Thur 6/6: Do an “Interpretative” dance with the EPA – Write a comment to stop a dirty loophole in the Clean Water Rule. Deadline, Friday, 6/7.

How does a river catch on fire…13 times? Ohio’s Cuyahoga River caught fire because flammable petroleum products were being dumped directly into it, along with contaminated seepage from groundwater. Images like these from 1962 inspired the creation of the Environmental Protection Act (EPA) and the Clean Water Act (CWA).

Action – Write a comment on why Andrew is wrong before 11:59 pm EST Friday 6/7!

imageHey, remember this guy? Andrew Wheeler, fossil fuel lobbyist, Washington Coal Club VP and putative Administrator of the Environmental Protection Agency (EPA)? An earlier public notice period alerted him to Big Ag and Industry’s annoyance with requirements to get NPDES (National Pollutant Discharge Elimination System) permits. And they didn’t think they should have to for releasing hazardous waste to groundwater systems with direct hydrologic connections to potable surface water. So Andrew issued an INTERPRETATIVE STATEMENT – the EPA and the Clean Water Act (CWA) would no longer protect the public from releases of pollutants from a “point source” to groundwater, regardless of the risks posed by hydrologic connections to potable surface water. If this rule change goes through, it’s another win for big agricultural, industrial and commerical polluters. Significant sources of water pollution, like agricultural storm water discharges and return flow from irrigated agriculture are already excluded the EPA’s charge. Now, this proposed regulatory loophole will allow polluters to avoid CWA liability by encouraging them to dispose of their problem wastes directly into local groundwater supplies, even when they know it flows into navigable, potable water. Already, a fifth of the United States, over 63 million people, have been exposed to potentially unsafe water.

Stop this now! Take 5 minutes to read some facts we’ve gathered, get mad, and write a comment. It doesn’t have to be long or technical. Just original. Comment here.

image.png

Recent background,

In 2015, the EPA published a jaunty little document called…

getting up to speed

contaminant plumeIt includes nice graphics on how contaminants get into ground water and then into surface water. It also has a handy chart (click here) of main polluters, which includes agricultural sources like feedlots, manure pits, pesticide and fertilizer storage and use, as well as commercial (OMG – there’s “cemeteries”!), industrial uses, residential contributors like septic systems, as well as our system of landfills, recycling and road de-icing facilities.

And this is what it says on pg. C-8

The Clean Water Act regulates ground water that is shown to have a connection with surface water. It sets standards for allowable pollutant discharges to surface water.

And this graphic, produced by the EPA in 2002, shows that they had a clear understanding of the role of ground water pollution on the safety of our water supplies.

6a0120a7fc3be9970b017ee4e36567970d

Facts List – Pick one or two for your comment. (Examples below)

