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Rough breakdown of CERCLA liability as pertains to the Canaervon and Davis Pond Diversions By: Kellyn Elmer and Jennifer Mayberry

CERCLA regulates when there is a release or substantial threat of a release of a hazardous substance from a vessel or facility.

CWA and CERCLA (release + hazardous substance)
CWA toxic substances are subject to CERCLA liability.
List of CWA toxic substances: 40 C.F.R. § 401.15
§ 401.15 Toxic pollutants.
The following comprise the list of toxic pollutants designated pursuant to section 307(a)(1) of the Act:
1. Acenaphthene

2. Acrolein

3. Acrylonitrile

4. Aldrin/Dieldrin1

5. Antimony and compounds2

6. Arsenic and compounds

7. Asbestos

8. Benzene

9. Benzidine1

10. Beryllium and compounds

11. Cadmium and compounds

12. Carbon tetrachloride

13. Chlordane (technical mixture and metabolites)

14. Chlorinated benzenes (other than di-chlorobenzenes)

15. Chlorinated ethanes (including 1,2–di–chloroethane, 1,1,1–trichloroethane, and hexachloroethane)

16. Chloroalkyl ethers (chloroethyl and mixed ethers)

17. Chlorinated naphthalene

18. Chlorinated phenols (other than those listed elsewhere; includes trichlorophenols and chlorinated cresols)

19. Chloroform

20. 2–chlorophenol

21. Chromium and compounds

22. Copper and compounds

23. Cyanides

24. DDT and metabolites1

25. Dichlorobenzenes (1,2–, 1,3–, and 1,4–di–chlorobenzenes)

26. Dichlorobenzidine

27. Dichloroethylenes (1,1–, and 1,2–dichloroethylene)

28. 2,4–dichlorophenol

29. Dichloropropane and dichloropropene

30. 2,4–dimethylphenol

31. Dinitrotoluene

32. Diphenylhydrazine

33. Endosulfan and metabolites

34. Endrin and metabolites1

35. Ethylbenzene

36. Fluoranthene

37. Haloethers (other than those listed elsewhere; includes chlorophenylphenyl ethers, bromophenylphenyl ether, bis(dichloroisopropyl) ether, bis-(chloroethoxy) methane and polychlorinated diphenyl ethers)

38. Halomethanes (other than those listed elsewhere; includes methylene chloride, methylchloride, methylbromide, bromoform, dichlorobromomethane

39. Heptachlor and metabolites

40. Hexachlorobutadiene

41. Hexachlorocyclohexane

42. Hexachlorocyclopentadiene

43. Isophorone

44. Lead and compounds

45. Mercury and compounds

46. Naphthalene

47. Nickel and compounds

48. Nitrobenzene

49. Nitrophenols (including 2,4–dinitrophenol, dinitrocresol)

50. Nitrosamines

51. Pentachlorophenol

52. Phenol

53. Phthalate esters

54. Polychlorinated biphenyls (PCBs)1

55. Polynuclear aromatic hydrocarbons (including benzanthracenes, benzopyrenes, benzofluoranthene, chrysenes, dibenz-anthracenes, and indenopyrenes)

56. Selenium and compounds

57. Silver and compounds

58. 2,3,7,8–tetrachlorodibenzo-p-dioxin (TCDD)

