UPSTATE FOREVER; SAVANNAH RIVERKEEPER, Plaintiffs - Appellants,
KINDER MORGAN ENERGY PARTNERS, L.P.; PLANTATION PIPE LINE COMPANY, INC., Defendants - Appellees. ANDERSON COUNTY, SOUTH CAROLINA; PIPELINE SAFETY TRUST, Amici Supporting Appellant, AMERICAN PETROLEUM INSTITUTE; ASSOCIATION OF OIL PIPE LINES; GPA MIDSTREAM ASSOCIATION; TEXAS PIPELINE ASSOCIATION; NATIONAL ASSOCIATION OF COUNTIES; NATIONAL LEAGUE OF CITIES; NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES; AMERICAN FOREST AND PAPER ASSOCIATION; AMERICAN IRON AND STEEL INSTITUTE; EDISON ELECTRIC INSTITUTE; NATIONAL MINING ASSOCIATION; UTILITY WATER ACT GROUP; STATE OF WEST VIRGINIA; STATE OF SOUTH CAROLINA; STATE OF ALABAMA; STATE OF ARKANSAS; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA; STATE OF MISSOURI; STATE OF OKLAHOMA; STATE OF UTAH; STATE OF WISCONSIN; GOVERNOR PHIL BRYANT Amici Supporting Appellee.
Argued: December 7, 2017
from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:16-cv-04003-HMH)
S. Holleman, III, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel
Hill, North Carolina, for Appellants.
P. Cooney, III, WOMBLE BOND DICKINSON (US) LLP, Charlotte,
North Carolina, for Appellees.
Christopher K. DeScherer, SOUTHERN ENVIRONMENTAL LAW CENTER,
Charleston, South Carolina, for Appellants.
Richard E. Morton, Todd W. Billmire, Jackson R. Price,
Charlotte, North Carolina; Clayton M. Custer, WOMBLE CARLYLE
SANDRIDGE & RICE, LLP, Greenville, South Carolina, for
Catherine H. McElveen, RICHARDSON, PATRICK, WESTBROOK &
BRICKMAN, LLC, Mount Pleasant, South Carolina, for Amicus
Pipeline Safety Trust.
C. Harmon, Anderson, South Carolina, for Amicus Anderson
County, South Carolina. Alan Wilson, Attorney General, Robert
Cook, Solicitor General, J. Emory Smith, Jr., Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Columbia,
South Carolina, for Amicus State of South Carolina.
Patrick Morrisey, Attorney General, Thomas M. Johnson, Jr.,
Deputy Solicitor General, John S. Gray, Deputy Attorney
General, Charleston, West Virginia, for Amicus State of West
Marshall, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
ALABAMA, Montgomery, Alabama, for Amicus State of Alabama.
Rutledge, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
ARKANSAS, Little Rock, Arkansas, for Amicus State of
T. Hill, Jr., Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF INDIANA, Indianapolis, Indiana, for Amicus State
Schmidt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
KANSAS, Topeka, Kansas, for Amicus State of Kansas.
Landry, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
LOUISIANA, Baton Rouge, Louisiana, for Amicus State of
D. Hawley, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF MISSOURI, Jefferson City, Missouri, for Amicus State of
Hunter, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
OKLAHOMA, Oklahoma City, Oklahoma, for Amicus State of
D. Reyes, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
UTAH, Salt Lake City, Utah, for Amicus State of Utah.
Schimel, Attorney General, WISCONSIN DEPARTMENT OF JUSTICE,
Madison, Wisconsin, for Amicus State of Wisconsin.
L. Brown, HUNTON & WILLIAMS LLP, San Francisco,
California; Nash E. Long, III, Brent A. Rosser, HUNTON &
WILLIAMS LLP, Charlotte, North Carolina; Michael R.
Shebelskie, HUNTON & WILLIAMS LLP, Richmond, Virginia,
for Amici National Association of Counties, National League
of Cities, National Association of Clean Water Agencies,
American Forest and Paper Association, American Iron and
Steel Institute, Edison Electric Institute, National Mining
Association, and Utility Water Act Group.
H. Coburn, Cynthia L. Taub, STEPTOE & JOHNSON LLP,
Washington, D.C., for Amici American Petroleum Institute,
Association of Oil Pipe Lines, GPA Midstream Association, and
Texas Pipeline Association.
GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
BARBARA MILANO, KEENAN, CIRCUIT JUDGE.
