint generally alleged that because of the volume of
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wastewater the defendant sprayed on its LAS fields, the soil became saturated and during rain events, the wastewater left the fields, traveling both overland through ditches and other channels into surface waters regulated under the CWA, and into groundwater that has a "direct hydrological connection" to surface waters.20 The defendant moved to dismiss the complaint for lack of subject matter jurisdiction21 and for failure to state a claim.22
The court first concluded that the plaintiffs' complaint established subject matter jurisdiction over the CWA claim.23 Although the defendant claimed that the court lacked subject matter jurisdiction because the defendant had stopped discharging polluted wastewater when it received the plaintiffs' ante litem notice, and thus, its alleged violations were wholly in the past, the court found that the complaint's allegations of ongoing storm water runoff containing pollutants from the LAS fields constituted allegations of "continuous or intermittent" discharges of pollutants that were sufficient to withstand a facial challenge to subject matter jurisdiction.24
The defendant also moved to dismiss the complaint for failure to state a claim, arguing that the complaint failed to allege facts plausibly showing that (1) the defendant's discharge of wastewater into groundwater via its LAS constituted a discharge into "navigable waters";25 (2) discharges were from a "point source"; and (3) discharges were in violation of an NPDES permit. All three are essential elements of a claim under the CWA.26
First, the court concluded that the complaint's allegations that the wastewater discharges that reached groundwater that was "hydrologically connected" to surface waters stated a claim of discharge to navigable waters.27 The court noted that groundwater itself is not "navigable water" under the CWA, and the Eleventh Circuit had not yet addressed whether the CWA prohibits a discharge into groundwater that reaches navigable water via a hydrological connection.28 However, the court noted that its decision was consistent with that of other district
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courts that had addressed the issue, and with the Environmental Protection Agency's (EPA) regulations interpreting the CWA to apply to such discharges.29
Second, the court concluded that the complaint sufficiently alleged discharges from a point source.30 The court explained first that the allegations that wastewater left the defendant's property "via ditches, runnels, seeps, and other discrete conveyances"31 sufficiently alleged point source discharges over land.32 Next, although the Eleventh Circuit had not addressed the issue, the court concluded that as to the alleged discharges into groundwater, the LAS itself was a point source.33 Finally, the court concluded that the spray heads the defendant's LAS used to spray the wastewater onto the fields constituted point sources.34
Third, the court concluded that the complaint successfully alleged a violation of the defendant's NPDES permit.35 The court explained that while the defendant had an NPDES permit authorizing the "discharge of storm water mixed with certain pollutants," the permit did not authorize "the discharge of storm water mixed with 'process wastewater.'"36 Because the complaint alleged that during storms the LAS fields, already saturated with wastewater, leached over land into surface water tributaries of the Flint, it alleged a violation of the permit.37
Finally, the court ruled against the defendant on its demand that the court abstain from exercising jurisdiction over the plaintiffs' claim because the relief they sought would "effectively nullify defendant's state-issued LAS permit."38 The defendant argued that abstention was proper under a principle the Supreme Court of the United States announced in Burford.39
According to the district court, "Burford abstention applies (1) when difficult questions of state law concerning policy problems of substantial public import transcend the case at bar; or (2) where federal judicial review would disrupt state efforts to establish a coherent policy as to a
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matter of substantial public concern."40 While the Eleventh Circuit had not addressed this issue, the court concluded that the defendant's right to "operate its LAS in accordance with its state-issued LAS permit is no defense to a CWA suit,"41 and that the court would not abstain from exercising its jurisdiction, because abstention "would essentially deprive [the plaintiffs] of the statutory right that Congress saw fit to confer upon them"42 with the citizen-provision of the CWA.43
In Arnold v. United States Pipe & Foundry Co. LLC,44 the United States District Court for the Northern District of Alabama concluded that a plaintiff's state law claim for personal injury arising out of exposure to chemicals from the defendant's pipe-making facility was time-barred under Alabama law.45 The court also concluded, in an issue that the Eleventh Circuit had not addressed, that the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA)46 "discovery rule"47 for toxic tort actions did not preempt Alabama law as to the commencement date of the limitations period, in cases such as this where the plaintiff did not produce facts that would state a claim under CERCLA.48 The court granted the defendant's motion for summary judgment.49
On September 21, 2015, the plaintiff, Eugene Maddox, sued the defendant for personal injury and property damage he claimed arose out of his exposure to chemicals from the defendant's pipe-making plant in Birmingham. In a pre-litigation demand document, his attorney listed his injury as hearing loss that was diagnosed in 2006. The plant closed in 2010.50
The court first concluded that Alabama's applicable two-year statute of limitations barred the plaintiff's personal injury claim.51 Prior to the
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Alabama Supreme Court's decision in Griffin v. Unocal Corp.,52 Alabama's two-year limitation period for toxic substance exposure claims commenced on the "date of last exposure."53 In Griffin, the Alabama Supreme Court held that the two-year period began to run when a "manifest, present injury"54 related to toxic exposure occurred.55 An injury was "manifest" when "its existence is objectively evident and apparent."56 The district court also noted that the Alabama Supreme Court held that the new commencement rule would apply prospectively and to the plaintiffs "whose last exposure to a toxic...
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