59. Tetrachloroethylene

60. Thallium and compounds

61. Toluene

62. Toxaphene1

63. Trichloroethylene

64. Vinyl chloride

65. Zinc and compounds
Some of the listed hazardous substances have been expressly identified as being dispersed from the diversion. Other substances that are identified look as though they might fall under some of these categories, but someone with a background in Chemistry would have to look at them to be sure.
Here are our findings from the documents. The bolded words indicate substances that are expressly on the list: (See Next Page)
Environmental Impact Statement, pg. 90 (This is from the final EIS)
“The greatest potential adverse impacts of the proposed freshwater diversions are related to the high levels of pollutants in the Mississippi River. The river often contains high levels of plant nutrients, heavy metals, phenols, pesticides, polychlorinated biphenyls, and other alien compounds. Extensive information concerning levels of these pollutants can be found in Appendix H, Water Quality. The following discussion identifies potential impacts of these substances on fish and other aquatic organisms and identifies areas of concern.” – “A variety of agricultural and industrial chemicals, such as pesticides and volatile and semivolatile organic compounds occur in the Mississippi River. Only limited data on the occurrence of many of these compounds is available.”
EIS -- 92 – “A variety of industrial compounds present in the river in the Baton Rouge to New Orleans Industrial Corridor are known or suspected carcinogens. Because methods have not been established to determine a threshold for carcinogenic effects, the Environmental Protection Agency policy is that there is no scientific basis for estimating “safe” levels of carcinogens. Therefore, the recommended ambient water concentration for carcinogens for maximum protection of human health is zero.”
EIS – 93 –
organochlorine insecticide

lindane (most common), Chlordane, DDT (DDD and DDE as well), dieldrin, heptachlor, endosulfan

organophosphorus insecticides

diazinon, parathion

EIS – 93 – “Trace metals and inorganics enter surface waters via several routes and from several sources. Trace metals and selected trace inroganics routinely detected in the Mississippi River include arsenic, cadmium, chromium, copper, iron, lead, manganese, mercury, nickel, and zinc. Copper, zinc, iron, and mercury have occasionally been detected at relatively high levels, considering the enormous dilution capacity of the river. Data contained in the Water Quality Appendix (Appendix H) present relative concentrations several “priority pollutants” including trace metals and inorganics detected in surface water, fish tissue, and sediment. None of the fish tissue concentrations were above Food and Drug Adminstration action levels.

EIS – 94-95 – “In the Water Quality Appendix, concentration of six selected trace metal in the prospective receiving areas were compared to EPA fresh-and saltwater criteria. Examination of the data indicated that concentration of cadmium, copper, lead, mercury, nickel, and zinc do not frequently exceed the maximum fresh- or saltwater criteria except for copper, Copper levels are relatively high in both receiving areas.” Then it explains that levels of these substances “exceed 24-hour criteria” – and I’m not quite sure what that even means.
EIS – 95 – Fish for Mississippi River analyzed for heavy metals – average concentration found did not exceed FDA action levels, but there were individual instances where action levels were exceeded.
EIS – 95
Table 6-8-3 shows river fish concentration levels, with those of concern underlined
EIS – p 96
Interim Report : Canearvon Freshwater Diversion Contimanants Monitoring Study
Table 5 gives data for elements found in fish tissue in 1990, and table 6 provides data for 1991 after operation of the diversion, looking at the tables side by side, LEAD went from a “below detectible limits” in Big Mar and Bay Gardene to a readable amount, and the same with the MS River data (?) – can include these, but I’m not sure how to read the data – but it’s clear that during this time the ppm of elements found in fish tissue rose in the diversion areas, and in the River as well – not sure why this would be....

a number of other elements also increased in these areas from 1990 – 1991, but

These appear on pages 13-16 of the report
Vessel or Facilities (includes structures)
The diversion projects would be a structure releasing hazardous materials into the wetlands
CERCLA liability
Strict liability to any Potentially Responsible Party (PRP)
PRPs include:

Owners and operators;

Past owners and operators; and


The government here might be charged as an operator or perhaps a transporter.

Municipalities may be liable just as any other person under section 107 of CERCLA. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir. 1992).