  • The reason behind CWA (Clean Water Act) SHOULD RULE!!.” …to restore and maintain the chemical, physical, andbiological integrity of the Nation’s waters”.  To meet that objective, Congress declared…that the discharge of pollutants into the navigable waters be eliminated by 1985, unless it is authorized by the statute, generally by a NPDES permit.
  • Vocabulary of the Clean Water Act.
    • “Discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source” or “any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.
    • A point source is defined as “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.” Plumes of pollution often travel through underground water without significant diffusion and can be traced back to their source.
    • Nonpoint source pollution—other forms of water pollution that do not fall within the point source definition and not defined under the Act.
  • Wheeler’s arguments:
    • Despite the definition of the CWA, Wheeler’s story is that Congress left the responsibility of dealing with ground water pollution to the states (If that is the case, than people in different states do not have equal protection from contaminated water.)
    • He believes that discharges to groundwater are regulated under Safe Drinking Water Act.
    • He believes that pollution traveling through groundwater  “breaks the causal chain” between a source of pollution and surface waters, even when the source of a pollution plume is can be determined.
  • Precedence and legal cases won: The EPA has required NPDES permits in the past for discharges to groundwater that have a direct hydrologic connection to jurisdictional surface waters.
    • Greater Yellowstone Coal. v. Lewis, No. 09-35729, 628 F.3d 1143 (9th Cir. 2010) “Groundwater is not directly regulated by the Clean Water Act . . . . Nonetheless, EPA has consistently interpreted the Act to cover discharges into groundwater that have a direct hydrologic connection to surface water.”
    • County of Maui, Hawaii v. Hawai’i Wildlife Fund. Environmentalists sued the county, alleging a link between municipal wastewater injection wells and pollution that seeped through groundwater into the Pacific Ocean. At that time, both the EPA and the Department of Justice defended the environmentalists’ stance,  writing a brief to the 9th U.S. Circuit Court of Appeals stating “The case law does not require the means by which the pollutant discharged from a point source reaches a water of the United States to be a point source. That 2016 brief further concluded that while the Clean Water Act clearly does not regulate groundwater, the law does cover “the movement of pollutants to jurisdictional surface waters through groundwater with a direct hydrological connection. Such an addition of pollutants to navigable waters falls squarely within the Clean Water Act’s scope.” The 9th Circuit ultimately agreed with the agencies  The Supreme Court takes up the 9th Circuit case this fall.
    • Upstate Forever v. Kinder Morgan Energy Partners LP:The 4th U.S. Circuit Court of Appeals agreed with the 9th in a South Carolina case involving an underground pipeline that burst in 2014, spilling hundreds of gallons of gasoline, contaminating rivers, lakes, wetlands and the Savannah River.
    • The EPA’s new memo also contradicts multiple regulations dating back to the 1990s related to specific sources of pollution, including those for combined animal feeding operations, and feedlots, which clarify that while groundwater pollution itself is not to be regulated, pollution that reaches surface water is.
    • Earthjustice lawyer David Henkin, who represents the environmentalists in the Maui case, slammed EPA’s new interpretation as a political move.”This notion that discharges that reach navigable waters via groundwater were not covered under the Clean Water Act is a total repudiation of four decades of consistent EPA positions,” he told E&E News. “It just makes it clear that this is purely political and not based on any principal.”
  • Cases lost.
    • The Government will ignore precedence if they are the polluter. Kelley on behalf of Michigan v. U.S involved toxic chemicals released into the ground at a U.S. Coast Guard facility. The contamination then migrated and was discharged to a jurisdictional surface water. The government won that suit over the interests of the community.
    • Coal country citizens lose out too. U.S. Court of Appeals for the Sixth Circuit ruled against environmental interests in a  Kentucky case, in which pollutants from coal ash retention ponds seeped into groundwater that fed local waterways. The court said only pollutants added directly to navigable bodies of water were regulated under the law. Dissenting U.S. Circuit Judge Eric Clay criticized the court’s decision to allow a polluter to avoid liability “by moving its drainage pipes a few feet from the riverbank.” Judge Clay urged the Sixth Circuit to align with its sister circuits on the topic of groundwater contamination, and cited the Fourth and Ninth Circuit cases of Upstate Forever v. Kinder Morgan Energy Partners LP and Hawai’i Wildlife Fund v. Cty. Of Maui, respectively.The majority’s approach,” Clay wrote, “defeats the CWA’s purpose by opening a gaping regulatory loophole: polluters can avoid CWA liability by discharging their pollutants into groundwater, even if that groundwater flows immediately into a nearby navigable water. This exception has no textual or logical foundation.
  • Supreme Court.If the Supreme Court reverses the lower courts’ decisions in the Kinder-Morgan South Carolina case,chemical plants, concentrated animal feeding operations, oil refineries, and other industrial facilities would effectively have free rein to discharge pollutants indirectly into the nation’s waterways without Clean Water Act permits,” the environmental group Earthjustice warned Tuesday. Southern Environmental Law Center attorney Frank Holleman said EPA’s new interpretation is a handout to polluters:
    • Exclude discharges made even inches away from waterways if the pollution first traveled through groundwater. “They are exempting major lakes and rivers from the Clean Water Act protections whenever a polluter doesn’t extend their pipe all the way,” he said.
    • Excludes groundwater-to-surface-water pollution from regulation, when in some cases, the cause of pollution is “as easy to trace as pollution that falls through the air before landing in waterways.”
    • Regulated point sources in the Clean Water Act itself includes sources like wells, combined animal feeding operations and rolling stock that do not discharge pollution directly into surface water.
    • Obviously you don’t put a well in a river; you put it in the ground nearby,” he said. “But logical consistency, statutory language and protecting the nation’s water resources are not the goals of this administration.”

