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Upstate Forever v. Kinder Morgan Energy Partners, L.P.

ELR Citation: 48 ELR 20061
Nos. 17-1640, (4th Cir., 04/12/2018)

The Fourth Circuit held that citizens may bring suit alleging a violation of the CWA when the source of the pollution is no longer releasing the pollutant, but the pollutant continues to be discharged into surface waterways via groundwater. In late 2014, several hundred thousand gallons of gasoline spilled from a pipeline rupture near Belton, South Carolina. It is undisputed that the gasoline has seeped into nearby waterways. Environmental groups claimed that the gasoline has continued to travel to navigable waters, and so they filed a CWA citizen suit against the company for polluting navigable waters without a permit and sought relief to remediate the ongoing pollution. A lower court held that it lacked jurisdiction because the pipeline has been repaired and the pollutants must pass through groundwater to reach navigable waters. But the appellate court disagreed. The discharges of pollutants derive from a “point source” and continue to be “added” to navigable waters. In addition, the groups stated a valid claim for a discharge under the CWA. The court therefore vacated and remanded the lower court decision.