A leak from a Kinder Morgan pipeline, discovered near Belton in December 2014 soaked a rural area with more than 250,000 gallons of fuel. Monitoring wells have been installed and mitigation continues. (Photo: firstname.lastname@example.org)
By Nathaniel Cary, The Greenville News April 24, 2020
In a case with direct implications for South Carolina’s environmental future, the U.S. Supreme Court on Thursday ruled that the Clean Water Act applies to pollutants that spill into groundwater and reach protected waterways.
The case that originated out of Hawaii upheld and clarified a major enforcement arm of the act and settles the major question in a similar case the court is still deciding whether to hear, Kinder Morgan’s appeal of a decision against it in the 2014 Plantation Pipeline spill in Belton.
In that case, Kinder Morgan vs. Upstate Forever and Savannah Riverkeeper, the pipeline company argued that the Clean Water Act shouldn’t apply because the 300,000-500,000 gallons of petroleum that spilled from a pipe made its way through the soil and groundwater to a nearby stream and didn’t spill directly into the stream.
The decision in the Hawaii case, County of Maui vs. Hawaii Wildlife Fund, rebuffed Kinder Morgan’s main argument and likely means the pipeline owner will face Clean Water Act penalties for the oil spill and will have to pay for further cleanup of the Belton site, which is still facing environmental impacts as a plume of petroleum in the groundwater continues to spread, said Frank Holleman, senior attorney for the Southern Environmental Law Center who represented Upstate Forever in its case.
The court will decide within the next few weeks whether to hear Kinder Morgan’s appeal, or more likely to remand the case back to the Fourth Circuit Court of Appeals to assess damages, Holleman said.
“We believe the Supreme Court’s decision is directly applicable to the ongoing pollution and what’s happened at Belton, and that is very good news for the Anderson community and clean water in the Savannah basin,” Holleman said.
Kinder Morgan said it continues to strongly believe in its position in the lawsuit involving Upstate Forever and is reviewing how the Supreme Court’s Maui decision applies to Belton, said Melissa Ruiz, a Kinder Morgan spokesperson.
Upstate Forever brought a lawsuit in 2016 against Kinder Morgan because it didn’t believe the company was doing enough to clean up and restore the site of the spill in rural Belton.
In December 2014 residents discovered the spill from a broken pipeline about 1,000 feet uphill from Brown’s Creek, a small stream in an area surrounded by farms, forests and creeks.
Kinder Morgan has worked with the state Department of Health and Environmental Control on a cleanup plan, which it said could take a decade to complete. Five years in, the company reported it had cleaned up more than 222,000 gallons, which left more than 147,000 gallons in the ground or water.
“From the outset, Plantation Pipe Line Company has taken full responsibility for the spill and expressed our commitment to a thorough and complete remediation of the site in accordance with all applicable laws and regulations including oversight and direction from the state,” Ruiz said. “Toward this end, we have spent approximately $11.9 million through March 31, 2020 for remediation and repairs.”
Cleanup at the site is progressing as expected, she said, and it’s remediation system is fully operational and working as designed.
Upstate Forever said a plume of petroleum continues to spread, making its way not just toward Brown’s Creek but toward other nearby streams and nearby cow farms. They want to see more effort to remove the oil from the groundwater, said Shelley Robbins, energy and state policy director for Upstate Forever, the environmental advocacy nonprofit.
Kinder Morgan has said it would complete a full and thorough remediation of the spill site and is “confident there are no public health or environmental impacts to the surrounding communities,” according to Melissa Ruiz, spokeswoman for Kinder Morgan.
The Supreme Court’s decision has major implications for environmental pollution throughout the southeast, especially with the number of coal ash sites and hog waste lagoons that border lakes and rivers, Holleman said.
“It was a tremendously important decision because the position taken by industry and by pipeline companies like Kinder Morgan was to avoid the Clean Water Act all a polluter had to do was pull its pipe back a few inches from a waterway and bury it and the Clean Water Act wouldn’t apply at all,” Holleman said. “It would make the Clean Water Act subject to really disgraceful manipulation by polluters.”
The Court rejected the industry argument, which the Trump Administration had supported, calling it extreme.
In an opinion for the majority in the 6-3 decision, Justice Steven Breyer suggested parameters that should be considered for Clean Water Act cases that navigate through groundwater into protected waterways.
Time and distance should be the most important factors for courts to determine as well as what materials the pollutants travel through and how much the pollution is diluted along the way, he wrote.
“If the pipe ends 50 miles from navigable waters and the pipe emits pollutants that travel with groundwater, mix with much other material, and end up in navigable waters only many years later, the permitting requirements likely do not apply,” he wrote.
But courts should look for “the functional equivalent of a direct discharge from the point source into navigable waters,” he wrote.
Breyer was joined in the majority by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Brett Kavanaugh.
The parameters Breyer laid out for courts to consider in Clean Water Act cases “bodes very well for us,” Robbins said. “Our situation completely meets all of those criteria.”
Upstate Forever hopes the decision will force further cleanup of the Belton site.
“What we’ve wanted the whole time is we’ve wanted pollution of the creek to stop,” Robbins said.