“Inspirational” comment samples

It is crucial that comments are original. You can look at comment examples here and we’ve collected some nice ones below for inspiration, but channel your junior high creative writing class and make your comment unique. ALL IDENTICAL COPIES ARE THROWN OUT!  The regulatory page that describes their polluter-positive proposal is  here.

Comment here.

Example: The agency’s proposed groundwater rule will only go to further harm the natural environment and its waters, which is already at risk from other forms of pollution around the world.

Example: This proposed legislation is irresponsible and should not be allowed to go forward. The interaction between groundwater and surface water within watersheds is well understood and documented in the scientific literature, and it is established that pollutants which affect one affect the other. Groundwater is an important source of baseflow within a stream, meaning that groundwater is directly connected to, and contributes to a streams non-precipitation water levels and flow. This relationship is especially important within the hydrogeologic context of headwater streams. Headwaters or source water tributaries account for the up to 80% of all stream miles within typical watersheds, and are fed in large part by springs and groundwater seep. This proposal sets back the progress we have made in cleaning up our watersheds and leaving the world and our precious bodies of fresh water clean . Please do not allow this to become law.

Example: Just a few decades ago, so many of our rivers, streams, and lakes were so polluted they no longer supported life, and they are on their way back to life only because of strict regulations like the one this administration is hell-bent on dismantling. The health of all Americans depends on a healthy environment, and they public interest in keeping our air, water, and land clean should always be prioritized over the desire of business interests to spend less money and time disposing of waste products. The EPA needs to strengthen its enforcement of the laws of this country, and loosening that enforcement will send us back to a time when our water was too toxic to support life.

Example: Not supervising and regulating pollutants discharged into groundwater would be a disaster. State and local governments do not have the funding nor staff to monitor and prevent this contamination of groundwater. First off, many of us,myself and my family included, drink well water that would be at risk of unregulated contamination. Secondly, all groundwater flows into streams, rivers, bays, and the ocean. Do the people at the EPA need a class in the hydrological cycle? I realize that the present administration cares about corporate polluters and not regular people, but it would be totally immoral to risk the health of so many people just to please business. Shame on you and protect our water supplies.

Example: The spirit of the clean water act is to protect water resources. This is so that we may continue to live healthfully in our environments.
The rule that is proposed is done so as to stop legal action against polluters who are through their endeavors creating environmental clean up costs that they do not want to pay for.
In a unique state like Michigan that has 400 feet of pourous glacial till and springs beneath it, it is imperative to protect any discharge of waste materials, because all of the cities and people who dwell in the entire Great Lakes ecosystem are directly reliant on the water resources. The quality of this water resource has direct impacts on the health of this ecosystem and the people who live in it’s environs. The additional health care costs and impacts are passed on from business’ who are eager to cut the costs of filtration and proper remediation and disposal, and send them downstream to the people who dwell near their facilities.
This is an unconscionable act and in direct violation of the clean water act. Their should be no corporate exceptions for polluters to this law. Please do not change this rule and provide exceptions that will allow increased disposal of chemicals and pollutants to destroy this hugely valuable water resource that so many millions of humans directly rely on for healthful existence.

Example: (This one has a lot of repeats!) I am writing to express my opposition to EPAs Interpretative Statement on whether the Clean Water Act National Pollutant Discharge Elimination System permit program applies to point source discharges of pollutants that are added to waters of the United States (WOTUS) via groundwater. This statement is a complete reversal of the agency’s long-standing position on the applicability of the Act to pollutants that travel via groundwater to surface waters. The Clean Water Act clearly applies to these discharges. To find otherwise would create a massive loophole in the law that would render major parts of the Act useless.
If EPA were to find that discharges that travel from a point source via groundwater to surface waters are not regulated under the Clean Water Act, many currently known sources of water pollution would remain unaddressed. Furthermore, this would perversely incentivize companies to change their operations to release pollutants into the ground near waterbodies as a way to avoid Clean Water Act regulation and liability.
The current widespread instances of groundwater contamination and examples of pollutants entering surface water via groundwater demonstrates that we already lack adequate regulation over these discharges. Changing EPAs interpretation of the Clean Water Act would lead to far more contamination of the waters of the United States. The Act was intended to clean up the nations waterways, and EPAs mission is to protect human health and the environment. Exempting discharges of pollutants that travel via groundwater would drastically undermine both of these missions.