2014, several hundred thousand gallons of gasoline spilled
from a rupture in a pipeline owned by Plantation Pipe Line
Company, Inc., a subsidiary of Kinder Morgan Energy Partners,
LP (collectively, Kinder Morgan), near Belton, South
Carolina. It is undisputed that the gasoline has seeped into
nearby waterways, and the plaintiffs allege that the gasoline
has continued to travel a distance of 1000 feet or less from
the pipeline to those "navigable waters."
plaintiff conservation groups brought a "citizen
suit" under the Clean Water Act (the CWA, or the Act),
33 U.S.C. §§ 1251-1387, alleging that Kinder Morgan
was in violation of the Act for polluting navigable waters
without a permit and seeking relief to remediate the ongoing
pollution. This case requires us to determine whether
citizens may bring suit alleging a violation of the CWA when
the source of the pollution, the pipeline, is no longer
releasing the pollutant, but the pollutant allegedly is
passing a short distance through the earth via ground water
and is being discharged into surface waterways.
district court held that it lacked subject matter
jurisdiction under the CWA, because the pipeline has been
repaired and the pollutants currently pass through ground
water to reach navigable waters. We conclude that the
district court erred in holding that it lacked jurisdiction,
because citizens may bring suit under 33 U.S.C. §
1365(a) for discharges of pollutants that derive from a
"point source" and continue to be "added"
to navigable waters. We further hold that the plaintiffs have
stated a valid claim for a discharge under the CWA.
Accordingly, we vacate the district court's judgment, and
remand for further proceedings consistent with this opinion.
1972, Congress enacted the CWA to eliminate the discharge of
certain pollutants or "effluents" into the
"navigable waters" of the United States. See S.
Appalachian Mountain Stewards v. A & G Coal Corp.,
758 F.3d 560, 563 (4th Cir. 2014); Piney Run Pres.
Ass'n v. Cty. Comm'rs of Carroll Cty., 268 F.3d
255, 264-65 (4th Cir. 2001). The CWA's stated purpose is
"to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters." 33
U.S.C. § 1251(a). The federal government's prior
regime of water pollution control focused primarily on
measuring direct injuries to the Nation's waters using
water quality standards. Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149, 151 (4th
Cir. 2000) (en banc) [Friends of the Earth II]. In
the CWA, however, Congress shifted its regulatory focus for
water pollution from water quality standards to limiting
discharges of pollutants. See id. One of the
CWA's central provisions establishes that "the
discharge of any pollutant by any person shall be
unlawful." 33 U.S.C. § 1311(a).
authorizes exceptions to this general prohibition in the form
of permits issued in accordance with the National Pollutant
Discharge Elimination System (NPDES), which allows limited
discharges. See 33 U.S.C. §§ 1311(a),
1342; S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of
Indians, 541 U.S. 95, 102 (2004) ("[T]he NPDES
requires dischargers to obtain permits that place limits on
the type and quantity of pollutants."); Friends of
the Earth II, 204 F.3d at 151. Both the Environmental
Protection Agency (EPA) and state environmental control
agencies may issue NPDES permits. See Friends of the
Earth II, 204 F.3d at 152. However, consistent with the
CWA's general prohibition, a polluter does not violate
the statute only when it exceeds limitations in its permit.
Instead, a polluter also may be in violation of the statute
due to a discharge for which the polluter could not have
obtained any permit. See Sierra Club, Lone Star
Chapter v. Cedar Point Oil Co., 73 F.3d 546, 561 (5th
Cir. 1996) ("Nothing in the CWA limits a citizen's
right to bring an action against a person who is allegedly
discharging a pollutant without a permit solely to those
cases where EPA has promulgated an effluent limitation or
issued a permit that covers the discharge.").
authorizes both citizens and government agencies to enforce
the Act's provisions. Citizen suits under the CWA have
the "central purpose of permitting citizens to abate
pollution when the government cannot or will not command
compliance." Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987). The
Act contains the following citizen suit provision:
[A]ny citizen may commence a civil action on his own behalf-
(1) against any person (including (i) the United States, and
(ii) any other governmental instrumentality or agency to the
extent permitted by the eleventh amendment to the
Constitution) who is alleged to be in violation of .
. . an effluent standard or limitation under this chapter . .
33 U.S.C. § 1365(a) (emphasis added). An "effluent
standard or limitation" is defined to include the
Act's central prohibition on the "discharge of any
pollutant" without a permit. See 33 U.S.C.
§§ 1365(f), 1311(a).
sets forth a technical definition of the term "discharge
of a pollutant, " which is defined expansively to
include "any addition of any pollutant to navigable
waters from any point source." 33 U.S.C. §
1362(12)(A). A "point source" in turn is defined as
"any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, [or] container . . .
." 33 U.S.C. § 1362(14). The term "navigable
waters" is defined in the CWA as "the waters of the
United States." 33 U.S.C. § 1362(7). The Supreme
Court has interpreted the term "navigable waters"
to mean more than waters that are navigable-in-fact, and to
include, for example, wetlands and related hydrological
environs. See, e.g., Rapanos v. United
States, 547 U.S. 715, 730-31, 735 (2006) (plurality
opinion) (observing that navigable waters include more than
traditionally navigable waters and may include certain
wetlands); United States v. Riverside Bayview Homes,
Inc., 474 U.S. 121, 133 (1985) ("Congress chose to
define the waters covered by the Act broadly.").
plaintiffs Upstate Forever and the Savannah
Riverkeeper (collectively, the plaintiffs) allege that
in late 2014, over 369, 000 gallons of gasoline spilled from
Kinder Morgan's underground pipeline, which extends over
1100 miles through parts of the eastern United States. In
December 2014, citizens in Anderson County, South Carolina,
discovered dead plants, a petroleum odor, and pools of
gasoline in the vicinity of the pipeline. The plaintiffs
allege that gasoline and gasoline toxins have seeped and
continue to seep into ground water, wetlands, and waterways
in Anderson County and the Savannah River watershed. They
allege that although a reported 209, 000 gallons were
recovered by the end of 2015, no significant amount of
contaminants has been removed since that time. Consequently,
at the time that the plaintiffs filed their complaint, at
least 160, 000 gallons allegedly remained unrecovered. Kinder
Morgan repaired the pipeline shortly after the initial spill.
