Environmental -- 2018

Kentucky Waterways Alliance v. Kentucky Utilities Co.   (6th Circuit)

"Conduit theory" of liability under the Clean Water Act

The NAM filed an amicus brief to oppose a lawsuit by environmental groups that seeks to expand the scope of liability under the Clean Water Act. The lawsuit involves coal ash storage ponds, where electric generation facilities store residual ash from coal combustion for electricity generation. The plaintiffs allege that the coal ash seeps into groundwater that is hydrologically connected to nearby streams protected under the Clean Water Act. Such seepage, they allege, is an unpermitted "point source" discharge under the Clean Water Act. The defendant electric utility defended on the basis that diffuse underground migration of coal ash is not a point source under the Clean Water Act. The federal district court agreed. The environmental groups appealed to the Sixth Circuit Court of Appeals.

This case has significant implications for manufacturers because the plaintiffs' theory would impose massive liability for any pollution (no matter how insignificant) that migrates from a factory site or other facility into groundwater and then into nearby rivers, streams, or other waters. The NAM filed an amicus brief in support of the defendant utility that argues against this overbroad theory of liability under the Clean Water Act. Our brief argues that the plaintiffs' theory of liability is inconsistent with the Clean Water Act, conflicts with other environmental statutes intended to protect against land pollution and would lead to absurd results if implemented.

On September 24, the Sixth Circuit ruled against the plaintiffs and in favor of manufacturers by rejecting the plaintiffs' claims and holding that the Clean Water Act does not apply to discharges to groundwater.

Related Documents:
NAM brief  (May 4, 2018)


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