Example: Per E&E News: The statement contradicts arguments EPA and the Department of Justice made on this issue 3 years ago.
“The case law does not require the means by which the pollutant discharged from a point source reaches a water of the United States to be a point source,” the agencies wrote in a brief to the 9th U.S. Circuit Court of Appeals in County of Maui, Hawaii v. Hawai’i Wildlife Fund. How does this new Interpretive Statement address this fact?

That 2016 brief further concludes that while the Clean Water Act clearly does not regulate groundwater, the law does cover “the movement of pollutants to jurisdictional surface waters through groundwater with a direct hydrological
connection.” Interpretive Statement needs to give clear rationale, supported by peer reviewed evidence, that purposes of the Clean Water Act are upheld with this new interpretation.

The statement also contradicts multiple regulations dating back to the 1990s related to specific sources of pollution, including those for combined animal feeding operations, and feedlots, which clarify that while groundwater pollution itself is not to be regulated, pollution that reaches surface water is. Request that Interpretive Statement makes clearwhat has changed (i.e. new evidence) since the 1990’s to cause this new policy.

The Interpretive Statement is a repudiation of four decades of consistent EPA positions. The Interpretive Statement is political and needs to make an evidenced-based justification how it is not. It does not currently do this.

Reading

  • Report: Cleanup of some contaminated groundwater sites in the US unlikely for decades (2012) (ConstantineAlexander.net)
  • Clean Water Act (rlch.org)
  • Supreme Court will consider letting groundwater pollution escape regulation under Clean Water Act (USAToday)

6 thoughts on “Thur 6/6: Do an “Interpretative” dance with the EPA – Write a comment to stop a dirty loophole in the Clean Water Rule. Deadline, Friday, 6/7.

  1. WATER IS LIFE!!! WHY ARE YOU LOOSENING POLLUTION STANDARDS WHEN YOU SHOULD BE WORKING TIRELESSLY TO UPHOLD THEM???

    YOU ARE FAILING YOUR CITIZENS AND WE WILL NOT FORGET WHERE YOU SOLD OUT INSTEAD OF STANDING UP.

    Like

  2. Earthjustice lawyer David Henkin, who represents the environmentalists in the Maui case, slammed EPA’s new interpretation as a political move.”This notion that discharges that reach navigable waters via groundwater were not covered under the Clean Water Act is a total repudiation of four decades of consistent EPA positions,” he told E&E News. “It just makes it clear that this is purely political and not based on any principal.”

    Could this administration for once put the American people first?

    Like

  3. I have worked for more than 30 years in the environmental groundwater contamination industry. I have seen the results of contaminated groundwater on humans. The EPA administrator and his administration are not scientists concerned with the health of people, but concerned with helping the industries that pollute our groundwater and surface water. I am a hydrogeologist and understand the connection and movement of groundwater and surface water. Contamination of groundwater and surface water can transport the contaminants back and forth between the two. The Clean Water Act must be protected at all costs. Close any loop holes that this corrupt administration can use to bypass the rule. And all polluters must be tried to the furthest degree of the law and don’t let the administration change the original course that EPA established.

    All of us deserve the right to clean drinking water whether it comes from groundwater or surface water.

    Like

  4. Clean water is essential to life and a decent economy. Our country has a responsibility to acts as stewards of our resources and environment. It is an extremely important moral and fiscal imperative.

    Like

  5. Poisioning the water supply is insane Reversing water protection is Jim Jones level of suicide You might as well just dump all the crap in now instead of the slow deaths you are causing by this madness

    Like

  6. Not supervising and regulating pollutants discharged into groundwater would be a danger to the public. State and local governments do not have the funding nor staff to monitor and prevent this contamination of groundwater. The fact that you don’t know what could be polluting out water is just wrong.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s