Whether the wetland area comprising of the Caernarvon Diversion is a “water of the United States” as defined by the CWA?
Whether diverting Mississippi River water containing pollutants from the River into the diversion is an “addition… to navigable waters” of that pollutant.
Is the Caernarvon Diversion in fact a navigable water way?
Whether the unitary waters theory applies, therefore making regulation under the CWA inapplicable?
Congress enacted the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §1251. To accomplish this goal, the CWA prohibits “the discharge of any pollutant by any person,” unless in compliance with §402 or §404.
“Discharge” is defined as “any addition of any pollutant to navigable waters from any point source.” §1362(12)(A).
“Point source” is defined as “any discernable, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container…” §1362(14).
Under §402, the Administrator of the EPA may issue permits authorizing the discharge of pollutants in accordance with specified conditions. §1342(a). “The authority to administer the NPDES permit system may be delegated to a state or regional agency where the state or regional regulatory scheme meets certain criteria.” §1342(b).
Under §404, the Secretary may issue permits “for the discharge of dredged and fill material into the navigable waters.” §1344(a).
The NPDES permit regime requires compliance with numerous provisions such as effluent limitations, water-quality standards, water monitoring obligations, public reporting mechanisms, and certain discharge requirements. See §1342(a).
Canals/trenches divert water from the Mississippi River into the Carnarvon Diversion in order to facilitate wetland regrowth. It is undisputed that the agricultural, urban and industrial runoff into the Mississippi River contain “pollutants,” that the Mississippi is considered part of the “nations waters,” and that the canals/trenches that divert the river water into the diversion are “point sources” within the meaning of the Act.
The permitting requirement does not apply unless the waters are meaningfully distinct. S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95 at 112 (2004).
Is this still good law?
Waters Transfer Rule/Unitary Waters theory
The “unitary waters” theory holds that it is not an ‘‘addition… to navigable waters’ to move existing pollutants from one navigable water to another, and that all bodies of water which fall within the CWA’s definition of “navigable waters” are inseparable parts of a single whole. See ONRC Action v. U.S. Bureau of Reclamation. An addition occurs, under this theory, only when pollutants first enter navigable waters from a point source, not when they are moved between navigable waters.” Miccosukee, 541 U.S. at 110.
Between 1991 and 2006, “the unitary waters theory, its premise, or both, were considered and rejected by the First, Second, Ninth, and Eleventh Circuit Courts of Appeal.” ONRC Action.
EPA’s water transfers rule is meant to “clarify that water transfers are not subject to regulation under the [NPDES] permitting program. This rule defines water transfers as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. NPDES Water Transfers Rule, 73 Fed. Reg. 33,697-708 (June 13, 2008) (codified at 40 C.F.R. § 122.3(i)).
In Friends of the Earth v. South Florida Water Management District, the 11th Circuit found that the phrase “…” was ambiguous, and therefore gave Chevron deference to the EPA’s interpretation found in the Unitary waters theory. The court accepted the unitary waters theory that transferring pollutants between navigable waters is not an “addition… to navigable waters,” because it is a permissible construction of that language.
Π in that case argued that the agency was not entitled to Chevron deference because the meaning of the “addition… to navigable waters” language is not ambiguous and forecloses on the unitary waters theory. Court rejected, found there were multiple interpretations, the very definition of ambiguous.
Cases relied upon by ∆’s that found “discharge of pollutant” language ambiguous, 11th Cir. Found cases inapplicable
National Wildlife Federation v. Consumer Powers Co., 862 F.2d 580 (6th Cir. 1988)
National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982)
CWA Memo: navigable waterways by: Eva Conner

For a body of water to fall under the jurisdiction of the Clean Water Act (CWA), it must be a navigable water of the United States. The Supreme Court has found in multiple cases that the term navigable waters, as used in the CWA, is broader than the traditional definition. The traditional definition of navigable waters required that the water either be navigable in fact, or susceptible of being rendered navigable.1 However, for the purposes of the CWA, the Supreme Court has developed a separate definition.

