Source: Mondaq Business Briefing, January 22, 2013
Posted on: http://envfpn.advisen.com
We have previously looked at the question of whether rock debris flying through the air could be considered a “contaminant” having an “adverse effect” on the environment. The Ontario Court of Appeal has said “yes” and the Supreme Court of Canada will hear that appeal this year.
Meanwhile, in the United States, the U.S. District Court for the Eastern District of Virginia has recently considered the question of whether water itself can be considered a pollutant under the U.S. Clean Water Act.
The facts are reasonably simple. The stream in question was a small tributary of the Potomac River. Under the Clean Water Act the state was required to set the total maximum daily load of a pollutant which may be discharged into that stream, and when it did not do so the US Environmental Protection Agency (USEPA) did so. One of the limits it set was a limit on the amount of stormwater which could be discharged into the stream.
The USEPA stated that the limit on stormwater was intended as a proxy or surrogate for the amount of sediment discharged into the stream. Both parties agreed that sediment was a pollutant, but disagreed on whether stormwater was.
The Court reviewed the definition of pollutant:
dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water…
and found that the term was not at all ambiguous, and did not include water. The Court ruled that the USEPA did not have the authority to regulate something over which it had no statutory authority as a proxy for something over which it did have statutory authority. The Court found that the USEPA did not have the authority to regulate non-pollutants.
The case is Virginia Department of Transportation v. United States Environmental Protection Agency, Civil Action No. 1:12-CV-775 (E.D.Va., January 3, 2013)
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Mr Michael Styczen
Davis LLP
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