Wednesday, August 31, 2016
Air Emissions, CWA and CERCLA
Agriculture is subject to some significant environmental regulation. That fact has become a recent focus of some of the political debate in this fall’s Presidential campaigns. Two of the “biggies” at the federal level are the Clean Water Act (CWA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). We’ve heard a lot about the CWA recently with the EPA’s attempt to broaden its regulatory reach over private land with its “waters of the U.S.” (WOTUS) rule, but both the CWA and CERCLA might also have a significant impact on agricultural operations where there could be air emissions of a pollutant that finds its way into a WOTUS or “disposal” via air of a hazardous substance.
The CWA imposes upon the federal government the responsibility for eliminating pollution from point sources by establishing federal restrictions on discharges from these sources, and enforcing them by means of a federal permit system. This federal permit system, known as the National Pollutant Discharge Elimination System (NPDES) is the chief mechanism for control of discharges. No one may discharge a “pollutant” from a point source into the “navigable waters of the United States” without a permit from the EPA. The NPDES system only applies to discharges of pollutants into surface water. Discharges of pollutants into groundwater are not subject to the NPDES permit requirement even if the groundwater is hydrologically connected to surface water.
Importantly for agriculture, irrigation return flows are not considered point source pollutants. In addition, agricultural stormwater discharges are excepted from the NPDES as nonpoint source pollutants. The CWA also has important implications for farming operations that fall within the definition of a confined animal feeding operation (CAFO). For example, in one recent case involving a West Virginia poultry CAFO, the EPA had issued an order that the CAFO obtain an NPDES permit for stormwater discharges on the basis that a regulable discharge occurred when dust, feathers and dander were released through ventilation fans and then came into contact with precipitation. Alt, et al. v. United States Environmental Protection Agency, No. 2:12-CV-42, 2013 U.S. Dist. LEXIS 65093 (W.D. W. Va. Apr. 22, 2013). Such discharges, EPA claimed, were not within the agricultural stormwater discharge exemption because the exemption only applied to land application areas where crops are grown. The CAFO was threatened with significant fines and challenged the EPA’s position in court. In response, the EPA withdrew its order and motioned to dismiss the case. The court refused the EPA’s motion, and later determined that that the litter and manure that washed from the CAFO to navigable water by precipitation were an ag stormwater discharge that was exempt from the CWA’s NPDES permit requirement. Alt v. United States Environmental Protection Agency, 979 F. Supp. 2d 701 (N.D. W. Va. 2013).
That case involved the novel theory that air emissions could require a stormwater discharge permit. In another case that is the first of its kind, the federal district court for the Eastern District of Washington kept alive a lawsuit filed by seven environmental groups alleging that the BNSF Railway Company violated the CWA. Sierra Club, et al. v. BNSF Railway Co., No. 2:13-cv-00272, 2014 U.S. Dist. LEXIS 1035 (E.D. Wash. Jan. 2, 2014). The plaintiffs claimed that while transporting coal on its tracks “adjacent to” and “in proximity to” waters of the United States,” the railway discharged coal dust without a permit through holes in its cars and through the open tops of its cars. Basically, the claim is that a rail car is a “point source” pollutant and that a federal discharge permit was required for such discharges, and that each and every rail car transporting the coal constitutes a “point source.” In addition, the plaintiffs claimed that each discharge from each car on each separate day constitutes a separate CWA violation. The railway asked the judge to dismiss the claims that alleged the release of coal dust to land, not water, arguing that the plaintiff was not asserting that such pollution reached the water through a “confined, discrete conveyance.” The plaintiffs asserted that they only needed to trace the pollutant back to a single, identifiable source, the coal cars. The court agreed that, regardless of where pollution originates, “a plaintiff must prove that the pollutant reached the water through a confined, discrete conveyance.” Even so, the court denied the railway’s motion to dismiss, and granted the plaintiff an opportunity to attempt to develop facts “to show that the railway illegally introduced pollutants into navigable waters without a permit.” The court noted that the “issue appears to be whether coal from rail cars that falls onto land, rather than directly into the waters, offends the CWA.” The court stated that it was giving the plaintiff an opportunity to develop facts that would allow their claims to either stand or fall, “based on the statutory definition of a point source discharge.” The future success of plaintiffs’ claims will likely depend on whether the court treats the coal dust like manure discharged onto fields near a river (which does create a point source discharge if ultimately flowing into the river) or like waste rocks that eventually make their way to surface waters from waste rock pits (which are not point sources under the CWA because the water seepage is “not collected or channeled”). Because this coal dust is not entering any waterway through any channeled process, it seems unlikely these claims will survive summary judgment. If they are successful, however, the impact on the U.S transportation system would be monumental.
Most recently, on July 8, 2016, BNSF asked the court to compel the plaintiffs to provide documentation to support their claims that the BNSF train cars released coal into CWA jurisdictional waters.
Relatedly, the Ninth Circuit in Pakootas v. Teck Cominco Metals, Ltd., No. 15-35228, 2016 U.S. App. LEXIS 13662 (9th Cir. Jul. 27, 2016), said that air emissions of hazardous waste don’t create CERCLA liability. Under the facts of the case, the defendant operated a smelter approximately 10 miles into Canada north of the Washington border. In a prior action, the state of Washington and an Indian tribe obtained a court decision that the defendant could be held liable under CERCLA for discharges of hazardous waste that cross into the United States. As a result, the plaintiffs amended their complaint to claim that the defendant arranged for disposal and thereby triggered CERCLA liability via emissions from its facility that the wind carried and deposited into the Columbia River. The trial court denied the defendant’s motion to dismiss on the basis that the air emission amounted to a “disposal” under CERCLA once deposited onto land or water. On appeal, while the court noted that the plaintiffs had posited a reasonable construction of CERCLA. The court cited its prior decision in Center for Community Action and Environmental Justice v. BNSF Railway Co,764 F.3d 1019 (9th Cir. 2014). In that case, the court held that diesel particulate emissions “transported by wind and air currents” were not a “disposal” of waste within the meaning of the Resource Conservation Recovery Act, and also referenced its prior decision in Carson Harbor Village, Limited v. Unocal Corporation, 270 F.3d 863 (9th Cir. 2001) where the court held that mere passive migration does not constitute a disposal under CERCLA. Thus, air emissions are excluded from regulation under CERCLA.
This is an nteresting issue that agriculture will have to keep an eye on. Air emissions are big in livestock agriculture, and the issue could potentially impact row-crop operations and chemical application.