The Supreme Court has examined the term navigable waters, as used by the CWA, only a couple times. The first case was U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985), which found that wetlands that directly abutted a navigable creek were navigable for the CWA. The Court noted the Corps’ regulatory conclusion that the wetlands impacted water quality by filtering water, slowing runoff into lakes, and providing a habitant for the wetland species, and upheld it under Chevron deference. However, they also specifically questioned whether or not the Corps’ authority to regulate wetlands would extend to those areas not adjacent to open waters. The second case was Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), (“SWANCC”), where the Corps tried to claim regulatory authority under the CWA (meaning the water must be termed navigable) over a series of isolated ponds and mudflats that were being used to store solid waste. The Court held that the ponds were not navigable, and in doing so, developed the “significant nexus” test that is still used today. The court stated that the difference between SWANCC and Riverside Bayview was a significant nexus between wetlands and navigable waters, which they found lacking in the isolated ponds in SWANCC. The latest case to define navigable waters was Rapanos v. U.S.
In Rapanos v. U.S., 547 U.S. 714 (2006), developer John Rapanos discharged fill material onto 54 acres of wetlands. The wetlands in question were not near traditional navigable waters, but did lie close to ditches that eventually emptied into navigable waterways of the United States. The Army Corps of Engineers sued, claiming that the wetlands constituted navigable waters of the United States, which would make them subject to the CWA and mean that Rapanos should have obtained permits for the backfilling. However, in the Rapanos opinion, the Supreme Court only made the issue more confusing than it had been before. The opinion had no majority, but instead had a four justice plurality, a four justice dissent, and Justice Kennedy’s concurrence, which agreed mostly with the dissent in reasoning while agreeing with the plurality in result.
The plurality, written by Justice Scalia, took a very narrow view of navigable waters under the CWA. It defined navigable waters as waterways which both 1) are “relatively permanent, standing or continuously flowing, bodies of water” and 2) “only those wetlands with a continuous surface connection” to other regulated waterways. Scalia stated that protection would not be lost, but that instead the Corps would just have to regulate non-navigable waterways as point sources themselves. The dissent by Justice Stevens deferred to the Corps of Engineers, finding that their regulatory decisions should be followed, especially when those decisions supported the purpose of the CWA.
Justice Kennedy’s concurrence also agreed that there should be a broad definition of navigable waters under the CWA, and supported regulation of all waterways where contamination would have downstream effects. He followed the SWANCC “significant nexus” test, explaining that wetlands should be regulated where “either alone or in combination with similarly situated lands in the region, [they] significantly affect the chemical, physical, and biological integrity” of other waterways that are clearly navigable. Kennedy also stated that waters should not be regulated when their effect on other waters was “speculative or insubstantial,” and believed that the test he proposed should be applied by the Corps on a case-by-case basis. However, Kennedy was unconvinced that the wetlands in Rapanos actually would impact water quality downstream, and so he joined the plurality. Kennedy did, however, explicitly reject the plurality’s reasoning as being “without support in the language and purposes of the CWA or in our cases interpreting it.”
Only one Fifth Circuit case has significantly discussed the Rapanos opinion. In U.S. v. Lucas, 516 F.3d 316 (5th Cir. 2008), the Fifth Circuit addressed the issue of whether waste discharge from septic systems into wetlands was a violation of the CWA. In Lucas, the wetlands had flowing open water along the edges with strong flow and high velocity, as well as open water on the edges that the court concluded made it difficult to determine where the water ended and the wetlands began. The court did not pick to follow either the plurality or the concurrence, but instead found that the wetlands in question met both tests, eliminating the need to determine which test the Fifth Circuit would follow. However, they did address the plurality opinion first and in more detail.
Other circuits have set out more definitive rules. In U.S. v. Gerke, 464 F.3d 723 (7th Cir. 2006), the Seventh Circuit issued a short judgment addressing solely whether Scalia’s plurality or Kennedy’s concurrence should be followed by their courts. They concluded that the controlling law was Kennedy’s concurrence, since it is the “narrowest ground to which a majority of the Justices would have assented if forced to choose.” The First Circuit questioned whether or not Kennedy’s opinion was the one that really met that standard, and instead determined Rapanos attaches if either the plurality or concurrence are met. U.S. v. Johnson, 467 F.3d 56 (1st Cir. 2006). In Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007), the Ninth Circuit followed Gerke and found that Justice Kennedy’s concurrence was the controlling opinion on the issue.
The jurisprudence seems to indicate that one may use either Scalia’s plurality or Kennedy’s concurrence to prove that waters are navigable. That is positive for the Caernarvon diversion case. In order to make the CWA apply, the waters of Caernarvon must meet on of the tests. Caernarvon flows via a diversion canal from the Mississippi River into the Big Mar, which then is connected to Lake Lery through Bayou Mandeville. Lake Lery is connected to the Gulf of Mexico via a series of lakes, canals, and bayous. It is undisputed that the Mississippi River and the Gulf of Mexico are navigable waterways, and both Big Mar and Lake Lery and likely navigable in the traditional sense due to their connections to the River and the Gulf.
To meet the test of Kennedy’s concurrence, it must just be shown that there is a significant nexus between the wetlands and other navigable waterways, defined as a showing that “either alone or in combination with similarly situated lands in the region, [they] significantly affect the chemical, physical, and biological integrity” of other waterways that are clearly navigable. Caernarvon clearly meets that test in multiple ways: first, it’s connection to the Mississippi, second, through its connection to Big Mar and Lake Lery, and third, through its indirect but close connection to the Gulf of Mexico.
The tougher test to meet will be the plurality’s, where the diversion must be shown to be both 1) a relatively permanent, standing or continuously flowing, body of water and 2) a wetland with a continuous surface connection to other regulated waterways. Even under that test, Caernarvon is almost certainly navigable. First, the diversion canal is almost always flowing, and even when it is not, both it and Big Mar are standing water. Second, there is a continuous surface connection to Big Mar, Lake Lery, the Mississippi River, and the Gulf of Mexico. Even under the test where it must be hard to tell where the wetlands end and the open water begins, just a glance at the map will show that the Gulf of Mexico encroaches steadily into the area of wetlands impacted by the diversion. Therefore, under both the concurrence and the plurality, the Caernarvon diversion is a navigable waterway and thus covered by the CWA.

