A Landfill Is Not a “Point Source” Under the Clean Water Act, So Says the 4th Circuit and D.Mass.

Two recent rulings address the issue of whether a landfill is a “point source” under the Clean Water Act, 33 U.S.C. § 1251 et seq. (CWA), Sierra Club v. Virginia Electric et al and Toxics Action Center et al v. Casella Waste Systems et al.  While much of the attention in CWA litigation recently has focused on the scope of CWA jurisdiction over groundwater as “Waters of the United States,” the “point source” question is not one to be overlooked.

A little background:  the CWA generally prohibits the “addition of any pollutant to navigable waters from any point source” without a permit.  33 U.S.C. § 1362(12) (emphasis added).  “Navigable waters” are “the waters of the United States, including the territorial seas.”  33 U.S.C. § 1362(7).  A “point source” includes “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”  33 U.S.C. § 1362(14).

In September, the 4th Circuit in Sierra Club v. Virginia Electric et al ruled that a landfill and settling pond was not a “point source,” and therefore, not subject to CWA jurisdiction.  Focusing on the plain language of the CWA, the Court found that “the landfill and ponds were not created to convey anything and did not function in that manner … Indeed, the actual means of conveyance of the arsenic was the rainwater and groundwater flowing diffusely through the soil … Thus, the landfill and settling ponds could not be characterized as discrete ‘points,’ nor did they function as conveyances.”

More recently and closer to home, the U.S. District Court for the District of Massachusetts (Hillman, J.) came to the same conclusion concerning the Southbridge Landfill in Toxics Action Center et al v. Casella Waste Systems et al.  Like the Fourth Circuit, Judge Hillman did not decide whether a “hydrological connection” between groundwater and Waters of the U.S. is sufficient for CWA jurisdiction.  Instead, citing the 4th Circuit’s decision in Sierra Club, the Court found CWA jurisdiction lacking because the landfill is not a discrete point source within the meaning of the CWA.  Under the Court’s analysis, generalized diffusion through groundwater is insufficient to satisfy the requirement under the CWA that the discharge be from a discrete point source.

There is no doubt that litigants will continue to test the limits of CWA jurisdiction, both on the issues of Waters of the U.S. and the point source requirement.  Sierra Club and Toxics Action Center signal a growing trend that alleged, non-discrete discharges from a landfill to groundwater are insufficient to satisfy the point source requirement for CWA jurisdiction.

NOTE:  My firm and your humble author were counsel to the Town of Southbridge, a defendant in the Toxics Action Center case.

About David McCay

Dave is a partner in the firm’s litigation and land use groups where he assists clients in the resolution of complex real estate, environmental and business disputes. He also represents property owners, developers and municipalities in local land use permitting matters. Dave is active in the Boroughs+ region serving recently as the Chair of the Southborough Economic Development Committee and of the Marlborough Regional Chamber of Commerce. He is also a member of the Board of Directors of the 495/MetroWest Partnership and the Marlborough Economic Development Corporation. Outside of the office, Dave is an avid cyclist competing in road races and criteriums across New England. He lives in Southborough with his wife and two sons.
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