By Steven Hoch, Esq.

Groundwater is a precious resource to everyone. When it becomes contaminated because of decades of impact by commercial, industrial, military, or illegal activity, something must be done. But if you are a water supplier that uses that aquifer, your suit against a polluter will come right back to you as being responsible in part for the contamination remediation costs even if you treat it.  

The problem lies with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), also known as Superfund.  To be a responsible party (aka a defendant) in a CERCLA suit, you must fall into at least one of the listed categories, but we are discussing only one aspect—a current or past owner or operator of a facility. Under CERCLA, covered persons are:

1. The owner and operator of a vessel or a facility; or
2. Any person who, at the time of disposal of any hazardous substance, owned or operated any facility at which hazardous substances were disposed of ... from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable….

A party that meets those initial criteria is deemed a potentially responsible party (PRP).

Defining a “facility.” Furthermore, a facility “means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel.”

Notice that a facility includes “wells.” While it is doubtful that Congress meant to include in this definition wells that are used to serve potable water, a well by any other name is a well, as the courts have decided. In Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837,842 (4th Cir. 1992), the plaintiff argued that the "facility" at issue encompassed the entire site and that the proper inquiry was whether the tenant defendants had control over any portion of the site, not just the storage tanks. The court disagreed and looked to the definition of the term, stating that CERCLA defines "facility" to include a "building, structure, ... storage container" or other "area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located."

More critically, in Aerojet-General Corp., 2003 WL 25537163, a number of water purveyors sued numerous PRPs alleging that the PRPs contaminated their wells. The PRPs contended that the water purveyors were PRPs, which the water purveyors disputed. The court heard motions on this subject and held that the plaintiff’s wells constituted a "facility" within the meaning of CERCLA.

Disposal and releases. The next requirement to be a defendant is the term "disposal" or “release”; however, CERCLA defines “release” to mean… “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment....”

CERCLA's definition of "disposal" includes:

"… discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters."

In Kaiser Aluminum & Chemical Corp. v. Catellus Dev. Corp., 976 F.2d 1338 (9th Cir. 1992, 976 F.2d 1338, the 9th Circuit held that the movement of contamination that results from human conduct constitutes a disposal. In that case, the court stated that "Congress did not limit ('disposal') to the initial introduction of hazardous material onto property" and held that a party's movement and spreading of contaminated soil to uncontaminated portions of property was a disposal.

Furthermore, since the definition of a "facility" under the statute specifically includes a "well," if the water provider who owns any wells and pumps from them, the migration of hazardous substances caused by the pumping could constitute a release under the statute. This release could be in the groundwater itself as contaminants are moved from one location toward the well through the act of pumping, or there could be a vertical migration within the well itself, whether it’s an active or inactive well. Contaminants could also be migrating in a closed or abandoned well, depending on the manner in which it was sealed.

All this means is that a suit against the entities that actually polluted the groundwater in the first place allows them to counterclaim against the water provider to share the liability with other PRPs. The water provider “moved the plume,” which is usually the phrase most often used to describe the issue.

Possible defenses and the Gore factors. A water provider may be a possible party responsible under CERLCA, but it could avail itself of the Gore factors. The "Gore factors" were proposed as an amendment to CERCLA by Senator Al Gore while he served in Congress. While his proposal was not accepted in the final version of the act, the Gore factors have rather continuously become a framework for addressing allocation issues. The Gore factors consist generally of (1) the ability of the party to distinguish its contribution to the discharge, release, or disposal of a hazardous waste; (2) the volume of waste involved; (3) the toxicity of the waste; (4) the involvement of the party in hazardous waste generation, treatment, storage, and disposal; (5) the waste management practices of the party; and (6) the degree of cooperation with regulatory agencies.
Using these factors does mitigate the impact of CERCLA on a water provider, but it certainly does not provide for an absolute defense. While various arguments can be made, water providers’ strongest arguments are that:

1. While it may have disposed of hazardous wastes it did not generate, treat, and/or store the waste. In fact, were it not for the entity that contaminated the ground, the water provider would not be in this CERCLA vortex of perpetual litigation;
2. The water provider did not have to manage the waste; rather, it is a victim of someone else’s pollution, which was not managed. While the water provider can pump, it cannot serve the water as potable if the contaminant level exceeds the maximum contaminant level set by the U.S. Environmental Protection Agency (EPA) or the state where the water provider does its pumping. It could continue to pump by the water provider, but then it would have to remediate the water, thus actually spending its ratepayers’ money to remove the mess created by others; and
3. Because the water provider operates under the dictates of some state or county entity that permits and/or oversees the production and distribution of potable water, it works continually with governmental agencies as a matter of course, and in particular, if it wishes to remove the contamination load in the ground by remediating the water, that will clearly require a lot of governmental regulatory activity.

Unfortunately, this issue will not go away unless CERCLA is changed by Congress. It is doubtful some guidance document by the EPA would be of any help. CERCLA can be amended so that the term “well” is defined not to include wells that are used for public water supply. Or, the definition of “wells” could be defined as injection wells where hazardous wastes are disposed.

There should be a sense of urgency in righting this situation, but it does not seem that any group is willing to step forward and fight this fight. So until then, pumping water to serve a thirsty population is going to likely drag the pumper into litigation if it decides to seek damages from the polluter.