CITIZEN SUITS AND DEFENSES AGAINST THEM by: James R. May, Widener University, School of Law, Wilmington, Delaware, Copyright (c) 2011 The American Law Institute; James R. May
I. Introduction
What follows is a recap of major developments involving environmental citizen suit decisions under a variety of federal statutes in 2010.
Citizen suits are a common attribute in the enforcement of federal environmental laws, historically comprising almost one-half of all civil enforcement actions. While statistical information is elusive for most statutes, since 2003, under the Clean Water Act citizens have sent about 2,000 notices of intent to sue, filed 325 complaints, and entered about 140 consent decrees, including 312, 52 and 2, respectively, in 2010. Environmental citizen suits share common attributes. First, except in rare circumstances, environmental citizen suitors must send a notice of intent to sue to appropriate persons at least 60 days before commencing an action. The prototypical provision, section 505(b) of the CWA, provides: “No action may be commenced . . . prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order.”
Citizen suit notice requirements are considerably more demanding than notice pleading under the Federal Rules of Civil Procedure. Citizens must give notice in the manner prescribed by EPA. EPA rules generally require notices of intent to sue to identify the specific standards and limitations the recipient of the notice is alleged to be violating, the person responsible, the location of the alleged violation, the date or dates of such violation, and the full name and address of the person giving the notice. Though it is questionable whether advance notice is “jurisdictional,” there it must be perfected before commencing a citizen suit.
Second, government enforcement prior to commencement of the action may preclude the citizen suit. The prototypical provision precludes citizen suits when, prior to commencement of the citizen suit, a state or federal agency “commences” and is “diligently prosecuting” a civil or criminal action “in a Court of the United States,” or under the
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