New CWA Citizen Suit on Liability for Groundwater Discharges

On September 30, the U.S. District Court for the District of Massachusetts issued a ruling dismissing claims that the operation of a municipal waste landfill violated the Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) provisions making actionable any “substantial endangerment to human health and the environment.” The case is Toxics Action Center v. Casella Waste Sys., Inc., et al..

The plaintiffs alleged that pollutants released by the landfill “travel through hydrologically connected groundwater before reaching the Wetlands and the drinking water aquifers and ultimately, residential wells, and that forms the basis for CWA jurisdiction.”

The District Court notes that the U.S. Court of Appeals for the First Circuit has not addressed the issue whether releases of pollutants to groundwater before reaching navigable waters is a discharge of a pollutant subject to the CWA and its National Pollutant Discharge Elimination System (NPDES) permitting requirements. The District Court seems somewhat skeptical of this argument, referring to the recent U.S. Court of Appeals for the Sixth Circuit decisions taking issue with the contrary rulings of the U.S. Court of Appeals for the Fourth and U.S. Court of Appeals for the Ninth Circuits.

In any case, the District Court holds that no “point source” discharges are involved here, citing the Fourth Circuit’s decision in Sierra Club v. Virginia electric & Power Company, which held that a landfill is not a point source as defined by the CWA. In turn, regarding the RCRA claim, the District Court refers to the diligent prosecution of a corrective action resolution to any releases of pollutants form the now-closed landfill, and holds that no action is therefore required by this court. Indeed, “any additional action… would be duplicative and unnecessary.”

An appeal could be taken, but for now, the split between the circuits on this issue remain where it has been.