Get Big Pivots

A Supreme Court case from Hawaii decision described by CNBC as the most high-profile environmental case of the court’s current term has two cases from Colorado deep in the citations. One is about pollution from a silver mine near Ouray and the other is about a sugar beet factory at Fort Morgan.

In Hawaii, a wastewater reclamation facility that treats millions of gallons of sewage each day was injecting the treated waste into wells deep underground. A study by the EPA showed that nearly all of the treated wastewater ends up in the Pacific Ocean.

Did this require a permit from the Environmental Protection Agency? Yes, said the Sierra Club and other environmental groups, citing requirements of the Clean Water Act. Two levels of federal courts agreed with the environmentalists, the higher level saying that such permits were required when pollutants are “fairly traceable” from the pipe to navigable waters, which includes the Pacific Ocean, via groundwater.

The U.S. Supreme Court, in a 6-3 decision, mostly agreed with the environmentalists but adopted a somewhat narrower requirement. Some news sources called it a compromise.

“We conclude that the statutory provision at issue requires a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into the navigable waters,” said Justice Breyer, author of the majority opinion.

In coming to this conclusion, the justices relied in part upon citations to an amicus brief filed on behalf of Maryland, New Mexico, and 12 other states.

That brief points out that the Trump Administration’s interpretation of the Clean Water Act would allow a polluter to evade the Clean Water Act treatment requirements by moving its discharge pipe into immediately adjacent groundwater.

“This sort of gamesmanship is by no means fanciful,” says the brief in describing one of the two Colorado cases.

1) The Ouray Silver Mine is located along the Yankee Boy Basin road on the way to the Blue Lakes Trailhead for Mt. Sneffels.

The mine violated terms of the permits issued by the state of Colorado, which was premised on enforcement of the Clean Water Act. Mine operators tried to move the discharge a few feet away from Sneffels Creek to avoid the violation while also avoiding the cost of treating the wastewater. The state said no, and the mine then complied.

Since this story was posted on May 2,  Brian K. Briggs, the chief executive of Ouray Silver Mine Inc., has described for this writer far more complexity than was suggested in the amicus brief by Maryland, et al. That letter concludes:

“There is more to the story than what was stated in the Supreme Court oral argument. OSMI worked closely with both CDHPE and DRMS through the water treatment design process and did not simply pull its pipe out of the creek and stick it in the groundwater to avoid its Clean Water Act obligations – it constructed the groundwater discharge system under the DRMS permit.” See attached letter: Description of OSMI discharge Permitting and Complian for Allen Best 04May20-ps-bg

2) The case involving the Great Western Sugar factory in Fort Morgan was more complicated. Lime is used to extract sugar from the pulp of sugar beets. Also, fecal coliform poses a challenge, as beets are commonly grown in fields fertilized with manure. The “mud” washed off the beets contains that fecal coliform.

Western Sugar Cooperative—previously known as Great Western, with offices in downtown Denver—has struggled to meet the effluent limitation guidelines for decades. In 2012, the state health department took a closer look at the hydrology before issuing a new permit. This time it found more actions outside the law. The case was settled in 2018 with Western Sugar paying a $2 million fine for multiple offenses involving water, air quality, and other regulations.

Ellen Howard Kutzer, formerly the permits-section manager at the Colorado Department of Public Health and Environment, says the Supreme Court affirmed Colorado’s interpretation of the Clean Water Act.

“In both these situations, the permittee was having compliance issues, so they tried moving their discharge a few feet away to get out of more stringent requirements. CDPH&E said no – it just a took awhile longer in the case of Western Sugar.”

National media have also pointed to potential implications for cleanup of coal ash. “It makes it clear to utilities that they cannot continue to have leaking unlimited local ash lagoons that are polluting the adjacent lakes, rivers, and streams in violation of their permits,” Frank Holleman, senior attorney with the Southern Environmental Law Center, told E&E, the news service.

Davini Pjaria says the ruling has implications for any sort of surface impoundment, including coal ash ponds. But what constitutes leakage given the somewhat narrow definition of the Supreme Court interpretation will likely result in countervailing testimony by experts.

Footnotes to this story:

1) This writer worked at the sugar beet factory in Fort Morgan, leaving employment in January 1974, the same month that the EPA issued guidance for wastewater discharge.

2) Thomas Hornsby Ferril, now long gone, may remain Colorado’s best-known poet. You can see his lines ‘mid the murals in the rotunda in the State Capitol. Carl Sandburg called him the poet of the Rockies. He made his living, though, singing the praises of sugar beets as director of public relations for Great Western Sugar.

I inquired of Greg Hobbs, a former Colorado Supreme Court justice who had himself served time in the interest of sugar-beet producers as counsel for the Northern Colorado Water Conservancy District. Had Hornsby Ferril ever written a poem about sugar beets? I wondered. Greg thumbed through four books of the late poet’s poems, but found not one about sugar beets.

Greg did share a poem of his own from 2005 about a journey to Bent’s Old Fort along the Arkansas River with his son, Dan. Thanks!

Allen Best
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