Kinder Morgan's pipeline broke six to eight feet
underground, gasoline and related contaminants spilled out
into soil and ground water. The plaintiffs allege that these
contaminants are seeping into two nearby tributaries of the
Savannah River, Browns Creek and Cupboard Creek, and their
adjacent wetlands. The pipeline broke less than 1000 feet
from Browns Creek and its adjacent wetland, and 400 feet from
Cupboard Creek and a second wetland. Both waterways and the
wetlands are down gradient from the spill site. The
plaintiffs allege that gasoline pollutants from the pipeline
are seeping into navigable waters as defined by the CWA,
including the above two creeks in Anderson County, Broadway
Lake, Lake Secession, Lake Russell, and the Savannah
plaintiffs allege that a "plume" of petroleum
contaminants continues to migrate into these waterways years
later through ground water and various natural formations at
the spill site, including "seeps, flows, fissures, and
channels." Hazardous gasoline contaminants have been
detected on several occasions at the spill site in ground
water wells. Contaminants were also detected in Browns Creek
as early as January 2015, and additional tests in Browns
Creek have reported high levels of contaminants on several
later dates in 2015 and in 2016.
Morgan has implemented certain remediation and recovery
measures under the guidance of the South Carolina Department
of Health and Environmental Control (DHEC). DHEC is the
agency authorized to issue NPDES permits and oversee water
quality in South Carolina. See Friends of the Earth, Inc.
v. Gaston Copper Recycling Corp., 629 F.3d 387, 390 (4th
Cir. 2011) [Friends of the Earth III]; S.C. Code
plaintiffs allege that Kinder Morgan has failed to comply
fully with DHEC's abatement instructions. They claim that
although DHEC instructed Kinder Morgan to test for pollution
in March 2016, Kinder Morgan only began that additional
testing after the plaintiffs made their own visit to the
spill site in August 2016. The plaintiffs further allege that
their testing conducted in August 2016 revealed that the
levels of gasoline contaminants in Browns Creek actually were
increasing almost two years after the spill. During their
August 2016 visit to the area, oil sheens were visible on the
surface of Browns Creek, and devices used to absorb the oil
had not been maintained and were saturated with oil.
Morgan allegedly delayed by six months its submission to DHEC
of the required site remediation plan and site assessment,
and also refused to comply with another of DHEC's water
sampling requests. Publicly available data on DHEC's
website indicate that DHEC sampled surface waters at Browns
Creek in February 2017 and found pollutants at three
locations, each of which is being remediated. South Carolina
Department of Health and Environmental Control, Surface
Water Sampling Event,
(last visited Apr. 11, 2018).
plaintiffs filed this suit in December 2016, alleging
discharges of gasoline and gasoline pollutants without a
permit, in violation of the CWA under 33 U.S.C. §
1311(a). The complaint includes allegations that
the pipeline ruptured and caused a discharge that has
polluted, and continues to pollute, navigable waters by
seeping from a point source over a distance of 1000 feet or
less through soil and ground water to nearby tributaries and
wetlands. The plaintiffs thus allege in their complaint two
interrelated violations of the CWA: (1) that Kinder Morgan
has caused discharges of pollutants from point sources to
navigable waters without a permit; and (2) that Kinder Morgan
has caused discharges of pollutants that continue to pass
through ground water with a "direct hydrological
connection" to navigable waters. The plaintiffs also
allege that the remediation actions taken to date by Kinder
Morgan have been insufficient to abate the pollution, and
seek damages, declaratory relief, and injunctive relief
requiring that Kinder Morgan take further measures to control
and abate the spill.
Morgan moved to dismiss the plaintiffs' complaint under
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure, contending both that the district court lacked
subject matter jurisdiction and that the plaintiffs had
failed to state a claim for relief. Addressing first the
sufficiency of the plaintiffs' pleadings, the district
court held that the plaintiffs had failed to state a claim
because the pipeline had been repaired and no longer was
discharging pollutants "directly" into navigable
waters. The court also held that it lacked subject matter
jurisdiction over the complaint, stating that the CWA did not
encompass the movement of pollutants through ground water
that is hydrologically connected to navigable waters.
Accordingly, the court dismissed the plaintiffs'
complaint on both grounds. The plaintiffs timely noted this
appeal, the plaintiffs contend that the district court erred
in determining that the continuing addition of pollutants to
navigable waters is not an ongoing violation of the CWA
because the pipeline has been repaired. According to the
plaintiffs, a claim for a discharge of a pollutant, in
violation of 33 U.S.C. § 1311(a), need not allege that
the pollutant is being discharged directly from the
point source into navigable waters. They assert that the CWA
also prohibits ...